Constitutional rights of children apply to the born and unborn

The recent judgment of Mr Justice Richard Humphreys on the rights of unborn children, in IRM v Minister for Justice and Equality, on July 29th, became fully accessible to the public last Thursday when it was published on the Judgments Database of the Courts Service.

It has important implications for the protection of unborn children, not only in the context of abortion (which was not the focus of the case) but more generally. It raises a question as to how the Minister for Children is most effectively to discharge her responsibility to protect all children, born and unborn. The narrow question requiring resolution was whether the Minister for Justice and Equality, when considering the possible revocation of an order for the deportation of a man could ignore the rights of the unborn child of the man and his partner. Mr Justice Humphreys held that the Minister was obliged to have regard to the unborn child, though he made it clear that this would not weigh heavily in the determination as to possible deportation.

Mr Justice Humphreys made three crucial findings.

First, that article 40.3.3 should not be regarded in isolation from the constitutional order as a whole. Second, that the unborn child has a wide range of constitutional rights requiring protection. Third, that the recent amendment to the Constitution protecting the rights of children applies to all children, born and unborn.

The judge noted that subsection 3 of article 40.3 had been “enacted in the wake of a number of judicial decisions to the effect that the rights of the unborn were in any event protected by article 40.3”.

He rejected the Minister for Justice and Equality’s stance that article 40.3.3 had been intended “to sweep away all such decisions and to embody in one subsection the totality of the rights of the unborn”.

Other significant rights of the unborn child were recognised, acknowledged or created by common law or statute, “in turn reflecting inherent natural and constitutional rights of the unborn which are implied by the constitutional order”.

Biological reality

Mr Justice Humphreys also said: “Since we were all unborn at one point, it is illogical to be dismissive of the natural, human and biological reality that there is continuity between the rights to be enjoyed before birth and those after birth.” He went on to record that the recognition of rights for the unborn “is not some peculiarity of Irish or even of common law”.

He quoted a passage from the preamble to the UN Convention on the Rights of the Child that states adopt the Convention “[b]earing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’.”

After a review of earlier case law, Mr Justice Humphreys followed the lead of Ms Justice Mary Irvine’s judgment in OE v Minister for Justice, Equality and Law Reform in 2008. It was manifest from her “comprehensive and compelling analysis” that the minister’s stance was “entirely without merit”. It was clearly established that the unborn child enjoyed significant rights under the Constitution even prior to the adoption of article 40.3.3.

The interpretation offered by the State would, as Ms Justice Irvine had pointed out, “place the rights of the unborn child, from a constitutional perspective, at a much lower level than the rights afforded to the unborn child at common law”.

Four years after Ms Justice Irvine’s decision in OE, article 42A of the Constitution on the rights of the child was adopted, when the children’s rights referendum was successful. Section 1 of the new article provides that “the State 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”.

The fact that the term “unborn child” was part of the statute law of the State on the date of the adoption of article 42A and the use in that article of the striking phrase “all children” lent support to the conclusion that the term “child” includes the unborn child.

Mr Justice Humphreys was of the view that “an unborn child is clearly a child and thus 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.”

He rejected the State’s attempt to “diminish or dismiss the status of the unborn child” by arguing that article 42A could not apply to unborn children because unborn children were incapable of exercising several rights: “Consider likewise the born child who may perhaps suffer from profound disability and therefore may not be able to meaningfully enjoy a large number of constitutional rights either such as freedom of expression, association, assembly, correspondence, religion or education, or to rights in the social, cultural and economic field. That does not detract from his or her status as a child and entitlement to rights.”

Troubling matters

Mr Justice Humphreys described the State’s submissions as to the interpretation of articles 40.3.3 and 42A as being intended to be “good for this officially disfavoured category of human person and not otherwise; they are not meant to be taken seriously as the inevitable result of valid and broad principles of constitutional interpretation, but are simply a pragmatic fix to tidy away the problem of the unborn”.

There is much to reflect upon in this judgment. May I mention two troubling matters?

A judge of the High Court was obliged by the stance of the State to describe the unborn child as an “officially disfavoured category of human person”.

Anyone with a sense of history will be disturbed by that fact. Katherine Zappone is Minister for Children – all children – yet she proposes that their protection should be diminished by the repeal of article 40.3.3.

William Binchy is a barrister-at-law