Supreme Court begin deliberations on rights of unborn appeal case

The Supreme Court has begun its deliberations on the rights of the unborn.

They heard two days of evidence as part of an appeal case that has the potential to derail the abortion referendum.

Lawyers for the state argued the unborn only have the right to life and other constitutional rights don't kick in until birth.

However the opposing legal team contends other parts of the constitution provide a right to life and other rights for the unborn.

During evidence today the Chief Justice has said the Supreme Court may have to decide if the unborn had constitutional rights before the Eighth Amendment was passed in 1983, with the effect the unborn has a legal personality capable of asserting rights.

After Mr Justice Frank Clarke repeatedly pressed State counsel Nuala Butler about its position on that “important” and “live” issue, and queried if the Minister for Justice was “refusing to answer”, Ms Butler said she was instructed the Minister considered the issue has not been definitively decided.

The State’s position is that, before 1983, there was no recognition of legal personality of an unborn at common law, she said. While it did not follow the unborn had no right to life before 1983, there was no recognised constitutional personality.

Although various judges before 1983 made observations concerning the unborn, a lot of what was said was about “respect for human life” which was different from the concept of individual rights holders.

The Eighth Amendment was intended to treat the unborn in a “different category” and not as a person, citizen or child.

It does not follow from the enactment of the Eighth Amendment, Article 40.3.3, the unborn has a legal personality, she said.

The seven judge Supreme Court has reserved judgment on the State’s appeal over High Court findings concerning the extent of the constitutional rights of the unborn, made in a case brought by a Nigerian man who came here in 2007, his Irish partner and their child, born in August 2015.

The Chief Justice said it would give judgment as soon as it was in a position to do so.

In proceedings initiated before the child was born, the Nigerian man and his partner sought to revoke a 2008 deportation order based on his prospective parentage of an Irish citizen child.

Mr Justice Richard Humphreys, who joined the child to the case, found the Minister was required, when considering the revocation application, to consider the rights of the unborn.

He held 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, which requires the State to protect and vindicate the rights of “all children”.

In its appeal, the State maintains Article 40.3.3 exclusively encapsulates the rights of the unborn as the right to life and the unborn has no other constitutional “rights” 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” of the unborn before birth.

The respondents argue the essential question is whether the State is correct that, outside the Eighth Amendment, the unborn is constitutionally “invisible” or a “nullity” with the effect 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 unborn has rights to the care and company of her father the Minister must consider when considering whether or not to revoke the deportation order.

In arguments today for the respondents, Maurice Collins SC said, the effect of the State’s position is that, if the Eighth Amendment is repealed, the unborn will have “no constitutional rights at all”.

The effect of the State’s position was this unborn, who was 20 days away from birth when the case was initiated, has no rights whatsoever capable of being considered by the Minister when considering the application to revoke her father’s deportation order and his side maintained that was not correct, he said.

The right they were relying on was the child’s right to the care and company of her father and that right would be immediately impacted on birth if the man was deported, he said.

As was the situation of children with disabilities, the fact those children cannot assert them independently did not mean they did not enjoy personal rights under Article 40.3.1 and 2.

The State’s refusal to recognise, even as a matter of language, the unborn is an “unborn child” was “striking and startling” and nothing in the Constitution provided any basis for this constitutional “chasm” and inequality between the unborn and the born.

Article 40.3.3 protects the fundamental right of the unborn to life and is a “gateway” right essential to ensure the unborn child gets to the point of “enjoying full constitutional protection”, he said.

Its purpose was to ensure there could be no abortion law but it was not intended to restrict other rights of the unborn or derogate from existing personal rights the unborn is entitled to under Article 40.3.1 and Article 40.3.2, he argued.

Before and as of 1983, the only specific right identified was a right to life but the consequence of that was to recognise the unborn person had rights under Article 40.3.1.

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

The State was effectively saying, when the people voted 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.

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

It was saying, regardless of the stage of development of the unborn, whether 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.

It is wrong to suggest there is “this brightline distinction” on one side of which is a “plethora of constitutional rights” but on the other side there is “nothing. The State is not entitled to “salami slice” the matter in arguing for “circumstances” as opposed to “rights”, he said.

Ann O'Loughlin & Digital Desk