Case Note: PP v Health Service Executive

AuthorClara Hurley
PositionBCL (International) II, University College Cork
© Clara Hurley and Dublin University Law Society
In the twenty-two years since the Eighth Amendment to the Constitution of
Ireland, the recognition of the right to life of the unborn has proven to be
contentious. This amendment has had controversial consequences, most
notably in relation to the termination of pregnancy.
Naturally, this is
unsurprising as the Eighth Amendment was primarily brought about to
prevent the legalisation of abortion in Ireland.
Article 40.3.3° stipulates that
the right to life of both the mother and her unborn child are equal and it was
determined by the courts that the mother’s life may only take precedence
when there is a “real and substantial risk to [her] life.”
This balancing act
has proven to be unsatisfactory in practice, and legislative clarification in
the form of the Protection of Life During Pregnancy Act 2013 has not
appeared to be effective in adequately protecting the competing rights of the
mother and the unborn.
It is not the purpose of this article to further analyse Article 40.3.3° in
relation to abortion. Instead, this article will focus on the rights of an unborn
child following maternal death, and on the recent High Court decision in PP
v Health Service Executive,
which held that all unborn children have the
right to life, and that it is the duty of the State to protect that right even in
cases that do not pertain to abortion. It is contended that this is a strong
affirmation of the right to life of the unborn. The extent of the State’s
obligations to vindicate this right, in light of PP, will be examined. In
BCL (International) II, University College Cork. The author would like to thank her family
for their support.
References to the Eighth Amendment are in relation to Article 40.3.3° of the Constitution.
For a comprehensive overview of the effects of the Eighth Amendment see Ivana Bacik, “A
History of Abortion Law in Ireland and Prospects for Change” (2014) 20 MLJI 75.
Roche v Roche [2009] IESC 82.
Attorney General v X [1992] 1 IESC 1, at 48.
For further analysis see Máiréad Enright and Fiona de Londras, “‘Empty without and empty
within:’ the Unworkability of the Eighth Amendment after Savita Halappanavar and Miss Y”
(2014) 20 MLJI 85.
PP v Health Service Executive [2014] IEHC 622 [hereinafter PP].

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