Article 40.3.2 of the Constitution reads that “The State shall, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life of… every citizen”.
The right to life is expressly protected in many of the key international human rights instruments. The so-called right to life of the unborn, guaranteed by Article 40.3.2 dealt only with abortion and is subject to the qualification that due regard is to be had to the equal right to life of the mother. The Article was repealed in 2018.
Article 15.5.2 was adopted by referendum in 2002. It provides that the Oireachtas shall not enact any law providing for the imposition of the death penalty. This applies even in times of war and armed rebellion.
The death penalty had been abolished for all crimes except capital murder (member of An Garda Síochána, Prison Officer and certain diplomatic persons) in 1964. In practice, all death sentences had been commuted since 1954.
The Irish Constitution does not contain specific prohibitions against torture, inhumane or degrading treatment or slavery. These are expressly protected by the European Convention on Human Rights and other international documents. However, it is clear that such rights are implied in the Constitution.
The European Convention on Human Rights prohibits extradition in circumstances where persons may be sentenced to death. The prohibition on Article 2 of the Convention provides that death in the following circumstances do not contravene the Convention:
- in defence of a person from unlawful violence,
- in order to effect a lawful arrest or prevent
- escape of a person lawfully detained;
- action lawfully taken for the purpose of quelling a riot or insurrection.
No warning shooting of unarmed terrorist suspects in Gibraltar, in no warning action by Special Force was held to contravene their right to life under the Convention.
Suicide was decriminalised by the Criminal Law (Suicide) Act 1993. It was an offence to assist another person to commit suicide. It does not appear that a person has a right to die or have his life terminated or death accelerated (Re-a Ward of court 1996 Supreme Court).
In the case, in Fleming v. Ireland, the legislation which continues to criminalise assistance of suicide was held constitutional. The claimant was unable to end her own life due to her advanced multiple sclerosis.
Turning off Life Support
The courts have implied a right to die, a natural death based on the constitutional protection of the right to life. The Supreme Court in Re: A Ward of Court involved a person who had been for nearly 22 years in a persistent or permanent vegetative state.
There was no prospect of this improving and she had been fed through a tube for many years and had suffered very serious brain damage. The Supreme Court decided that it was in the patient’s best interests that the feeding be discontinued so that she be allowed to die.
The woman had been made a ward of court and the matter was considered in terms of her best interests, as the legislation required. The Supreme Court indicated that there was a strong presumption in favour of taking all steps capable of preserving life except in exceptional circumstances.
The Chief Justice indicated that the right to life implied a strong presumption in favour of preserving life, other than in highly exceptional circumstances. However, as the process of dying is part of an ultimate inevitable consequence of life, the right to life necessarily implied the right to have nature take its course and die a natural death unless the individual concerned wishes otherwise. The right does not include a right to have life terminated or death accelerated and is confined to natural process of dying.
Another judge emphasised that the circumstances of the case were very distinguishable from those of a person who was severely mentally handicapped. Such person is conscious and is capable of obtaining pleasure and enjoyment from life. In the above, in contrast the ward was not living life in any meaningful sense.
The right to life was said necessarily to imply the right to have nature take its course and die a natural death and unless the individual concerned so wishes not to have life, artificially maintained by the provision of nourishment by abnormal artificial means which have no curative effect and which are merely intended to prolong life. The right does not include the right to have life terminated or death accelerated and it is confined to the natural process of dying.
Rights of Unborn
In Roche v. Roche 2010 it was held that the so-called Pro-Life provision, Article 40.3.3 did not apply to embryos. It was held to apply exclusively to the issue of abortion.
In Fabio [ ]v. Minister for Justice, the Supreme Court in effect allowed an unborn child to have a legal personality. The applicant was bought on behalf of a representative of the child by her mother as next friend seeking to restrain the mother from deportation to Nigeria on the basis of infant mortality being higher there.
The Supreme Court rejected the claim and denied that there was constitutional protection in this context. Article 40.3.3 was held not to be relevant.
The Eighth Amendment
The famous US Supreme Court decision in Roe v. Wade case relied upon grounds of a zone of privacy and which to some extent founded the decision in McGee v. Attorney General in Ireland which struck down laws on artificial contraception.
In response to a campaign based on the apprehension that the Irish courts, would follow Roe v Wade, the Eighth Amendment was inserted into the Constitution after a divisive campaign. The Article read
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable by its laws to defend and vindicate that right.
The “X” Case
The Supreme Court held, “the relevant criteria was whether it was established as a matter of probability that there is a real and substantial risk to the life existing from the health of the mother by self-destruction which can only be avoided by the termination of a pregnancy”.
Right to Travel & Information
Article 43.3.3 inserted by referendum in 1992 provides that the unborn’s right to life shall not limit freedom to travel between the State and another State. This overruled the High court decision in the X case.
Article 42.3 also provides that the unborn’s right to life shall not limit freedom to obtain or make available in the State subject to such conditions as may be laid down, information relating to services lawfully available in another State.
Ultimately, the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995 was passed. As a Bill, it was referred to the Supreme Court and was upheld. It concluded that the provisions of the Bill represented a fair and reasonable balancing by the Oireachtas of the various conflicting rights and are not so contrary to reason and fairness as to Constitution, an unjust attack on constitutional rights of the unborn or of the mother or others.
The Bill prohibited information that constitutes advocacy for abortion and also the provision of arrangements abroad to have an abortion.
Uncertainty on Scope of X Case
In A and B plus C v. Ireland, it had been held by the European Court of Human Rights, that the failure to lay down legal procedure whereby pregnant women could ascertain whether or not her circumstances came within the constitutional provisions, contravened Article 8 of the Convention. No legislative expression was given to the content or regulation of the Eighth Amendment until the Protection of Life During Pregnancy Act 2013. The 2013 Act replaced the 1861 Act created the offence of intentionally destroying unborn human life.
In A and B v. Eastern Health Board, a 13-year-old girl became pregnant as a result of rape and was in the care of the health authority. That Health Board applied to the District Court for an order under the Child Care Act to permit the child to be taken to England for an abortion. The child’s parents sought to challenge the decision by way of judicial review in the X case. In the C case, District Court held that the threat of suicide was not imminent. But if the pregnancy was allowed to continue, the risk would increase substantially. Accordingly, the abortion was permitted.