Womb for living?

23 May 2018 by

This week Irish voters will decide whether there should be a continuing constitutional protection for the ‘unborn’. Novelist Sally Rooney’s article this week’s edition of the London Review of Books is short, but very well worth the read.

Pregnancy, entered into willingly, is an act of generosity, a commitment to share the resources of life with another incipient being. Such generosity is in no other circumstances required by law.

No legal system will force another person to donate living tissue, no matter how needy the recipient. An organ donor is not bound to the world’s needy recipients.  Unless, Rooney points out, the law is concerning itself with a foetus.

If the foetus is a person, it is a person with a vastly expanded set of legal rights, rights available to no other class of citizen: the foetus may make free, non-consensual use of another living person’s uterus and blood supply, and cause permanent, unwanted changes to another person’s body. In the relationship between foetus and woman, the woman is granted fewer rights than a corpse.

The referendum this week concerns the Eighth Amendment to the Constitution, introduced in the early eighties, which protects ‘the unborn’.

The provision has been modified since its introduction to allow for abortion where the woman concerned is at risk of suicide or physically at risk in pregnancy. As Rooney reminds us, each test proposes a high threshold.  For example, the threat of serious, permanent injury or illness is insufficient ground for a termination:

In 1992, a 14-year-old child who had been raped by a neighbour became suicidal as a consequence of the resulting pregnancy. After the attorney general issued an injunction to prevent her from travelling abroad for an abortion, the Supreme Court overturned the ruling, holding that suicidal feelings constitute a risk to life.

Ms Rooney touches upon the case of Savita Halappanavar, which played out six years ago, but is probably the trigger for this debate. Savita developed sepsis during a miscarriage. Aware that her pregnancy was no longer medically viable, and increasingly unwell as the infection spread, she asked for a termination. The request was refused, because the risk to her life was not deemed ‘substantial”.

By the time she was ill enough to be allowed a termination it was too late. Halappanavar died of a cardiac arrest caused by the sepsis.

The proposal to be debated is whether to bring Irish law in line with the approach to abortion in the UK, which allows a termination up to viability (around 23 weeks) if two doctors say the pregnancy would harm the mental or physical health of the woman. Lest anyone thinks the establishment will resist such a move, the proposal specifies that any Irish woman consulting a pro-life doctor can ask to be referred to another physician.

We’ve posted previously on the play out of abortion restrictions across the Irish sea, typically in Northern Ireland. The figures from the south are interesting in themselves . Some 3,000-4,000 women travel to the United Kingdom to avail themselves of NHS funded terminations. The ones who are left behind are the women who cannot afford the travel costs and the associated stigma. The banality of modern travel is not often wrapped up in the language of rights, but it has to be squeezed in somehow:

[if] anti-abortion campaigners truly believe the foetus is a person like any other, a constitutional right to take that person abroad in order to kill them should be unacceptable; yet the ‘No’ campaign is united in its approval of the right to travel.

In any event, this debate is not only concerned with social mobility or the availability of cheap air fares. It goes to the core of individual freedom.

We can traverse the acres of verbiage on the unborn child/foetus/abortion/pro-life/sexual freedom arguments without reaching the horizon of our settled prejudices. That’s why Rooney’s short essay is so arresting. She proposes (as feminists have always proposed) that the ban on abortion has less to do with the rights of the unborn child than with the threat to social order represented by women in control of their reproductive lives.

…[I]t is the idea of female agency that separates permissible forms of abortion from those deemed unacceptable in Irish law. Traumatised or fatally ill women may be granted the right to terminate a pregnancy precisely because they are not seen to be exercising free and independent agency. Those who object to abortion, but make an exception in the case of rape, cannot be primarily concerned with the sanctity of the unborn.

I’d not thought about this before. Have you? Why should the “victim” status of the progenitor make any difference to the right to life of the resulting human being? As Rooney says, ” a foetus conceived by rape is no different from a foetus conceived by consensual sex.”

Sally Rooney is my daughter’s age. She was born in 1991,

the same year a Virgin Megastore in Dublin was raided for selling condoms without a pharmacist present. Two years before the decriminalisation of homosexuality. Four years before the legalisation of divorce.

Her native Ireland now has high ratings in the tolerance charts with Taoiseach Leo Varadkar, and the cool geniality of its citizenry.  I hope in years to come this debate on reproduction will be as quaint to her and others of my daughter’s generation as those laws on contraception and homosexuality sound to us today.

Read the whole article: An Irish Problem



  1. The foetus is alive in the womb
    Therefore the foetus is born, though still in the womb
    It is now expanding & developing
    To terminate the life of the foetus is termination of life, which is similar to murder.

    1. S A says:

      Oh please. All you who insist the fetus has the right to life over the woman who’s carrying it has the right to terminate the fetus because she doesn’t want the baby when it’s born; where are you all when the thing is born? Are you all there to raise the child? NO, you’re not. You all turn your backs on the woman and her now child. Why don’t you all put your money where your mouths are and pick up the tab on these unwanted fetuses you force into being!?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: