Irish Series: Supreme Court to take decision before Abortion Referendum can proceed

Whilst the Irish Government has this week taken definitive steps towards setting down a date for the much sought after Referendum in relation to the Eighth Amendment, which has become known as the “Abortion Referendum”, it is clear that there are matters which need to be resolved before this can proceed.

The Irish Government sought a “leapfrog” appeal to the Supreme Court last year to resolve a concern regarding a Judgment handed down by the High Court in July 2016. The Judgment in question arises from a case wherein a Nigerian man, his Irish partner and their child (who was unborn at the time the case was brought by the couple) sought to prevent the man’s deportation based on the rights afforded to his unborn child. The High Court made a ruling in the case in 2016 that the use of the word “unborn” in the Constitution means an unborn child is conferred with rights beyond the right to life. The result of this is that the Court found the unborn child enjoys significant rights, including all rights afforded to a child in Ireland conferred by the Children’s Referendum and under which a child is protected by the State. The Judge who handed down the ruling stated that the unborn child in this situation was clearly a child and was afforded the protections conferred upon a child under the Constitution. The man’s deportation order was revoked as in seeking to deport the man, the State was not protecting the child’s rights, which included family rights.

The State is seeking clarity on the extent of these constitutional rights of the unborn, as if the above ruling is to be upheld, it could cause significant complications in the context of the Eighth Amendment Referendum. There are serious concerns as to conflict between what the Judiciary are saying on the one hand as against what the Government is saying on the other.

For example, if the Ruling is upheld, then the Supreme Court would be saying that an unborn has a right to stay in Ireland (in the context of immigration), but on the other hand the Oireachtas is saying that there’s a right to abort that unborn.

It is apparent that the outcome of the Supreme Court hearing, which is due to take place in the second week of February, could significantly impact the upcoming Referendum. What appears certain is that if the Judgment is affirmed, then the “natural and imprescriptible rights of all children” will apply to unborn children – the question which will remain is how far this will go and how far it will be pushed to determine the issues.

For further insight into legal issues in Ireland, contact our dual-qualified solicitor Caoimhe Boyce on

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