Unborn children have more rights than life, judge rules

Unborn children have significant legal rights far beyond their right to life, a High Court judge has ruled.

Pointing out that an “unborn” is “clearly a child”, Mr Justice Richard Humphreys said that article 42a of Bunreacht na hÉireann, entered into the Constitution last year following the 2012 Children’s Referendum, imposes duties towards unborn children upon the State.

The new constitutional article begins by stating 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.”

Mr Justice Humphreys pointed out that the State is obliged to protect “all” children, including children “both before and after birth”, commenting that unborn children have “significant” rights under common law, by statute and under the Constitution, “going well beyond the right to life alone”.

Findings

He added that many of those rights are “actually effective” and are not simply prospective ones that children acquire once they are born. 

The judge made his findings while granting leave for a judicial review over the intended deportation of a Nigerian man who first came to Ireland in 2007.

The man had been refused asylum but remained working in Ireland despite a 2008 deportation order, in July of last year seeking leave with his then pregnant Irish partner for a judicial review of the order; their child was born the following month.

The judge rejected the State’s argument that the unborn child’s sole right had been to life, as well as the claim that the couple had no constitutional family rights due to not being married, ruling that in considering the couple’s application, the Minister for Justice should consider not just the unborn’s right to life but also the rights the child have acquired since being born.

He also directed the minister to consider the constitutional, statutory, EU and European Convention on Human Rights rights of the couple and the child, including their family rights under article eight of the convention.