Deportation case: Counsellors finish opening arguments

The unborn baby of a Nigerian woman fighting deportation is entitled to a legal declaration that he or she is a person, the High Court was told today.

Mr Michael Forde, SC, counsel for the baby and its mother, told Mr Justice Thomas Smyth that the State in legal submissions seemed to be abandoning its contention that the baby was not entitled to a legal personality.

Mr Forde said that as a result of the State’s position the baby, which is not due to be born until early next May, was entitled to a High Court declaration that it is a person.

Mr George Birmingham, SC, counsel for the State, told the court that at no stage had it ever been suggested by the State that the unborn was without legal rights.

The State’s claim was that in the context of the court proceedings the rights of the unborn were not distinguishable from the rights of the mother.

"This is not a case where there is any evidence that there is a specific threat to the life of the unborn if the mother is deported," Mr Birmingham said.

"There is no evidence from a gynaecologist that there would be a difficult birth or a premature one in the mother’s home country of Nigeria. There is not even a note from a General Practitioner."

The High Court was asked to rule that the unborn baby of the Nigerian woman could not be deported to Nigeria.

Mr Forde, who appears with Mr Richard Humphreys, for the baby and its mother had argued that the baby was a person and as such could not be deported by Justice Minister John O’Donohue in the absence of a Deportation Order addressed to that person, ie the baby.

Part of the grounds put forward against deportation of both baby and mother included the high infant mortality rate in Nigeria of 90 in 1,000 births compared with seven in Ireland.

Mr Forde argued that the life of the baby would be at serious risk if deported.

The mother's legal team claims the fact of the pregnancy had been brought to the Minister’s attention for the purpose of his reconsidering the Deportation Order and that he had failed to do so.

One of the orders being sought is that the Minister should be directed to reconsider his decision.

The Nigerian woman seeks a declaration that deportation would constitute an interference with the rights of the baby and in particular the right to life of the unborn child and his or her right to achieve his or her birthright under Article 2 of the Constitution as well as the right not to be removed from the State without a positive decision against him or her made in accordance with law.

Mr Birmingham submitted it was well established the State had the inherent right to control the entry of aliens.

It was a fundamental feature of the common good that this be so and that in appropriate circumstances constitutional rights of individuals may be subservient to it.

He claimed that in the event of the Court finding that the constitutional right to life of the baby was in issue, which was disputed, it was alternatively submitted that any such right was subject to the common good and was overridden by the right of the State to deport the mother.

He submitted that if the mother was deported it could not be stated that this would infringe the baby’s right to life.

All that was stated was that there was a difference in the quality of health care between Ireland and Nigeria.

The common good recognised by the Courts in a series of cases would be irreparably damaged if the State were bound to admit all females claiming to be pregnant from States with higher mortality rates than Ireland.

The mother wished to avail of the superior health care system in Ireland.

There was a limit to the capacity of the State to provide these facilities and it would be contrary to the common good that these faciliities be made available to all-comers without discrimination.

The case, the first to be taken by an unborn child, arises from a judicial review of a deportation order on the Nigerian woman.

Mr Justice Smyth reserved judgment.