Dr. Conor Casey:

I thank the Cathaoirleach and members for the opportunity to address the committee the constitutional context in Ireland for assisted dying. As this committee is aware, in the Fleming v. Ireland case, the Supreme Court held there is no constitutional right to determine the timing and manner of one's death, whether through assisted suicide or voluntary euthanasia. The Supreme Court in Fleming v. Ireland that the current categorical statutory ban by the Oireachtas on both kinds of the intentional taking of life to be constitutionally unimpeachable. An important question left unresolved by the Supreme Court in the Fleming case is whether the Oireachtas has legislative competence to permit assisted suicide or voluntary euthanasia via statutory regime. In my remarks, I will set out reasons I think the most persuasive interpretation of the Constitution, in the absence of a definitive judgment by the superior courts, is that the Oireachtas is not competent to introduce a statutory regime that would permit the intentional taking of life in defined circumstances, whether in the form of a statutory right to assisted suicide or voluntary euthanasia. I reach this position for several reasons that I have elaborated on more fully in the briefing documents that have been circulated to the committee.

First, I do not think we should read the Supreme Court’s obitercomment in paragraph 108 of the Fleming judgment as in any way offering a considered conclusion on the constitutional competence of the Oireachtas, even in principle, to introduce a statutory regime that would permit the intentional taking of life.

The court stressing that nothing in its judgment should be taken as necessarily implying that the Oireachtas cannot legislate to address a scenario like that of the applicant in the Fleming case is quite distinct from providing explicit judicial endorsement of the proposition the Oireachtas has competence to legislate in this area of social policy. To me, the passage reads more like a prudent clarification by the court that it was deliberately not attempting to settle in the abstract and without the benefit of hearing full arguments on the merits, which is a critically important additional legal question only indirectly raised by proceedings.

Second, in leaving this obitercomment to one side, the firm textual commitments in Article 40.3 seem to conflict very sharply with the proposition the Oireachtas could legislate to permit third parties to engage or assist in the intentional taking of human life in any circumstance. It is difficult if not impossible to frame legislation that provides a statutory right to intentional killing as a reasonable attempt by the Oireachtas, in the context of Article 40.3, to either respect, defend, protect or vindicate by its laws the right to life of every citizen as far as practicable.

Third, this understanding of the text and structure of Article 40.3 is bolstered by considering the underlying values and principles of the Constitution. As noted in the Fleming case, the intentional destruction of human life is deeply at odds with the social order envisaged by the Constitution and its understanding of what human dignity and respect for the sanctity of life require. As the then Chief Justice Denham put it in the Fleming case, "the social order contemplated by the Constitution, and the values reflected in it that would be the antithesis" of any legal entitlement to intentionally take life.

Fourth, in very recent judgments of the High Court and Supreme Courts in theRe JJ case, where both courts were very careful to distinguish between the administration of palliative medicine and what the then President of the High Court, Ms Justice Mary Irvine, and Mr. Justice O’Donnell both referred to as the “constitutional prohibition on euthanasia” that encompassed intentionally taking steps to terminate life. Neither judge elaborated on precisely what kind of intentional taking of life they thought was constitutionally prohibited under the rubric of euthanasia, nor whether the Oireachtas could legally provide a statutory right to access, for instance, voluntary euthanasia in defined circumstances. However, their choice of words was not accidental or random and clearly reflects the serious emphasis the Constitution and its underlying principles put on protecting the right to life against the threat of intentional killing, regardless of the motivation behind the intentional act.

Finally, and importantly, regard must be had to what can only be described as the litany of very serious concerns raised by the divisional High Court which sat in the Fleming case about the possible impact and operation of prospective laws that could be devised by the Oireachtas to permit any form of intentional taking of life. These concerns, and the court’s evident scepticism that abuses could ever be curbed entirely, are very relevant to assessing whether such potential legislative reforms can ever be consistent with the State’s solemn duty to protect life under Article 40.3.

In the absence of a determinative judgment of the superior courts, the most persuasive interpretation of the Constitution open to us is that the Oireachtas is not competent to introduce a legislative regime that would permit either a statutory right to assisted suicide or voluntary euthanasia.

I thank the Chairperson and committee members for their attention.