State seeks to appeal ‘unborn’ means ‘child’ ruling

The State is seeking permission to appeal a High Court judgement which found the word “unborn” in the Constitution means an unborn “child” with rights beyond the right to life.

Although that finding was made in the context of an immigration case, it is understood that the State has been advised that its significance extends well beyond that.

An appeal is considered particularly necessary because there are apparently conflicting High Court decisions on the extent of the constitutional rights of the “unborn”.

The application for a certificate of appeal will come before Mr Justice Richard Humphreys next month, arising from his judgement last July that “unborn” means an “unborn child” with rights extending beyond the right to life under Article 40.3.3 .

It is understood his judgment has since been discussed by a number of Government departments.

The judgement considered the rights of a Nigerian man facing deportation, along with the rights of the man’s Irish partner and their child, unborn when their action aimed at preventing deportation began.

In July 2015, the man and his then pregnant partner sought leave for judicial review and got an interim injunction restraining his deportation. Their child was born a month later.

When the matter was mentioned this week to Mr Justice Humphreys, he adjourned the State’s application to December 12. Legal sources believe that, due to the importance of the issues raised, a certificate for an appeal to the Court of Appeal is likely to be granted.

The State may also seek a “leapfrog” appeal, bypassing the Court of Appeal directly to the Supreme Court.

Mr Justice Humphreys said the unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”. Many of those rights are “actually effective” rather than merely prospective.


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