A Kilkenny mother lost her High Court case seeking orders compelling the HSE to grant her application for a home birth last Friday.
University lecturer Aja Teehan, whose second child is due on October 13 applied to have the baby born at home in Thomastown assisted by a midwife said she was ‘disappointed in the legal system on her own behalf and for all the women in Ireland’.
The decision as to who will pay costs in the case has been adjourned until September 6 and this along with the birth of her child are significant factors in whether she will decide to appeal the decision to the Supreme Court.
“I can’t make the decision right now as to whether or not I will take this case to the Supreme Court,” she said.
Ms Teehan said she had received ‘a hugely positive response’ especially after going on one of the radio’s most popular programmes The Ray D’arcy Show on Monday morning.
She had alleged that the HSE is operating a “blanket policy” of refusing to cover home births for women who previously had Caesarean section births and that alleged policy means she cannot have her baby at home as a midwife will not get indemnity cover to attend. Ms Teehan has a six-year-old daughter born after a Caesarean section.
Ms Justice Iseult O’Malley today rejected her application and said it would be “manifest irrationality” for the courts to change the criteria for home births as set out by the HSE. She said the claim by Ms Teehan amounted to compelling the HSE to “accept, or rather, to consider in good faith whether it would accept liability for a risk that it does not believe is justifiable.”She added: “As a matter of law, I do not consider that she is entitled to that.”
Under those terms, the HSE has agreed to indemnify independent midwives under terms which exclude potentially risky births include vaginal birth after Caesarean section (Vbac) which Ms Teehan wants to have.
Changing the criteria for women who want to have such births would be a “clinicial decision, based on assessment of the risks involved which the court is not entitled to make”, Ms Justice O’Malley said.
At a hearing last month, Matthias Kelly SC, for Ms Teehan, told Ms Justice O’Malley his client was not trying to be “some sort of martyr” but was trying to minimise the risk for herself. She was acting as a perfectly responsible mother and had asked the HSE to look at the evidence in her case but there was “no engagement” by the HSE, just a repeat of a “mantra” when declining her application.
Opposing the application, Paul Anthony McDermott, for the HSE, said it fully recognises the bona fides of Ms Teehan and that she sincerely wishes for a home birth and clearly believes it is safe.
Ms Teehan had failed to identify what statutory right of hers has been unlawfully fettered, he said. The HSE had “not plucked the policy out of thin air” but had followed the practice in other jurisdictions and the policy was rational and based on medical evidence.
Eoin McCullough SC, for the Minister for Health, argued the policy at issue was that of the HSE and not of the State.
Several dozen home birth supporters came to the court to support her.
Ms Teehan told them it was a “really worthwhile fight”. “Maybe in 10 years it will be easier for our daughters and sons,” she said.