The State seemed to be resiling from its statement that the unborn was not a person, the lawyer for an unborn child said in the High Court yesterday.
Dr Michael Forde SC, was replying to State arguments in the case before Mr Justice Smyth in which the unborn child, Baby O, suing through its Nigerian mother, is challenging a deportation order.
Dr Forde said: "Now the State seems to accept that the first named applicant [the unborn] is a person," he said.
However, it seemed the State conceded that the unborn was a person but in some respects did not have the same rights. On the question of the right to life, an important point was that none of the evidence was challenged.
The State had said the applicant was "asserting" she was pregnant. Dr Forde said an order for cross-examination of any witness could be made. The court had to go on the basis that the applicant was pregnant.
They simply did not know what was going to happen as regards the health of the unborn. As of now, the mother was healthy and looking forward to a normal birth.
"What we do know is that there is a 20 times greater risk of the child not surviving in Nigeria."
Dr Forde said they were looking for an order directing the Minister to reconsider the deportation in the light of the new circumstances.
The argument that many female aliens of child-bearing age would be allowed to remain in the country and be a strain on the health services was speculation and had to be dismissed.
"What possible way could the State be prejudiced if the woman stays until the end of May?"
He said one of the woman's main concerns was the fear of rape if she went back to Nigeria. That was never considered.
Dr Forde said the woman's application had been rejected with the emphasis on credibility but there was no opportunity for her to comment on that.
Mr Richard Humphreys, also representing the unborn child, said the State had said in its documents there was a denial that the baby was a person.
"We say 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."
Mr Justice Smyth said the case law was dealing with abortion and had nothing to do with this case.
Mr Humphreys quoted other court decisions that the unborn was an individual who had natural rights, including the right not to be endangered and the right to be born.
The Constitution provided that individuals' personal rights should be protected. "The evidence of this case is tied to the infant mortality rate in Ireland as opposed to Nigeria," the judge said.
Mr Humphreys said it was not that simple. They were working in a legislative vacuum. The Constitution provided that the State should protect the unborn by its law but there really were no laws.
If a person was lawfully in the State, and then became pregnant, maybe under the Constitution, there was a duty on the State not to remove her. The Supreme Court found that a right to life was a personal right, Mr Humphreys said, and referred to the C case.
Mr Justice Smyth said the X and C cases both dealt with abortion. In this case there was a Nigerian woman who was pregnant and who was refused refugee status. She did not wish to be returned to Nigeria because the child mortality rate was higher there than here.