A situation of unprecedented gravity is being revealed before our eyes.
The Minister for Justice, Charles Flanagan, TD, is due to move an appeal, listed in the Supreme Court for February 21, seeking to overturn the High Court judgement of Humphreys J. in I.R.M. v. Minister for Justice and Equality,  IEHC 478.
In that judgement, the High Court affirmed that the rights of unborn children are not limited to the right to life under Article 40.3.3, inserted by the Eighth Amendment. Humphreys J. specifically referred to the submissions made to the court by the State and considered by Irvine J. in O.E. v. The Minister for Justice, Equality and Law Reform  3 I.R 760.
In that judgement, it is asserted, from the comprehensive and compelling analysis of the pre-existing law, that the other rights, or potential rights, enjoyed by the unborn child, included significant rights under the Constitution, and that the existence of such rights had been established in case law, even prior to the adoption of Article 40.3.3. Irving J. considered that any other interpretation, such as was offered by the State in that case, would “place the rights of the unborn child, from a constitutional perspective, at a much lower level than the right afforded to the unborn child at common law.”
It is significant that the State did not appeal the Irvine judgement.
The Humphreys judgement acknowledged that a child has rights — effective whilst still in the womb — as well as prospective rights, when born, including the right to have property settled upon it, to be represented in legal proceedings, etc., rights that exist due to its personhood and which attend to, and protect, the child’s welfare.
The minister is arguing, in the guise of the State, that the only right that an unborn child has is the immediate right to life whilst in the womb.
That this is not the policy of the Irish State is self-evident from many aspects of government activity, including, for example, the fact that care orders are made pursuant to the Child Care Act, 1991, for unborn children, effective on birth.
Such orders, made under the State’s family law jurisdiction (which holds that “the child’s welfare shall be the first and paramount consideration”, even against the parental rights of its mother and father) deal with the prospective rights of the unborn child and are additional to the immediate right-to-life of the child whilst in the womb. One consequence of the Supreme Court acceding to the minister’s application would be that the family law jurisdiction, concerning children and the duty to provide ante-natal care, could no longer be deemed appropriate activities for the State.
The minister is also asking the Supreme Court to declare that when the people decided in the Children’s Rights Referendum to affirm the rights of “all children” to be protected, the people did not mean “all children”, but only children who had been born.
There is nothing to support such a proposition.
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