Four women who last month lost a legal bid to compel two health boards to provide them with home birth services are facing a legal bill estimated at €250,000 after the Supreme Court yesterday awarded costs of their proceedings against them.
Their lawyers are now considering bringing proceedings to the European Court of Justice arising from last month's Supreme Court decision rejecting the women's case. It is understood the basis of the European case will be that the eight-page Supreme Court judgment was unsatisfactory and had failed to follow a precedent set in a previous Supreme Court decision of October 1988.
The lawyers will also seek compensation in relation to the costs awarded against the women.
In the 1988 decision, a three-judge Supreme Court presided over by the then Chief Justice, Mr Justice Finlay, noted that section 62 of the Health Act 1970 provided that a health board "shall make available without charge medical, surgical and midwifery services for attendance to the health in respect of motherhood of women who are persons with full eligibility or persons with limited eligibility".
It also stated there was no dispute that section 62 applied "whether a person with such eligibility is anxious to have their child born in a hospital or maternity home or at home" and that there was no difference in the extent of the obligation, although there may be differences in the method of providing it.
The issue in 1988 was whether the midwifery service referred to could be provided by a registered medical practitioner or whether they must be provided by a registered midwife. Mr Justice Finlay held the services could be provided by a registered medical practitioner and the health board did not have an obligation to provide a midwife. Mr Justice Finlay also held that the obligation in section 62 could only be provided by a health board if it entered into arrangements with either a registered medical practitioner or registered midwife to attend the woman in her home.
The obligation could not be discharged merely by an offer to pay the costs, excluding insurance costs, of a midwife or medical practitioner privately secured by the woman in question.
The challenge by the four women to the refusal of the South Western Area Health Board and the East Coast Area Health Board to provide them directly or indirectly with home birth services was rejected by the Supreme Court on October 21st. In a unanimous judgment, the five-judge court said there was no statutory obligation on health boards to provide home birth services.
The women had appealed against a High Court judgment of September 2002 which found that section 62 of the Health Act 1970 did not confer on them a right to have a midwife provided for them to enable them to give birth in their homes.
Since their proceedings were initiated, the four women have had private home births. Their lawyers said other similar cases were pending.
The proceedings were taken by Ms Sarah Clarke, Castledermot, Co Kildare; Ms Melissa Lockhart, Naas, Co Kildare; Ms Anne Brannick, Kilmacanogue, Co Wicklow, and Ms Caroline O'Brien, Glen of Imaal, Co Wicklow.
Yesterday, the Supreme Court decided that they should pay the costs of the hearings there and earlier in the High Court, although it remains to be seen if the health boards will press for payment.