A man called Brian Murray said during the week that "the State cannot
criminalise private behaviour because it doesn't like it", a quiet,
level-headed statement.
Not surprising, because Brian Murray is a senior counsel, and he said it
in the High Court.
But behind it lies a depth of soul-destroying misery
that each of us can only hope we will never personally have to face, as
we contemplate in horror what Mr Murray's client is enduring.
We have been criminalising private behaviours for generations in this
country, even right through the 20th Century and into the 21st. We
policed the bedrooms of married couples, forcing them into cold celibacy
if they could not cope with more children.
Less than a generation ago we were still criminalising homosexual acts,
even bet-ween consenting adults in private. It needed the courage of one
man (David Norris), who took the matter to the heart of Europe before
we were forced out of that particular Dark Age.
Those measures were defended virulently in their day as giving legal
force to the "natural law".
The natural law is the term used by
Creationists, usually Christians of the Roman Catholic persuasion, to
justify a brutal moral code which cannot be defended by rational
thought, by scientific knowledge, or even in defence of an ethical
society.
As recently as 1993, we passed a law – Section 2.2 of the Criminal Law
(Insanity) Act – which provides for a jail sentence of up to 14 years
for those who assist in or help procure the suicide of another.
In 1995, the family of a woman who had been vegetative and on a life
support system for a quarter of a century went to court to get
permission, not to take an action to end her life by artificial means,
but to end the artificial life provided by a machine.
The hospice in
which the woman's body was kept, owned and run by the Sisters of
Charity, brought an action in defence of life, to prevent this
happening.
The Supreme Court found that, according to the Constitution,
there was indeed a right to die in Ireland: the right to die a natural
death. There seems to be neither logic nor consistency in that
Oireachtas decision.
Or were the legislators themselves confused as to
the Constitutional provisions?
Now another deeply vulnerable Irish citizen has begun a legal battle to
be given what many people would see as a natural right. Hideously
crippled and disabled by multiple sclerosis, and in continuous agonising
pain from it, Marie Fleming wants to take her own life : "commit
suicide" in the old parlance from the time when that was a crime.
If she could do it, she would. But her physical condition has taken her
past the situation where she can.
Ms Fleming is helpless. She can
neither walk nor stand. Her hands are encased in splinted gloves because
they are useless. She is losing the power of speech. She is only 58 –
an age when most of us can look forward to another 25 years of active
and fulfilled life. But her future is the prospect of choking horribly
to death.
She is lucky enough to have a wonderful man in her life, her partner Tom
Curran, who loves her enough to want to help her.
Her adult children
love her enough to want to let her go.
If the High Court decides that it
can be permitted, they will be with her and she will be in Tom's arms
when she takes her last breath.
Three judges of the High Court are sitting together to interpret the
Constitution as to whether Ms Fleming may legally be assisted to die.
The case, apparently, rests on a number of issues including Ms Fleming's
right to have her bodily integrity considered; that body wracked with
pain and disintegration 24 hours a day, every day; a body that has
become a prison.
The three judges faced with this almost inconceivably
dreadful case are the President of the High Court Mr Justice Nicholas
Kearns, Mr Justice Paul Carney and Mr Justice Gerard Hogan.
Their names
are familiar to anyone who follows public events in this country; we've
often heard reports of their pronouncements from the Bench.
Now they must pronounce on Ms Fleming's fate: whether she can be allowed
the peace of dignity in death, or whether the Constitution, as is being
argued in court by Ireland, the Attorney General, and the Director of
Public Prosecutions, will be interpreted as maintaining an absolute ban
on assisted suicide in the face of the wishes of a terminally ill person
in dreadful physical and mental suffering, who is in full possession of
their mental faculties, and would end their lives by their own hand if
they had the physical capacity.
The State is arguing the case that such a judgment, even in the
narrowest of circumstances, could open the floodgates, even lead to
euthanasia becoming a practice.
Paul O'Higgins SC, representing the DPP,
has argued in court that even issuing guidelines on criminal liability
in assisted suicide could result in the creation of a template to commit
a crime.
Euthanasia is a frightening term and thought: it conjures up for most
people of any kind of human awareness the early days of Nazi Germany,
when extermination of the "impure" such as mentally or physically
handicapped people was given that name. No sane person would countenance
such vileness, or regard it with anything other than horror.
But it has not become the practice in the four countries in Europe,
which do permit assisted suicide. They have all been able to make laws
that have protected vulnerable people.
(For once, Ireland is not
isolated among civilised nations: sadly, we are among the majority of
European countries in refusing to make laws for very restricted cases
where assisted suicide could be made possible.)
There are two broad categories in attitudes towards suicide, assisted or
otherwise. Either you believe that it is an unforgivable crime of
cowardice and despair; (the Catholic Church regards it as the ultimate
sin, a rejection of God's love, and until recently refused to bury
suicides in consecrated ground, though nowadays it keeps fairly quiet
about its solemn teaching that a suicide is damned forever to hell. But
that is the teaching).
Or you believe that it is an act, sometimes a
foolish and unnecessary act, often selfish, but one of great courage,
and ultimately the final civil right. (And no, I am not writing of the
self-absorbed, tragic confusion that motivates teenage suicide.)
But now those three learned judges are faced with a solemn task of
finding whether our Constitution allows for compassion; or whether, as
so often in the past, it is found wanting in human terms.
We can only hope the supposedly merciful god to whom our founding
fathers piously dedicated our country, its constitution, laws and people
will be found to have inspired the founders to write a Constitution
that can be interpreted to allow Ms Fleming to die without gasping for
mercy and an end to her agony.
And when Ms Fleming's inspiring, dignified presence is gone, may
whatever god he believes in, if any, give comfort and strength to Tom
Curran, the lover who unselfishly and courageously wants to help her out
of her pain.