High Court Judgement on unborn rights beyond the Right to Life 25-11-2016

As explained by Orla O’Donnell, this High Court Judgement follows on Justice Richard Humphries judgement in July when he said unborn rights go beyond Article 40 3 3 (the 8th Amendment) and are also vindicated by Article 42A (as passed in the Children’s Referendum in 2012). The State recognises they are children as those after birth. This is consistent with the UN Convention of 1959 on the Rights of the Child which pledges to protect children BEFORE as well as AFTER birth.

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.
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”.

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

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