Minister believes unborn’s rights ‘not decided’ prior to Eighth Amendment

The Supreme Court may have to decide if the unborn had constitutional rights before the Eighth Amendment was passed in 1983, the Chief Justice Frank Clarke has said.

Mr Justice 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 that the Minister considered the issue had not been definitively decided.

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

Although various judges made observations concerning the unborn before 1983, a lot of what was said was about “respect for human life” and 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, that the unborn has a legal personality, Ms Butler 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 to Ireland 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.

Deportation order

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”.

The respondents argue the essential question is whether the State is correct that, outside the Eighth Amendment, the unborn is constitutionally “invisible” with the effect the Constitution does not require its existence or its rights, when born, to be given any weight whatsoever in any Ministerial consideration of a deportation order.

They say the unborn has rights to the care and company of her father that Minister must acknowledge when considering whether or not to revoke the deportation order.

In arguments 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 that 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 deciding on the application to revoke her father’s deportation order and his side maintained that was not correct.

Right to care

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 40.3.2.

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.

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, Mr Collins said.

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.