Legislating for Article 40.3.3: Bacik on Fatal Foetal Abnormalities

Author: Professor Ivana Bacik, School of Law, Trinity College Dublin

Last week the Oireachtas Committee on Health held a series of hearings on abortion, following a Government decision taken in December to introduce legislation and regulation to implement the X case test.

In the course of the hearings, there was significant discussion of the issue of fatal foetal abnormality, upon which I will focus in this blog posting. I do not believe that pregnant women and their partners facing the tragic and traumatic personal circumstances of lethal foetal abnormality should be forced to travel out of this jurisdiction to terminate their pregnancies if they wish to do so. I believe that they should be able to access a continuum of medical care here in Ireland with their own medical advisers, to include termination of pregnancy if they wish. In the interests of their health, and in the interests of common humanity, I believe that women should be entitled to access terminations of pregnancy on grounds of fatal foetal abnormality in Ireland.

Further, on an analysis of the relevant law, and in particular the case of D v. Ireland (ECHR, 6th September 2005, Ref No 26499/02), I believe that legislation setting out the criteria whereby terminations of pregnancy may be carried out in cases of fatal foetal abnormality would be compatible with Article 40.3.3 of the Constitution, and therefore capable of being introduced without constitutional amendment.

Although none of the three Applicants in ABC had experienced pregnancies involving fatal foetal abnormality, the issue nonetheless arose in the ABC case judgment, where the Court considered the earlier decision in D v. Ireland (ECHR, 6th September 2005, Ref No 26499/02).

In that case, which did concern fatal foetal abnormality, the Court found the application inadmissible because the applicant ‘did not comply with the requirement to exhaust domestic remedies as regards the availability of abortion in Ireland in the case of fatal foetal abnormality’ (para 103 of the judgment).

In the ABC case, the Irish Government argued that the three applicants should, like D, have brought their cases initially in their domestic courts. However, the Court ruled against the Government in respect of all three applicants, having concluded that their cases were significantly different from that of Ms D.

In respect of the first two applicants A and B, at para 148 of the judgment in the ABC case, the Court stated that:

‘..the balance of rights at issue in the D v. Ireland case were relevantly different from those at issue in the first and second applicants’ cases: in D v. Ireland the Court found that Ms D could have argued in the domestic courts, with some prospect of success, that the relevant balance of competing interests was in her favour since one of the twin foetuses she was carrying was already dead and the other had an accepted fatal foetal abnormality.’

In respect of the third applicant C, again her case differed significantly from that of D in the earlier case. Here, the Court noted that C feared her pregnancy constituted a risk to her life and had complained under Article 8 about the lack of legislation implementing the constitutional right to an abortion in the case of such a risk (para 154). This was the argument that ultimately succeeded before the Court.

In the D case, the Irish Government had successfully argued that:

‘there was “at least a tenable” argument which would seriously be considered by the domestic courts to the effect that a 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. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant’s situation in Ireland.’ (para 69 of the judgment).

In accepting this argument, the Court made reference to the Fifth Progress Report of the Oireachtas Committee on the Constitution (15th November 2000). The Court noted that the Committee in the course of its deliberations had met the Masters of the three major maternity hospitals in Dublin. At para 40 of the judgment, the Court noted that:

‘All three [Masters] spoke in favour of permitting in Ireland termination of pregnancy in cases of foetal abnormality (including neural tube defects – Ireland having the second highest rate in the world – and anencephaly) where the foetus would not survive to term or live outside the womb. Certain of the Masters noted that going abroad deprived a mother of a post-mortem on an aborted foetus and of full and proper advice and counselling on the source of the abnormality and the risk of recurrence in a future pregnancy and criticised the lack of ability to make any referral to a hospital providing the referral service or to make any arrangement for this to take place and for follow-up.’


At para 44 of the judgment, the Court noted further that, in the context of a constitutional referendum on abortion in 2002, at a press conference called on 27th February 2002 by the three Masters of the major obstetric/maternity hospitals in Dublin, the Masters stated again that the State should sanction abortion in certain cases including where a foetus would not survive outside of the womb (para. 44 of judgment).

The Court noted further that:

‘Since abortions (in the case of a “real and substantial risk” to the mother’s life) were already available in Ireland and since the Masters of the main obstetric hospitals were not against terminations in the case of a fatal foetal abnormality… the Court finds unsubstantiated the suggestion that the relevant declaratory and mandatory orders would not have been implemented in good time [had the applicant sought a remedy before the domestic courts].’ (para 88 of the judgment).

Thus, the Court concluded in the D case that there was ‘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 an abnormality incompatible with life’ (para 90) and found that if she had initiated legal action before the Irish courts, the applicant’s case would have been ‘an arguable one with sufficient chances of success’ to mean that a domestic legal remedy was therefore in principle available to her, and she should have pursued her case through the Irish courts before applying to the ECHR (para 92). Accordingly her application was deemed inadmissible.

The judgment of the Court in D v. Ireland clearly envisages that terminations of pregnancy in cases of fatal foetal abnormality would be declared lawful in Ireland under Article 40.3.3 of the Constitution, if any application were to be taken by a woman in such circumstances.

I believe that, given this legal analysis, legislation should be introduced not only in accordance with the X case test of ‘real and substantial risk to life’, but also setting out the criteria whereby terminations of pregnancy may be carried out in cases of fatal foetal abnormality (as in the D case). Legislation setting out criteria in both cases would be compatible with Article 40.3.3 of the Constitution, and therefore capable of being introduced without constitutional amendment.

In June 2012 I authored a legal opinion co-signed by a group of Labour TDs and Senators to this effect, which we submitted to Minister for Health James Reilly. I am very heartened that during the Oireachtas Committee hearings last week, the views expressed in this blog and in that legal opinion were also expressed by all but one of the legal experts who gave evidence.