Book Chapter Details
Mandatory Fields
Eimear Spain
The Unborn Child, Art 40.3.3, and Abortion in Ireland: 25 Years of Protection?
Pregnancy and Unwanted Third Party Interference: A Woman's Rights.
Liffey Press
Optional Fields
Criminal Law, Foetal homicide, Right to life

The question of how to accommodate harm which occurs to a foetus in the womb is controversial and complex. Recent moves in the US and Canada to criminalise such behaviour have stirred the passions of their citizens and no doubt any such move in this jurisdiction would prove to be similarly contentious. The decision in Vo v France suggests that member states are not obligated under the European Convention on Human Rights to create criminal legislation to vindicate the rights of the foetus against unwanted third party interference, however, an analysis of the rights of the woman may point towards a different outcome. It is submitted that the analysis of the constitutional rights of the foetus and the woman in this jurisdiction warrant the provision of sanctions against those who kill a foetus against the wishes of the woman. It is important to acknowledge the inherent value of the foetus and to enact legislation to prevent harm occurring to the foetus but it is submitted that this does not require the recognition of foetal personhood. Although it has been suggested that legislation which equates born and unborn life for the purposes of the criminalisation of harm to the foetus against the wishes of the mother should not be viewed as a derogation of the rights of the woman, this view continues to persist and diminishes support for legislation dealing with this issue. Rather than focusing on foetal personhood, a right explicitly recognised in our Constitution, the legislature could frame legislation on this issue to focus on a woman’s rights and her interest in her foetus.            Although the right to found a family, to carry a child to term and the right to bodily integrity are not unlimited, they could form the basis of arguments in favour of protecting a woman from unwarranted interference with her foetus. Legislation framed to focus on the rights of the woman achieves similar aims to that focused on foetal rights while recognising the special nature of foetal life and its nature distinct from born life.

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