Monday 16 July 2018

The unborn will have 'no constitutional rights' if Eighth Amendment repealed, court told

The hearing continues before a seven-judge Supreme Court
The hearing continues before a seven-judge Supreme Court

Aodhan O'Faolain

The State has adopted the “extreme” and “absolutist” position of insisting the unborn is a “constitutional nullity” outside the Eighth Amendment with the effect - if the amendment is repealed - the unborn will have “no constitutional rights at all”, the Supreme Court has been told.

The refusal to recognise, even as a matter of language, that the unborn is an “unborn child” is a “striking and startling feature” of the State’s approach, Maurice Collins SC said.

He said the State is effectively saying, when the people voted for the Eighth amendment in 1983, they were “unwittingly excluding the unborn from every other constitutional protection”, including under the personal rights provisions of Article 40.3.1 and Article 40.3.2.

The “extreme” nature of its arguments were to the effect the unborn is in a unique category not falling into the taxonomy of citizens, human persons or children, he said.

What the State was saying was, when the people adopted the Eighth amendment - Article 40.3.3 - they “unwittingly engaged in an exchange”.

That exchange was that, in return for an explicit acknowledgement in 40.3.3 the unborn had an equal right to life with its mother. All pre-existing rights or any rights that may have been discerned later that vested in or protected the unborn were “given up”.

It was impossible to reconcile this “absolutist” position with the Supreme Court’s approach to a case involving frozen embryos where the court agreed, while the embryos were not an unborn under Article 40.3.3, they were nonetheless entitled to some measure of constitutional recognition and respect.

The radical position being adopted by the State highlights its “considered refusal” to engage in any meaningful way with whether the unborn had constitutional rights prior to Article 40.3.3, he argued.

He was making arguments before a seven judge Supreme Court opposing the State’s appeal against findings of the High Court’s Mr Justice Richard Humphreys that the unborn has constitutional rights beyond the right to life in Article 40.3.3 and is a “child” within the meaning of Article 42A.  

Inserted as a result of the 2012 Children's Referendum, Article 42A affirms State recognition for the rights of “all children” and provides the State “shall, as far as practicable by its laws, protect and vindicate those rights”.

Mr Justice Humphreys’ 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. In proceedings initiated before the child was born, the man sought to revoke a 2008 deportation order based on his prospective parentage of an Irish citizen child.

The State’s case is that Article 40.3.3 encapsulates the rights of unborn and the unborn has no constitutional rights outside which the Minister must consider in the context of a revocation application. It says the prospective parentage is a “circumstance” that may be considered but the Minster is not required to consider “rights.

Mr Collins is representing the respondents – the Nigerian man, his Irish partner and their daughter - in the appeal.

The respondents argue the essential question is whether the State is correct in maintaining that, outside the Eighth Amendment, the unborn is a “constitutional  cipher” or a “nullity” such that, in the deportation context, the Constitution does not require its existence or, its rights when born to be given any weight whatever in any Ministerial consideration of a deportation order.

They say the State is explicitly urging the court to endorse findings of Mr Justice John Cooke, made in another immigration case, that, at least since the adoption of the Eighth Amendment in 1983, that amendment is an exclusive e statement of the constitutional rights of the unborn and the unborn cannot invoke, or have invoked on their behalf, any other constitutional rights whatever, including any personal rights under Art 40.3.1 and 40.3.2. The court should not do that, the respondents argue.

In his submissions, Mr Collins said the striking aspect of the State’s approach is there is a significant disparity between the nature and scope of the “modest and unsurprising” findings of the High Court  and what the State wants the court to endorse.

When the findings are identified in their appropriate context, the appropriate resolution of the appeal is clear and is not necessary for court to go further, he said.

The State was saying that, outside the right to life in Article 40.3.3, this unborn, who was 20 days away from delivery when the case was initiated, has “no cognisable rights” at all, actual or prospective, under the Constitution, he said.

It was saying, regardless of the stage of development of unborn, whether at the stage of conception or a viable foetus close to delivery, or any of the many intermediate points in between, the unborn had no rights at any stage prior to the “brightline” event of her birth.

The effect of this argument was that this unborn has no rights whatsoever capable of being considered by the Minister when considering the application to revoke her father’s deportation order, he said.

His case was the State had adopted an “incoherent and contradictory” position to the effect the imminent birth was a “circumstance” to which the Minister might or perhaps had to have regard, he said. It was not clear whether the Minster was saying the imminent birth was something that could be considered or had to be considered by him.

 The appeal continues.

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