Article 40.3,3 of the Irish constitution gives a right to life to an unborn child. It is included along with other rights of the person
It says

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of mother, guarantees  in its laws to respect , and as far as practicable, by its laws to defend and vindicate that right

This was inserted into the constitution of Ireland in 1983 by the people in a referendum .
It remains part of the constitution and there is no proposal to change it on the table.
In the so called X case  in 1992, the Supreme Court  decided that this article could be construed  as allowing for the life of an unborn to be  ended if the mother  was  believed to be suicidal.
Following a recent European Human Rights court case, the Government is contemplating introducing a law that would clarify when the life of an unborn child may be ended.

It is considering allowing in this law that

1. a threat of suicide by the mother to be one of those grounds for ending the life of the unborn child, along with

2. medical threats to the life of the mother where the medical treatment may require the ending of the life of the unborn child.
Would a law, including a provision allowing a suicide threat to be a basis for ending the life of an unborn child, be consistent with the constitution which requires   the state to “defend and vindicate”  the unborn child’s ”equal” right, to  be allowed to live?
In this paper, I try to answer that question and I examine the logic of the Supreme Court in the X case. 
I also deal with the more recent European judgement.
I conclude by suggesting how the law might best  be changed in accordance with the clear language of the constitution.


The Irish Constitution belongs to the people.
It uses language, words, to convey certain understandings of what the Irish people guarantee to one another as a basis for living together.
The words of the constitution can only be changed by the people, and if so, the words in constitution should be interpreted, as the same words would be understand  in daily usage. 
They should not be interpreted  in some arcane way, understood only by constitutional lawyers.

Article 40 of the constitution acknowledges an EQUAL right to life of a mother, and of her unborn child. 
The sentence would have made sense even if the word “equal” was not there, but the word “equal” IS there, and it was put there with the explicit approval of the people.
Many words we use in daily language have ambiguous or various meanings, but the word “equal” has only one  meaning. Equal means equal, and that is the word in the constitution 
By any normal understanding of language, a risk is not equal to a certainty. A risk that someone might unilaterally end their life, is not equal to a certainty of the ending of another by the actions of a third party.
Likewise a law that took away a  right , before it could be exercised independently, could hardly be interpreted as” defending and vindicating” the same right
Judge Hederman put it this way in his minority judgement in the Supreme Court on the X case.

The Eighth Amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that the life must be one which has achieved an independent existence after birth. The right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born life.


The other Judges in their X case judgements offered two reasons for not treating the right to life of the unborn child as equal, in practice, to that of its mother, notwithstanding the words of the constitution.


One was that the mother’s life is to be preferred because she has wider responsibilities. This is what Chief Justice Finlay said

“In vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur.

Given that, in EVERY case, a mother of an unborn child will already be” a member of a family group”, if membership of the mother of a “family group”, is a sufficient ground for  grating an abortion, then in no case could an abortion be denied.
That would  not be an interpretation of the relevant article in the constitution, but an abrogation of it.


The other argument used in the Supreme Court was that the life of the mother was a life in being, whereas the life of the unborn child was “contingent”. 
This is what the late Judge McCarthy said

“ The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery. It is not a question of setting one above the other but rather of vindicating, as far as practicable, the right to life of the girl/mother (Article 40, s.3, sub-s. 2), whilst with due regard to the equal right to life of the girl/mother, vindicating, as far as practicable, the right to life of the unborn. (Article 40, s.3, sub-section 3). If the right to life of the mother is threatened by the pregnancy, and it is practicable to vindicate that right, then because of the due regard which must be paid to the equal right to life of the mother, it may not be practicable to vindicate the right to life of the unborn.” 

Essentially he was arguing that, once a right is contingent on the behaviour of another person, it does not enjoy the protection of the constitution.
That is a radical doctrine, that would not be  held by many human rights lawyers.
Again, it is hard to reconcile with what the constitution actually says.
All lives are ”contingent” on the behaviour of others.  The life of a baby AFTER birth is certainly “contingent” on the care given to it by its mother and by others. 
If Judge McCarthy’s jurisprudence around “contingent” lives were to be taken as settled law on the right to life ( born or unborn), it  leave little value in the constitution.


For these reasons, I would argue that the jurisprudence in the X case should not be treated as immutable and beyond question.
It is arguable, in common sense, that, in the X case, the President of the High Court, Declan Costello, and Judge Hederman in the Supreme Court were right, and the Supreme Court majority was wrong.
It would be imprudent for the Oireachtas to go along, without applying its own judgement,  with the view of the Expert Group that the particular decision a  majority of Judges, in the particular circumstances in the X case (a 14 year old rape victim), in the state of knowledge of the time,  is “the law of the land” in some immutable sense, and that a future Supreme Court will not come up with a better, more practicable, and more faithful constitutional reasoning in a  future case . 
Just as legislators can change their mind, so can judges. 
The members of the Oireachtas should read the X case judgement for themselves, and decide for themselves how constraining it is on them as to what they can, or must, do. They should also read the words of the constitution in their most likely meaning, and prepare legislation on that basis.


Neither the A the B, nor the C case involved a threat of suicide.
In only the C case, was a finding made against the  State. 

The C case concerned whether accessible and effective procedures existed whereby a  woman could establish her entitlement to a lawful abortion in Ireland .

C had an abortion in England believing that she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time.  Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester.

The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. 

When she discovered she was pregnant, she consulted her General Practitioner as well as several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal framework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus.

She therefore researched the risks on the internet. Given the uncertainty about the risks involved, she  travelled to England for an abortion.

She maintained that she wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage, but that she could not find a clinic which would provide this treatment (in England) as she was a non-resident and because of the need for follow-up.

She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. This happened in England , not Ireland.

On returning to Ireland after the abortion, she suffered complications of an incomplete abortion(in England), including prolonged bleeding and infection. She alleges that doctors(in Ireland) provided inadequate medical care. She consulted her own GP several months after the abortion and her GP made no reference to the fact that she was visibly no longer pregnant.

It would appear that it is not a case which, of itself, requires the Oireachtas to enact wide ranging legislation dealing with circumstances, such as a suicide threat, which was not even considered by the Court. The Oireachtas is, however, obliged to clarify the obligations of doctors in medical consultations. 


It is worth adding that the Court found (in para 226) that the restrictions on abortion in Ireland 

“were based on profound moral values concerning the nature of life which were reflected in the stance of the  majority of the Irish people against abortion during the 1983 referendum  and which have not been demonstrated to have relevantly changed since”

The Oireachtas should take particular note of this


It seems clear that legislation to deal with circumstances analogous to the C case is necessary. This would cover all circumstances where life saving treatment might be indicated, which  might affect the life  of the unborn. Such legislation may involve challenging drafting, but it will not be controversial. Given that the C case arose in 2005, it could be said that this legislation is quite urgent and should not be delayed by more difficult and inherently controversial matters.

The matter of whether to follow the Supreme Court majority, and enact legislation to allow an abortion on the strength of a possible threat of suicide, is something that requires separate consideration and ought not be a basis for delaying action on the C case. Suicide is very difficult to predict. It is rarely due to a single  factor.  The  then Governments Green Paper(para 5.23)  said that a study  that was frequently cited 

“concluded that the prediction of suicide, using standard risk factors, which have been identified in psychiatry was  wrong in  97% of the instances examined”

If that is the case, devising safeguards that are true to the constitution will be  horrendously difficult.  But that will only become fully obvious after the drafting and testing of the legislation is well under way.

It would not be prudent for the Oireachtas to make the legislation to deal  with the C case issues a hostage to this much more difficult and  hazardous exercise.
Print Entry