The Supreme Court has finally removed uncertainty about the constitutional status of the unborn, an uncertainty prevailing over decades and predating the Eighth Amendment of 1983.
The court emphatically and unanimously found the unborn’s constitutional rights are confined to the right to life set out in the Eighth Amendment, otherwise known as Article 40.3.3. This article recognises “the unborn” as having a right to life equal to that of “the mother”.
The Supreme Court also rejected a High Court finding the unborn is a child within the meaning of Article 42A, which requires the State to vindicate the rights of "all children". Had that finding been upheld, it would have significant implications for the duties of State agencies, particularly Tusla, and the medical treatment of women.
During the 1983 referendum on the Eighth Amendment, some campaigners argued the unborn had existing rights under the provisions of Article 40.3, a view shared by at least two High Court judges but disputed by the State in its appeal.
The State had secured a fast-track appeal to the Supreme Court against findings by the High Court that the unborn has constitutional rights beyond the right to life set out in Article 40.3.3.
Family’s appeal
An important issue in the appeal arose from arguments by the family at the centre of the High Court case – a Nigerian man, his Irish partner and their child, who was unborn when the case was initiated – about observations by the courts before 1983 about the unborn. It was argued the effect of those observations was that an unborn child has a constitutionally protected right to life, that it is a rights holder under the Constitution and there was no basis for limiting its rights to a right to life.
The observations included remarks by the Supreme Court's Mr Justice Brian Walsh, in his judgment on the landmark McGee case of 1974 which held the right to marital privacy was breached by a law criminalising the importation of contraceptives in Ireland, that any action to limit family size by endangering or destroying human life must be an offence "against the guaranteed personal rights of the human life in question".
The Supreme Court said it was “regrettable” the State had made no submissions about the import of those remarks and other pre-1983 judicial observations.
It said the State’s position that there were no “definitive decisions” concerning the constitutional rights of the unborn before 1983 was correct – “so far as it goes, which is not very far” – and the State’s stance deprived the court of the “precise focus” such sharply-honed arguments could provide.
‘To remove uncertainty’
The Supreme Court concluded such judicial observations in pre-Eighth Amendment cases were not “decisions” of the courts and that, by 1983, the courts had not decided a right to life of the unborn existed and was guaranteed by the Constitution. In the face of a range of possible views about the unborn’s legal position, it said the purpose of Article 40.3.3. was “to remove uncertainty”.
It ruled the present constitutional rights of the unborn are “confined to the right to life guarantee in Article 40.3.3 with due regard to the right to life of the mother”.
The court also insisted its decision does not render the unborn either “constitutionally or legally invisible” because the terms of Article 40.3.3, the court’s findings on obligations to consider prospective rights of the unborn and various common law and statutory provisions “all recognise and protect the interests of an unborn child”.
The judgment also clarifies the obligations of the Minister for Justice when considering certain applications related to deportation. The court firmly rejected arguments the Minister was not obliged to take account of a potential deportee’s prospective parentage of an Irish citizen child or the prospective rights of that child on birth, including to the care and company of their parents.
While several High Court judges have taken a similar approach in previous cases, the Supreme Court judgment is an important endorsement of that.