The Right to Die

Euthanasia is a “deliberate act or omission whose primary intention is to end another person’s life.” Assisted suicide is a criminal offence under s.2(2) of the Criminal Law (Suicide) Act 1993:

“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”

The difference between euthanasia and assisted suicide is that, with euthanasia, the acts of the doctor result in the patient’s death, whereas with assisted suicide, the patient takes the final steps themselves, although with the doctors’ help, who has prescribed the required drug.

Both euthanasia and assisted suicide are illegal under Irish law. Euthanasia, depending on varying circumstances, is regarded as either manslaughter or murder and is punishable by up to life imprisonment. Assisted suicide is illegal, even though the person assisted having been asked by the chronically ill person, or did so to be compassionate and end their suffering.

There is a notable difference between acts and omissions leading to death. A person allows someone to die, if they are able to prevent the death, but do not do so. A person kills if they perform an act causing another to die, who would otherwise have not died. The doctrine of double effect must also be considered. This distinguishes between the consequences a person intends and those that are unintended but foreseen.

There is an increasing support for allowing competent adults to make their own medical decisions, even if this may result in their death. People often seek help in taking their own life, due to their illness making them disabled or physically unable to carry the act out themselves.

The issue hasn’t been raised before the Irish courts often and there is an obvious lack of case law in Ireland. The Irish Medical Council have stated, however:

“ You must not participate in the deliberate killing of a patient by active means”.

download

Marie Fleming and husband Tom Curran in earlier times. [Image-  Family Handout]

Fleming v Ireland & Ors [2013] is undoubtedly the most well known Irish case on the issue of assisted suicide. Marie Fleming, a Multiple Sclerosis sufferer, wanted it confirmed by the DPP that if her husband assisted in ending her own life, he wouldn’t be prosecuted. Mrs Fleming failed. The Supreme Court focused on the express right to life in the Constitution and set out that there was:

“no explicit right to commit suicide, or to determine the time of one’s death, in the Constitution”

However, the Supreme Court did say it was the role of the Oireachtas to legislate for such matters.

This case was followed in 2015 by the largely unreported Gail O’ Rorke trail which was the first prosecution under the Criminal Law (Suicide) Act 1993. Ms O’ Rorke had attempted to organise a trip to Dignitas in Switzerland for her friend, Ms Forde who had Multiple Sclerosis. The Gardaí intervened and made Ms. O’ Rorke aware that to do so is an offence. She informed the Gardaí of having sent €400 to Mexico on Ms. Fordes’ behalf and said she only later found out it was for a life-ending drug. Ms Forde later went on to take this drug and successfully ended her own life.

Ms Rorke was acquitted of the offence and the jury also found that she was not guilty of “procuring” Ms. Fordes’ death by helping her arrange her funeral.

It is important to remember the differences in circumstances in the Gail O’ Rorke case, and the Fleming case, and to recognise that the O’ Rorke case does not represent a departure from the Irish Courts view on the illegality of assisted suicide and euthanasia in this jurisdiction. The O’ Rorke case simply didn’t amount to “assisting” suicide.

Personally, I would like to see reform in this area. I would like to think that if I had such a debilitating illness, that I would at least have the option to have a family member close by if I did wish to end my suffering. Of course there would be issues with capacity to consent, but given someone had the capacity, I don’t see why they should continue to suffer, or have someone close to them criminalised because they assisted them. To me it seems wrong that if people do wish to end their suffering, they often have to travel alone to places like Dignitas in Zurich.

What is your view on the issue?

(Featured Image: Stock Image – Morguefile)

 

Advertisements

Is My Place In The Home?

Let’s talk about Article 41.2 of the Irish Constitution. If you are a woman, it tells you your place is in the home. I can only speak for myself, but the home is not my place. I am a 22 year old undertaking a university degree with big aspirations. I certainly don’t intend confining myself to home. Not to say that there is anything wrong with being a homemaker, its perfectly respectable, but it not ME.

The provision itself states:

1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Now we must remember, this Constitution was penned in 1937. The provision was undoubtedly a product of its time– a bid to protect women and recognise their vital role in society. However, society has changed rapidly and has certainly rendered this provision outdated.

If we only look to the preceding article, article 40.1, we will see the Irish stance on equality:

“All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

Arguably, owing to Article 41.2, women aren’t equal to men under the Constitution. Women have a different “social function” to men. It has been stipulated that Article 41.2 read in conjunction with Article 40.1, could justify gender discrimination.

There has in fact been cases where gender discrimination was justified by invoking Article 41.2

The case of L v. L (1992) regarded a wife, seeking equitable ownership of the matrimonial home. She sought to rely on art 41.2, submitting that she made contributions though her work at home. In the Supreme Court it was held that Article 41.2 didn’t provided women such a protection as the contribution they made in the home does not give them an equitable ownership under Art 41.2. It was expressed by Chief Justice Finlay that the article doesn’t provide any particular right within the family, “whether property or otherwise”.

14120602096_be8d3e7b3e_k

Judge Susan Denham Image – Department of Children & Youth Affairs Flickr (cropped) – https://flic.kr/p/nvMM3Q

In the 2001 case of Sinnott v Minister for Education, Judge Denham attempted to justify the article by stating:

 “Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities”.

Many bodies have called for the Art 41.2 issue to be addressed. In 1993 The Report of Second Commission on the Status of Women suggested the article should be abolished and later called for it to be amended. The Constitution Review Group Report in 1996 suggested that the article be modified to a gender neutral form. They put forward the following as the proposed article:

“The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.”

In the First Progress Report in 1997, The All-Party Committee on the Constitution, agreed with the  Constitution Review Group, amendment, although they slightly changed the wording in their proposal.

However, given that the article doesn’t provide any social or economic rights, one would have to wonder what the purpose of amending the article would be. Arguably we should repeal it.

While the article may not “confine” women to the home, it portrays a negative normative message. Its inclusion doesn’t provide women with any positive obligations, rather it depicts an archaic expectation of women. It certainly provides nothing beneficial to women. The article also fails to recognise stay-at-home fathers therefore undoubtedly embeds gender roles within the Constitution.

The National Women’s Council of Ireland have submitted that we repeal the article and The UN Committee on the Elimination of Discrimination against Women have necessitated  the amendment of Article 41.2 to remove “stereotypical language on the role of women in the home.”

Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission has suggested that that if there is a referendum on abortion, we should also vote on the article 41.2 issue.

What are your thoughts? Should we repeal/amend Article 41.2? Does the inclusion of the article anger you, or does its inclusion not vex you in the slightest?

Featured Image: Stock Image – Pixabay

Ireland’s Transgender Recognition

Up until recently, transgender people in Ireland were fighting a long battle to get their rights recognised under Irish law. Foy v An t-Ard Chláraitheoir (No. 2) was the seminal Irish case in this regard. Dr Lydia Foy was a transgender woman who had gone through gender reassignment surgery and then sought a new birth certificate which recognised her as a female. On her first application to the Irish court- Foy v An t-Ard Chláraitheoir (No. 1), it was held that the state weren’t violating Ms. Foy’s Constitutional rights by not recognising the gender she identified as.

19278800941_22cf783ee9_zjkjbnew

Dr Lydia Foy Image: Sinn Féin Flickr – https://www.flickr.com/photos/sinnfeinire land/19278800941/in/photostream/

However, 2 days after that judgment, the UK case of Goodwin v UK came before the Strasbourg court. In Goodwin, the ECtHR (European Court of Human Rights) recognised that Art 8 of the ECHR (European Convention on Human Rights), which protects the right to private life, protects the right for a person to establish their own identity as a human. By the time Foy (No. 2) came before the Hight Court, the ECHR was incorporated into our law. McKechnie J relied on ECtHR cases and recognised that the Goodwin decision cemented the position of transgender people under the ECHR. He noted that Irish law was in contravention of Article 8 of the  ECHR as it did not recognise the rights of transgender individuals. McKechnie J therefore granted the first ever declaration of incompatibility with the ECHR under s.5 of the ECHR Act 2003. The Gender Recognition Advisory Group proposed that legislation should be amended to recognise transgender peoples rights. However, there was a substantial delay before there was any progress on this and the Irish State was subject to criticism from the likes of the Council of Europe’s Commissioner for Human Rights.

Finally, the Gender Recognition Act 2015 was passed on 15th July 2015. This Act allows transgender people legal recognition of the gender they identify as (without requiring they undergo gender reassignment surgery) and under the Act, they can request a new birth certificate which reflects this. The Act applies to people 18+, although 16 & 17 years old can obtain legal recognition but must go through a more rigorous process.

Dr Lydia Foy was the first transgender person to be recognised under the 2015 Act. Since the enactment of the  Act, many transgender people have been legally granted recognition in Ireland. The legal recognition of transgender people in Ireland has also proven to be a stepping stone for social acceptance, for people who are often marginalized. Recently, we have seen the likes of Girl Guides Ireland stating that they have amended their policy to welcome transgender girls.

Whilst Ireland is undoubtedly moving in the right direction, only time will tell on this issue as unfortunately, no legislation is watertight.

Featured Image: Stock Image – Unsplash https://unsplash.com/collections/554131/hyper-gender?photo=aht9I6SOu2A