Birth is the 'brightline' event for unborn rights, Supreme Court hears

Prior to birth, the only right the unborn has under the Constitution is the right to life as set out in the Eighth amendment, Article 40.3.3, giving the unborn an equal right to life with its mother, Mary O’Toole SC said. “Birth is the brightline event, you fall one side or the other.”

If the High Court finding that an unborn has rights similar to an Irish citizen child is upheld, that would bring about a “seminal” and “radical” change in the understanding of the law and practice, she said.

It would suggest, since the Constitution was enacted in 1937, the unborn has had general constitutional rights capable of vindication without exception prior to birth, she said. The State did not accept that was a correct statement of the law.

While various judges made observations in a number of cases before the Eighth Amendment was inserted after a referendum in 1983, there was no definitive judicial statement about the right to life of the unborn before 1983, “let alone any definitive statements” re other constitutional rights.

The judicial commentary around 1983 related to abortion and it was difficult to see that other rights of the unborn were considered, she said.

Ms O’Toole was opening an appeal concerning the extent of the constitutional rights of the unborn.

The appeal is listed for two days and the court is expected to reserve its judgment, which may potentially affect the wording of the planned referendum on repeal of the Eighth Amendment .

When ruling last month on a pre-appeal application, Mr Justice Donal O’Donnell said, if the people of Ireland are asked to change their basic law, there “should not be avoidable uncertainty about what the law is”.

The Chief Justice, Mr Justice Frank Clarke, is presiding over the appeal, sitting with Mr Justice O'Donnell, Mr Justice William McKechnie, Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne, Ms Justice Iseult O'Malley and Ms Justice Mary Finlay Geoghegan.

The State has appealed findings of the High Court’s Mr Justice Richard Humphreys that the unborn has constitutional rights in addition to the right to life in Article 40.3.3 and is a “child” within the meaning of Article 42A, with constitutional rights the State is required to protect and vindicate.

Article 42A, inserted as a result of the 2012 Children's Referendum, affirms State recognition for the “natural and imprescriptible” rights of “all children” and provides the State “shall, as far as practicable by its laws, protect and vindicate those rights”.

The State maintains the unborn has no constitutionally protected personal rights beyond the right to life in Article 40.3.3 and is not a “child” within the meaning of Article 42A.

The case concerns a Nigerian man who came here in 2007, his Irish partner and their child, born in August 2015. The man, who was refused asylum and subsidiary protection and against whom a deportation order issued in 2008, is said to have two other children, one in Nigeria and one born here in July 2015 to an African woman.

His relationship with the Irish woman is alleged to have begun in September 2014. The couple took proceedings in July 2015 aimed at preventing his deportation and seeking residency on the basis of potential parentage of an Irish born child.

In her submissions today, Ms O’Toole said their case is Article 40.3.3 encapsulates the rights of unborn and the unborn has no constitutional rights outside that.

The State disagreed with the High Court’s finding the unborn has rights under Constitution outside right to life which had to be considered by the Minister in deciding the situation of a foreign national parent of a prospective unborn Irish citizen child, she said.

Those findings have implications not only for the immigration system but for the law in general, she said.

She said the common law operates on the basis a person is not in being until they are born in a living state and that no rights inhere to an individual unborn. The rights only come into being on birth of the individual in a living state.

She said, over time, the common law has created exceptions to the rule which tend to arise in discrete areas of law, such as succession, tort law and related areas. Rules were developed, for example, that allowed the courts, once a child was born alive, to retrospectively apply rights and allowed for cases over injuries sustained in the womb.

However, the legal personhood of the unborn did not crystallise until birth, she said.

The State disputed arguments there is a general acknowledgement in the Constitution of the general legal personhood of the unborn, meaning the unborn has an entitlement to all rights inhering to citizens, she said.

The law has never proceeded on the basis the unborn have general rights under Constitution as citizen persons but have proceeded since 1983 on basis the unborn has a right to life which can be vindicated.

In an immigration context, the prospective parentage of an Irish citizen child was one factor for the Minister to take into account, she said.

The appeal continues.