Thursday 19 April 2018

Unborn's constitutional rights in the balance

Mr Justice Frank Clarke Photo: Gareth Chaney Collins
Mr Justice Frank Clarke Photo: Gareth Chaney Collins

Tim Healy

The unborn may be left with no constitutional rights at all if the Eighth Amendment is repealed, the Supreme Court was told.

The seven-judge court has reserved judgment on the State's appeal over High Court findings concerning the extent of the constitutional rights of the unborn.

It follows a case brought by a Nigerian man who came here in 2007, his Irish partner and their child, born in August 2015.

The Chief Justice said the court would deliver judgment as soon as it was in a position to do so.

Yesterday Mr Justice Frank Clarke repeatedly pressed State counsel Nuala Butler about its position on that "important" and "live" issue, and queried if the Justice Minister was "refusing to answer".

Ms Butler said she was instructed the minister considered the issue has not been definitively decided.

The State's position was that before 1983 there was no recognition of legal personality of an unborn at common law.

While it did not follow the unborn had no right to life before 1983, there was no recognised constitutional personality.

Although various judges before 1983 made observations concerning the unborn, a lot of what was said was about "respect for human life" which was different from the concept of individual rights holders.

The Eighth Amendment was intended to treat the unborn in a "different category" and not as a person, citizen or child.

It does not follow from its enactment that the unborn has a legal personality, she said.

The appeal follows proceedings initiated before the child was born. The Nigerian man and his partner sought to revoke a 2008 deportation order based on his prospective parentage of an Irish citizen child.

Mr Justice Richard Humphreys found the minister was required, when considering the revocation application, to consider the rights of the unborn.

He held the unborn has constitutional rights beyond the right to life and is a "child" within the meaning of Article 42A, inserted as a result of the 2012 Children's Referendum, which requires the State to protect and vindicate the rights of "all children".

In its appeal, the State maintains the unborn has the right to life but no other constitutional "rights" which the minister must consider in the context of a revocation application.

The prospective parentage is a "circumstance" that may be considered but the minister is not required to consider "rights" of the unborn before birth.

The respondents argue the essential question is whether the State is correct that, outside the Eighth Amendment, the unborn is constitutionally "invisible" or a "nullity".

They say the unborn has rights to the care and company of her father which the minister must consider when considering whether to revoke the deportation order.

In arguments yesterday, Maurice Collins SC said the effect of the State's position is that, if the Eighth Amendment is repealed, the unborn will have "no constitutional rights at all".

The State's refusal to recognise, even as a matter of language, the unborn is an "unborn child" was "striking and startling" and nothing in the Constitution provided any basis for this constitutional "chasm" and inequality between the unborn and the born.

Irish Independent

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