Monday 23 July 2018

'Seminal difference' between child and unborn, Supreme Court told

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Stock picture

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.

Birth is the “brightline” event marking when the unborn is entitled to the full extent of constitutional rights available to citizens, Mary O'Toole SC, for the State, argued.

Ms O'Toole was opening, before a seven judge Supreme Court on Wednesday, the State's appeal over findings of the High Court’s Mr Justice Richard Humphreys the unborn has constitutional rights beyond the right to life in Article 40.3.3.

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

"Birth is the brightline event, you fall one side or the other."

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 and would suggest, 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 Article 40.3.1 and 40.3.2 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 Article 40.3.3.

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? Would the government, for example, have to insist all women of childbearing age take folic acid? she asked.

In his High Court decision, Mr Justice Humprheys judge 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 subsidiary protection and against whom a deportation order issued in 2008, is alleged 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 1983, “let alone any definitive statements” about other constitutional rights.

Counsel agreed, 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 an Irish citizen child was a "circumstance" to be considered by the Minister for Justice.

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."

Twenty-four hours before birth, the only right of the unborn, according to the Constitution, is the right to life, the right to be born, she said.

The appeal continues.

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