Rights are tricky things, especially when it comes to the ‘right to life of the unborn’ and the ‘equal right to life of the mother’…

I get a distinct feeling of unease when I hear an individual or a group on the media complaining that their ‘rights’ to something have been infringed. I wouldn’t necessarily have thought that these people can make any such claim, but they are often vocal in their assertions. A group, for example, may take over a vacant property and ‘squat’ there; when there is an attempt at eviction they will claim that they have ‘squatters’ rights’. Perhaps they do have a moral right of occupation, but in the UK they have no legal (or civil or statutory) right — unless they can claim ‘adverse possession’.

Rights are tricky things; they may be natural or legal, they make a claim or demand, be positive or negative; and such rights may come combined with obligations. What might be rights, on what basis rights are claimed or denied, to what extent there are legal, societal and moral or ethical dimensions are all areas of considerable disagreement.

To illustrate: throughout Ireland we have the legal, positive right to vote, and we also have the (parallel) negative right not to vote, that is to abstain. In Australia, where voting is compulsory, there is no negative right. (To get around this, you can ‘spoil’ the voting paper.)

You may, as a liberty right, walk or march upon the public highway as the mood takes you; but you may not walk upon private property if another claims the right to that property; your liberty, your freedom extends only as far as the claim of another.

You may have the liberty right to free speech, but you cannot expect that another is obliged to listen to you or even to assist you in your expression, and your right to freedom of speech may be legally limited by the obligation not to incite hatred or violence.

You can expect, as an adult, to have the natural or moral or inalienable right to life, the right to exist: often expressed as ‘life, liberty and the pursuit of happiness’ (’self-evident truths’), or ‘liberté, égalité, fraternité’. This right may be manifested in formal statements such as the Universal Declaration of Human Rights or the European Convention on Human Rights. The right of liberty, of freedom, is not absolute; your liberty may be removed upon conviction for criminal acts; and you may even lose your right to life through the legal act of execution.

I say all this as a preamble to indicate just how complex the ideas around ‘rights’ are, and to reiterate that there is much disagreement and little if anything in the way of absolutes.

The eighth amendment of the Constitution of Ireland, Bunreacht na hÉireann, was incorporated as Article 40.3.3, and 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.

My argument concerns the ‘right to life of the unborn’ and the ‘equal right to life of the mother’. Can we be certain that the unborn and the mother have an equal right to life? It may say so in an official document, but merely by saying so doesn’t necessarily make it so, and it may seem so blatantly obvious and self-evident as to be not worth discussing; but is it really so?

Consider first the mother. Any healthy adult human is capable of breathing to allow oxidation of the tissues and respiration at a cellular level, and to eliminate carbon dioxide. Any such adult can provide entirely for itself; it can forage for food to sustain itself, as all our ancestors once did, and it can fashion shelter if necessary. (Of course, going to a supermarket is more convenient, but that’s not my point.) It can eliminate waste by itself. The only obvious obligation this adult has is not to invade the territory of another, and to forage there to the detriment of the neighbour, that is to make a demand on the neighbour. In the final analysis, this adult makes no claim on others for its own right to life.

And the unborn, the foetus? Within the womb the lungs are functionless; the foetus does not breathe. It obtains all its oxygen from the mother through the placenta and via the umbilical cord, through which carbon dioxide is eliminated. Likewise, the foetus obtains all its food from the same source, and waste products likewise pass to the mother. The foetal bowel does not normally act when the foetus is in the womb.

On this reasoning, the right to life of the unborn is a demand or claim against the mother. It is not, in these terms, an inherent or natural right to life such as the mother has. Whether this claim by the foetus is inalienable, whether the mother is absolutely obliged to accede to this claim is another question entirely.

Is the Constitution or Bunreacht completely correct when it asserts that the right to life of the unborn and the right to life of the mother are ‘equal’? Or do their expressed rights to life, whether equal or not, ultimately derive from different conceptual frameworks? Is the Bunreacht more than a fallible artifice of Mankind?