Legal conundrum hinges on the definition of the ‘unborn’

Does the Constitution allow for the termination of pregnancy where a foetus has no viable prospect of life outside the womb?

Independent TD Clare Daly believes it does, and has tabled legislation to that effect. The Government disagrees, so the Bill is all but certain to be voted down.

In the absence of a ruling from the Supreme Court, the ultimate authority on the parameters of the so-called right to life amendment of 1983, it's an open question.

To some extent, it hinges on whether a foetus with a fatal abnormality can be defined as an “unborn” and, if so, whether its right to life is engaged if it has no chance of surviving after birth.

Constitutional lawyers differ on these questions, and the courts haven’t been directly asked for their view. The Government’s legal advice on Daly’s Bill has not been made public, but we do know that the State previously acknowledged there was at least an arguable case for the basic proposition that a referendum is not necessarily required.

In the 2006 case of D v Ireland, Deirdre Conroy, who was pregnant with an anencephalic foetus, took an unsuccessful claim against the State at the European Court of Human Rights. Lawyers for the government told the court that, in the absence of a decision from an Irish court, it was impossible to foresee that article 40.3.3 (the Eighth Amendment) clearly excluded an abortion in her situation.

The Irish side told the Strasbourg court there was “at least a tenable” argument which would be taken seriously by the Irish courts to the effect that the foetus was not an “unborn” for the purposes of article 40.3.3 or that, even if it was, its right to life was not actually engaged.

Not as rigid

Advocates for legislation point out that article 40.3.3 is not as rigid as many believed it was when the people approved it by referendum more than a quarter of a century ago. After all, the 1992 X case showed how the general principle – vindicating unborn life with due regard to the equal right to life of the mother – allowed for termination when there was suicide risk.

Advocates argue that a different set of factual circumstances – namely, those of a fatal foetal abnormality – could also legally justify a termination given that the “unborn” will not live.

In other words, does an unborn really have a right to life if it cannot be born? And would it not impose an undue burden on a woman to force her to proceed with the pregnancy in those circumstances?

Conversely, those who believe a referendum is needed point out that the Irish courts have said the right to life is vested in the unborn once implantation has taken place. Is it not therefore impossible to argue that a foetus with a fatal abnormality is not an “unborn” for the purpose of article 40.3.3 given that a diagnosis of fatal abnormality can only be made after implantation.

Ending life support

In a high-profile case in December, the Health Service Executive went to the

High Court

to ask if it could end life support to a brain-dead pregnant woman without breaching the Constitution.

A three-judge court said it could do so because there was virtually no chance of her baby being born alive. That case wasn’t about abortion, and on one reading the judgment cannot be applied to cases of fatal foetal abnormality because ending artificial life support to a dead woman is not the same as taking active steps to terminate a pregnancy.

On another reading, however, the judgment is clearly open to the inference that article 40.3.3 allows termination if there is no prospect of being born.

Termination

Yet that’s when things get complicated. If a termination were allowed where there was no prospect of being born, what about cases where life would be possible for a few seconds, minutes, hours or days?

That’s the legal conundrum. But the backdrop, of course, is political. In theory, the Government could draft its own legislation and make the Supreme Court pronounce on an issue where opinion polls suggest a clear majority of voters favour change.

But given that such a move would involve expending a great deal of political capital just a year out from a general election, it’s a safe bet that it will be the next Dáil at the earliest before a government tries to test the boundaries of the Eighth Amendment.