M v Minister for Justice and Equality  IESC 14
The Supreme Court of Ireland has held that unborn children have no rights under the Irish Constitution beyond the right to life. A Nigerian national applied for his deportation order to be revoked, on the basis that the Minister for Justice and Equality should take into account the fact that he was likely to become the father of an Irish born citizen child. The Supreme Court found that the unborn have no rights beyond the right to life protected by Article 40.3.3. Nevertheless, the Court held that the Minister was required to take into account the constitutional rights the unborn child would acquire when born, including the right to the care and company of its father, when making a decision in relation to deportation. The Supreme Court decision is significant in light of the upcoming "abortion referendum" as it confirms that only Article 40.3.3 of the Constitution needs to be changed in order to legalise abortion in Ireland.
The first respondent, Mr M, was a Nigerian national who applied for asylum in Ireland. His application was refused and in 2008 a deportation order was made against him. In contravention of that order, Mr M remained in Ireland. He entered into a relationship with Ms R, an Irish national, in September 2014.
On 21 May 2015, Mr M made an application under s 3(11) of the Immigration Act, 1999 (Ireland) seeking the revocation of the deportation order against him on the basis that there was a sufficient change in his circumstances to warrant the Minister taking a different view: Mr M and Ms R were due to have a child, meaning that Mr M would likely become the father of an Irish citizen child.
Mr M sought leave to apply for judicial review. Mr M and Ms R's child was born on 22 August 2015. On 17 December 2015, Mr M applied for residency on the basis of parentage of an Irish citizen child, which was granted, rendering the proceedings before the High Court of Ireland in relation to the s3(11) application moot by the time of the trial.
Nevertheless, the High Court declared that the Minister was required to take into account the prospective position of the unborn child as part of the application to revoke the deportation order. Furthermore, the High Court held that unborn children were included in the Article 42A.1 definition of "all children" and therefore had broad constitutional rights beyond that of Article 40.3.3 (the right to life).
The future constitutional rights of an unborn child, when born, must be taken into account
The Supreme Court of Ireland held that the Minister was required to take into account the fact that Mr M was likely to become a father of a child who was likely to be born in Ireland. In coming to this conclusion, the Court noted that the Minister had accepted that it was necessary, as a matter of law, to have regard, as a relevant circumstance appertaining to Mr M, that he was likely to become the father of a child born in Ireland.
The Supreme Court held that the Minister was also required separately to have regard to the position of the unborn given that, if and when the child was born, it would be an Irish citizen child who would enjoy significant rights under the Irish Constitution.
The Court noted that, logically, it necessarily followed from the Minister's acceptance that he had to consider the pregnancy in relation to Mr M that he must also have regard to the position of that child. The Court found that there was "little logic in attempting to draw what is, in reality, a wholly artificial distinction between having regard to the fact that Mr. M was likely… about to be the father of a child born in Ireland but not also to have regard to the position of that child". The Court found that the two questions were inextricably linked and the Minister was required to have regard to both.
The Supreme Court noted that in the context of immigration law a decision maker is required to consider the potential consequences of a current decision to deport (or a decision to not revoke a deportation order) by necessary reference to future events or circumstances which will, or might, occur. As such, the Court asked why a decision maker should exclude from consideration the future, but important, circumstance that it is likely there will be a child of a potential deportee born in Ireland and, in this case, as an Irish-born citizen.
An unborn child does not have any constitutional rights beyond the right to life in Article 40.3.3
The Supreme Court held that the only right held by an unborn child is the right to life (in other words, the right to be born), as enshrined in Article 40.3.3. The Court held that the deportation of a non-national father could not be said to be an interference with the unborn child's right to life. Accordingly, the Court found that the Minister was right to refuse to consider other possible existing rights of Mr M's unborn child but, as already noted, the Minister was obliged to take account of the rights the unborn child would accrue on birth.
Firstly, in reaching this conclusion, the Court noted that the authorities and statute law cited by the High Court did not support the trial judge's finding that the law recognised a legal personality or rights in an unborn child. The observations relied on by the High Court were merely obiter dicta not "decisions", and those observations did not attract the agreement of the other members of the courts hearing the cases. Furthermore, the express references to the "unborn child" in certain statutory provisions made it clear that those provisions expressly provided for an unborn child and, in the absence of such language, those provisions would have no application to the unborn.
Secondly, the Court held that the trial judge erred in finding that the phrase "all children" in Article 42A.1 included the unborn. The Court noted that the constitutional rights afforded to "all children" could not be conceived of as being readily exercisable by the unborn child, who not only lacks the autonomy implicit in such rights, but is wholly dependent on its mother. As such, the Court could see no right within Article 42A that would avail an unborn child.
The Court also found that if those constitutional rights were intended to be conferred on an unborn child the text of the Constitution would have explicitly stated as much. The Court found that it was readily apparent that the provisions of Articles 42A.2, 42A.3 and 42A.4 referred only to children born alive, and any other interpretation would be illogical and meaningless (for example, an unborn child could not be placed for adoption). The Court held that it was not possible to support the trial judge's interpretation of "all children" in Article 42A.1 without excising it from the remainder of Article 42A. Additionally, given Article 40.3.3 specifically deals with an unborn child's right to life, and Article 42A deals with the rights of the child with the objective of making it clear that its provisions apply to all children regardless of their parents' martial status, and given the nature of the rights protected by each article, it was not possible to interpret Article 42A as including unborn children. The Court held that the rights of the unborn are separately dealt with in Article 40.3.3 of the Constitution.
Thirdly, the Court noted that the fact that rights are acquired on birth, and that decision makers must consider an unborn child's prospective acquisition of rights, was consistent with the interpretation that the unborn child did not have rights under the Constitution other than under Article 40.3.3. The Court found that it is because the right to life is a gateway to other constitutional rights that it is necessary to protect that right, and with it the opportunity of enjoying the other constitutional rights in the future. The Court found that other than the right to life of the unborn, other constitutional rights are contingent on birth.
This decision has obvious implications for immigration law and particularly decisions on deportation when an applicant is the prospective parent of an unborn child.
However, the decision also has broader ramifications. This decision is particularly important considering Ireland's "abortion referendum" to be held on 25 May 2018. The Supreme Court's decision confirms that the right to life under Article 40.3.3 is the only constitutional protection afforded to the unborn, which has concerned pro-life groups advocating against the referendum. Those in favour of the referendum were pleased by the decision, claiming that the judgment allowed them to move forward with the referendum unhindered and on schedule, without needing to broaden its parameters . The decision confirms that the only change needed to allow the introduction of new legislation legalising abortion is to repeal the Eighth Amendment, which inserted Article 40.3.3 and afforded unborn children an equal right to life as that of the mother.
The full decision can be found here.
Alexandra de Zwart is a Graduate Lawyer at DLA Piper.