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Unborn does not have Constitutional rights beyond right to life, Supreme Court rules


Chief Justice Frank Clarke delivered the judgment

Chief Justice Frank Clarke delivered the judgment

Chief Justice Frank Clarke delivered the judgment

The Supreme Court has issued a landmark ruling that the unborn has no constitutional rights beyond the right to life contained in the Eighth Amendment.

In a keenly awaited judgment, the seven member court unanimously rejected a High Court ruling which found the unborn had other rights under the Constitution and was considered a child, with rights the State is expected to vindicate.

However, it upheld a finding by High Court judge Mr Justice Richard Humphreys that the Justice Minister was required to consider the prospective constitutional rights of the unborn when considering whether or not to deport their parent.

The ruling will remove much uncertainty ahead of the referendum the Government plans to hold in May to remove Article 40.3.3, better known as the Eighth Amendment, and to allow the Oireachtas to legislate to regulate the termination of pregnancy.

Delivering judgment in Limerick, Chief Justice Frank Clarke said it was the unanimous view of the court that the unborn does not have rights outside the right to life in the Eighth Amendment. It also found that the unborn was not considered to be a child for the purposes of Article 42A of the constitution, introduced with the passing of the children's rights referendum in 2012.

The rights of the unborn arose as an issue in an immigration case involving a Nigerian man who was facing deportation and wanted the order revoked by the Justice Minister. His Irish partner was due to give birth to a child three weeks after the proceedings began. The child was born in August 2015.

Last summer Mr Justice Humphreys found the unborn child had rights under the Constitution beyond the right to life. He also found the minister should take into account the impending birth when considering whether to revoke such orders.

The findings were appealed by the State, which argued the only right the unborn has is the right to be born. Other constitutional rights only kick in when a child is born, lawyers for the State argued.


The Supreme Court found the Justice Minister was obliged to consider the fact that the pregnancy of the partner of a deportee was a relevant factor in any decision to revoke a deportation order and was obliged to give separate consideration to the likely birth in Ireland of the child of a potential deportee.

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He also said the minister was obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be effected by deportation.

The weight the minister must accord to these factors was not an issue in this case, he said, and the minister was not precluded from refusing to revoke the deportation order.

Accordingly, Mr Justice Clarke said the decision of the High Court on this aspect of the case was correct and it was incumbent on the minister to consider these factors in making a decision.

However, he said neither the common law cases and statutory provisions nor the pre and post amendment court decisions relied on by Mr Justice Humphreys supported the High Court judge's conclusion that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3.

"The most plausible view of the pre-Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove," he said.

Mr Justice Clarke also said the Thirteenth Amendment, which says the prohibition on abortion does not limit the right to travel abroad, and the Fourteenth Amendment, which allows for the distribution of information about foreign abortion services, supported the Supreme Court's view that the present constitutional rights of the unborn "are confined to the right to life contained in Article 40.3.3, with due regard to the equal right to life of the mother".

He said: "While it does not alter the outcome of this case, the minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3.

Mr Justice Clarke said the High Court determination that the unborn is a child for the purposes of Article 42A was also being reversed.