Legislating for Article 40.3.3: Schweppe and Spain on Article 40.3.3 and the capacity to survive outside the womb

Authors: Jennifer Schweppe and Dr Eimear Spain, Lecturers in Law, University of Limerick

In recent months the issue of the availability of terminations for women carrying foetuses which are “incompatible with life” or suffering from “lethal foetal abnormalities” has dominated the media.  However, the issue has received little academic attention. From a legal perspective the question is the extent of the protection afforded to the unborn under Art 40.3.3°, and particularly, whether the definition of the unborn includes a foetus which does not have the capacity to survive outside the womb where such incapacity is not due to extreme immaturity.

The availability of terminations in the UK for women who find themselves in this predicament has meant that there has not yet been a case before the Irish courts dealing with this issue directly. However, there are a number of cases which are instructive on this point including the ECtHR decision in D v Ireland. In this case, 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.

The Irish Government argued in the case 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. Noting that the decision in the X case showed that the courts have expanded and interpreted the meaning of the constitutional provision, the Government argued, ‘there might be an issue as to the extent to which the State was required to guarantee the right to life of a foetus which suffered from a legal genetic abnormality.’ 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 an abnormality incompatible with life.”

It is interesting to observe that the facts of this case indicated that the foetus would in all likelihood be born alive, yet the court referenced arguments by the State which were restricted to the question of there being no prospect of life outside the womb. It is unclear if the State was accepting that there was no significant legal difference between the foetus which has no prospect of survival outside the womb, and the foetus which will be born alive but will survive for only a short period: we would argue that the distinction between these two situations is crucial.

We would argue that this position is open to constitutional challenge and that there is an important legal distinction between the foetus which has no capacity for life and the situation where a baby will be born alive but only survive a matter of hours or days after birth..’  While this distinction may seem arbitrary, it is suggested that to allow terminations of a foetus in the latter category would require a constitutional change. When a baby is born and has an independent existence from its mother, it then acquires all the rights afforded to human persons. The “born alive” rule in criminal law makes an important distinction between the death of a foetus which is born alive and one which dies in utero (the former crime being subject to a charge of murder). This same distinction is made in relation to civil liability: section 58 of the Civil Liability Act 1961 provides, “the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided that the child is subsequently born alive.” It is also noteworthy that in end of life decisions the law considers the life expectancy of an individual to be irrelevant, with the same penalty attaching to shortening a life by one hour as 50 years. So the fact that a baby, once born, will survive for only one hour is not legally significant. The important factor is their being born alive.

This position is based in part on the Supreme Court decision in Roche v Roche, where the Court found that ‘life’ for the purposes of the Constitution means life within the womb. This case would seem to suggest that a capacity to be born is a necessary condition for constitutional protection to attach. 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 this statement concerns the beginning of life, it is relevant here: life, for the purposes of the Constitution, may be interpreted as constituting viable life: that is, life which has the capacity to exist independently of the woman if brought to term.

However, it is also open to interpret the phrase “capacity to be born” as including foetuses without the capacity to survive independently, as although they will not be born alive, they still have the capacity to be born, thus affording constitutional protection to foetuses with no capacity to be born alive. We would argue, however that a purposive approach should be used to interpret the Constitution on this issue: the purpose of Article 40.3.3 was to ensure that, in so far as is practicable, foetal life should be protected to allow it to be born and attain legal human form. We would argue that it was not the purpose of the constitutional provision to protect life which has absolutely no prospect to survive outside the womb if brought to term.

While it has yet to be conclusively established through the courts whether a termination is permissible where a foetus will not survive outside the womb, it is certainly arguable that this is the case and legislation should be introduced to provide clarity around the issue.