Children of Jehovah’s Witneses – a conflict of rights?


Every patient who is not incapacitated by reason of age or mental disability has the right to refuse a blood transfusion. This well established principle must be borne in mind when dealing with Jehovah’s Witness patients who generally refuse the primary components of blood, red cells, platelets and plasma. While such a decision might be unpalatable to those dedicated to saving lives, the rejection of blood is a deeply held core value and is one which must be respected by clinicians when dealing with a competent adult with full capacity to make the decision. Clinicians can however be faced with a legal and ethical dilemma when managing bleeding in children of Jehovah’s Witnesses.

In Ireland, a child’s parents, at least when they are married to each other, possess considerable rights under the Constitution and are entitled to raise their children by reference to their own views, including religious views. Article 42.5 of the Constitution however makes clear that this right is not absolute and the State can intervene “in exceptional cases where the parents for physical or moral reasons fail in their duty towards their children”.

For some time it was uncertain whether the courts viewed the refusal of Jehovah’s Witness parents to consent to blood transfusions on behalf of their child as falling within the category of exceptional cases where they had failed in their duty to their child. In the past ten years however hospitals have been obliged to resort to the courts on several occasions and a number of emergency orders have been granted. While it has been clear therefore that the judiciary play a central adjudicative role in determining issues of medical consent involving children, such Orders have rarely been followed by written judgments and this has lead to some uncertainty as to when exactly the court will intervene.

In early 2011 the High Court issued a comprehensive judgment on this issue and this development is to be welcomed as it provides some written clarification of the law. The judgment arose out of an emergency Order granted in the early hours of 27 December 2010 authorising the administration of a life saving blood transfusion to a critically ill baby (baby AB) against the wishes of the child’s Jehovah’s Witness parents.

Baby AB was born in autumn 2010 and became very unwell due to acute bronchiolitis on Christmas Day. By 9pm on 26 December, his haemoglobin level was on a downward spiral and had reached the point where a transfusion was absolutely necessary. Earlier that day Baby AB’s parents had consented to the use of certain blood products however it became clear that these products would not be sufficient and a transfusion was urgently required. Baby AB’s parents, as committed Jehovah Witnesses, opposed a transfusion.

In the circumstances, the Hospital applied to the High Court for an Order authorising a transfusion and an emergency hearing was held in Mr Justice Hogan’s home at 1am on 27 December. In making the Order sought by the Hospital, Mr Justice Hogan ruled that the religious freedom of the parents and their autonomy as a constitutionally protected family gave way to the need to protect the life of the child. He noted that the right of the State to intervene was expressly circumscribed by Article 42.5 which provides for intervention where there has been a failure of duty on the part of the parents.

It is hard to avoid the moral overtones implicit in overturning a parental decision. This was recognised by Mr Justice Hogan who was anxious to stress that baby AB’s parents were deeply concerned for their child’s welfare but steadfast in his religious beliefs. He stated that the use of the term ‘failure’ in the Constitution was “somewhat unhappy” however the test as to whether the parents had failed in their duty was an objective one judged by the secular standards of society in general and the Constitution in particular.

In his judgment Mr Justice Hogan was careful to reiterate the fact that the right of a properly informed adult with full capacity to refuse medical treatment, whether for religious or other reasons, is constitutionally protected.

The decision in the baby AB case is a welcome one insofar as it clarifies by way of a written judgment the position the courts will adopt in circumstance where a life saving blood transfusion is required for a child in the face of parental opposition. There remain however a number of unanswered questions. By way of example, one obvious question is how the court would decide a case in which a mature teenager of the Jehovah Witness faith refuses a blood transfusion. Such a case would give rise to a difficult judgment call and a significant balancing exercise in terms of the various competing rights. Given the plethora of possible scenarios one could envisage arising and which remain unexplored, it seems inevitable that the legal boundary between parental autonomy and a child’s welfare in medical consent matters will continue to trouble both clinicians and the courts.

This article was first published in The Consultant Magazine in March 2011

Aoife Nally