Ireland’s 8th amendment is a breach of its own human rights commitments

Bríd Ní
Ghráinne, Aisling McMahon,

The Conversation, May 24, 2018

has one of the most restrictive abortion frameworks in the world. 

40.3.3 (the so-called 8th amendment)
of its constitution states that a foetus and a pregnant woman have an equal
right to life. This means that abortion is only legal in Ireland where the
mother’s life is in danger. Abortion is punishable by up to 14 years’
imprisonment in all other circumstances. That includes when there is a risk to
a woman’s health, when the pregnancy is a result of rape and when there is a
fatal foetal abnormality.

All this
is a violation of the international human rights obligations that Ireland has
signed up to. Ireland’s legal framework has been challenged before the UN Human
Rights Committee on two separate occasions. The first complaint came from Amanda Mellet
in 2016 and the second from Siobhán Whelan
the following year.
The cases
were strikingly similar. Both women were carrying a foetus with a fatal
abnormality. Both were treated by hospitals in Ireland that did not provide
them with information on accessing abortion services abroad. Both travelled to
the UK for an abortion and both faced significant financial and practical
difficulties in the process. Both had to leave the foetal remains in the UK,
which were subsequently delivered to them.
women suffered from complicated grief, feelings of isolation and ongoing
trauma. Neither received any aftercare upon returning to Ireland. Both women
argued that they would have been able to better accept their losses if they did
not have to endure the pain and shame of travelling abroad.
The UN Human
Rights Committee
found that by not providing access to abortion to
these women, Ireland was in violation of the prohibition of torture, inhuman or
degrading treatment, and the right to privacy. These are all set out in the International
Covenant on Civil and Political Rights
– to which Ireland is a
committee also said Ireland had violated the right of non-discrimination.
That’s because these women had to terminate a non-viable pregnancy at their own
cost, while other women who decide to carry a foetus with a fatal impairment to
term receive the full protection of the public health care system in Ireland.
the Human Rights Committee ruled that Ireland’s constitution could not be used
to justify violations of its international human rights obligations. It cited
Article 27 of the Vienna convention on the Law of Treaties, which provides that
“A party may not invoke the provisions of its internal law as justification for
its failure to perform a treaty”. The Human Rights Committee recommended that
Ireland should amend its law on abortion, including if necessary its constitution,
to ensure compliance with the covenant.
Time for
The Human
Rights Committee’s views are supported by the UN Committee
on the Elimination of Discrimination against Women
, the UN
Committee on Economic, Social, and Cultural Rights
, and the UN Committee
on the Rights of the Child
committees have taken issue with the criminalisation of abortion in Ireland and
the lack of availability of abortion in cases of rape. They are concerned about
the lack of legal clarity on when an abortion can be performed where there is a
risk to life (as opposed to the health) of a woman. They are also concerned
about the discriminatory impact that Ireland’s abortion laws have on women who
cannot afford to obtain an abortion abroad as well as the lack of access to
safe abortion and post-abortion care services for children and adolescents.
As the
8th amendment provides that the right to life of the foetus is equal to that of
the woman, the concerns of these various UN committees can only be addressed if
this provision is removed from the constitution by way of referendum. This
question will be put before the Irish electorate on Friday, May
If the
electorate votes to repeal the 8th amendment, it will pave the way for the
introduction of legislation that will finally align Ireland’s abortion laws with
its human rights law obligations. If the 8th amendment is retained, women will
continue to be denied abortion services in Ireland, and Ireland will continue
to violate international human rights law.