Case Note: PP v Health Service Executive

• Author: Clara Hurley
• Position: BCL (International) II, University College Cork
• Pages: 205-213

© Clara Hurley and Dublin University Law Society

CASE NOTE: PP V HEALTH SERVICE

EXECUTIVE

CLARA HURLEY

Introduction

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.

1

Naturally, this is

unsurprising as the Eighth Amendment was primarily brought about to

prevent the legalisation of abortion in Ireland.

2

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.”

3

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.

4

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,

5

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.

1

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.

2

Roche v Roche [2009] IESC 82.

3

Attorney General v X [1992] 1 IESC 1, at 48.

4

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.

5

PP v Health Service Executive [2014] IEHC 622 [hereinafter PP].