Government lawyers last year accepted that Irish law may actually permit abortion of foetuses that suffer from lethal abnormalities.
The European Court of Human Rights in July last year ruled on a case taken by an Irishwoman, "D", who sued the State after she had been forced to travel to Britain for an abortion of twins, one of whom was dead and the other which was suffering from a genetic condition which meant it could not live more than a few days after birth.
The court found against D on the grounds that she should have made her case first in the Irish courts but it cited in its ruling the State argument that she would have had a good chance of succeeding had she done so. Lawyers for the State had argued that the X case had demonstrated the potential for judicial development in this area.
According to the court's judgment, lawyers for the State had said: "The foetus was viable in the X case, whereas in the present case there might be an issue as to the extent to which the State was required to guarantee the life of a foetus which suffered from a lethal genetic abnormality."
The State's lawyers also said that while Article 40.3.3 had to be understood as excluding a liberal abortion regime, "the courts were nonetheless unlikely to interpret the provision with remorseless logic, particularly when the facts were exceptional . . .
"If, therefore, it had been established that there was no realistic prospect of the foetus being born alive, then there was 'at least a tenable' argument which would be seriously considered by the domestic courts, to the effect that the foetus was not an 'unborn' for the purposes of Article 40.3.3, or that even if it was an 'unborn', its right to life was not actually engaged as it had no prospect of life outside the womb."
