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Friday 22 September 2023 Dublin: 14°C
Gráinne Ní Aodha Limerick's new courthouse, where today's judgement was delivered.
# the eighth referendum
Supreme Court rejects definition of 'unborn' as an unborn child in Constitution
The Taoiseach had previously halted publishing the draft legislation for the Eighth referendum pending the ruling.

A SEVEN-JUDGE SUPREME Court has ruled against a court judgement that found references to “the unborn” in the Constitution were “clearly” to an unborn child, saying that the rights of the unborn were “confined” to the Eighth Amendment.

Although it dismissed this aspect of the judgement, it upheld the High Court’s ruling that the Minister for Justice ”is obliged”, in the decision to revoke a deportation order in cases of pregnancy, to consider the rights that the unborn will acquire upon birth.

For the past two weeks, the Supreme Court has been reviewing a 2016 High Court ruling which found that “the unborn” in Bunreacht na hÉireann referred to an unborn child, with rights extending beyond the right to life, as defined in the Eighth Amendment (Article 40.3.3).

If Judge Humphreys’ ruling that the unborn had rights beyond the right to life were upheld, it would have caused confusion for the proposed referendum on repealing or retaining the Eighth Amendment, legal experts argued.

Taoiseach Leo Varadkar had said he was delaying the process for publishing the draft legislation for the referendum pending the Supreme Court’s ruling.


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

This appeal to the Supreme Court was pursued by the government, following a number of varied rulings on how to interpret references to “the unborn” in the Constitution and the possible consequences there would be if the unborn had rights extending beyond the right to life.

Counsel for the State Mary O’Toole SC had argued during a two-day hearing before the Supreme Court that if the ruling were to be upheld, it would “reverberate” across the Irish legal system.

The State’s central argument was:

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.

Counsel for the family Maurice Collins SC told the court that the State’s stance amounted equating the unborn to a “constitutional nullity”. He called this stance “radical”, and asked:

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?

Today’s judgement

In its judgement today, the Supreme Court said that it had a number of considerations to make in relation to the High Court’s judgement.

These were; whether the Minister for Justice was required by law to consider pregnancies in deportation cases; whether the rights the unborn would enjoy when born should be taken into account in deportation cases, whether the unborn enjoys rights outside the right to life; whether the term “any children” as referred to in the Constitution includes the unborn; and whether it’s necessary to reassess the constitutional rights of families which are not based on marriage.

In a nuanced judgement, the Supreme Court found that the Minister “is obliged” to consider pregnancies and the rights that unborn will acquire on birth “as a relevant factor”, dismissing the Minister’s appeal here.

The seven judges unanimous ruling found that the unborn doesn’t have Constitutional rights other than those afforded in the Eighth Amendment.

“…neither common law cases and statutory provisions, nor the pre and post Eighth Amendment cases relied on… support the High Court’s conclusions that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3.”

The most plausible view of pre Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove.
While it does not alter the outcome of this case, the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3.

“The High Court determination that the unborn is a child for the purposes of Article 42A is also reversed,” Chief Justice Frank Clarke said.

In response to the judgement, Minister for Justice Charlie Flanagan issued the following statement:

I welcome the clarity that this Supreme Court judgement provides regarding the status of the unborn within the constitution.
In relation to the implications for the status of potential deportees from the state with regard to their family status; this is a detailed and comprehensive judgement, and my Department, along with others will analyse it fully.

The Minister for Children Katherine Zappone and the Chair of the Oireachtas Committee on the Eighth Amendment Senator Catherine Noone, welcomed the Supreme Court’s definite ruling in relation to the rights of the unborn.

The Minister for Health Simon Harris is considering the judgement and is awaiting the advice of the Attorney General. Following today’s ruling, Harris intends to bring a memo to Cabinet with the final wording of the Referendum Bill shortly.

Speaking this morning, the Minister said “this Bill will contain the wording to be put to the people in a referendum at the end of May. I look forward to the people having their say on this very important issue.”

Read: Giving the unborn full rights would have consequences ‘with reverberations’, Supreme Court hears

Read: Supreme Court dismisses Pro Life Campaign request to become adviser in ‘defining the unborn’ case

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