Minister to seek early hearing for ‘unborn’ appeal

Government is challenging a finding that the ‘unborn’ is a child with significant rights

The Minister for Justice is expected to seek an early hearing of his Supreme Court appeal against a finding that the word "unborn" in the Constitution refers to a "child" whose constitutional protection goes beyond the Eighth Amendment.

The Supreme Court’s written determination granting the Minister leave to appeal is expected to be published shortly, but The Irish Times has learned that an appeal has been permitted on several grounds, including the extent of the rights of the unborn and of non-marital parents.

No date for the appeal has been set, but it is due for case management next Friday.

As a result of what the Supreme Court has described as the “systemic” importance of the issues raised by the case, it is likely to get an early hearing date.


The Minister is disputing several findings of High Court judge Richard Humphreys in a July 2016 judgment on an immigration case.

Lawyers for the Minister disagree with the judge’s finding that the “unborn” is an “unborn child” with effective rights, including rights enshrined in the Constitution as a result of the 2012 children’s referendum. They insist the Eighth Amendment provides the “exclusive” constitutional protection for the unborn.

If the High Court findings are upheld, they will have “serious repercussions” for the duties of the State, particularly entities such as the Child and Family Agency, the Minister has argued in court documents.

It remains unclear if the appeal will be decided before the expected referendum this year concerning the repeal of the Eighth Amendment, Article 40.3.3, which obliges the State to defend and vindicate the right to life of the unborn “with due regard to the equal right to life of the mother”.

The original judgment was delivered in proceedings aimed at preventing the deportation of a Nigerian man. The case was brought by the man, his Irish female partner and their now two-year-old child, who was not born when the case was initiated.

In the case, Mr Justice Humphreys ruled the unborn child, including the unborn child of a parent facing deportation, enjoys "significant" rights under the Constitution, "going well beyond the right to life alone". Many of these rights are "actually effective" and must be considered.

The Minister must consider the constitutional and EU rights of the man, his partner and the child, including their family rights and rights as non-marital parents, he ruled.

He stressed his findings did not mean a person such as the man, unlawfully in the State since 2007, was automatically entitled to remain here.

‘Systemic importance’

In permitting an appeal against the findings, the Supreme Court said there was a “clear advantage” in seeking to address the issues raised “sooner rather than later” given their “systemic importance”, not just in the field of immigration law “but more widely”.

The grounds of appeal include the Minister’s insistence the High Court was wrong to find the unborn is a “child” for the purposes of Article 42A, inserted as a result of the 2012 referendum, and to find that Article 42A affords protection for the rights of “all” children “both before and after birth”.

It is also argued the High Court erred in finding the Eighth Amendment does not state the legal position of the unborn on an “exclusive” basis.

Other grounds include arguments the High Court erred in finding the combined effect of Article 42A, constitutional recognition for same-sex marriage, European law and “societal changes” was that unmarried parents now have wider inherent constitutional rights in relation to their children and each other.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times