EIGHTH AMENDMENT

Constitution of Ireland, 1983

Ambiguity in legal design

The Eighth Amendment to the Constitution of Ireland was signed into law on the 7th October 1983, following a referendum held a month earlier. Article 40.3.3 affirms the “right to life of the unborn, with due regard to the equal right to life of the mother”.

Ireland’s former Attorney General, Peter Sutherland, noted in a memo to the government at the time that the wording of the amendment was so ambiguous as to be unsatisfactory, predicting that “it will lead inevitably to confusion and uncertainty, not merely amongst the medical profession... but also amongst lawyers and more specifically the judges who will have to interpret it”.

Worldwide, abortion is governed by widely varying laws — much of this hinges on at what point a foetus is given human rights and protections. In June 2016, the UN Council for Human Rights called on Ireland to introduce “accessible procedures for pregnancy termination” and noted that by criminalising abortion, the state violated a woman’s rights. However, those in support of the Eighth Amendment note the protection it extends to the foetus as safeguarding its human rights.

Since the Eighth Amendment’s signing into law, a number of high-profile cases have come before Irish courts, and it has been subject to four further referendums.