Court orders life-saving transfusion
MARY CAROLAN
A life-saving blood transfusion was administered to a critically ill baby under a court order secured by a Dublin hospital at a late night court hearing in a High Court judge’s home after the child’s parents, members of the Jehovah Witness faith, objected on religious grounds to the procedure, it has emerged.
The baby boy, who became very unwell on Christmas Day and whose condition continued to deteriorate, received the transfusion shortly after a hearing which concluded at 2.30am on December 27th in Mr Justice Gerard Hogan’s home, the judge revealed today.
The decision is Temple Street v D [2011] IEHC 1 (12 January 2011):
35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views. But, as Article 42.5 [of the Constitution] makes clear, that right is not absolute. The State has a vital interest in ensuring that children are protected, so that a new cohort of well-rounded, healthy and educated citizens can come to maturity and are thus given every opportunity to develop in life. This interest can prevail even in the face of express and fundamental constitutional rights. …
36. Of course, the right of the State to intervene and thus to override the constitutional right of the parents is expressly circumscribed by the language of Article 42.5. The circumstances must be “exceptional” and the intervention proportionate (“…..with due regard”) to the circumstances. There must also have been a “failure” of duty on the part of parents. But there is absolutely no doubt but that the court can intervene in a case such as this where the child’s life, general welfare and other vital interests are at stake … [North Western Health Board v HW [2001] 3 IR 622, [2001] IESC 90 (8 November 2001)]:
37. Of course, in one sense – as Birmingham J. pointed out in a case with very similar facts, Re Baby B, High Court, 28th December, 2007 – the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that [the baby’s parents] CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.
38. Given that Article 40.3.2 commits the State to protecting by its laws as best it may the life and person of every citizen, it is incontestable but that this Court is given a jurisdiction (and, indeed, a duty) to override the religious objections of the parents where adherence to these beliefs this would threaten the life and general welfare of their child.
39. It was for these reasons that I granted a declaration to the effect that it would be lawful in these particular circumstances for the Hospital to administer a blood transfusion (along with other associated blood products) in the case of Baby AB. …