Maternal brain death and legal protection of the foetus in Ireland

Abstract

Maintaining somatic support after brain death in a pregnant woman to support foetal life is a controversial and little understood treatment. International consensus indicates that this treatment may be ethical but only in certain limited circumstances. The Irish Constitution protects the right to life of the unborn. This article considers the recent case of PP v. HSE in which the Irish High Court addressed the protection of unborn life in the context of maternal brain death. Although the Court ordered the withdrawal of somatic support, this holding was largely based on the conclusion that the foetus could not survive. The decision strongly implies that maintaining somatic support may be constitutionally mandated in cases where the foetus has a chance of survival. This article argues that the effect of the Irish law is to deny doctors the ability to assess these situations using their best clinical and ethical judgement.