It seems inevitable either the Court of Appeal or the Supreme Court will be asked to define the rights of the unborn in a context where the State seems anxious to maintain a restrictive view.
A High Court ruling made by Mr Justice Richard Humphreys last July in a deportation case has left the State facing a range of uncertainties that go far beyond the deportation issue. He was asked to consider the extent to which the Minister for Justice had to take into account the rights of an unborn prospective Irish citizen whose father was facing deportation.
As well as affecting policy and obligations for a range of Government agencies and departments, the ruling has implications for the debate on whether the Eighth Amendment of the Constitution should be repealed.
Mr Justice Humphreys was asked if the rights of an unborn, prospective Irish-citizen child were the same as those of a born citizen. In the case concerned, the child had actually been born by the time the arguments were heard, but the judge was asked to answer the question anyway, for clarity reasons, for future deportation cases.
Conflicting judgments
He considered two previous judgments, which give different answers to the question.
In a 2010 case, Mr Justice John Cooke said the only right of the unborn child as the Constitution then stood was, courtesy of the Eighth Amendment (article 40.3.3), "the right to life or, in other words, the right to be born".
Alternatively, in a 2008 judgment, Ms Justice Mary Irvine found the unborn child had significant rights over and above the right to life.
Mr Justice Humphreys came down decidedly on the side of Ms Justice Irvine. He rejected the opposite view as requiring “some perverse form of hostility to the rights of this particular category of human entity” [the unborn] and found there was “continuity between the rights to be enjoyed before birth and those after birth”.
The 2012 children’s rights amendment means the State now “recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights”, Mr Justice Humphreys noted. This must apply to all children, he said, including the unborn.
In his judgment he referred to the State’s argument to the court as a “simplistic and almost sneering basis to diminish or dismiss the status of the unborn child”.
He further noted that the rights of the unborn had been recognised as protected by the courts prior to the Eighth Amendment, and rejected the view that the amendment “was intended to sweep away all such decisions” and to embody in the subsection the totality of the rights of the unborn.
State appeal
The State wants to appeal Mr Justice Humphreys’ ruling so it can get a definitive view on whether the rights of the unborn are, so to speak, at the Cooke or the Humphreys end of the spectrum.
It wants certainty on an issue which goes beyond deportation law and could affect such areas as maternal care, childcare, interference in the rights of pregnant women and medical interventions during pregnancy. A range of Government departments, not least Health and Justice, are understood to be concerned an unpredictable “Pandora’s box” could be opened.
The State, in its appeal, will no doubt be hoping the lid can be closed again on what it fears could be a series of policy complications.
Any final ruling could also shed light on whether there are unspecified rights in the Constitution relating to the unborn which might continue to exist if the Eighth Amendment was repealed. Even if so, however, this would not mean they could not be limited by way of reasonable legislation.
