Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

The Senator is opposing section 74 of the Bill, which relates to the validity of an AHD and the role of the court in this regard. Section 89(2) concerns an application to the High Court for a determination regarding the applicability or validity of an AHD, which itself concerns life-sustaining treatment or the actions of a designated healthcare representative in respect of that directive. Section 89(3) of the 2015 Act is connected to section 89(2) and provides a basis for a healthcare professional to provide treatment to the directive-maker during the time the High Court is considering the directive and outside the context of the directive under consideration. Under section 89(3)(b)(ii) of the 2015 Act, such treatment can be extended to the unborn. The amendment to section 89(3)(b)(ii) of the 2015 Act, as set out in section 74 of this amendment Bill, will change the wording of section 89(3)(b)(ii) so it now uses the term “pregnancy”.To address Senator Mullen's question, this change to the terminology in the Act is to better reflect the changed legal landscape. The term "unborn" was used in the 2015 Act to take account of the legal position arising from Article 40.3.3° of the Constitution. Following the removal of Article 40.3.3°through the 36th amendment, the term is no longer relevant to the functioning of the Act.

At the same time, recognising the matters to be considered by the High Court under section 89(2) of the 2015 Act will still be relevant. After the removal of section 85(6) of the 2015 Act, it is apparent that section 89(3)(b)(ii) will still be important to ensure healthcare professionals can perform any acts they reasonably believe are necessary to avoid a deleterious effect on the pregnancy of the directive-maker while the courts make a determination in this regard. This may be particularly important in the context of clarifying and vindicating the will and preference of the directive-maker. This provision of the 2022 Bill thus both recognises the unique situation that may arise where a directive-maker who has lost capacity is pregnant, while at the same time underlining that the focus is on the will and preference of the directive-maker.