Marie Fleming, who lives with MS and is married to Tom Curran, a leader of Exit International, a euthanasia lobby group, challenged the Irish assisted suicide law claiming that the assisted suicide law is unconstitutional based on the Constitution and the European Convention of Human Rights. The case was heard last month.
This decision is particularly important for Canada because the Fleming case was based on the Carter case in British Columbia. The Carter case is going to the BC Court of Appeal in March 2013.
According to the Irish Independent the Irish court unanimously upheld the assisted suicide law in a 100 page document. The Divisional Court:
rejected Ms Fleming's claims under the Constitution and the European Convention of Human Rights.
The court said that it was impossible to liberalise the law on assisted suicide and at the same time protect vulnerable persons such as the aged, the disabled, the poor, the unwanted and others including those who were financially compromised who may be vulnerable to assisted suicide.
The Irish Independent stated:
In her landmark action, Ms Fleming claimed that the strict ban on assisted suicide was unconstitutional and in breach of the European.
Convention on Human Rights (ECHR) as, she claimed, it violates her rights to dignity, privacy and autonomy.
According to the Irish Independent, the Crown opposed to the arguments by Fleming based on:
Lawyers for the State opposed the action during a six day hearing.
The State said that although suicide had been decriminalised, there was no constitutional right to commit suicide.
The State said it was entitled, as a matter of social policy, to maintain the ban.
The Irish Times explained the Fleming decision in this way:
While finding her personal autonomy and equality rights were engaged by the ban, the court found no disproportionate interference with those rights.
This case was “entirely different” from one where a competent adult refused medical treatment, even if such refusal led to death, because assisted suicide involved the taking of “active” steps by a third party to bring about the death of another.
If the court could “tailor-make” a solution to suit Ms Fleming’s needs “alone” without any possible implications for third parties or society at large, there might be “a great deal” to be said for her article 40.3.2 case, but the court could not be so satisfied.
The court had heard ample evidence to support the view any relaxation of the ban would be impossible to tailor to individual cases and also inimical to the public interest in protecting the most vulnerable. Evidence from other countries where assisted suicide was legal showed abuse risks were “all too real”.
The decision of the Irish court was very important. The three judge panel heard very similar evidence as the Canadian court in the Carter case and decided to uphold the current law.
The Fleming case will likely be appealed to the Irish Supreme Court.