Earlier this week it emerged that an Irish family sought a death certificate for an unborn child killed along with her mother in a horrendous car accident. The coroner declined the request and instead offered to register the death as a stillbirth. The family are taking the matter to the High Court on Constitutional grounds.

In public discussions of this case it has been implied that Article 40.3.3 of the Constitution (the 8^th Amendment) is a serious obstacle to clarity on the statutory personhood of the unborn in cases such as these. This is bizarre.

The family argue that the 8^th Amendment  recognises the unborn child as a person and therefore the deceased’s unborn child, Mollie, is entitled to have her death recognised like any other person’s in the form of a death certificate.

Article 40.3.3 reads, “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 question hinges on whether the “unborn” is a person for the purposes of the relevant statute law. In this context the coroner is reported as saying, “The problem is one of interpretation. In essence, to die you have to prove you are born.”

Clearly the 8^th Amendment, situated within the “personal rights” section of the Constitution, regards the unborn as a constitutional person. The Article makes no mention of abortion so it is reasonable to conclude that the personhood of the unborn applies to legal areas wider than the topic of abortion.

A number of superior court judgments have suggested different approaches to this discrete issue. But none have stated that the constitutional personhood of the unborn is only of relevance to the unborn in the context of abortion.

At the very least, the 8^th Amendment is no barrier whatsoever to the Oireachtas regarding the unborn as persons for the purpose of statutory provisions unconnected with abortion. Various US States, for example, regard the unborn as persons for the purpose of some criminal laws (like foetal homicide), and they do this against a constitutional backdrop which explicitly denies that unborn children are constitutional persons (the Roe v. Wadecase).

Beyond this, and bearing in mind the express text of Article 40.3.3, the various judgments pursuant to it that have touched on this matter, and the particular contexts of those judgments, it is likely that a future Court would

(a) interpret at least some statutory invocations of the term “person” in harmony with the constitutional personhood of the unborn in Article 40.3.3., and

(b) declare unconstitutional at least some statutory provisions which restrict legal protection to born persons (s. 58 of the Civil Liability Act 1961 seems vulnerable in this regard, for example), especially where the interests of the unborn do not conflict with the interests of another constitutional person.

Indeterminacy over the precise legal status of the unborn across various areas of law is inevitable and would occur whether or not the 8^th Amendment was part of our Constitution. In fact, such indeterminacy is quite often much more pronounced in jurisdictions which do not give constitutional recognition to the personhood of unborn children.

The primary responsibility for clarifying statute law lies with the Oireachtas. The idea that the 8^th Amendment is the source of confusion over the statutory status of the unborn in Irish law is false.

The argument around this matter is relevant to the abortion debate because Article 40.3.3 is often depicted as the source of almost unparalleled legal ambiguity, and therefore, so the argument goes, we should be rid of it.