A Nigerian woman and her unborn baby have lost their High Court challenge to an order for their deportation made by the Minister for Justice, Equality and Law Reform.
The court yesterday found the deportation did not interfere with the rights of either mother or unborn, including the latter's right to life.
Submissions on whether a certificate should be granted allowing an appeal to the Supreme Court are to be heard on Tuesday. If she fails to secure leave to appeal, the 32-year-old woman could be deported within days.
Dismissing the action, Mr Justice Smyth said the case had nothing to do with abortion, the right to life of the unborn or what was sometimes referred to as the woman's "right to choose".
Rather it concerned the legal right or entitlement of the Minister to deport a person who had failed to secure a certificate of refugee status from the State because she was pregnant.
Mr Justice Smyth found the Minister was not obliged to issue or serve a deportation order on a person who was unborn and also declined to make various declarations sought by the expectant mother.
In a lengthy reserved judgment, the judge said the case was not comparable to the X case and dealt with completely different issues of law. It was distinguished by at least three salient facts. In this case, there was an affidavit from the mother; the age of the mother in the X case was less that half that of the Nigerian woman; and the mother in the X case was a national, while the Nigerian woman was a non-national.
In his view, the birthright (of the unborn) referrable to Article 2 of the Constitution as contended for was an entitlement to a person born in Ireland. This could have no application at present to either the mother or the unborn. The right to life of the unborn provided for in Article 40.3.3 of the Constitution which was to be protected was that expressly provided for in the Article itself. It was a constitutional provision brought into being by the will of the people expressed through a referendum.
He did not consider himself as having any entitlement to subtract from it or to graft on to it any further unenumerated rights, most especially those which had socio-economic rights as their underlying basis.
In the absence of any adverse medical condition, the right to life of the unborn, as enshrined in Article 40.3.3, was not an issue in the case.
Mr Justice Smyth referred to affidavits from a sociologist on "risks and difficulties" affecting the unborn baby and from a consultant in an English hospital about the differences between healthcare and maternity services here and in Nigeria.
He said the quality of that evidence clearly favoured a birth in a State where the medical and social services were superior to those in a country of origin. However, that was not the right protected by the Constitution provision.
The doctor had not offered an outcome of a threat to the life of the unborn.
He had stated there was a significant difference in services between Ireland and Nigeria but went no further than stating that where the mother delivered her baby would significantly influence the outcome in terms of peri-natal mortality and morbidity.
The judge said he did not accept the deportation of the mother constituted an infringement of any of her rights, and nor was it an interference of any right of the unborn, including his/her right to life.
The case first came before the High Court on November 30th last when the mother and unborn baby were granted a temporary High Court order preventing their deportation pending the outcome of the proceedings. At a three-day hearing in December, they were given leave to seek a number of orders against the State by way of judicial review.