The right to privacy is protected by the Irish Constitution, and by European and international human rights instruments.
The Irish courts have held that the right to privacy is one of the unenumerated rights which flows from Article 40.3 of the Constitution:
‘The state guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’
Article 8 of the European Convention on Human Rights enshrines the right to respect for private and family life, as follows
‘Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
The right to respect for private and family life is also guaranteed by the International Covenant on Civil and Political Rights (Article 17).
According to constitutional and European and international human rights law, States may only interfere with people’s privacy when it is necessary and proportionate to achieving a legitimate aim. Whether an interference is proportionate depends (among other things) on whether the harm and suffering caused by the interference outweighs its purported benefit.
Article 40.3.3 of the Irish Constitution is a major interference with women’s and girls’ right to privacy, because it denies them autonomy regarding their health, and denies them the right to decide what happens to their bodies and their lives. The Irish Human Rights and Equality Commission has stated its concern that Article 40.3.3 violates the right to privacy, and the UN Human Rights Committee has held that Article 40.3.3 violates the right to privacy.
Article 40.3.3 violates the right to privacy by preventing women and girls in Ireland from being able to terminate a pregnancy when necessary to preserve their health.
Article 40.3.3 also violates the right to privacy by denying women and girls control of medical decisions taken during their pregnancy, including their right to refuse medical interventions.
The HSE’s National Maternity Strategy states that while ordinarily a woman has the right to refuse medical treatment, ‘where there are implications for the health or life of the baby, as defined by her team of health care professionals, then the HSE’s National Consent Policy recommends that legal advice should be sought’. Several studies have shown pregnant women in Ireland are frequently denied the option of refusing tests and invasive procedures during labour.
Case in focus: Amanda Mellet