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This article was first published on 1 February. It has been updated and republished today ahead of the hearings next week.
THE SUPREME COURT is to expand on a High Court ruling that found that the “unborn” has rights beyond the right to life, which would have significant ramifications in the event of a ‘repeal’ vote in the proposed Eighth Amendment referendum.
The case is to appear before a panel of seven judges on Wednesday 21 February with hearings expected to last two days.
The State is appealing a High Court decision handed down in July 2016 where Judge Richard Humphreys ruled that the use of the word “unborn” in Bunreacht na hÉireann meant an “unborn child”, with the unborn’s rights extending beyond the right to life.
The judgement was made in a case of a man and a woman and their unborn child, now two years of age. The man, who’s originally from Nigeria, was facing a deportation order after being refused asylum in 2007.
During the case, the legal team representing the Department of Justice argued that the couple had no constitutional right to remain here because they weren’t married, and said that the only right the unborn had was the right to life.
But in his ruling, the judge said that argument was “entirely without merit”, expanding beyond that to say that references to “the unborn” in the Constitution was “clearly a child”.
“In my view, the unborn child is clearly a child and this, protected by Article 42A. Any other conclusion would fly in the face of the ordinary meaning of language, the use of the term child in numerous statutory contexts prior to the adoption of Article 42A, and the sheer social biological and human reality that an unborn child is, indeed, a child. Ask any happily expectant parent.”
The unborn child enjoys significant rights and legal position at common law, by statute and under the Constitution, going well beyond the right to life alone. Many of these rights are actually effective rather than merely prospective.
The judge revoked the Nigerian man’s deportation order, saying that the Minister for Justice needed not only to consider the unborn’s right to life, but the legal rights received upon being born. This included safeguards inserted as part of the Children’s Referendum that the State had a duty to protect all children.
If this ruling was to be upheld, it could cause complications for the State in the context of the Eighth Amendment referendum, as barrister Paul Anthony McDermott explained.
“If you now say the unborn has rights other than the right to life, if the unborn is defined from week zero, you come to a slightly strange scenario where on one hand the Supreme Court is saying, for example, that an unborn has a right to stay in Ireland, but on the other hand, the Oireachtas is saying there’s a right to abort that unborn.
So on the one hand you’re saying that this unborn has the right not to be deported, not have their mother deported, but on the other hand can be aborted here.
He said that immigration was the most pointed example of this “slightly awkward clash of different rights”, which was why the State had sought clarification.
Although Judge Humphreys is not the only judge to comment on the definition of “unborn” in the Constitution, his definition is seen as the most definitive, which is why the State decided to pursue further clarification.
McDermott said that the complication and significance of the judgement could mean that it would take more time than other Supreme Court rulings.
“Presumably the court is aware that this could impact on the referendum,” he added.
Cases are usually listed up to three months to allow time for a judgement to be given – three months after that would mean the decision was published at the end of May, which is the time the government has indicated the referendum will be held.
Another thing that could happen during this judgement is the court could make a comment about the Eighth Amendment generally.
“I’d imagine the Supreme Court would try to be careful to not be seen to interfere with the referendum or influence it, it will try to stick to the narrow question – but you couldn’t rule out the possibility that it might say something in its judgements that might throw a light on what the current [Eighth Amendment] wording means,” McDermott said.
Rights of ‘the unborn’ before 1983
Last month, the government published a summary of the legal advice it received from the Attorney General Seamus Woulfe on the proposed wording for the Eighth Amendment referendum.
Rather than adopting the recommendation from the Oireachtas Committee on the Eighth Amendment to have a straight repeal, the government opted for an enabling clause to be included in the Constitution giving the Oireachtas the power to legislate on abortion.
The reason the Attorney General gave for this approach is that if Article 40.3.3 was simply repealed, it could be argued before the courts that the unborn has residual constitutional rights, which “could continue to restrict the power of the Oireachtas to legislate on the issue”.
McDermott said that this is something that will form part of the discussion around what the definition of “unborn” is, and whether there are constitutional protections for the unborn before that Amendment was inserted in October 1983.
What has never been clear is – before 1983, did the unborn have protection in the Constitution even though there was no expressed reference to them? And if the answer to that is yes – and some judges had said yes, the unborn were protected – does that just mean they had a right to life protected, or did they have other rights?
Under the Children’s Rights referendum, the State has a duty to protect all children; in his ruling Judge Humphreys said it was his view that those rights afforded in 2012 cover the unborn as well.
“Insofar as Article 42A of the Constitution protects ‘all’ children, such protection covers the child both before and after birth,” he said in his judgement.
But other High Court judges have made the opposite ruling, so there’s never been a definitive ruling with regards to the unborn in the Constitution and what it means.
The ruling wouldn’t have a bearing on the right of the unborn to citizenship, as the Twenty-Seventh Amendment of the Constitution specifically refers to that right being given to someone who is “born in the island of Ireland” and who has at least one Irish parent.
The context in which questioning of the definition arose was within immigration, which McDermott argues is where it’s “particularly acute”.
“If you’re an unborn being carried in the womb of a mother in Ireland, and if your mother has been deported to a country that’s dangerous or with very poor healthcare, that can have a big impact on your life.”
Immigration solicitor Wendy Lyon of KOD Lyons told TheJournal.ie that if the judge’s ruling is upheld, it could “potentially be very serious”.
“It could be very useful in immigration law if a client is expecting a child that would be good grounds to remain – a child who is Irish or an EU citizen would have very strong rights to remain, so in that respect it’s useful.
But that opens a whole other can of worms for the State such as social welfare – should the unborn’s mother be entitled to child benefit? Should the Census start counting a foetus as a child? And mortality rates – miscarriages count for 20% or 30% of pregnancies, so think of the effect on mortality rates.
She said that these wouldn’t necessarily come to pass if Humphreys’ ruling is upheld, but said that based on her reading of the case, “it didn’t seem necessary to reach that issue”.
“The principle of making a constitutional decision, you have to make sure that it’s necessary and I wouldn’t really find it necessary,” she said, saying that there were enough grounds for the couple to avoid deportation without concluding that “the unborn” meant “unborn child” with rights beyond the right to life.
Prediction
Although judges have commented on the definition of unborn before, this case is unprecedented in that a specific definition has never been sought before.
The wording for Ireland’s constitution is also unique, as there aren’t many cases that afford such strong legal protection to the “unborn”. This will make it difficult for judges to seek previous cases in which to base their judgement on.
“Our constitution has had its own peculiar history on this issue,” McDermott says.
It’s hard to compare it with any other country because we’ve had two referenda, we’ve had the X Case, there’s been so many twists and turns it’s probably hard to look at any other country and say that’s just like ours.
“I would imagine that whatever happens in the referendum, this Supreme Court judgement could be one of the most important judgments of the year, or the decade maybe.”
Claim dismissed
On 7 February, a three-judge panel ruled against the Pro Life Campaign’s application to become a legal adviser in the case.
Mr Justice Donal O’Donnell, Mr Justice William McKechnie and Ms Justice Elizabeth Dunne rejected the application for the Pro Life Campaign to become an amicus curiae or an impartial adviser, saying that this was a “pure issue of law, with no medical or social issue”, and both parties in this case were already legally represented by “experienced teams”.
The panel of judges also questioned the impact the groups involvement would have in the context of the upcoming Eighth Amendment referendum, and asked why they had waited until the last minute to lodge the application to become an amicus, when when the appeal was lodged in the summer of 2016.
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I’m generally not a green freaky type but I do value life in its entirety, no, not vegan either lol. This, to me, is senseless waste of life, leading to extinction of life forms, and for what. It’s not like it’s helping world hunger. It’s so very sad and those responsible should feel great shame.
@Anna Carr: “and for what”? it makes money for for people and makes the big co-ops lots of money.
@Anna Carr: genuine question but why do Irish people see green people as freaks or vegans as a joke?
@Lad: I’m not sure about green, but the opinion about vegans, I dare say it’s the inability to grasp a concept differing from what they and their parents grew up with. Possibly also the refusal to even consider in the slightest the thought of learning new skills and change the way of earning income. Who knows. I’m often thinking about a story my grandmother told me when I was young.
A man had trained as an apple picker and for 20 years made a good living reaching up into the trees harvesting apples. Then the orchard burned down due to a terrible wildfire and work was only available in the neighbouring town, and only as a potato harvester. The man refused the work because after 20 years of reaching up into the apple trees, he didn’t want to learn how to bend down to pick up potatoes. And so he got no work and died of hunger.
The ability to look towards the future, to learn skills that are in demand and that actually have a future, is what I often see totally lacking in people here sadly. So much about a mind set speculation.
As to the article, I’m as usual totally amazed at the short sightedness of everybody involved. Instead of looking over the brim of the bowl and seeing the whole (our seas and oceans on this planet), talk is about this little part of it. If I were sarcastic, I would say, fear not, for in a small decade the oceans will be dead zones, there’ll be no fish to catch, and the air quality on our planet will be so bad that survival will be questionable. Yes, the oceans are a larger oxygen provider than the rain forests. Everyone intelligent enough to have seen Seaspiracy et al. and understood what was aid and shown, knows the solution to the problem. Nobody can do everything, but everybody can do something.
Opinions are like noses. Everybody has one. And that’s my opinion. No need for verbal abuse if you have a different one.
The pillaging of the sea continues unabated.
The biggest virus on this planet is the human race.
@Patrick Corr: That’s an insult to viruses. They normally don’t kill their host.
@Padraig Kavanagh: LOL I admit I must agree with you ;)
Seaspriacy a must watch on Netflix, very factual about sea vessels and the damage they cause the sea life.
@Sadie b: agree seaspiracy is a documentary everybody needs to see urgently! A revolution is needed before we destroy the oceans.
@Sadie b: if the oceans die then we die. Industrial fishing the biggest polluter on the planet and speeding up the path to self destruction. Agree seaspiracy is a must watch
@MB: No revolution needed, just an amending of eating habits.
@Sadie b: I watched Seaspiracy and think each individual section should be addressed separately. Below is a view by Ray Holborn who is respected internationally by many on both sides of the debate.
@Brendan Barry: Ray Hilborn has a vested interest and his points are so totally out of date and off the mark, I doubt anybody with an open mind would agree with him. The argument of animals being killed in crop farming has been refuted years ago due to it’s incorrect relation as proven by scientific studies and evidence. And he really misses the mark when he talks about well managed fisheries. What Seaspiracy is showing (amongst other things) is the devastating impact of the gigantic fishing fleets. The native people doing coastal fishing for their dinner in Africa or in the Pacific are certainly no threat to the oceans.
What Hilborn totally ignores is the point of unnecessary and intentional suffering and killing. Just saying.
A very interesting but depressing report. So we are told to lay off criticising the fishermen for the vast numbers of creatures suffering as by-catches as they will stop reporting them. Who’s to say they are reporting accurately anyway? The figures could be much greater and we will only know when endangered species have disapeared altogether. Nobody is there to see what is actually happening on these boats. I fear that like so much legislation meant to protect our struggling planet new regulations will be either ignored or go unenforced.
@Pat Forster: perhaps cameras on every vessel in the Irish Sea, accessible by a monitoring agency? It would be a huge operation, but to allow these guys do what they want and self report is crazy!
@Padraig O’M: Absolutely not! I’d imagine a large amount of super trawlers have cameras on board and there I can agree that companies should be obliged to show evidence that they observe practise on board their vessels and ensure it’s moral. There are fishermen who do not cause harm at all to the environment and entire communities who rely on people like these hardworking people of goodwill for fish. Small trawlers operated by father and son or whatever should not be effectively stalked by the government or any agency. That would also cost millions for the infrastructure alone and monitoring each vessel would require hundreds of staff. What is essential is that the European Union’s opinion on what our national territorial waters are is not listened to. The navy should not have ships stuck in dry dock half of the year because of poor pay. The pay must be increased so that our naval officers can protect Irish waters from foreign super trawlers, who probably aren’t familiar in the first with Irish maritime law.
We have a fantast fisheries here and we allow it to be raped and pillaged by foreign fishermen. And I know people will say we get money from the eu. Money cant be eaten. We giving future generations food away purely out of greed
The EU have only just begun trawling our waters. #KillingUsSlowly
Good to hear of better monitoring of discards. I’d like the idea of cameras on every shipping vessel and personally think a government representative should be on every trawler to document all activities. Be nice if we could start being more proactive with our great sea resource.
The answer is quite simple – so simple in fact that ye will all reject it in an attempt to keep the status quo.
Stop abusing animals – all animals – if you love your dog/cat then love chickens/cows/pigs.
You can look down on Vegans all you like but that is the plain and simple path – Save Lives – Go Vegan
The average person feels very helpless in the face of all this .We know that the ocean will eventually be destroyed by pollution ,plastic, over fishing etc etc bu what to do .And indeed by all accounts any attempt to challenge the status quo brings swift reprisals .
DON’T EAT FISH .and never will again after seeing Seaspiracy
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