Minister Seeks to Limit Unborn Rights


The Supreme Court has agreed to hear an appeal next month which deals with the meaning of the word “unborn” in the Constitution. The court agreed to the hearing after an application from the State for an “extremely early” hearing date as there may be a referendum on the Eighth Amendment in late May. Senior Counsel Mary O’Toole said the State was very anxious the appeal was heard and decided as soon as possible.


Chief Justice Mr Justice Frank Clarke said the appeal raised issues concerning the Eighth Amendment and related matters. He said the courts, as was the case with the State, would not be anxious to have the appeal heard in the middle of a referendum campaign. He said the court would hear the appeal around 22 and 23 February and would set the exact date once the necessary legal documents had been provided.


The Minister for Justice is disputing several findings of High Court judge Richard Humphreys in a July 2016 judgment on an immigration case.


Lawyers for the Minister disagree with the judge’s finding that the “unborn” is an “unborn child” with effective rights, including rights enshrined in the Constitution as a result of the 2012 children’s referendum. They insist the Eighth Amendment provides the “exclusive” constitutional protection for the unborn.


If the High Court findings are upheld, they will have “serious repercussions” for the duties of the State, particularly entities such as the Child and Family Agency, the Minister has argued in court documents.


It remains unclear if the appeal will be decided before the expected referendum on the Eighth Amendment.


In the original case, Mr Justice Humphreys ruled the unborn child, including the unborn child of a parent facing deportation, enjoys “significant” rights under the Constitution, “going well beyond the right to life alone”. Many of these rights are “actually effective” and must be considered.


The grounds of appeal include the Minister’s insistence the High Court was wrong to find the unborn is a “child” for the purposes of Article 42A, inserted as a result of the 2012 referendum, and to find that Article 42A affords protection for the rights of “all” children “both before and after birth”.

The Irish Times. January 7. RTÉ. January 11.

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