When is a Foetus not an Unborn? Fatal Foetal Abnormalities and Article 40.3.3

Jennifer Schweppe and Eimear Spain
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The inability of women carrying foetuses suffering from fatal abnormalities to access a termination in this jurisdiction has been discussed widely in the media and the political sphere in recent times. Diverging views have emerged on whether Article 40.3.3 could accommodate terminations in these circumstances with the government taking the view that the termination of a pregnancy of this nature is not permissible under the Irish Constitution. This article proposes to unpick this presumption, focusing on three interpretations of Article 40.3.3 which would permit terminations in these circumstances. The first argument is that the definition of the unborn does not include a foetus which does not have the capacity to survive outside the womb where such incapacity is not due exclusively to extreme immaturity. Secondly, it is argued that the life in question (that is, unviable life) can not be considered equal to the right to life of the mother. Finally it is argued that it is not practicable for the State to defend and vindicate this life. Essentially it is a question of whether there is a shift in the manner in which the two rights are balanced in these circumstances. Ultimately, it is argued that the termination of foetuses suffering from fatal abnormalities, such that they are incompatible with life outside the womb, is constitutionally permissible, and that a referendum to allow such terminations is not necessary. It is inevitable that a case involving circumstances such as these will appear before the Irish courts: we argue that the Government should pre-empt such a case, and legislate to allow for terminations where the foetus is suffering from a fatal abnormality.

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