Tuesday 11 December 2018

Definition of 'unborn' central issue in Supreme Court case

The Four Courts, Dublin
The Four Courts, Dublin

Tim Healy

The Supreme Court has agreed to hear next month the State's appeal against a significant finding that the word "unborn" in the Constitution means a "child", with constitutional protection beyond the Eighth Amendment.

Lawyers for the State told Chief Justice Frank Clarke they wanted an "extremely early" hearing date because, while no date for a referendum on the Eighth Amendment has been set, the prospect of a referendum in late May has been raised.

The appeal is against a July 2016 judgment in proceedings aimed at preventing the deportation of a Nigerian man.

The case was brought by the man, his Irish female partner and their now two-year-old child, who was not born when the case was initiated.

An unborn child, including a parent facing deportation, enjoys "significant" rights under the Constitution "going well beyond the right to life alone", the High Court said.


Judge Mr Justice Richard Humphreys held that the "unborn" is an "unborn child" with effective rights, including as a result of the Children's referendum.

He ruled these rights extend beyond the protection provided in the Eighth Amendment, which obliges the State to defend and vindicate the right to life of the unborn "with due regard" to the equal right to life of the mother. Lawyers for the State have expressed concern that if the High Court ruling is upheld it will have "serious repercussions" for the duties of the State, particularly entities such as the Child and Family Agency.

Mary O'Toole SC, for the State, said it was very anxious the appeal be heard and decided as soon as possible.

Mr Justice Clarke said the appeal raised issues concerning the Eighth Amendment and related matters and the courts would not be anxious to have the appeal heard in the middle of a referendum campaign.

In the circumstances, the court would facilitate the State's request for the earliest possible hearing and would hear the appeal in February.

Irish Independent

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