Woman loses legal challenge to home birth ruling

The High Court has rejected a case taken by a mother seeking orders compelling the HSE to grant her application for a home birth.

University lecturer Aja Teehan, whose second child is due on October 13th, applied to have the baby born at home in Thomastown, Co Kilkenny, assisted by a midwife.

She alleged the HSE is operating a “blanket policy” of refusing to cover home births for women who previously had Caesarean section births, which 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.”

In a 21-page written judgment, which was not read out in court, Ms Justice O'Malley said it had already been established through the case of O'Brien v South Western Area Health Board that there was was no statutory obligation on the HSE to provide for a home birth service.

However, the HSE does allow home births under the terms of a memorandum of understanding (MOU) between themselves and independent midwives who assist with home births.

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 “clinical decision, based on assessment of the risks involved, which the court is not entitled to make”, Ms Justice O’Malley said.

Potential risk

The judge acknowledged there were disputes over the potential risk involved in a uterine rupture during a home birth. Even if it was 0.5 per cent, as had been claimed, she said it was not her task to decide who was right in the argument.

“The HSE is entitled, having regard to the potential consequences of uterine rupture, to provide maternity services in such a way as to minimise the risk of its occurance, even if that risk is small,” she 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 had “not plucked the policy out of thin air” but had followed the practice in other jurisdictions. The policy was rational and based on medical evidence.

This afternoon Ms Justice O’Malley set the issue of costs back for hearing on September 6th.

Ms Teehan said she would now consult her legal team as to whether she will appeal to the Supreme Court.