Rights of unborn child confined to provisions in Irish constitution, Supreme Court rules
The contentious Eighth Amendment of the country’s legal framework renders abortion illegal other than in exceptional circumstances.
Ireland’s Supreme Court has unanimously ruled that protections for the unborn child offered under the state’s constitution do not extend beyond the right to life.
The judgment is set to smooth the path for the Government’s planned referendum on Ireland’s restrictive abortion laws this summer.
The contentious Eighth Amendment of the country’s legal framework enshrines the right to life of the unborn – a provision that renders abortion illegal other than in exceptional circumstances.
In the anticipated referendum, citizens are due to be asked whether they want to remove the Eighth Amendment, which gives equal right to life to the mother and the unborn, and replace it with wording that would allow politicians to set Ireland’s abortion laws in the future.
But Supreme Court judges had been considering whether unborn children were entitled to further rights under other sections of the constitution.
If they had found the rights extended beyond the Eighth Amendment, the referendum might have needed to be broadened to take in other elements of the constitution – a move that could have disrupted the timetable for holding the vote.
Ireland’s Chief Justice, Frank Clarke, told the Supreme Court, sitting in Limerick, that all seven judges had agreed that the unborn’s rights were confined to the provisions of the Eighth Amendment.
“The present constitutional rights for the unborn are confined to the right to life guaranteed in Article 40.3.3 (the Eighth Amendment),” he said.
Taoiseach Leo Varadkar has said if the referendum backs a change to the constitution, the Government will table legislation that would allow for unrestricted abortion in the first 12 weeks of pregnancy.
The case reached the floor of the Supreme Court after the State appealed over a High Court judgment which ruled that the unborn child did have enshrined rights beyond the right to life.
The High Court case was related to an immigration dispute involving a Nigerian man who argued that he should not be deported because the unborn child being carried by his Irish partner had multiple rights, including the right to the care and company of its father.
The High Court cited a number of grounds for finding in favour of the Nigerian man – one being that the unborn child had rights extending beyond the Eighth Amendment.
The Supreme Court judges dismissed the State appeal of the High Court ruling, but not because it agreed with the lower court’s position on the unborn.
Instead, they found that Ireland’s Justice Minister, in making a deportation ruling, should have considered rights that were conferred on the child once it was born.
So, while the deportation decision was upheld, the High Court’s specific ruling in relation to the rights of the unborn was not.
Chief Justice Clarke said: “While it does not alter the outcome of this case, the minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3.”