Monday 17 December 2018

Explainer: Supreme Court to consider appeal over rights of unborn

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An appeal will begin this morning in relation to the extent of the rights of the unborn. A seven-court Supreme Court panel will hear the case - we look at its significance.

What is the background?

The State is appealing against a significant finding that the word "unborn" in the Constitution means a "child", with constitutional protection beyond the Eighth Amendment.

The appeal arises from a case concerning a Nigerian man who came here in 2007, his Irish partner and their child, born in August 2015. The man, who was refused asylum and subsidiary protection and against whom a deportation order was issued in 2008, is said to have two other children, one in Nigeria and one born here in July 2015 to an African woman.

His relationship with the Irish woman is alleged to have begun in September 2014.

The couple took proceedings in July 2015 aimed at preventing his deportation and seeking residency on the basis of potential parentage of an Irish born child.

The child was not a party to the proceedings when they were initiated but was later joined to the case by Mr Justice Humphreys.

What did the High Court ruling find?

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.

While the disputed findings were made in an immigration case, their implications, if upheld, extend well beyond such cases.

What is the State's argument?

The State maintains the unborn has no constitutionally protected personal rights beyond the right to life in Article 40.3.3 and is not a “child” within the meaning of Article 42A, inserted as a result of the 2012 Children’s Referendum.

Any legal entitlements of the unborn are dependent, it says, on being born alive.

If the Supreme Court decides otherwise, that has wide-ranging implications for the rights of pregnant women, including their medical treatment, as well as for the functions of a range of agencies, particularly Tusla, the State believes.

This sounds like it will have an impact on the Eighth Amendment referendum?

The Eighth Amendment referendum is a concern but the issue extends beyond that. 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 acceded to the State's request for the earliest possible hearing.

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