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Giving the unborn full rights would have consequences 'with reverberations', Supreme Court hears

A landmark Supreme Court appeal hearing is under way which is expected to have crucial ramifications for the pending referendum on the Eighth Amendment.

HC W Murphy 3 Source: Flickr/Infomatique

Updated 4.20pm

THE SUPREME COURT has heard that, were it to recognise the unborn as having the same rights of personhood as all citizens, the consequent implications would ‘reverberate’ through the Irish legal system.

The state has today been outlining its objections to a 2016 High Court ruling which suggested that an unborn foetus is a child and has constitutional human rights other than the right to life.

The appeal is expected to have significant ramifications for the pending state referendum on the Eighth Amendment of the Constitution, the amendment which currently gives the unborn in Ireland a right to life equal to that of the mother.

The initial case involved a deportation order delivered concerning a Nigerian man in 2007. In 2015 the man appealed for that order to be revoked. At the time the man’s Irish partner was pregnant with his unborn child, now aged two.

The State’s appeal concerns the decision of High Court judge Richard Humphreys who ruled against the state in July 2016, and said that references to “the unborn child” in the Constitution are “clearly a child”.

Addressing the court this afternoon, senior counsel for the State Mary O’Toole said that “in recognising unborns as having all the rights of personhood, the court has to take into account all the reverberations that will be felt throughout the Irish legal system”.

“It is the assertion of the respondents that, in dealing with this issue in this discrete area, the court doesn’t have to concern itself with the wider implications,” she said.

I would suggest that this is not in accordance with the court’s own case law.

The case law O’Toole referred to is that of the 2009 Supreme Court ruling of Roche v Roche, in which the court ruled that the term ‘unborn’ only applies after an embryo has implanted in the womb (in the context of In Vitro Fertilisation), and therefore refers to the child within the womb only.

She suggested that it would not be appropriate for the court to define the unborn as children as per Article 42a of the Constitution, without giving due regard to the range of consequences such a move would have.

“I’m suggesting that to do so would have too many consequences which are very difficult to predict, which would affect all manner of policy issues and relations between people in the future, and not just in the context of 42a” O’Toole said.

She suggested that the effect of the Eighth Amendment to the Constitution was “to identify a distinct class of rightsholder, the unborn, one that as defined in Roche does not allow for circumstances where the unborn can be considered a citizen”.

To conflate the two terms (ie ‘unborn’ and ‘child’) may lead to interpretations of the Eighth Amendment where the unborn is called an unborn child, which may lead to debate as to where the right to life first occurs.

O’Toole stressed that, in her view, the introduction of the Eighth Amendment, Article 40.3.3 of the Constitution, was as an anti-abortion amendment.

“People voted to prevent abortion. And the entity that they voted to protect is very carefully defined. I don’t recall unborns being considered in any context other than that of abortion.”

“I am suggesting that the proposition that unborns can be protected under other provisions of the Constitution other than 40.3.3 is incorrect, and that article gives definition to the term unborn in this jurisdiction,” she said.

40.3.3 identified the right to life, but only in the context of the human entity that we’re talking about.


In her opening submission this morning before a packed courtroom, O’Toole suggested that the idea that, since the Constitution’s inception in 1937, the unborn have had general citizens’ rights is a “fairly radical statement”.

“That begs the question as to why legislation, such as the Civil Liability Act 1961, was introduced in order to provide for wrongs done to the unborn – to allow a child to sue for injuries sustained during pregnancy for example,” she said.

O’Toole suggested that Irish law has “never proceeded on the basis that the unborn have citizens’ rights, other than the right to life which was enshrined in the Constitution in 1983″.

It is undoubtedly the case that rules were developed (in Irish law) to allow the unborn be considered born for certain purposes, so that once they were born alive they could bring a case for damages for injuries sustained in the womb.

“As I understand it, the position put by the respondents is that, prior to 1983 when the Eighth Amendment was introduced, it was already recognised that there were wide-ranging rights with relation to unborns.”

It is the state’s position that it is “unclear what rights the unborn had prior to the Eighth”, O’Toole said in response to a question from Justice John McMenamin.

There is no actual claim to citizens rights on the part of the unborn until birth itself,  which is a brightline event in the case of an unborn child.

In this context, a brightline issue refers to a rule that is ‘unambiguously clear’.

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A highly technical passage of interplay between the seven Supreme Court justices and O’Toole ensued, in which the Chief Justice Frank Clarke sought to clarify whether or not, in denying the revocation of the initial 2007 deportation order, the Minister for Justice had taken into account the fact that the chief respondent was about to become a father.

“Is it the minister’s case that the respondent being about to become a father was not taken into account at all, or that it was taken into account as an immigration issue but not with regard to any constitutional status of the unborn?” he asked.

“It is the latter,” O’Toole responded.

“It is important to have absolute clarity here, to ascertain whether or not that is a factor that doesn’t attract constitutional rights,” the Chief Justice responded.

“The position of the state is that it is a factor that does not attract constitutional rights,” said O’Toole. “The father’s case is entirely reliant on the idea the child was an unborn citizen child.”

“In an immigration context the difference between the rights of a citizen child and a non-citizen child is crucial.”

Our fundamental point is that the minister can have regard to the circumstances of the person making an application, but he doesn’t have to attach constitutional significance to those circumstances.

The hearing, which is expected to last two days, continues tomorrow morning at 11am, when counsel for the respondents will state their own case.

The seven-judge panel is expected to reserve judgement to a later date.

Comments are closed for legal reasons

First published 12.45pm

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