Supreme Court Hears State's 'Extreme' View of Unborn

26.02.2018

The Supreme Court has reserved its decision in a landmark case considering the extent of the rights of the unborn under the Irish Constitution. During the hearing, the position adopted by the State, that unborn children have no rights whatsoever beyond the right to life, guaranteed by the 8th Amendment, was described as “extreme, striking and startling”. Chief Justice Mr Justice Frank Clarke said the court would give its judgment as soon as it was in a position to do so.

The State is appealing the High Court's ruling that the unborn has rights extending beyond the right to life in the Eighth Amendment to the Constitution. The issue arose in an immigration case involving a Nigerian man, his Irish partner and their child, who was unborn when the legal proceedings began in 2015. The man wanted the State to revoke a deportation order against him.

Senior Counsel Maurice Collins urged the Supreme Court to uphold the High Court 's decision. He said the extreme nature of the State's arguments in this case, was arresting and the refusal to recognise the "unborn" as an "unborn child" was striking and startling. He said the State was submitting that outside the right to life protected in the Eighth Amendment, the unborn child was a "constitutional nullity" and that if that amendment was repealed, the unborn had no rights at all.

Mr Collins said the State was making this argument regardless of the stage of development, whether it was just after conception or just before delivery. He said the State was submitting that the child in this case had no existing or prospective rights prior to her birth, capable of affecting the Minister for Justice's assessment of her father's application to have his deportation order revoked.

The court was told that when the case first came before the court, the child was 20 days away from birth.

Mr Collins told the court that the State's arguments, if accepted, would not be limited to the area of immigration. He said the State's position was, if there was no Eighth Amendment or if it was repealed, the unborn child had no constitutional rights whatsoever, unless there were some other rights in the Constitution that existed before the amendment was enacted in 1983.

Mr Collins suggested the State's "absolutist" position was not compatible with the Supreme Court's previous decision in a case relating to frozen embryos. He said the court had found that the embryos were not entitled to the protection of the Eighth Amendment, but the court had ruled that the embryos were nevertheless entitled to a measure of constitutional recognition, entitlement and respect.

In his ruling in July 2016, Mr Justice Richard Humphreys in the High Court, found the unborn was clearly a child and had constitutional rights going beyond the right to life in the Eighth Amendment. He found that a reference to protecting and vindicating the rights of "all children" in Article 42a of the Constitution, includes the child before birth.

In his submissions, Mr Collins said the fundamental right to life of the unborn was a "gateway" right, essential to protect and vindicate the other rights of the unborn. He said his side's submission was that the right to life was already protected by the Constitution before the enactment of the Eighth Amendment. That meant, he said, the unborn had a "legal personality" capable of asserting constitutional rights, which could not have been taken away by the Eighth Amendment.

Mr Collins said the right to life was encompassed in other articles of the constitution apart from Article 40.3.3.

Lawyers for the State were pressed by the court about whether or not there was a right to life for the unborn in the constitution before the Eighth Amendment. Senior Counsel Nuala Butler said the State's case was that this had never been definitively decided by the courts before 1983. She conceded that if this was an issue the court had to decide on, it would have to do so, without submissions on the issue on behalf of the State.

Mr Justice Liam McKechnie said it seemed almost remarkable that the Minister for Justice steadfastly refused to give his position on this matter.

RTÉ. February 23.