An unborn child is not a person and is not entitled to a separate legal personality, the Attorney General and the Minister for Justice will argue in the High Court today.
The case arises from a judicial review of a deportation order on a pregnant Nigerian woman, which opened in the High Court yesterday.
In the first case to taken by an unborn child, the challenge to Mr O'Donoghue's deportation order is in the names of the baby, referred to as "Baby O", suing through its mother, and its mother in her own right.
The baby is referred to as "the first-named Applicant" and the mother as "the second-named Applicant".
The deportation of the mother, who came to Ireland two years ago and failed in her application for refugee status, is being challenged on several grounds.
The first of these is that the unborn child is a person under Irish law.
Accordingly, Dr Michael Forde SC argued on behalf of the baby, a separate deportation order should have been made for the baby as a separate legal entity from its mother.
He argued that no order had been made for the baby's deportation and, being a person, he or she could not be deported without being the subject of a separate order.
This does not mean that the unborn child was necessarily an Irish citizen, Dr Forde told Mr Justice Thomas Smyth. The issue of citizenship would arise, under Article 2 of the Constitution, when the child was born, he said, and was not an issue in this case at the moment.
He also argued that the right to life of the unborn, as guaranteed under Article 40.3.3 of the Constitution, required that everything practicable should be done to protect the unborn's right to life.
Citing infant mortality statistics in Nigeria, where the mortality rate was 90 per thousand births, compared with seven in the Republic, he said this right to life would be jeopardised by the deportation of the mother.
He said that the fact of the mother's pregnancy was brought to the Minister's attention for the purpose of reconsidering the deportation order, but he did not do so.
The deportation order is also being challenged on the basis of a number of arguments not directly related to the woman's pregnancy. Mr Richard Humphreys argued that the information concerning the woman's circumstances at home on which the decision was based was not accurate.
As well as seeking a declaration that Baby O is a person, Dr Forde is asking the court for a declaration that the woman should not be deported and wants an order that the Minister should reconsider his decision to deport her in the light of the changed circumstances, that is, her pregnancy.
The State will deny that Baby O is a person or has a right to a legal personality.
It will also deny that he or she is a person within the meaning of the Immigration Act, which deals with the procedures for deportation.
In a replying affidavit supporting its arguments the State also argues that "no threat to the life of the first-named Applicant has been alleged that would require the protection of the State".
It will argue that, if he applicants' arguments were followed through, no woman of childbearing age who could assert she was pregnant could ever be deported. This could have serious implications for public policy and for the health services, according to the State.