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Supreme Court Ruling on Constituional Rights of Unborn



The Supreme Court in a landmark ruling on March 7th, 2108 has confirmed that an unborn child does not possess constitutional rights other than those expressly provided for in Article 40.3.3 of the Irish Constitution (also referred to as the Eight Amendment). It has ruled that the High Court was incorrect in its finding that the unborn has constitutional rights outside Article 40.3.3 and was also incorrect its finding that the unborn is a child within the meaning of Article 42A of the Constitution.

Article 40.3.3 of the Constitution states

“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 aim of the Eight Amendment was to prevent the law being changed by the Courts or the Oireachtas to allow abortion. However, Article 40.3.3 does not specifically refer to abortion. It refers to the right to life of the mother and the unborn as being equal. This has left open the possibility that there are some cases where an abortion could be legal under Irish law. And so, it is open to the Oireachtas to pass legislation which provides more detailed rules as to what should happen in certain circumstances.

In particular, The Protection of Life During Pregnancy Act 2013 sets out procedures for deciding whether or not a woman is lawfully entitled to an abortion in Ireland. The Act permits an abortion where it has been certified by two medical practitioners that it is necessary to avert a real and substantial risk of loss of the woman’s life from a physical illness. Where the risk of loss of life relates to suicide, three medical practitioners (two of whom must be psychiatrists) must certify that it is necessary to avert that real and substantial risk. Also, in emergency situations, an abortion can be carried out if one medical practitioner believes that there is an immediate risk of loss of life from a physical illness.

A Referendum is now expected where voters will be asked whether or not the Eighth Amendment is to be repealed and if so, if it is to be replaced to state that "provision may be made by law for the regulation of termination of pregnancy", which would pave the way for further legislation in this area.

If you require advice on this or any other Family Law matter contact Sheila Lynch Solicitor, Cashin & Associates on 065 6840060 or This email address is being protected from spambots. You need JavaScript enabled to view it.

8th March 2018


This information is intended as a guide only and does not purport to be a legal interpretation. While every care is taken to ensure a quality service, Cashin & Associates does not give any guarantees, undertakings or warranties concerning the accuracy, completeness or up-to-date nature of information provided. Users are responsible for confirming information from the full text from published sources. 

Cashin & Associates Solicitors,
3 Francis Street, Ennis, Co. Clare, Ireland
Dublin Office: 64 Francis Street, Dublin 8
T: 00 353 65 6840060  F: 00 353 65 6840034