We are pleased to welcome this guest post from Jennifer Schweppe, Lecturer in Law, University of Limerick.
What does ‘equal right to life’ really mean?
There have been a number of cases, academic articles and opinion pieces regarding the right of a woman to terminate her pregnancy when her life is at risk, a right which is constitutionally protected. The Savita Halappanavar case raises a different, though no less important question: it asks what ‘life’ means for the purposes of Article 40.3.3°, and what ‘equal’ right to life can mean in that context.
The Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009) states that termination of a pregnancy can be required when ‘due to extreme immaturity of the baby, there may be little or no hope of the baby surviving.’ Leaving aside concerns regarding the rather loaded choice of language, where ‘mother’ and ‘baby’ are used rather than ‘woman’ and ‘foetus’ (or to use the constitutionally correct term, ‘unborn’), in one sense this particular part of the guidelines seems reasonably well constructed. In these circumstances, there is no requirement that of a ‘real and substantial risk’ to the life of the woman, as in the case in the context of a medically or psychiatrically imposed threat to the life of the woman; rather, termination is permissible where the life of the woman is in need of ‘protection’. This seems a lower standard, though the difference between protection and risk is not clarified anywhere in the Guidelines.
The inclusion of the maternal interest here at, however, seems rather puzzling. Where there is no prospect of life outside the womb, is this ‘life’ within the meaning of Article 40.3.3°? The question as to when life begins has been examined by the Supreme Court in Roche v Roche. Here, the Court found that ‘life’ for the purposes of the constitution means life within the womb. In this context, Denham J stated, ‘The concept of unborn envisages a state of being born, the potential to be born, the capacity to be born…’ While there is no legislative position on when life begins, the decision in Roche and Roche is clear on this point.
The question as to when ‘life’ for the purposes of the Constitution ends, or even what ‘life’ means in this context has not ever been addressed in Ireland, asides from Denham J’s seeming requirement that the foetus may have ‘the capacity to be born’. When the baby is born and has an independent existence from its woman, it then acquires all the rights afforded to human persons. Between implantation and birth, however, the definition of what life means is entirely unclear.
On this issue, both D v Ireland and Miss D concerned women whose pregnancies were not viable. In Miss D, the foetus was suffering from a fatal foetal abnormality, in this case, anencephaly. According to newspaper reports published at the time of the case, McKechnie J was of the opinion that it was unnecessary to decide whether the foetus was an ‘unborn child’ within the meaning of the Constitution. The case was ‘about the right to travel’, he believed, not about abortion or a decision to terminate the existence of a healthy foetus or a disabled child.
The ECtHR decision in D v Ireland is more interesting on this point. Here, D was pregnant with twins, one of which had stopped developing at eight weeks gestation, the other of which had a severe chromosomal abnormality, Edward’s Syndrome, a lethal condition which would lead to the death of the child shortly after birth. She terminated her pregnancy and brought an application to the ECtHR seeking a declaration that Irish law was incompatible with the Convention due to the restrictive nature of Irish abortion law. While her application was ultimately considered inadmissible, it is the arguments of the Irish government which led to this decision of the Court which are particularly apposite here.
The Irish Government argued that it was ‘an open question’ as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland given the circumstances of the woman. Referring to arguments of counsel, the Court stated that it was argued that the Courts were unlikely to interpret the provision with ‘remorseless logic’ in exceptional cases, and if it had been established that there was no realistic prospect of the foetus being born alive:
there was ‘at least a tenable’ argument which would be seriously considered by the domestic 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 an ‘unborn’, its right to life was not actually engaged as it had no prospect of life outside the womb.
This argument was accepted by the Court in deciding that the case was inadmissible due to the fact that the applicant had not exhausted all domestic remedies. It particularly stated:
There is … a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and of the foetus could have shifted in favour of the mother when the ‘unborn’ suffered from a abnormality incompatible with life.
This last quotation neatly encapsulates the issues: first, what is ‘life’ for the purposes of Article 40.3.3; and second, is all foetal life equal, and to be treated as equal to that of the life of the woman? According to Article 40.3.3, unborn life is to be vindicated and protected ‘with due regard to the equal right to life of the mother’. Where foetal life cannot be born alive, and will not survive outside the womb, can it really be said that in these circumstances, the right to life of the unborn is ‘equal’ to the right to life of the woman? What is unique about the Halappanavar case in the context of Irish jurisprudence is the fact that there was no question but that this ‘life’ would not survive outside the womb. A further question arises then: is the Medical Council correct in equating life which has ‘little’ prospect of survival with life (such as that where the baby will be born alive but only survive a matter of hours or days after birth) with that which has ‘no’ prospect of survival? The question as to viability, the meaning of ‘life’ and the circumstances in which a fatal foetal abnormality can justify termination are all questions which need to be urgently addressed.
Women in Ireland have a constitutional right to terminate their pregnancies where their life is at risk. Where a foetus has absolutely no prospect of life outside the womb, we cannot possibly equate that foetal ‘life’ to the life of a woman. There is more to legislating for Article 40.3.3 than simply providing for lawful terminations where the life of the mother is at risk. After X, C, D, D, A, B and C, we tragically have a face and a name attached to the failure of the legislature to respect and protect women’s rights in Ireland. McCarthy J stated in 1992 that the failure to legislate on the abortion issue was inexcusable. There are no longer any excuses: legislation must be introduced as a matter of urgency.