State Must Pay 85% of Costs in Case on Unborn Rights

05.05.2017

The Irish state must pay 85 per cent of the costs of a deportation case resulting in a significant High Court judgment on the legal rights of the “unborn”, a judge has ruled. The fact the state is seeking a “leapfrog” appeal to the Supreme Court against his judgment means the state considers it involves a matter of “general public importance”, Mr Justice Richard Humphreys said this week.

In seeking that appeal, the state wants clarity on the extent of the constitutional rights of the unborn due to a number of apparently conflicting High Court judgments on that issue. The Supreme Court is expected to decide within months whether to permit an appeal. Before it can hear a “leapfrog” appeal, bypassing the Court of Appeal, it must decide if the case either involves a matter of general public importance or such an appeal is in the interests of justice.

Mr Justice Humphreys said the question of rights of the unborn generates an “almost reflex assumption” the relevant context is the law on abortion, but the “basic point” from his judgment was the position of the unborn child is “a wider legal question”.

Noting almost 66,000 births here in 2015 when there were 3,451 abortions performed in the UK on women giving Irish addresses and 26 abortions here, he said the position of the unborn falls to be considered “95 per cent of the time” outside an abortion context and generally where there is a “broad identity” of interests between parents and the unborn.

Last year, the judge held the unborn child, including of a parent facing deportation, enjoys “significant” rights and legal position at common law, by statute, and under the Constitution, “going well beyond the right to life alone”. He held “unborn” means “unborn child” with rights extending beyond the right to life under Article 40.3.3 – the 8th amendment – of the Constitution.

He also interpreted Article 42A of the Constitution, inserted as a result of the 2012 Children’s Referendum, as affording protections to all children “both before and after birth”.

The Irish Times. May 5.