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Bunreacht na hÉireann

Argument from Justice Minister that unborn has no constitutional rights 'radical', Supreme Court told

The Supreme Court is considering the legal arguments for and against defining ‘the unborn’ in the Constitution as an unborn child.

Updated at 6pm

THE SUPREME COURT has heard an argument that, according to the State, the unborn is a “constitutional nullity” with no rights outside the Eighth Amendment.

Seven judges of the Supreme Court are to clarify a 2016 High Court ruling where Judge Richard Humphreys said that mentions of “the unborn” in Bunreacht na hÉireann ”clearly” meant an unborn child, with rights extending beyond the right to life set out in the Eighth Amendment.

On the first day of the case, the legal team for the State argued that if the ruling were to be upheld, the consequences would “reverberate” throughout the legal system. Today, the Court heard arguments why an unborn should be viewed as an unborn child, and what rights other than the right to life could be afforded to them.

The 2016 case concerns a Nigerian man who was to be deported in 2008 – the man later appealed for that order to be revoked through the High Court. At the time the man’s Irish partner was pregnant with his unborn child, who is now aged two.

The judge revoked the Nigerian man’s deportation order, saying that the Minister for Justice needed not only to consider the unborn’s right to life, but the legal rights received upon being born. This included safeguards inserted as part of the Children’s Referendum (or Article 42A) that the State had a duty to protect “all children”.

“In my view, the unborn child is clearly a child and thus, protected by Article 42A. Any other conclusion would fly in the face of the ordinary meaning of language,” Humphreys said.

The State applied for the Supreme Court to clarify this decision, as a number of previous judgements have taken different interpretations of the meaning of “the unborn”.

This morning, the legal team for the family argued that the State’s assertion was that the unborn “has no cognisable rights at all under the Constitution” outside Article 40.3.3.

Maurice Collins SC said that the State’s case was that the child “did not at any stage… have any rights whatsoever” within the Constitution before “the bright line event” of her birth.

How is it that the one week from birth is so different from the one week after birth?

Collins continued:

“The State has argued that the unborn is an entity that is a distinct constitutional category, and will not even admit that the unborn is an unborn child… [it] is a striking feature of the unborn appeal, that the unborn has no rights as such other than those in Article 40.3.3 [the Eighth Amendment].”

Responding, the legal team for the State said that it wasn’t necessarily the case that with the implementation of the Eighth Amendment, a ‘constitutional personality’ was placed on the unborn.

On the subject of whether the Minister of Justice would make a submission on whether there were rights relating to the unborn before the Eighth Amendment, the Supreme Court said that for the purposes of resolving this issue they would still give a decision without the Minister’s input.

One judge added:

It seems almost remarkable, despite a lot of requests from this court, that the Minister for Justice still refuses to give his view which will be quite important [to the case].

The legal team for the State argued that the Minister viewed cases from the perspective of the prospective father, and not the unborn. They also argued that although the unborn was weeks away from birth, and that this was acknowledged by the Minister, it was the view that at that moment in time it was still an unborn with no constitutional rights other than the right to life.

She added that “there isn’t a halfway house” where you can acknowledge the potential rights of the unborn but not act on them.

The court heard that the Minister gives consideration to the rights of the family, both statutory and constitutional, and that the unborn would be considered in this way.

“…but not the rights of a citizen [as it's] not yet born. Birth is a game-changer.”

What would those rights be?

Today, Collins told the court that the State’s case was ”striking”, “radical”, “incoherent and at times, contradictory”.

He said that the State has declined to engage in what rights the unborn may have had prior to the introduction of the Eighth Amendment in 1983.

A few back-and-forths ensued between the seven-judge panel and Collins over whether there were previous references to rights within the Constitution, and what those prospective rights could be.

Is there a right to liberty, a right to free speech, a right to travel, the judges asked. Collins answered that there were circumstances that circumvented those rights.

The court said that there were “an awful lot of things” that women do while pregnant have a potential impact on the health of a child, and asked should a best diet, best exercise, medical treatment advice be dispersed if an unborn were to be defined as an unborn child.

“These are very difficult issues,” Collins responded. Yesterday, the legal team for the State asked that if all women who are physically capable of having children would have to take folic acid to ensure a healthier pregnancy.

Collins said today:

Are we really saying that if an expectant mother were to say ‘I believe that I can continue to climb ladders and work at heights until I’m about to deliver a child because its my decision to do so’… that the State has no value?

Another judge asked representatives of the Minister for Justice:

“If a pregnant woman refuses medical treatment that would injure, not kill, the unborn – then there’s nothing the State could do?”


The Supreme Court made the argument that once Eighth Amendment was implemented, it “coloured” the Constitution.

It’s impermissible to disregard the Amendment, and further amendments that qualify Eighth Amendment. With each new [amendment], a court must alter the way it reads/perceives the Constitution.

Provisions about what protections relating to the unborn before 1983 “is a less persuasive argument”, the court said, because it doesn’t take into account the new provision.

Collins argued that the view seemed to be “either have a plethora of rights under the Constitution – or none”.

When it was asserted that children don’t necessarily have a right to the companionship of both parents - ”Do children have the right to stop their parents from getting divorced?” – Collins gave the following response:

“There are children who don’t suffer from instability, and children who do. But they still have rights… The variety of circumstances, the variety of children, is – if not infinite – [numerous]“.

When a child is born but the father has been deported, the rights invested in the child are immediately impaired.

Yesterday, the legal team for the State argued that if references to “the unborn” in the Constitution were defined as an unborn child, it would have implications that would severely impact the Irish legal system.

Mary O’Toole SC, representing the Department of Justice, said that the assertion that the unborn has general citizens’ rights is a “fairly radical statement”.

If the Supreme Court upholds Humphreys’ ruling, it could impact welfare payments and medical treatment, the State has argued.

The seven-judge panel is expected to reserve judgement to a later date. Taoiseach Leo Varadkar said he was delaying the process for publishing the draft legislation for the referendum pending the Supreme Court’s ruling.

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