Tuesday, 20 November, 2018

Supreme court to rule on unborn case

Abortion rights campaigners protest on Feb. 14 outside the Irish parliament in Dublin calling for a repeal of the 8th Amendment to the Irish Constitution View Slideshow
Melinda Barton | 07 March, 2018, 18:46

The High Court essentially found that the unborn child is entitled to the same constitutional protections as a child.

He said the Government plans to publish the wording of the Referendum Bill tomorrow.

Ireland's highest court is expected to deliver judgment on a landmark case on the rights of the unborn later today.

A SEVEN-JUDGE SUPREME Court has ruled against a court judgement that found references to "the unborn" in the Constitution were "clearly" to an unborn child, saying that the rights of the unborn were "confined" to the Eighth Amendment. It also said the unborn is a child within the meaning of Article 42A, inserted as a result of the 2012 Children's Referendum, which requires the State to protect and vindicate the rights of "all children".

"Neither the Common Law cases and statutory provisions, nor the pre and post Eighth amendment cases relied on when analysed and understood, support the High Court's conclusions that the unborn possess inherent constitutionally protected rights other than those expressly provided for in Article 40.3.3", he said.

The initial case involved a deportation order given to a Nigerian man in 2007.

The High Court previously found the unborn was a child who had rights under the Constitution beyond the right to life.

If the Supreme Court had found the rights extended beyond the amendment, the referendum might have needed to be broadened to take in other elements of the constitution.

"The most plausible view of the pre-Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was created to remove", he said.

During hearings last month, Mary O'Toole SC said if the decision was upheld, there would be hard to predict consequences for the State.

The Minister for Justice, they insisted, was required both to consider the rights of the unborn child to the care and company of her father and his rights as the prospective parent of an Irish citizen child.

He added: "The most plausible view of the pre-Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was created to remove".

It is now likely the referendum can go ahead as planned at the end of May.

"It's important that we get this right", Mr Varadkar said.

The eighth amendment to the Republic's constitution, introduced in 1983, "acknowledges the right to life of the unborn".

If Judge Humphreys ruling that the unborn had rights beyond the right to life were upheld, it would have caused confusion for the proposed referendum on repealing or retaining the Eighth Amendment, legal experts argued.