Until 2013, any discussion as to
the circumstances in which a termination of pregnancy was lawful was
conceptualised within a constitutional framework, utilising arguments as to the
meaning of phrases such as ‘practicable’, ‘unborn’ and ‘equal right to life’.
This theoretical framework has now shifted with the introduction of the
Protection of Life in Pregnancy Act 2013 (the 2013 Act). Section 22 of the Act
makes it a criminal offence to “intentionally destroy unborn human life”.
Within this general prohibition, the Act provides three circumstances in which
it is lawful to carry out a medical procedure which has the result of ending
unborn human life: where there is a r
isk of loss of
life of a pregnant woman from physical illness,
physical illness in an emergency situation and suicide.
Whereas prior to the introduction
of the Act arguments were made as to the possibility of interpreting Article
40.3.3 in such a way as to exclude terminations in which the foetus was
suffering from such a fatal abnormality as to make it incompatible with life, the question
remains as to whether this interpretation is still possible following the
introduction of the 2013 Act. This
Article will examine the backdrop to the introduction of the Act, including the
legislative history and accompanying Oireachtas debates, will seek to explore
the meaning of ‘unborn’ under the Constitution and will ultimately suggest that
the legislative framework contains significant ambiguities.