The rights of the unborn were not rights that were distinguishable from those of the mother in the context of a deportation case being heard, the State contended in the High Court yesterday.
The State gave its arguments to a judicial review against deportation taken by an unborn child, suing through its mother, a Nigerian woman.
Mr George Birmingham SC, for the Attorney General and Minister for Justice, said: "It is important to say that at no stage in the legal proceedings or in the written submissions has it ever been suggested by the State that the unborn is without rights.
"What we are saying is that in the context of these proceedings, the rights of the unborn are not rights that are distinguishable from the mother's," he said.
This was not a case where there was any evidence of a direct threat to the life of the unborn child, nor was it a case where the mother had said there were complications in the pregnancy.
There was no specific evidence whatsoever as to the position of the first and second named applicants, the unborn child and mother, he said.
They did not have as much as a note from a GP. There were two affidavits, one was from a sociologist without medical qualifications, and the other from a gynaecologist in London who had never seen the mother.
"So it is not a right-to-life case, where someone is saying my life or my child's life is at risk," Mr Birmingham said.
However dressed up it was, the claim was unfounded. What was being said was that while the claim was being processed, the woman became pregnant and the health service in Ireland was better than the health service in Nigeria.
"That is what this is about, that the second named applicant \the mother\ is entitled to a health service of choice and I say the applicant is not entitled to the health service of choice," Mr Birmingham said.
"The Refugee Act entitles persons to put forward a claim on specific grounds but what it doesn't do is permit somebody to present themselves and say I want to avail of your health service because it is better than mine," he said.
"The obligations on the State are restricted to what's practical and it is not practical or in the interests of the common good to suspend immigration rules where infant mortality rate or life expectancy rate in the original country is inferior," he said.
"The State is not in a position to respond to the position of the first named applicant [the unborn] without reference to the second named applicant [the woman]," Mr Birmingham said.
The mother could leave the State tomorrow if she chose.
The applicant arrived in late 1999. In May 2000, she was informed her application to stay was unfounded. She appealed but was unsuccessful. She then applied for a judicial review in January 2001 which she appealed to the Supreme Court in July 2001. Again, she lost the case.
In October 2001, the initial judicial review proceedings were struck out. She was sent a letter asking her to report to a Garda station on November 1st, 2001 but she did not comply. On October 26th, the Minister took the decision to proceed with the deportation order.
In November, the matter was again before the courts, but the Supreme Court declined to intervene.
Mr Birmingham said he had set this out because of the woman's application before the court now that she was about to give birth in May 2002. They had never had that assertion in an affidavit.
"To this day all we have is that one sentence, coming from someone whose credibility was found against at other stages of the proceedings," he said.
They might, he said, have expected medical certificates and information on who the father was, for instance whether he was an Irish citizen, or an applicant for asylum or still in the country.
"We don't know. We have no information whatsoever and it is a somewhat peculiar situation and is of note and worthy of comment," Mr Birmingham said.
Sight could not be lost of the fact that the mother presented claims that were manifestly unfounded and went through the courts. The Minister was never informed that she was pregnant at the time he was making the order.
"The case primarily being argued by those for the unborn child and mother was a right-to-life case, I would say it was a choice of health service case."
Mr Birmingham said after the second set of proceedings in the courts, there was apparently an assassination in Nigeria.
"Here, the applicant seeks to climb on board and take advantage, but there was no suggestion that she was a political activist and that the assassinated Minister was a leader of a party she was affiliated to," he said.