Saturday 22 September 2018

Rights of unborn do not extend beyond right to life, court is told

Seven-judge Supreme Court urged to reject finding the word 'child' should include unborn

Stock photo
Stock photo

Tim Healy

There is a "seminal" difference between a child and an unborn, the State has told the Supreme Court.

The people did not intend, when approving the Children's Referendum in 2012, the word "child" should include the unborn, it argued.

Mary O'Toole SC was opening the State's appeal of findings by Mr Justice Richard Humphreys in the High Court that the unborn has constitutional rights beyond the right to life in Article 40.3.3, better known as the Eighth Amendment.

Birth is the "bright line" event marking when the unborn is entitled to the full extent of constitutional rights available to citizens, she told a seven-judge Supreme Court.

The State's position is that, before birth, the unborn has no constitutional rights beyond the right to life in the Eighth Amendment, giving the unborn an equal right to life with its mother, she said.

"Birth is the bright line event, you fall one side or the other," she told the court.

If the High Court finding that an unborn has rights similar to an Irish citizen child is upheld, that would bring about a "radical" change in the understanding of law and practice.

She said it would suggest that since the Constitution was enacted in 1937 the unborn has had general constitutional rights capable of vindication without exception prior to birth.

Any recognition of inherent rights of the unborn under the unenumerated rights provisions in the Constitution could have a range of practical consequences, including for medical treatment of women, and lead to a potential conflict with the rights of the mother in particular where those rights are not balanced as they are in the Eighth Amendment.

The relationship between mother and unborn is an "absolutely unique phenomenon" in human life as they are so inextricably bound up with each other, rights cannot easily be balanced, she said.

If, for example, the State had to vindicate a right of the unborn to welfare, how was that to be balanced with the mother's even where the mother was doing nothing unlawful, she asked the court. Would the Government, for example, have to insist all women of childbearing age take folic acid?


In his decision, Mr Justice Humphreys held the unborn is a "child" within the meaning of Article 42A, with constitutional rights the State is required to protect and vindicate.

Article 42A, inserted as a result of the Children's Referendum, affirms State recognition for the "natural and imprescriptible" rights of "all children" and provides the State "shall, as far as practicable by its laws, protect and vindicate those rights".

The findings were made in the case of 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 against whom a deportation order issued in 2008, was said to have begun his relationship with the Irish woman in September 2014.

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

The appeal raises issues about the extent of the constitutional rights of the unborn, whether the State must consider any such rights in the context of an application to revoke a deportation order by a prospective parent of an Irish citizen child and the rights of unmarried parents.

In her arguments before a packed courtroom, Ms O'Toole said, while various judges had made observations in a number of cases before the Eighth Amendment in 1983, there was no "definitive" judicial statement about the right to life of the unborn before then "let alone any definitive statements" about other constitutional rights.

Ms O'Toole said that when considering the Nigerian man's application to revoke a deportation order on the basis his Irish citizen partner was about to give birth to their Irish citizen child, the prospective parentage of the child was a "circumstance" to be considered by the Justice Minister.

However, the minister did not wish to be put into a position, when considering revocation applications, of having to consider future "rights" of such a child when born.

"That's a bridge too far," she said.

Irish Independent

Editor's Choice

Also in Irish News