Unborn 'does not have' constitutional rights outside right to life, Supreme Court rules

By Ann O'Loughlin

Update: The unborn has no constitutional rights outside the right to life in the Eighth Amendment the Supreme Court has ruled.

The seven-judge court unanimously found the High Court was wrong to find the unborn has constitutional rights outside Article 40.3.3 and was also wrong to find the unborn is a child within the meaning of Article 42a.

The “most plausible” view of the law before the 1983 amendment was there was uncertainty concerning the constitutional position of the unborn which the Eighth was designed to remove, it held.

Its conclusions do not mean the unborn child is “either constitutionally or legally invisible”, it stressed. The terms of Article 40.3.3; the fact account must be taken of rights that will be acquired on birth and the provisions of common law and statute “all recognise and protect the interests of an unborn child”.

The State, in legislating, is entitled to take account as a factor the respect which is due for human life “as an aspect of the common good”, it added.

However, the Supreme Court upheld other findings by the High Court that the Minister for Justice is required to consider the prospective constitutional rights of an unborn Irish citizen child when considering whether or not to deport their non-Irish citizen parent.

In so doing, it dismissed the State’s appeal against a High Court declaration requiring the Minister to consider those rights.

The 125-page judgment clarifies the constitutional position of the unborn in advance of the planned referendum on Article 40.3.3. Until now, there were a number of conflicting High Court decisions concerning whether the unborn had constitutional rights beyond Article 40.3.3.

The judgment was delivered by the Chief Justice, Mr Justice Frank Clarke, sitting with Mr Justice Donal 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, during a historic first sitting of the Supreme Court in Limerick.

The Chief Justice said the judgment was contributed to by all its members.

The State had secured a fast-track appeal to the Supreme Court against findings by the High Court’s Mr Justice Richard Humphreys in an immigration case involving a Nigerian man, his Irish citizen partner and their daughter, born in August 2015, but who had not been born when the case was initiated in July 2015.

The case concerned the factors the Minister for Justice must take into account when considering an application relating to deportation where it was expected the potential deportee would become the father of a child.

The High Court found the rights of the unborn were not confined to the right to life in Article 40.3.3 and said the unborn enjoyed rights under the personal rights provisions in Article 40.3.1 and Article 40.3.2. It also said the unborn 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 the rights of “all children”.

Based on his findings, Mr Justice Humphreys held the Minister had invalidly stated he was not obliged to give any separate regard to the position of the unborn and declared the Minister is obliged to have regard to the fact of pregnancy and the likely impact of deportation on the rights the Irish citizen child would acquire on birth. The unborn, at the time the Minister was asked to revoke her father’s deportation order, had existing constitutional rights not limited to Article 40.3.3 and particularly to the care and company of her father, he said.

He granted a declaration the Minister, when considering an application to revoke a deportation order, must consider the current and prospective situation of the applicant, including the prospective child, unborn at the time of the application.

In its appeal against his judgment, the State maintained the unborn’s constitutional rights are confined to the right to life in Article 40.3.3 and any other rights become effective only on a live birth.

On Wednesday, the Supreme Court ruled the Minister must consider the pregnancy of the partner of the proposed deportee, the likely birth in Ireland of a child of the potential deportee and the fact an Irish citizen child will, on birth, acquire constitutional rights which may be affected by deportation. Having done so, the Minister is not precluded from refusing to revoke deportation, it stressed.

The High Court decision on that aspect was therefore correct and the Minister’s appeal in that regard must be dismissed, it ruled.

It also found that the various common law cases, statutory provisions and pre- and post-Eighth Amendment cases that the High Court had relied on to find the unborn has constitutional rights outside Article 40.3.3 did not support such findings.

While stressing its decision in that regard did not alter the overall decision dismissing the appeal, it said the Minister is not obliged to treat the unborn as having constitutional rights outside Article 40.3.3 and reversed the High Court findings the unborn has rights outside that article and is a child under Article 42A.

Supreme Court overturns ruling on constitutional rights of the unborn

The Supreme Court has unanimously ruled that the unborn has no constitutional rights outside the right to life in the Eighth Amendment.

In a landmark judgment today, the seven-judge court ruled the High Court was wrong to find the unborn has constitutional rights outside Article 40.3.3 and was also wrong to find the unborn is a child within the meaning of Article 42 A.

However, it upheld findings by the High Court that the Minister for Justice is required to consider the prospective constitutional rights of an unborn child when considering whether or not to deport their non-Irish citizen parent.

The decision clarifies the constitutional position of the unborn in advance of this summer’s planned referendum on Article 40.3.3, which guarantees equal protection for the right to life of the unborn and its mother.

The judgment was delivered by the Chief Justice, Mr Justice Frank Clarke, sitting with Mr Justice Donal 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, during a historic first ever sitting of the Supreme Court in Limerick.

The judgment was broadcast on the RTÉ News Now channel.

The State had sought and secured a fast-track appeal to the Supreme Court against findings by the High Court’s Mr Justice Richard Humphreys the unborn has constitutional rights beyond the right to life set out in Article 40.3.3.

The unborn, the High Court found, enjoyed other rights under the personal rights provisions in Article 40.3.1 and Article 40.3.2. It also said the unborn 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”.

Although the judgment was given on an immigration case, the Supreme Court agreed with the State the High Court findings had implications well beyond such cases.

In agreeing to hear the appeal urgently, the Supreme Court said there was a “clear advantage” in seeking to address the issues “sooner rather than later, given the systemic importance of the matters debated, not just in the field of immigration law but more widely”.

During the appeal, heard over two days last month, the State insisted the unborn has no constitutionally protected rights beyond the right to life in Article 40.3.3 and cannot invoke, or have invoked on its behalf, any other constitutional rights.

It argued the unborn’s only constitutionally protected right is to be born and any other rights only become effective on a live birth. Article 40.3.3, it said, recognises the unborn as a “distinct class” from the constitutional terms “citizens”, “persons” and “children”.

Lawyers for the family at the centre of the case – a Nigerian man, his Irish citizen partner and their daughter, who was unborn when the case aimed at having the Minister revoke an order for his deportation was initiated in May 2016 – opposed the appeal.

They argued the essential question was whether an unborn child, outside Article 40.3.3, is a constitutional “cipher” or “nullity” whose existence and rights do not have to be given any recognition or weight whatever in assessing whether to revoke the deportation order.

The Minister for Justice, they insisted, was required both to consider the rights of the unborn child to the care and company of her father and his rights as the prospective parent of an Irish citizen child.

They also disputed Article 40.3.3 contains an “exclusive” statement of the constitutional rights of the unborn.

This ruling means the Government can proceed with trying to call a referendum on the Eighth Amendment.

It is likely a special Cabinet meeting will be called tomorrow to approve the referendum bill, which outlines the question people will be asked in a vote.

That then needs to be approved by the Dáil and Seanad before the date of the referendum will be known.

The Taoiseach wants the Dáil to sit on Friday to start debating the bill.

If it does not then a May referendum will be hard to bring around, because the Dáil does not sit next week and is off for a further two weeks over Easter.

 

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