On a human level it is impossible not to have sympathy with the case of Saoirse Aylward, who is campaigning for legal recognition for the life of her son Jax, who was killed in utero in a road traffic accident some years ago while his mother was 31 weeks pregnant.
The driver responsible for the accident took responsibility, pleaded guilty, and was sentenced to six months in prison for dangerous driving. But because baby Jax was unborn, his life cannot be counted as having been lost. A charge of “dangerous driving causing death” could not be sustained because, under Irish law, a 31 week old fetus is not legally “alive”. You cannot legally cause death to an entity with no right to life. In this instance, Jax had roughly the same legal protection as a housefly does: If one lands on somebody’s face and you punch them in the face to kill the fly, you may get a charge of assault. But you will not face any charges for the death of the fly.
Saoirse Aylward wants this to change. In my opinion, she is morally right to wish to see a change in the law here. But from the perspective of Irish society and any sense of legal consistency, what she seeks is an absurdity.
The Irish people have voted on this, resoundingly: In 2018 they chose at the ballot box to remove from the constitution any recognition of the right to life of the unborn child. It is a matter of public record that this writer opposed this, and was heavily involved in the “no” campaign in that referendum. But it is also a matter of record that the result was not close.
What Ms Aylward seeks, therefore – and I suggest no malfeasance on her part – is entirely illogical. That on the one hand, the law should recognise an unborn child as a legally distinct human being with rights entirely independent of his mother; and that on the other it should treat the unborn child as an entity without even the right to stay alive, independent of its mother. It is a case of Schrodinger’s Unborn: That a child should be at once a distinct human being with rights, and on the other a disposable clump of cells, and we must treat it as both simultaneously. Or to put it in slightly more brutalist terms: That the driver who accidentally killed baby Jax should be a criminal and imprisoned, but those who deliberately kill other unborn children should enjoy legal protection.
Lest you think I am simply being stubborn, let us consider another case, that of Adeleke Adelani, jailed earlier this year for nine years for “causing the unlawful termination of a mother’s pregnancy”. Adelani was in a relationship with his victim, who was carrying his child. He travelled to see her, took her out to dinner, had sex with her, told her he loved her, and then forced her to either take abortion tablets or – as he charmingly put it – have her child beaten out of her.
Adelani is rightly in prison. But note that he is in prison for nine years, rather than the mandatory life sentence normally handed down for murder: By the state’s laws, his sole victim was the woman he assaulted, not her unborn child. He was jailed for his crimes against her, not against her unborn baby. Despite the fact that his crime involved carefully planned and pre-meditated killing of his unborn child against that child’s mother’s wishes, he didn’t actually murder anyone. Such is the position of the voters, in their wisdom.
Many pro-lifers, I think, greatly desire a “Jax’s law” for Mrs. Aylward, both out of understandable human compassion for her loss – which I share – and out of a hope that perhaps a “Jax’s law” might make a few people in the country re-think their position on the wider rights of the unborn.
It won’t.
What such a law would do, in fact, would be to reinforce rather than challenge the contradictory thinking of many people on this issue. It would reinforce the idea that babies in the womb have rights the moment they are wanted, and no rights the moment they are not wanted. People would be able to live with a logical dichotomy of abhorrent proportions, at once believing that society protects the rights of the unborn while never having to confront the fact that it does not.
No; the truth is that Baby Jax had no rights at all. That is the price that we paid, in 2018, for removing the right to life of the unborn child. A great many people in Ireland, I suspect, would not reverse that referendum even with that knowledge, considering it a fair price to pay for women’s freedom to make difficult decisions in a crisis pregnancy. That’s a fair position, logically. It is coherent. But society should not go down the road of making it even easier to hold that position.
I’ll make one final point, which is this: This law, as it stands, would be deeply unfair and cruel to the man who – negligently but entirely accidentally – caused the death of Baby Jax. He is in prison for his crime, as he should be. But to make somebody who has a car accident legally liable for the loss of an unborn life, while at the same time training doctors and medics to take unborn lives entirely legally, would be a moral and logical monstrosity, and a deep injustice.
The unborn child either has a right to be alive, or it does not. Its unintended loss is either the taking of a life, or it is something akin to property damage. We chose the latter in 2018. All those of us who disagreed with that choice should be demanding is that everyone else keeps the courage of their convictions, in the face of the most absurd consequences of their decision.