Health Service Executive v B

JudgeMr. Justice Twomey
Judgment Date02 November 2016
Neutral Citation[2016] IEHC 605
Docket Number[2016 No. 8730P],[2016 No. 8730 P]
CourtHigh Court
Date02 November 2016



[2016] IEHC 605

[2016 No. 8730P]


Constitution – Art. 40.3.3 of the Constitution – Health – Right to life of an unborn child – Refusal to undergo caesarean section – Intervention of Court – Exceptional circumstances – S. 45 of the Courts (Supplemental Provisions) Act, 1961 – Lifting of in camera proceedings

Facts: The plaintiff filed an application for an order to force the defendant (a pregnant woman) to have a caesarean section against her will in order to vindicate the right to life of the defendant's unborn child. The plaintiff, on the basis of medical evidence, claimed that the defendant, who had previously undergone three caesarean sections, could not get the child delivered normally as there would be a risk of rapture to the defendant's uterus that would put the defendant's life and the unborn child's life in danger. The defendant resisted the claim of the applicant and insisted to get the defendant's child delivered naturally. However, during the course of the proceedings, the defendant, owing to the difficult circumstances, gave birth to the third party by caesarean section. The defendant now sought an order to lift the order under s. 45 of the Courts (Supplemental Provisions) Act, 1961 in relation to the proceedings. The plaintiff argued for the retention of the in camera order on the ground of the best interest of the third party.

Mr. Justice Twomey refused to order a forced caesarean section of the defendant despite the danger to the health of the defendant and her unborn child. The Court, in line with the principle laid down in North Western Health Board v HW and CW [2001] 3 IR 622, held that the intervention of the Court in the parent's decision in relation to putting the life of an unborn child at risk could only be justified in extreme and exceptional circumstances. The Court found that the increased risk, which the defendant was undertaking for her unborn child and herself, was not such as to justify the Court to force a caesarean section against her will, something which would have been a gross violation of the right to bodily integrity if it were done on a woman who was not pregnant. The Court ordered the lifting of the in camera order under s. 45 of the 1961 Act in relation to the proceedings. The Court found that there was no recognized interest that the plaintiff had in remaining the proceedings in camera as to be more significant than the requirement under art. 34 of the Constitution that justice should be made in public.

EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 2nd day of November, 2016.

This is a very urgent case which was heard at great haste in light of the risk to the life of a mother and her unborn child. It involves an application by the HSE for an order to force a pregnant woman to have a caesarean section against her will in order to vindicate the right to life of her unborn child. According to counsel, it is the first case of its kind in this jurisdiction. The HSE, the expectant mother and the unborn child were all separately represented at the hearing. The father of the unborn child was not represented.


This case involves a pregnant woman (‘Ms. B’) who is a patient in a hospital in the State and her due date was yesterday so the unborn child is full-term and therefore has a gestational age of 40 weeks. Her three other children were delivered by caesarean sections. This is a crucial factor in this case. This is because as Ms. B has already had three caesarean sections, this means that if she were to have her unborn child delivered naturally, there is a risk of her uterus rupturing which could lead to the death of her baby and the death of Ms. B herself. Hence, the medical advice she has received is that she should have an elective caesarean section, rather than attempting a natural delivery which risks uterine rupture. Even if during a normal delivery, uterine rupture is avoided, the medical advice was that opting for a natural delivery after a third caesarean section could require an emergency caesarean section with all the greater risks to the health and life of the mother and unborn child which are attached to an emergency caesarean section, compared to an elective caesarean section.


Expert medical evidence was provided by Dr. D (who is not Ms. B's consultant obstetrician, but is a leading obstetrician in Ireland) to the effect that there is a 1 in 150 chance of the uterus rupturing during a natural birth, where the mother has previously delivered once by caesarean section. This is because the uterus is weakened by the surgery involved in a caesarean section. Dr. D gave evidence that there is a 1 in 50 chance of the uterus rupturing during natural delivery, where an individual has previously undergone two caesarean sections. He was initially reluctant to give any figures for the chances of uterine rupture after a third caesarean section, as in the case of Ms. B, on the grounds that it is unheard of in this country that a woman would give birth naturally after a third caesarean section. This is because such babies would always be delivered by elective caesarean section. However, when pressed, he gave a ‘guesstimate’ of a 1 in 10 chance of Ms. B's uterus rupturing and a consequent risk of serious injury, even death, to the foetus and Ms. B, if she were to proceed with a natural birth.


Ms. B's own obstetrician, Dr. A gave evidence that he told Ms. B that he had never overseen a normal birth after three caesarean sections, and therefore he was not in a position to provide this service to her in view of the increased risk to the health and life of the mother and the baby. Evidence was also provided to the Court on behalf of the HSE that no other hospital in Ireland was available or willing to supervise a natural delivery of a baby after three caesarean sections, in view of the risks involved.


No contrary medical evidence was provided, although it should be noted that counsel for Ms. B was only instructed in this case at 10 a.m. this morning and so this is perhaps not surprising. What counsel for Ms. B did refer to in his cross-examination of Dr. D and Dr. A, was the October 2015 Guidelines of the Royal College of Obstetricians & Gynaecologists in the United Kingdom in relation to Birth After Previous Caesarean Birth. In particular he referred to paragraph 6.3 of those Guidelines which states (and it should be noted that VBAC means “vaginal birth after caesarean” and NICHD is the “National Institute of Child Health and Human Development”) :-

‘6.3 Can women with two or more prior caesareans be offered planned VBAC?

Women who have had two or more prior lower segment caesarean deliveries may be offered VBAC after counselling by a senior obstetrician. This should include the risk of uterine rupture and maternal morbidity, and the individual likelihood of successful VBAC (e.g. given a history of prior vaginal delivery). Labour should be conducted in a centre with suitable expertise and recourse to immediate surgical delivery. [emphasis in original]

A multivariate analysis of the NICHD study showed that there was no significant difference in the rates of uterine rupture in VBAC with two or more previous caesarean births (9/975, 92/10,000) compared with single previous caesarean birth (115/16,915, 68/10,000). These findings concur with other observational studies, which, overall, have shown similar rates of VBAC with two previous caesarean births (VBAC success rates of 62-75%) and single prior caesarean birth. It is notable that more than half of the women with two previous caesarean deliveries had also had a previous vaginal birth and almost 40% had a previous VBAC. Hence, caution should be applied when extrapolating these data to women with no previous vaginal delivery.

A systematic review has suggested that women with two previous caesarean deliveries who are considering VBAC should be counselled about the success rate (71.1%), the uterine rupture rate (1.36%) and the comparable maternity morbidity to the repeat caesarean delivery option. The rates of hysterectomy (56/10 000 compared with 19/10 000) and transfusion (1.99% compared with 1.21%) were increased in women undergoing VBAC after two previous caesarean births compared with one previous caesarean birth. Therefore, provided the woman has been fully informed by a senior obstetrician of the increased risks and a comprehensive individualised risk analysis has been undertaken of the indication for and the nature of the previous caesarean deliveries, then planned VBAC may be supported in women with two or more previous lower segment caesarean deliveries.’

While this Guideline would suggest that a woman with two or more caesarean sections could be a candidate for a natural delivery, it is to be noted that the Guideline itself makes it clear that these figures are to be treated with caution and that more than half of the women with two previous caesarean section deliveries, had also had a previous vaginal birth and 40% had a previous vaginal birth after caesarean. In this regard, it is important to note that Ms. B has never had a vaginal birth.


Counsel for Ms. B also referred to a Guideline issued by the Institute of Obstetricians & Gynaecologists Guidelines of Ireland (which the Court was advised is part of the Royal College of Obstetricians and Gynaecologists) and is dated October 2013 on Delivery after previous Caesarean Section and in particular para 5.8 which states (and it should be noted that UR means “uterine rupture”, CS means “caesarean section” and TOLAC means “trial of labour after caesarean”):-

‘5.8 Delivery after two or...

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