Give Me a Crash Course In: The rights of the unborn

Mr Justice Richard Humphreys said in the High Court that  the State’s duty to protect the rights of ‘all children’ under Article 42a of the Constitution extends to the unborn as it is ‘clearly a child’

Mr Justice Richard Humphreys said in the High Court that the State’s duty to protect the rights of ‘all children’ under Article 42a of the Constitution extends to the unborn as it is ‘clearly a child’

 

Why was Mr Justice Richard Humphreys in the news this week?
He said that the word “unborn” in the Constitution means “unborn child” with “significant” rights and legal position “going well beyond” the right to life protected in the Eighth Amendment (Article 40.3.3) of the Constitution.

Anything else?
He said the State’s duty to protect the rights of “all children” under Article 42a, the constitutional amendment approved in the 2012 Children’s Referendum, extends to the unborn as it is “clearly a child”.

Why was he addressing these issues?
He was considering the rights of a Nigerian man, his Irish partner and their child (unborn at the time their case was initiated in July 2015), in the context of their bid to prevent the man’s deportation. He ruled the State must consider the rights the unborn would probably enjoy into the future on birth as an Irish citizen child, insofar as they relate to deportation.

The State must also consider the prospective family rights of all three under the Constitution, European Convention on Human Rights, and Irish and EU law. He dismissed the State’s arguments there were no family rights under the Constitution as the couple were unmarried and there was no “born” child.

Are his findings significant?
Potentially. The judge rejected the State’s argument that Article 40.3.3 (the Eighth Amendment requiring the State to vindicate the right to life of the unborn) contains the entirety of the rights of the unborn. He said health and welfare of the unborn must be “an actually effective right” and the unborn has a recognised right to litigate to enforce various rights. His interpretation of the words “all children” in Article 42a to include the unborn may prove significant.

Have other High Court judges addressed these issues?
There are at least two existing conflicting decisions in asylum cases on the position of the unborn. Mr Justice Humphreys disagreed with the State that he must follow a 2009 judgment of Mr Justice John Cooke which suggested Article 40.3.3 exclusively states the rights of the unborn and that justiciable rights cannot be asserted on behalf of an unborn before birth. Instead, he endorsed a 2008 decision of Ms Justice Mary Irvine rejecting arguments by the State that it had only to consider the right to life of the unborn, and no other rights, or potential rights. He agreed with Ms Justice Irvine that the unborn child had significant rights under the Constitution even before Article 40.3.3.

What does this judgment mean for asylum seekers?
When the State is considering a bid to remain here based on prospective parentage of an Irish child unborn when the application is made, it must give “appropriate” consideration to the rights the child will probably enjoy into the future on birth. The parents are entitled to raise the issues, the unborn may be an applicant, and the family rights of all must be addressed. Each asylum case has to be considered in its own circumstances and the identified rights will not necessarily be decisive, particularly if the applicant is here unlawfully, as this Nigerian man is.

Does the decision affect the campaign to repeal the Eighth Amendment? 
The State asked the judge to treat this as a test case and is expected to appeal the judgment. Mr Justice Humphreys’s findings on the extent of the rights of the unborn, including under Article 42a, suggest there may be a range of legal and constitutional rights of the unborn extending beyond the right to life in Article 40.3.3. The judge also indicated the issue of whether an unborn child has a constitutional right not to be subject to injury could be argued in a future case.

What happens now?
The State is expected to appeal.

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