Supreme Court: Unborn has no constitutionally protected rights independent of Article 40.3.3.

The Supreme Court has reversed the High Court’s finding that the unborn is a child for the purposes of Article 42A of the Constitution.

Delivering a lengthy judgment from the seven-judge Court, Chief Justice Frank Clarke held that there was nothing in statute or common law to support the High Court’s conclusion that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Art. 40.3.3.


In 2008, a deportation order was made against Mr M. In 2015, an application was made to the Minister for Justice and Equality, seeking to revoke that deportation order. The Minister made no decision regarding the application to revoke, and an injunction preventing Mr M’s deportation was granted by Justice Mac Eochaidh in the High Court.

In applying for revocation of a deportation order under s.3(11) of the Immigration Act 1999, Mr M argued that the Minister was obliged to take into account the fact that his partner was pregnant – which ultimately resulted in the birth of their daughter. The Minister for Justice and Equality argued that she did not have to consider the pregnancy or the rights or interests of the child not yet born.

High court

In the High Court in July 2016, Justice Humphreys had to consider:

  1. Whether Mr M was entitled to notice of the date and time of his intended deportation;
  2. Whether it would have been unlawful for the Minister to deport Mr M without first deciding on the s. 3(11) application; and
  3. Whether, when the Minister came to consider the s. 3(11) application prior to the birth of Mr M’s daughter, she could limit herself to a consideration of the family rights of the applicants by reference to the right to life of the unborn only or whether she was obliged to consider the substantive prospective family rights as between all of the applicants that would arise on the birth
  4. In considering whether the term “unborn” could be taken to mean “unborn child” in the particular context of Article 42A of the Constitution, Justice Humphreys stated that Section 1 of Article 42A provides that: “the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights”

    Justice Humphreys opined that the reference to ‘all’ represented ‘very significant substantive content and intention’ which must ‘be given a wide interpretation and should include the child before birth’. Furthermore, he suggested that ‘the term “unborn child” was part of statute law on the date of the adoption of Article 42A and that therefore the use of the phrase “all children” in that constitutional provision would support the conclusion that the term “child” was intended to include an unborn child.

    Rejecting an argument, suggesting that “child” did not include an unborn child on the basis of non-exercisability of rights, as facetious and as “a simplistic and almost sneering basis to diminish or dismiss the status of the unborn child’, Justice Humphreys made various orders including a declaration that the Minister, in considering an application under s. 3(11) of the Immigration Act 1999, was required to consider the current and prospective situation of the applicant concerned insofar as relevant to that application, including the prospective position, likely to arise on birth, of any child of the applicant unborn at the time of the application.

    Supreme Court

    Relying on s. 9 of the Court of Appeal Act 2014, the State was granted leave to bring a leapfrog appeal to this Court in respect of some of the broader issues which had been the subject of the judgment of Humphreys J. in the High Court.

    Having regard to the approach of Justice Humphreys, Justice Clarke explained that wider issues concerning the constitutional status of the unborn were a particular focus of the case.

    The legal issue related to the process which must be followed in an application to revoke a deportation order under section 3(11) of the Immigration Act 1999 on grounds that the proposed deportee is likely to become the father of an Irish citizen child.

    In a detailed summary of the case, Justice Clarke held that:

    1. The Minister was obliged to consider the fact of pregnancy of the partner of the proposed deportee as a relevant factor and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.
    2. The Minister was obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation.
    3. Having considered these matters, the Minister was not precluded from refusing to revoke a deportation order.
    4. The High Court on this aspect of the case was correct and the declaration made should be upheld.
    5. 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 possesses inherent constitutionally protected rights other than those expressly provided for in Art. 40.3.3.
    6. The present constitutional rights of the unborn is confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.
    7. The Minister was not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3.
    8. The High Court determination that the unborn is a child for the purposes of Article 42A should be reversed.
      • by Seosamh Gráinséir for Irish Legal News
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