The Supreme Court is in the midst of considering the issue of assisted suicide, after last month’s High Court ruling upholding Ireland’s ban on the practice was appealed.

Yesterday, the court heard from the lawyer from the Irish Human Rights Commission (IHRC), Frank Callanan SC, who argued that the appellant, Marie Fleming, should have the right to die, but declined to say whether this was a Constitutional right or not.

This was despite repeated questioning from the judges on the Supreme Court. Mr Callanan said that he wanted to focus on Ms Fleming’s particular case and did not wish to adopt a policy position for the Commission.

This seems to be a rather odd stance for a human rights body to take, given that they are arguing that Ms Fleming does indeed have the right to access assisted suicide.  

The Constitution is the ultimate bulwark of this country’s human rights law. It usually forms the basis of any claim against the State in human rights cases. Ms Fleming’s legal team is unambiguously making the case that her right to assisted suicide is based on the Constitution.

Given that the IHRC refused to base their claim on the Constitution, they elected instead to base it on the Criminal Law (Suicide) Act 1993, which decriminalised suicide.  

Mr Callanan argued that the legislature was obliged to take into account the differences between able-bodied and disabled people in this regard and it was discriminatory that a disabled person who wished to end their life could not lawfully be assisted to do so.

But in decriminalising suicide, the legislature was not creating a right to suicide. Removing the legal penalty from something does not automatically create social or State approval of an act.

Decriminalisation does not imply the creation of a right; it merely prevents the State from penalising a given activity. For example, adultery is not against the law but this doesn’t mean we approve of adultery and it obviously does not create a right that someone else has a duty to facilitate.

If there is a right to assisted suicide that the State would presumably be obliged to provide a service that would allow someone to realise their right.

The IHRC’s case is as weak legally as it is dubious in terms of public policy. Recognising a right to assisted suicide would increase the likelihood that vulnerable and depressed people would take their own lives. If this flimsy premise is the best argument they can muster, they would have been well advised to steer clear of this case altogether.