Judge finds the unborn is not a person in law, writes Carol Coulter, Legal Affairs Correspondent.
"This case has nothing to do with abortion or the right to life of the unborn or what is referred to as the right to choose. It has to do with the right of a Minister to deport a person who has failed to win the right of asylum."
With these words Mr Justice Smyth refused to give one of the declarations sought by lawyers for a Nigerian woman and her unborn baby, that the unborn is a person in law, and should have been served with a separate deportation order.
"In the law context is everything," he said, quoting an English Law Lord, and the context of this case was the challenge to the deportation order served on the mother. There was no need for such a declaration about the legal personality of the unborn, he said, because the provisions of Article 40.3.3 spoke for themselves. Earlier he had pointed out that these provisions had been inserted into the Constitution by the people in a referendum. "I do not consider myself entitled to subtract from or graft onto it any further unenumerated rights, especially any socio-economic rights such as access to a health or welfare system," he said. The allocation of such rights lay to the legislature, he added.
The argument made by lawyers for Baby O was that his or her right to life could be jeopardised by the deportation of the mother to Nigeria, where the infant mortality rate was 10 to 15 times greater than in Ireland.
The right to an enhanced chance of a safe delivery was not one covered by the constitutional provision, he said.
However, he did not give any indication as to what rights linked to the right to life might be covered. What if the unborn baby had been diagnosed as suffering from some disability that would make his or her survival in Nigeria very unlikely? What if the mother was Chinese and already had a child, and therefore likely to fall foul of the one-child policy in China if she were deported?
Article 40.3.3 was inserted into the Constitution as a bulwark against the legalisation of abortion. But that is not stated in the Article.
It does not say, as Article 41 did in its prohibition on divorce, that no law could be enacted allowing for the legalisation of abortion. Instead it not only acknowledged the right to life of the unborn, but guaranteed in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.
It is not clear what laws vindicating the right to life of the unborn, as far as practicable, might mean. Could it mean that all laws should be interpreted in such a way as to ensure that the right to life of the unborn was always upheld, even if the threat was indirect?
In yesterday's judgment Mr Justice Smyth pointed out that no specific threat to the right to life of the unborn was claimed in this case, and said that the constitutional right of the unborn did not arise.
But if this case ends up in the Supreme Court after next Tuesday's hearing the matter is unlikely to end there. In recent times the court has been reluctant to uphold certain socio-economic rights, pointing to the role of the legislature. But where the right to life of the unborn is not elaborated in legislation there may by more scope for the Supreme Court to clarify its meaning.