Seven judges to hear appeal over rights of unborn

Judgment may affect the wording of the referendum on the Eighth Amendment

An appeal involving potentially the widest consideration by the Supreme Court of the extent of the constitutional rights of the unborn will open before a seven judge court on Wednesday.

The Chief Justice, Mr Justice Frank Clarke, will preside over the appeal, sitting with Mr Justice Donal O'Donnell, Mr Justice William McKechnie, Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne, Ms Justice Iseult O'Malley and Ms Justice Mary Finlay Geoghegan.

The appeal is scheduled to run for two days and the court’s judgment may affect the wording of the planned referendum on the Eighth Amendment to the Constitution, Article 40.3.3, giving the unborn an equal right to life to its mother.

The State has appealed findings of the High Court's Mr Justice Richard Humphreys that the unborn has constitutional rights in addition to the right to life in Article 40.3.3 and is a "child" within the meaning of Article 42A, with constitutional rights the State is required to protect and vindicate.


Article 42A, inserted as a result of the 2012 Children’s Referendum, affirms State recognition for the “natural and imprescriptible” rights of “all children” and provides the State “shall, as far as practicable by its laws, protect and vindicate those rights”.

While the disputed findings were made in an immigration case, their implications, if upheld, extend well beyond such cases.

The State maintains the unborn has no constitutionally protected personal rights beyond the right to life in Article 40.3.3 and is not a “child” within the meaning of Article 42A, inserted as a result of the 2012 Children’s Referendum.

Any legal entitlements of the unborn are dependent, it says, on being born alive.

If the Supreme Court decides otherwise, that has wide-ranging implications for the rights of pregnant women, including their medical treatment, as well as for the functions of a range of agencies, particularly Tusla, the State believes.

Immigration cases

The case concerns a Nigerian man who came here in 2007, his Irish partner and their child, who was born in August 2015. The man, who was refused asylum and subsidiary protection and against whom a deportation order issued in 2008, is said to have two other children, one in Nigeria and one born here in July 2015 to an African woman.

His relationship with the Irish woman is alleged to have begun in September 2014. The couple took proceedings in July 2015 aimed at preventing his deportation and seeking residency on the basis of potential parentage of an Irish-born child.

The child was not a party to the proceedings when they were initiated but was later joined to the case by Mr Justice Humphreys.

The Supreme Court will also be asked to consider an apparent clash between two other High Court judges, in judgments in two other immigration cases, concerning the extent of the unborn's constitutional rights.

Six barristers – senior counsel Mary O'Toole, Nuala Butler and Denise Brett, and junior counsel, Simon Mills, Silvia Martinez Garcia and Andrea Mulligan – will represent the State.

The lawyers who acted for the plaintiffs in the High Court case are opposing the appeal and will be represented by a team of four barristers – senior counsel, Michael Conlon and Maurice Collins, and junior counsel, Paul O'Shea and Irene Fisher.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times