Ireland: Legal lottery won’t be solved simply by changing abortion law

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August 7 2016, 12:01am, The Sunday Times

Justine McCarthy

Question: What’s the definition of honesty? Answer: A pregnant woman paying for two on a bus. It’s a corny old joke but, following a ruling by the High Court last week, it’s not so funny anymore.

Richard Humphreys, the Labour Party’s former legal adviser who became a judge last year, has ruled that the constitutional right of the “unborn child” goes “well beyond the right to life alone”. The “unborn” protected by article 40.3.3 — the abortion ban — is the “unborn child”, he said. Taken in conjunction with article 42A, which was inserted last year on foot of the 2012 children’s rights referendum and which protects all children — “both before and after birth” — Humphreys concluded that Bunreacht na hEireann grants “significant” rights to the unborn child.

These rights, he said, are “actually effective” rather than merely prospective and they “must be taken seriously” by the state. The ruling, made in a deportation case, opens up a Pandora’s box of more potential unintended consequences of the 1983 eighth amendment on abortion, to add to the trail of devastation it has already wreaked for girls and women dragged before the courts, and for their loved ones.

Not all the possibilities are negative, though. Apart from life and immigration, what foreseeable rights could the unborn possess? Inheritance rights, perhaps? Say an unmarried father of an unborn dies intestate, would the child in the womb automatically inherit his estate? If an unborn survived a car crash but was left an orphan or with lifelong injuries could it sue for civil liability? Could someone born in the National Maternity Hospital, at a time when it was described as unfit for purpose by the master, claim a breach of their right to be born safely?

With societal mores in Ireland changing faster than artificial intelligence, many unintended consequences are, as yet, unimaginable. Constitutional recognition of same-sex marriages and legislation applicable to non-marriage partnerships of any gender mix represent the state playing catch-up with the people, inviting a double whammy. It is a dangerous experiment to keep filling the constitution with amendments without regard to their mutual dynamics, especially with Ireland’s history of politicians’ failure to legislate adequately for constitutional insertions.

Humphreys was deliberating in an application for judicial review of a deportation order for a Nigerian man who has a child with his Irish-born partner. The child was born a month after the parents applied for the judicial review of the order, originally issued in 2008.

The judge dismissed the state’s arguments that the couple, being unmarried, had no constitutional family rights and their unborn child’s only right was to life. He said the state’s submission was “mired in the middle of the last century” while its citizens “are voting with their feet” by forming a variety of family relationships never envisaged. He granted leave for a judicial review and said the man should not be deported until a decision was made on his application for residency based on his parentage of an unborn child.

Humphreys was the senior counsel for an unborn child in what was known as the Baby O case in 2002. It involved a pregnant Nigerian woman refused refugee status in Ireland who asserted that, because of a higher infant mortality rate in her native country, her baby was 20 times more likely to die if she was deported. Humphreys claimed that the state, in its High Court documents, had denied the unborn was a person. He said “this flies in the face of well-established case law and it is much too late to call into question the personhood of the unborn”.

Thomas Smyth, the judge in the Baby O case, said that Humphreys’ citing of the X case and the C case — both involving teenage girls made pregnant by rape — was irrelevant as they concerned abortion, exclusively. The High Court, however, demonstrated a shift in attitude in the horrific PP case in December 2014 when it ordered that life support could be switched off for a young mother declared clinically dead when she was 15 weeks pregnant. Three judges, including the president of the High Court, found that, though abortion was not an issue, the case triggered the state’s obligation to protect the life of the unborn under article 40.3.3. It begged the question: what would the court have decided had the mother died five weeks later, and the foetus’s chance of survival been stronger?

Lawyers, like doctors, differ. They have a counter-argument to every hypothesis. For every Humphreys, there will be a lawyer ready to argue that the constitution’s protection of the unborn is strictly limited to the right to life. Unless the Supreme Court, the ultimate interpreter of the constitution, addresses the conundrum, the issue remains a toss-up.

This is why a repeal-the-eighth referendum is not a simple matter of deleting article 40.3.3. The impatience of campaigners for its repeal is understandable after 33 long years but a referendum without a proposed legislative alternative could set the cause back another decade or two.

Conor O’Mahony, a senior lecturer in constitutional law at University College Cork, has warned that repealing the eighth amendment would not excise the unborn’s right to life from the constitution as pre-1983 court judgments ruled that it already existed. In the 1974 McGee case on contraception, Brian Walsh, a reforming Supreme Court judge, said any action that destroyed or endangered human life was an offence against “the guaranteed personal rights of the human life in question”.

In Finn v the Attorney General, a failed attempt to derail enactment of the eighth in 1983, Donal Barrington, a High Court judge, found “the unborn child has a right to life” in the constitution. The following year, in David Norris’s challenge to the criminalisation of gay sex, Niall McCarthy, a modernising judge of the Supreme Court, said the preamble to the constitution “lean[s] heavily against any view other than that the right to life of the unborn child is a sacred trust to which all the organs of government must lend their support”.

Apart from emphasising the needlessness of the eighth in the first place, these precedents make it imperative that legislation is proposed as part of a repeal referendum to clarify what would be permissible in its aftermath. The assembly, chaired by Mary Laffoy of the Supreme Court, will have to examine the question of when a foetus becomes a person in the eyes of the law. Is it on the due date of delivery, or the week or month before, or at 22 weeks, the age when premature babies are likely to survive?

In the PP case, the High Court found that the dead woman’s foetus had no prospect of survival and, therefore, was not an unborn child protected by 40.3.3. It was a wise and compassionate decision but such decisions cannot be presumed. If Ireland wants to remove them from the whims of a legal lottery, the people must address these moral dilemmas. For all our recent progressiveness, we still have some growing up to do. The constitutional assembly to be chaired by Laffoy could provide a vehicle for our coming of age.

justine.mccarthy@sunday-times.ie

Source: The Times