The contention that an unborn child is not a person appears to have been abandoned by the State in the High Court today.
The case arises from a judicial review of a deportation order on a pregnant Nigerian woman.
Dr Michael Forde SC told the court on behalf of the Nigerian woman (who cannot be named) and her unborn child that the baby was entitled to a legal declaration that it is a person.
In the first case of its kind, Dr Forde argued that as a person, the baby could not be deported in the absence of a deportation order addressed to that person.
Counsel for the State "seems to accept that the first named applicant [the baby] is a person but he doesn’t seem to have the same range of rights," said Dr Forde.
Mr George Birmingham SC, counsel for the State, said that at no stage had the State claimed the unborn had no legal rights. He said for the purposes of this trial the rights of the baby, and the mother were indistinguishable.
Dr Forde argued that the Minister for Justice had not stated the reasons for the deportation order as he is obliged to do.
Accordingly, Dr Forde said he was asking the Minister to reconsider his deportation order against the woman in light of her changed circumstances, that is, her pregnancy.
High infant mortality in Nigeria - 90 out of 1,000 births compared with seven in Ireland - was cited by Mr Forde as further grounds against the deportation of mother and baby.
It could not be stated that deporting the mother would infringe on the baby’s right to life, suggested Mr Birmingham. All that could be stated was that there was a difference in the quality of health care between Nigeria and Ireland.
He told the court the mother wanted to avail of the superior healthcare system in Ireland but added there was a limit to the capacity of the State to provide these services.
Mr Birmingham said the State had the inherent right to control the entry of aliens. It was a fundamental feature of the common good that this be so and that in appropriate circumstances constitutional rights of individuals may be subservient to it.
Hence, if the Court finds that the constitutional right to life of the baby was at issue, which was disputed, Mr Birmingham claimed any such right was subject to the common good and was overridden by the right of the State to deport the mother.
Mr Justice Thomas Smyth deferred judgment on the case until January 18th.
