Unborn Rights Background

Table of Contents

Cases

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

Hamilton P.
19th December 1986

The right to life of the unborn
The right to life of the unborn has always been recognised by Irish law.
It has been recognised at common law; by statute law; as one of the unenumerated personal rights which the State guaranteed by its laws to respect, and, as far as practicable, to defend and vindicate and is specifically acknowledged by the provisions of the Eighth Amendment to the Constitution. Abortion is an interference with and a destruction of the right to life of an unborn infant in the mother’s womb and as such is an offence contrary to Irish law. Originally, it was an offence contrary to the common law. The common law misdemeanour of abortion applied however only after the child had quickened in the womb.
The statute, (43 Geo. III, c. 58) of 1803 enacted that it should be a felony punishable by death to administer poison with intent to procure the miscarriage of a woman quick with child and a felony punishable with imprisonment or transportation for fourteen years to administer poison with a like intent to a woman who was not proved to be quick with child.
As stated in the third edition of Smith and Hogan: Criminal Law p. 275, the distinction between quick and non-quick women gave rise to complications and this distinction disappeared in the re-enactment of the law by the Offences Against the Person Act, 1839, which established substantially the law in its present form.
The current statute applicable is the Offences Against the Person Act, 1861.
Section 58 of this Act provides that:
“Every Woman being with Child, who, with Intent to procure her own Miscarriage, shall unlawfully administer to herself any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other means whatsoever with the like Intent, shall be guilty of Felony, and being convicted thereof, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for life . . . or to be imprisoned for any term not exceeding Two Years . . .”
Section 59 of the said Act provides that:
“Whosoever shall unlawfully supply or procure any Poison or other noxious Thing, or any Instrument or Thing whatsoever, knowing that the same is intended to be unlawfully used or employed with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable . . . to imprisonment for any term not exceeding two years . . .”
The Health (Family Planning) Act, 1979, reaffirmed the acceptance by the Oireachtas of ss. 58 and 59 of the Offences Against the Person Act, 1861, as setting forth the law of abortion in this jurisdiction.
Section 10 of the said Act provides that:
“Nothing in this Act shall be construed as authorising –
(a) the procuring of abortion,
(b) the doing of any other thing the doing of which is prohibited by Section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of instruments to procure abortion or the supplying of drugs or instruments to procure abortion) or
(c) the sale, importation into the State, manufacture, advertising or display of abortifacients.”
Sections 58 and 59 of the Offences Against the Person Act, 1861, protected and protect the foetus in the womb and having regard to the omission of the words”Quick with child” which were contained in the statute of 1803 hereinbefore referred to, that protection dates from conception. Consequently, the right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception.
Prior to the enactment of the Eighth Amendment to the Constitution the right to life of the unborn had been referred to and acknowledged by Walsh J. in the course of his judgment in G. v. An Bord UchtÃ¡la [1980] I.R. 32 when he stated at p. 69 of the report:
“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary, natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such.”
He then repeated what he had said in McGee v. The Attorney General [1974] I.R. 284 at p. 312 of the report:
“. . . any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”
These passages clearly acknowledge:
(1) the right to life of the unborn;
(2) that that right springs primarily from the natural right of every individual to life;
(3) the right includes the right to have that right preserved and defended and to be guarded against all threats to its existence before or after birth;
(4) that it lies not in the power of a parent to terminate its existence, and
(5) any action on the part of any person endangering human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.
By virtue of the enactment of the Eighth Amendment to the Constitution, Article 40, s. 3, sub-s. 3 of the Constitution provides that:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The right to life of the unborn therein referred to is not created by law or by the Constitution; the aforementioned Article merely confirms or acknowledges its existence and gives it protection.
As stated by Walsh J. in the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 at p. 310:
“Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled ‘Fundamental Rights’. Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection.”
The rights referred to in Article 40, s. 3, sub-s. 3 are in the same category and are part of what is generally called the natural law.
Though the sole and exclusive power of making laws for the State is, by Article 15, s. 2 of the Constitution, vested in the Oireachtas no laws have been enacted by the Oireachtas which, with due regard to the equal right to life of the mother, respect, defend or vindicate the right to life of the unborn.
Under the Constitution, however, the State’s powers of government are exercised in their respective spheres by the legislative, executive and judicial organs established under the Constitution and the courts will act to protect and enforce the rights of individuals and the provisions of the Constitution.
In the course of his judgment in Norris v. The Attorney General [1984] I.R. 36 McCarthy J. stated at p. 103 of the report that:
“For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than the right to life of the unborn is a sacred trust to which all the organs of government must lend their support.”
Consequently, the judicial organ of government is obliged to lend its support to the enforcement of the right to life of the unborn, to defend and vindicate that right and, if there is a threat to that right from whatever source, to protect that right from such threat, if its support is sought.
Relief sought
The plaintiff has sought such support and claims:
(a) A declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them in so doing are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland;
(b) A declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them in so doing amounts to a conspiracy to corrupt public morals contrary to the common law or in the alternative contrary to Article 40, s. 3, sub-s. 3 of the Constitution of Ireland; and
(e) An order directed to the defendants, their servants or agents prohibiting them from counselling or procuring or assisting pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction.
Activities of the first and second defendants, their respective servants or agents.
No evidence was adduced at the hearing of this action which proceeded on the basis of certain admitted facts.
The first defendant admitted that:
(1) Its servants or agents counsel in a non-directive manner pregnant women resident in Ireland.
(2) Such non-directive counselling takes place at the defendant’s premises at 3, Belvedere Place in the City of Dublin.
(3) Abortion or termination of pregnancy may be one of the options discussed within the said counselling.
(4) If a pregnant woman wants to consider the abortion options further they will arrange to refer her to a medical clinic in Great Britain.
(5) A reasonable fee is charged in respect of such counselling but may be waived in cases of financial necessity.
(6) Its servants or agents inspect the medical clinics in Great Britain to satisfy itself that the clinic operates at the highest standard.
(7) At the said medical clinics abortions have been performed on pregnant woman who have been previously counselled by the first defendant, its servants or agents.

(8) It has counselled and continues to counsel such women after having an abortion in medical clinics in Great Britain and returning to Ireland.
(9) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years, including the months of November and December, 1984.
(10) It was aware that the second defendant counselled pregnant women.
The second defendant admitted that:
(1) It counsels in a non-directive manner pregnant women resident in Ireland and also provides counselling services to other persons.
(2) Such non-directive counselling takes place at various locations including the second defendant’s premises at 63, Lower Leeson Street in the City of Dublin and 60, Eccles Street in the City of Dublin.
(3) Abortion or termination of pregnancy may be one of the options discussed in the said counselling, if the question is raised by the person seeking counselling.
(4) If a pregnant woman wants to consider the abortion option further, the second defendant will arrange to refer her to a medical clinic in Great Britain.
(5) In certain circumstances, the second defendant may arrange the travel requirements of such pregnant woman.
(6) A reasonable fee is charged in respect of such counselling but the second defendant is an entirely non-profit making body.
(7) The second defendant will inspect the medical clinics in Great Britain to satisfy itself that they operate at the highest standards.
(8) At the said medical clinics abortions have been performed on pregnant women who have been previously counselled by the second defendant.
(9) The second defendant has counselled and continues to counsel women after they have had an abortion in a medical clinic in Great Britain and returned to Ireland. It also counsels women who have not prior to their operation attended it.
(10) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions are performed for many years, including the months of November and December, 1984.
History of proceedings
On the 28th June, 1985, the then plaintiff, The Society for the Protection of the Unborn Child Ireland Ltd. issued proceedings against the defendants herein, namely Open Door Counselling Ltd. and Dublin Well-Woman Centre Ltd. and on the 2nd August, 1985, caused to be delivered the statement of claim in which it is alleged that the activities of the defendants, their servants or agents, as therein set forth, are not and could not be authorised by law and are now in breach of the Constitution of Ireland in that:
(a) They attack the lives and fail to vindicate the right to life of the unborn contrary to Article 40, s. 3, sub-s. 3 of the Constitution:
(b) They attack the lives and fail to vindicate the personal and unenumerated rights of the unborn, including the right to life, contrary to Article 40, s. 3, sub-s. 1 and Article 40, s. 3, sub-s. 2 of the Constitution, and
(c) They interfere without any lawful cause or justification with the right to life of the unborn in such a manner as to endanger or to ensure the destruction of the said life contrary to Article 40, s. 3, sub-s. 1, Article 40, s. 3, sub-s. 2 and Article 40, s. 3, sub-s. 3 of the Constitution.
Further more their activities amount to a conspiracy to corrupt public morals contrary to common law or, in the alternative, contrary to Article 6, Article 40, s. 3, sub-s. 1, Article 40, s. 3, sub-s. 2 and Article 40, s. 3, sub-s. 3 of the Constitution of Ireland by:
(1) corrupting public morals and acting in a manner contra bonos mores by counselling and procuring pregnant women to abort their unborn children and otherwise acting as abortion agencies;
(2) promoting depraved moral standards by holding themselves out as abortion referral agencies in the manner complained of and corrupting thereby women availing of the said services together with other citizens of the State;
(3) subverting the rule of law within the jurisdiction of this Honourable Court and bringing same into disrepute by evading the application of the law on administering drugs or using instruments to procure abortions contrary to ss. 58 and 59 of the Offences Against the Person Act, 1861, and s. 10 of the Health (Family Planning) Act, 1979.
The first defendant in its defence delivered on the 11th September, 1985, claimed, inter alia, that:
“1. The plaintiff does not have any or any sufficient standing or interest in law to institute, or prosecute or maintain these proceedings.
2. Without prejudice to the foregoing, the proceedings herein would only be maintainable, if at all, at the relation of the Attorney General.”
The second defendant in its defence delivered on the 3rd August, 1985, claimed, inter alia, that:
“2. The plaintiff has no locus standi to institute or prosecute these proceedings whether on its own behalf or on behalf of any other person.
5. If which is denied, these proceedings are maintainable by any person, they are so maintainable only by, or with the joinder of, the Attorney General.”
Locus standi
It is not necessary for me, in the events which lave happened, to decide whether the then plaintiff, the Society for the Protection of Unborn Children Ireland Ltd., had a locus standi to maintain these proceedings because an existing action may, by amendment of the writ and statement of claim and by authority of the Attorney General be converted into an action by the Attorney General with
a relator, without prejudice to the proceedings pending in the action. ( Vide: Caldwell v. Paghan Harbour Reclamation Company (1875-76) 2 Ch. D. 221).
This was done in this action by order of the High Court made on the 24th September, 1986, wherein it was ordered that the proceedings herein be amended and converted into proceedings in the name of the Attorney General at the relation of the Society for the Protection of Unborn Children Ireland Ltd. and it was further ordered that the pleadings be amended in accordance with the amended statement of claim included as an exhibit in the affidavit sworn on behalf of the said Society for the Protection of Unborn Children Ireland Ltd. upon which the said application was grounded.
By virtue of this order and the amended writ and statement of claim referred to therein, the claim for the reliefs previously sought at (c), (d) and (h) were withdrawn and the claim is now limited to the relief sought at (a), (b), (e), (f) and (g) of the statement of claim.
The reliefs sought at (a), (b) and (e) are the substantial reliefs sought and have been set forth in detail in the earlier portion of this judgment.
What is sought is a declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad and obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them to do so are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland and amount to a conspiracy to corrupt public morals contrary to common law or, in the alternative, contrary to Article 40, s. 3, sub-s. 3 of the Constitution of Ireland and for an order prohibiting them from counselling or procuring or assisting pregnant women within the jurisdiction of this Honourable Court to travel abroad to undergo abortions or to obtain further advice on abortion within that foreign jurisdiction.
The questions whether the defendants, their servants or agents were acting unlawfully or unconstitutionally or whether their activities amounted to a corruption of public morals are undoubtedly justiciable controversies and if they are so acting, it is in the public interest and the interest of the common good that they be restrained from so doing.
It is a traditional function of the Attorney General to represent the public in litigation and he is the forensic representative, not only of the executive but of the public at large.
In Moore v. The Attorney General [1930] I.R. 471, Kennedy C.J. stated at p. 495:
“(Thus,) the Attorney-General in Ireland had come to be, prior to the Treaty of 1921, the legal representative of the public in the Courts of the period of the British rÃ©gime; and his business, powers, authorities, duties, and functions as such were, by sect. 6 of the Ministers and Secretaries Act, 1924, vested in the Attorney-General of the SaorstÃ¡t, who there upon became, in my opinion, the legal representative of the public, that is to say, of the corporate community of the SaorstÃ¡t, in all litigation in the Courts of the SaorstÃ¡t in which the public may be involved as a party interested, whether as plaintiff or defendant, or otherwise.”
The public interests are committed to the care of the Attorney General. He is entitled to sue to restrain the commission of an unlawful act, to protect and vindicate a right acknowledged by the Constitution and to prevent the corruption of public morals.
I am satisfied that the Attorney General has the locus standi to maintain these proceedings and that when the Attorney General sues with a relator, the relator need have no personal interest in the subject except his interest as a member of the public. ( Attorney General v. Logan [1891] 2 Q.B. 100).
Defences of the first and second defendants
The first defendant in its defence delivered on the 11th September, 1985, denied that it, its servants or agents counselled, procured or assisted pregnant woman to travel abroad for the purpose of undergoing abortions or of receiving advice within that jurisdiction on abortion: denied that it conspired with any person or persons by any means to persuade pregnant women to resort to them for the purpose of pregnancy counselling, including advice on the manner and mode by which to obtain an abortion and with intent thereby to debauch and corrupt the morals of the youth and citizens of Ireland and to destroy thereby the right to life of the unborn and thereby deny, attack and fail to vindicate their constitutional right to life: denied that its activities are not and could not be authorised by law: denied that it was in breach of the Constitution: and denied that its activities amount to a conspiracy to corrupt public morals.
It further denies that its activities are encompassed by or affected by any of the laws referred to in Article 40, s. 3, sub-s. 3 of the Constitution and allege that it maintains a non directive counselling service in relation to pregnancy and related matters and that it is entitled so to do by virtue of the provisions of the Constitution.
The second defendant in its defence delivered on the 3rd August, 1985, alleged that there was no unborn person whose rights were in issue in these proceedings and that the plaintiff was not entitled to sue on behalf of the unborn: acknowledged that among the services it provides was the non directive counselling of women who seek such counselling and that if, after counselling, a client decided that she wanted to consider the option of abortion further, it would arrange to refer her to a medical facility in England where a decision could lawfully be taken as to whether or not such an operation should be performed there in all the circumstances and in accordance with English law; denied the other allegations made in the statement of claim: denied that it conspired with any person to resort to it for any purpose: that its acknowledged activities were intended to, or do in fact, debauch or corrupt the morals of any person or group or destroy the right to life of the unborn or fail to vindicate their constitutional rights or amount to any conspiracy.
This defendant stated, in its defence, that the activities acknowledged by it are not unauthorised by law, are not in breach of the Constitution and do not amount to a conspiracy and that the activities acknowledged by it are matters which it, its servants or agents and clients are entitled to do and to participate in, by virtue inter alia of its constitutional right to privacy, to freedom of expression, to freedom of communication and to freedom of access to information in the course of counselling and generally and by virtue of Article 29, s. 4, sub-s. 3 of the Constitution and the rights procured thereby and the Treaty of Rome and by laws enacted, acts done and measures adopted by the Communities referred to in the said Article or Institutions thereof.
Issues
The parties have agreed and submitted to me the issues which they submit arise on the pleadings herein.
They are –
1. Has the plaintiff on the pleadings the locus standi to maintain these proceedings?
2. Do the admitted activities of the defendants, their servants or agents, constitute:
(a) An actionable criminal conspiracy to corrupt public morals contrary to common law?
(b) An actionable conspiracy contrary to Article 40, s. 3, sub-s. 3 of the Constitution of Ireland?
3. Do the admitted activities of the defendants, their servants or agents constitute activity that is restrainable by virtue of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland?
4. Is the plaintiff entitled to the declaratory and injunctive relief in the forms prayed for in relation to the alleged actionable conspiracy or activities that may be restrained on alleged constitutional grounds?
5. If the answer to 2 or 3 is yes, are the defendants nevertheless entitled to carry out their said activities by virtue of any provision of the law of the European Economic Community?
I have already decided the first issue in favour of the plaintiff and now proceed to deal with the other issues but before doing so there is one matter that I wish to deal with at this stage.
Counsel on behalf of both defendants submitted that it was a matter for the Oireachtas to introduce legislation subsequent to the passing of the Eighth Amendment to the Constitution which would respect and, as far as practicable, defend and vindicate the right therein acknowledged: that the amendment is not self-executory and that, in the absence of such legislation, the courts should not intervene to restrain the activities of the defendants.
In the course of his judgment in Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) [1961] I.R. 345 Budd J. stated at p. 368 of the report that:
“If an established right in law exists a citizen has the right to assert it and it is the duty of the Courts to aid and assist him in the assertion of his right. The Court will therefore assist and uphold a citizen’s constitutional rights. Obedience to the law is required of every citizen, and it follows that if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it. To say otherwise would be tantamount to saying that a citizen can set the Constitution at nought and that a right solemnly given by our fundamental law is valueless. It follows that the Courts will not so act as to permit any body of citizens to deprive another of his constitutional rights and will in any proceedings before them see that these rights are protected, whether they be assailed under the guise of a statutory right or otherwise.”
In the course of his judgment in Byrne v. Ireland [1972] I.R. 241, Walsh J. stated at p. 264 of the report that:
“In several parts of the Constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights.”
In the course of his judgment in Meskell v. C.I.E. [1973] I.R. 121, the same judge stated at p. 134 of the report that:
“To infringe another’s constitutional rights or to coerce him into abandoning them or waiving them . . . is unlawful as constituting a violation of the fundamental law of the State . . .”
and that, also at p. 134:
“a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries with it its own right to a remedy or for the enforcement of it.”
In Mead’s case (Supreme Court, Unreported, 26th July, 1972) Ã“ Dalaigh C.J. said:
“The High Court is the appropriate forum for the declaration of human rights. Constitutional rights, for enforcement, do not require statutory vesture unless the Constitution itself were to express such a limitation.”
These and many other statements clearly establish that the courts will provide a procedure for the enforcement and protection of personal rights and the power of the courts in this regard does not depend on legislation.
The public interest and the common good require that personal rights be respected, vindicated and protected. The right to life of the unborn is acknowledged by the Constitution and this right necessarily implies the right to have that right preserved and defended.
As already stated in this judgment the public interest is committed to the care of the Attorney General and the court is entitled and indeed obliged, on his application, to restrain the activities of the defendants if satisfied that such activities constitute an interference with the right to life of the unborn or a failure to respect, vindicate and preserve that right.
Law in England and Wales
As one of the issues in the case is the alleged illegality or unconstitutionality of the reference by the defendants of pregnant women to medical clinics in Great Britain it is necessary at this stage to set out the legal position there with regard to abortion as appears from the affidavit of David Anthony Poole, a member of the Bar of England and Wales and one of Her Majesty’s Counsel, sworn on the 2nd October, 1986.
From this affidavit it appears that abortion is a crime at common law and by virtue of s. 58 of the Offences Against the Person Act, 1861, already cited.
Section 1, sub-s. 1 of the Abortion Act, 1967, provides that:
“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner, if two registered medical practitioners are of the opinion, formed in good faith –
(a) That the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or
(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”
Section 1, sub-s. 2 of the said Act provides that:
“In determining whether the continuance of a pregnancy would involve risk of injury to health as is mentioned in paragraph (a) of sub-section (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.”
The law in England and Wales differs from that in the jurisdiction of this court in that, though abortion is a crime in both countries at common law and by virtue of s. 58 of the Offences against the Person Act, 1861, in England and Wales a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is termination by a registered medical practitioner, if two registered medical practitioners are of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
It is clear that an abortion is permitted by the laws of England and Wales if it is carried out by a registered medical practitioner if two registered medical practitioners are of the opinion formed in good faith that:
(i) the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated, or
(ii) the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman greater than if the pregnancy were terminated, or
(iii) the continuance of the pregnancy would involve risk of injury to the physical health of any existing children of her family greater than if the pregnancy were terminated, or
(iv) the continuance of the pregnancy would involve risk of injury to the mental health of any existing children of her family greater than if the pregnancy were terminated, or
(v) there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
It is clear from a consideration of the relevant terms of the Abortion Act, 1967, that the registered medical practitioners when forming the opinion required by s. 1, sub-s. 1 (a) and (b) on the matters therein referred to are required to be concerned only with the risk to life of the pregnant woman, the risk to the physical or mental health of the pregnant woman, the risk to the physical or mental health of any existing children of her family or the substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped and in determining whether the continuance of a pregnancy would involve risk of injury to health, they are entitled to take account of the pregnant woman’s actual or reasonably foreseeable environment.
Section 5, sub-s. 2 of the Abortion Act, 1967, provides that:
“For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of the Act.”
Section 5, sub-s. 1 of the Act however provides that:
“Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act, 1929.”
Section 1, sub-s. 1 of the Act of 1929 provides:
“Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life. Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.”
Section 1, sub-s. 2 of this Act provides that:
“For the purpose of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at any time pregnant of a child capable of being born alive.”
This latter enactment, however, in the opinion of Macnaghten J., in The King v. Bourne [1939] 1 K.B. 687 at p. 691 provides for the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature.
Consequently, it offers no protection to an unborn child who has not reached the stage of being “capable of being born alive”.
Section 1 of the Abortion Act, 1967, is the sole criterion of the lawfulness of an abortion in circumstances other than where the child is capable of being born alive.
In the course of his judgment in Paton v. British Advisory Services Trustees and Another [1979] 1 Q.B. 277, Sir George Baker P. stated at p. 279 that:
“The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country. (I accept the criminal law . . .)”
In this case, the husband had sought an injunction to restrain his wife and the first defendant, a charitable organisation, from causing or permitting an abortion to be carried out on his wife without the husband’s consent.
Having considered the terms of the Abortion Act, 1967, Sir George Baker P. went on to say at p. 281:
“The two doctors have given a certificate. It is not and cannot be suggested that the certificate was given other than in good faith and it seems to me that there is the end of the matter in English law. The Abortion Act, 1967, gives no right to a father to be consulted in respect of a termination of a pregnancy. True, it gives no right to the mother either, but obviously the mother is going to be right at the heart of the matter consulting with doctors if they are to arrive at a decision in good faith . . . The husband, therefore, in my view, has no legal right enforceable in law or in equity to stop his wife having this abortion or to stop the doctors from carrying out this abortion.”
I have outlined the provisions of the Abortion Act, 1967, which removed from criminal liability abortions in respect of which the conditions set for s. 1 (a) and s. 1 (b) are complied with.
Many abortions permitted by reason of the aforesaid provisions would, were it not for such provisions, have been offences at common law and contrary to the provisions of ss. 58 and 59 of the Offences Against the Person Act, 1861, and would be offences if committed within this jurisdiction.
It is submitted on behalf of the defendants herein that their respective admitted activities cannot amount to aiding, abetting, counselling, procuring or assisting the commission of an offence because the extra-territorial activities of the pregnant woman referred by each of the defendants in seeking advice on or actual termination of pregnancy does not constitute a crime within that jurisdiction and that if I were to regard the activities of the defendants, their respective servants or agents as unlawful, I would be effectively extending the criminal law of Ireland to cover actions which occur in another jurisdiction where they are not criminal and that such an extension can only be made by statutes which have extra-territorial effect such as the Criminal Law (Jurisdiction) Act, 1976. No such statute exists with respect to abortion and it is submitted that the court cannot cure this deficiency.
Having regard to “the sacred trust”, referred to by McCarthy J. in Norris v. The Attorney General [1984] I.R. 36, all the organs of government, including the judicial organ, must lend their support.
Though ordinarily it is no function of the courts to extend the criminal law, it may well be that where there is a breach of or interference with a fundamental personal or human right, they may be under a constitutional obligation so to do in order to respect, and, as far as practicable, to defend and vindicate that right.
In Shaw v. Director of Public Prosecutions [1962] A.C. 220 Viscount Simonds stated at p. 267 of the report that:
“In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.”
It seems to me that, where there is a breach of or interference with a fundamental and personal and human right, such as the right to life of the unborn, which is acknowledged by the Constitution, and which the courts are under a constitutional obligation to defend and vindicate, it would be scandalous if the legitimacy or criminality of such breach or interference could, in the words of the late Kingsmill Moore J. in Mayo-Perrott v. Mayo-Perrott [1958] I.R. 336 at p. 350 of the report – “be decided by a flight over St. George’s Channel” because as stated by Walsh J. in Meskell v. C.I.E. [1973] I.R. 121 at p. 134:
“To infringe another’s constitutional rights . . . is unlawful as constituting a violation of the fundamental law of the State.”
Happily, having regard to the declarations sought by the plaintiff in this case, I do not have to decide this issue.
Even if I had, I might have been prevented from so doing by the statement of the former Chief Justice in Norris v. The Attorney General [1984] I.R. 36 at p. 53 of the report which stated that:
“the sole function of this Court, in a case of this nature, is to interpret the Constitution and the law and to declare with objectivity and impartiality the result of that interpretation on the claim being considered. Judges may, and do, share with other citizens a concern and interest in desirable changes and reform in our laws; but, under the Constitution, they have no function in achieving such by judicial decision. It may be regarded as emphasising the obvious but, nevertheless, I think it proper to remind the plaintiff and others interested in these proceedings that the sole and exclusive power of altering the laws of Ireland is, by the Constitution, vested in the Oireachtas. The Courts declare what the law is – it is for the Oireachtas to make changes if it so thinks proper.”
Conspiracy to corrupt public morals contrary to common law
It is submitted on behalf of the Attorney General that the admitted activities of the defendants, their servants or agents amount to a conspiracy to corrupt public morals. It was decided by the House of Lords in Shaw v. Director of Public Prosecutions [1962] A.C. 220 that conspiracy to corrupt public morals is a common law misdemeanour and is indictable at common law.
In the course of his judgment in Knuller v. Director of Public Prosecutions [1973] A.C. 45 Lord Morris stated at p. 459 of the report that:
“[I]n the case of Shaw v. Director of Public Prosecutions , it was clearly recognised and affirmed that a conspiracy to corrupt public morals is a common law misdemeanour which is indictable at common law.”
It is submitted on behalf of the defendants:
(1) that the Attorney General is not entitled to such a declaration, and
(2) that the admitted activities of the defendants cannot amount to a conspiracy to corrupt public morals because what they are doing is engaging in non-directive counselling, referring and assisting pregnant women for further advice and dependent on that advice a termination of pregnancy which would not be a crime in the jurisdiction in which it is carried out if the requirements of section 1, sub-s. 1 of the Abortion Act, 1967, were complied with.
It is submitted that the termination of a pregnancy is lawful in England and Wales if the requirements of this Act are complied with and that it is unreasonable and cannot be the law that they are guilty of an offence namely conspiracy to corrupt public morals if they merely put pregnant women, who have sought their counselling and assistance, in touch with medical clinics in which the pregnancy may be terminated in accordance with law.
In Knuller v. Director of Public Prosecutions [1973] A.C. 435 the House of Lords considered a point of law which had been certified by the Court of Appeal as being of general public importance. As appears from the judgment of Lord Morris at p. 459 of the report, the point of law was:
“Whether an agreement by two or more persons to insert advertisements in a magazine, whereby adult male advertisers seek replies from other adult males who are prepared to consent to commit homosexual acts with them in private, is capable of amounting to the offence of conspiracy to corrupt public morals.”
Having recited this point of law, he went on to say at p. 460 that:
“It was contended on behalf of the appellants that, in view of the provisions of s. 1, sub-s. 1 of the Sexual Offences Act, 1967, no offence had in the present case been committed. By that sub-section it is provided as follows:
‘Notwithstanding any statutory or common law provision, but subject to the provisions of the next following section, a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of 21 years.’
It was submitted that where Parliament has altered the law so that certain sexual conduct which was formerly illegal becomes under certain circumstances no longer an offence there can be no commission of the offence of conspiring to corrupt public morals by the insertion of advertisements which only have in view such sexual conduct under the specified circumstances . . . In considering the submission which is made I propose to leave out of account any question whether some of the advertisements might be regarded as having been addressed to or might have been responded to by persons under the age of twenty-one years. The submission which is made is, I think, fallacious. What s. 1 of the 1967 Act does is to provide that certain acts which previously were criminal offences should no longer be criminal offences. But that does not mean that it is not open to a jury to say that to assist or to encourage persons to take part in such acts may be to corrupt them. If by agreement it was arranged to insert advertisements by married people proclaiming themselves to be such and to be desirous of meeting someone of the opposite sex with a view to clandestine sexual association, would it be justification to say that adultery is not of itself a criminal offence? A person who, as a result of perusing the Ladies Directory, decided to resort to a prostitute was committing no legal offence; but it was open to a jury to hold that those who conspired to insert the advertisements did so with the intention of corrupting the morals of those who read the advertisements. So in the present case it was open to the jury to hold that there was an intention to corrupt; it was for the jury to decide whether the advertisements would induce readers of them to meet those who inserted the advertisements and to meet them for the purpose of the contemplated sexual practice; it was for the jury to decide whether readers would be or might be encouraged to indulge in such practices; it was for the jury to decide whether those conspiring together to insert the advertisements had the intent to debauch and corrupt the morals of the readers.”
In the course of his judgment in the same case, Lord Reid stated at p. 457 of the report that:
“I can now turn to the appellants’ second argument. They say that homosexual acts between adult males in private are now lawful so it is unreasonable and cannot be the law that other persons are guilty of an offence if they merely put in touch with one another two males who wish to indulge in such acts. But there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense. Prostitution and gaming afford examples of this difference. So we must examine the provisions of the Sexual Offences Act, 1967, to see just how far it altered the old law. It enacts subject to limitation that a homosexual act in private shall not be an offence but it goes no farther than that. Section 4 shows that procuring is still a serious offence and it would seem that some of the facts in this case might have supported a charge under that section.
I find nothing in the Act to indicate that Parliament thought or intended to lay down that indulgence in these practices is not corrupting. I read the Act as saying that, even though it may be corrupting, if people chose to corrupt themselves in this way that is their affair and the law will not interfere. But no licence is given to others to encourage the practice. So if one accepts Shaw’s case as rightly decided it must be left to each jury to decide in the circumstances of each case whether people were likely to be corrupted.”
This case is clear authority for the proposition that the offence of conspiracy to corrupt public morals may be committed even when the agreement between two or more persons is to assist in the commission of a lawful act.
The question which I have to consider is whether the admitted activities of the defendants, their servants or agents in counselling and referring pregnant women within the jurisdiction of this Honourable Court, to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction amounts to a conspiracy to corrupt public morals contrary to the common law.
While I am dealing with the defendants together, I am doing so for convenience sake as their admitted activities are similar and were I to deal with them separately, it could lead to unnecessary repetition. I do not consider that they conspire together to engage in their admitted activities and do not approach the consideration of this question on the basis that they did so.
At this stage, I should also make it clear that I consider that the two defendants are reputable organisations providing many and needed services to women, that their employees are skilled and concerned people and well-motivated with regard to the counselling and other services which they provide and consider necessary.
This is illustrated by the manner in which they have met this case; they have avoided unpleasant controversy by openly admitting the activities in which they are engaged and contend that such activities are lawful.
Consequently, a finding that such activities or conduct is liable to corrupt public morals is one not lightly to be reached.
Lord Simon of Glaisdale said at p. 491 of the same case:
“The words ‘corrupt public morals’ suggest conduct which a jury might find to be destructive of the very fabric of society.”
The fabric of our society is woven from the threads of the law and the Constitution and respect therefor is an essential component of our society.
As stated by the former Chief Justice in the course of his judgment in Norris v. The Attorney General [1984] I.R. 36 at p. 64 of the report:
“The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligations to ‘our Divine Lord, Jesus Christ’. It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord, Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs.”
This is a view with which I respectfully agree.
Article 6, s. 1 of the Constitution provides that:
“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all question of national policy, according to the requirements of the common good.”
As late as 1983, the people enacted the Eighth Amendment to the Constitution. Consequently, there can be no doubt but that abortion, which is an interference with and destruction of the right to life of the unborn, is contrary to national policy, public morality, contrary to law, both common law and statute law, to the fundamental right of the unborn and contrary to that right to life as acknowledged by the Eighth Amendment to the Constitution.
Both defendants, their servants or agents, know that a significant number of the pregnant women who sought their counselling and who were referred to a medical clinic in Great Britain would be contemplating an abortion. The action of the defendants in referring them to such clinics, after they had satisfied themselves that the said clinics operated at the highest standard, could amount to an assent to the pregnant women obtaining an abortion, if the conditions set forth in s. 1, sub-s. 1 of the Abortion Act, 1967, were complied with and the abortion was legal, to the provision of assistance and encouragement to procure an abortion and an agreement with the pregnant woman to procure an abortion.
Such an agreement could constitute a conspiracy to corrupt public morals as the defendants’ services are available to the public and well advertised. In a prosecution alleging a conspiracy to corrupt public morals, it would however be a matter for a jury to decide whether the activities of the defendants amounted to a conspiracy to corrupt public morals and whether in fact public morals were corrupted.
The declaration sought by the plaintiff is that the defendants, their servants or agents are engaged in a criminal conspiracy to corrupt public morals and this court should, as stated by Mr. Justice Woolf in Attorney General v. Able [1984] Q.B. 795 at p. 808 of the report – “should bear in mind the danger of usurping the jurisdiction of the criminal courts.”
He further stated at p. 808 that:
“[I]t would only be proper to grant a declaration if it is clearly established that there is no risk of it treating conduct as criminal which is not clearly in contravention of the criminal law.”
As already stated, conspiracy to corrupt public morals is a common law misdemeanour which is indictable at common law.

Article 38, s. 1 of the Constitution provides that:
“No person shall be tried on any criminal charge save in due course of law.”
Indictable offences are tried by a judge and jury.
When a case turns on public morals or standards, the question is for the jury though of course the judge rules whether there is evidence upon which they can find the case proved.
Lord Reid stated in Knuller v. Director of Public Prosecutions [1973] A.C. 435 at p. 457 that:
“[I]t must be left to each jury to decide in the circumstances of each case whether people were likely to be corrupted.”
That being so, I am not satisfied that there is no risk in my treating conduct as criminal when a jury might consider otherwise. Consequently, the plaintiff is not entitled to this declaration.
Unlawfulness having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland
The other declaration which the plaintiff seeks is:
A declaration that the activities of the defendants, their servants or agents in counselling and procuring pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction and in assisting them in so doing are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland.
Do the admitted activities of the defendants, their servants or agents amount to counselling and procuring pregnant women to travel abroad to obtain an abortion or to obtain further advice on abortion?
The consideration of this question necessarily involves a consideration of the meaning of the term “counsel and procure”.
As stated by Lord Goddard in Ferguson v. Weaving [1951] 1 K.B. 814 at p. 818 of the report:
“It is well known that the words “aid and abet” are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein . . . The words “counsel and procure” are appropriate to a person who, though not present at the commission of the offence, is an accessory before the fact.”
A person counsels the commission of an act if before the commission of the act he/she conspires to commit it, advises its commission or knowingly gives assistance to one who may commit it.
A person procures the commission of an act if he/she brings it about.
As Lord Widgery C.J. stated in Attorney-General’s Reference (No. 1 of 1975) [1975] Q.B. 773 at p. 779:
“To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. . .”
and at p. 780:
“You cannot procure an offence unless there is a casual link between what you do and the commission of the offence . . .”
However, you do not need to procure to be an accessory and the same close causal connection is not required when what is being done is the provision of assistance. Counselling implies consensus but not causation and involves an intention to assist in the commission of the act. The intention to assist involves knowledge of the nature of the act to be committed and such intention to assist need not involve a desire that the act should be committed or attempted.
The admitted activities of the defendants, their servants or agents, which I have outlined herein, involve the giving of assistance by way of advice on the various options, including abortion, open to pregnant women, the giving of information with regard to the availability of medical clinics in England and Wales which they have inspected and are satisfied operate to the highest standard, to pregnant women, who, after counselling by the defendants with regard to the options open to them, express the desire to consider that option further, and the referral of such pregnant women to such clinics.
Knowing that a significant number of such women are contemplating abortion they intentionally give assistance to them as outlined herein.
It is irrelevant in those circumstances that some of these women do not have an abortion or that the defendants may not desire that they should have an abortion or even that they had advised against it.
It is also irrelevant that these pregnant women cannot have a lawful abortion in England and Wales unless two registered medical practitioners are of the opinion formed in good faith that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped and that the formation in good faith of such opinion necessarily involved further counselling by and consultation with such registered medical practitioners.
The defendants and each of them put pregnant women contemplating abortion in touch with clinics where pregnancy is terminated so that they can obtain an abortion if they wish and the provisions of s. 1, sub-s. 1 of the Abortion Act, 1967, are complied with. Their actions in so doing imply assent to, approval of and encouragement for the procurement of an abortion if the pregnant woman so wishes and the provisions of the Abortion Act, 1967, are complied with.
As I have already pointed out in the course of this judgment, the laws of England and Wales offer no protection to an unborn child who has not reached the stage of “being capable of being born alive”, do not acknowledge the right to life of the unborn and do not defend and vindicate that right.

Consequently, many abortions carried out in England and Wales would be offences if committed here, at common law, contrary to the provisions of ss. 58 and 59 of the Offences Against the Person Act, 1861, and would interfere with the right to life of the unborn as acknowledged by Article 40, s. 3, sub-s. 3 of the Constitution.
I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion.
Are such activities unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland?
I have no doubt but that they are.
In this Article the State acknowledges the right to life of the unborn and, with due regard to equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate such rights.
I do not, in the circumstances of this case, have to have regard to the effect of”the equal right to life of the mother” on the right to life of the unborn acknowledged by this Article.
As I have already stated that right to life of the unborn includes the right to have that right preserved and defended and to be guarded against all threats to its existence before and after birth, and that it lies not in the power of a parent to terminate its existence and that any action on the part of any person endangering that life was necessarily not only an offence against the common good but also against the guaranteed personal rights of the human life in person.
Obedience to the law is required of every citizen and there exists a duty on the part of the citizens to respect that right and not to interfere with it. The court is under a duty to act so as not to permit any body of citizens to deprive another of his constitutional right, to see that such rights are protected and to regard as unlawful any infringement or attempted infringement of such constitutional right as constituting a violation of the fundamental law of the State.
The qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with such a fundamental right as the right to life of the unborn, which is acknowledged by the Constitution of Ireland.
Consequently, I am satisfied that the plaintiff is entitled to a declaration that the activities of the defendants, their servants or agents in counselling pregnant women within the jurisdiction of this Honourable Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction are unlawful having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution of Ireland.
If damage had been suffered, their activities would have amounted to an actionable conspiracy. However, as the plaintiff has suffered no damage the only relief to which it is entitled is: an order directed to the defendants, their servants or agents prohibiting them from counselling or assisting pregnant women within the jurisdiction of this Honourable Court to obtain further advice on abortion or to obtain an abortion.
Before deciding to grant the declaration sought by the plaintiff and the injunctive relief sought by the plaintiff, I gave full and careful consideration to the submissions made by Mr. Butler on behalf of the second defendant and adopted by Mr. Carney on behalf of the first defendant and by Mr. O’Reilly on behalf of the plaintiff with regard to the effect of Article 29, s. 4, sub-s. 3 of the Constitution, the provisions of the Treaty of Rome and the provisions of the Council Directive of the 21st May, 1973, (No. 73/148/EEC) which deals with the abolition of restrictions on movement and residence within the Community for nationals of member states with regard to establishment and the provision of services and the cases opened during the course of these submissions.
The submissions warranted such consideration and to ensure that they received same I obtained from the court stenographer the full transcript thereof.
I have, however, come to the conclusion that the issues and facts relevant to the issue in these proceedings relate to the activities of the defendants, their servants or agents within this State and that, consequently, the provisions of the law of the European Communities are not applicable.
As they may have to be considered in some future case, I express no view as to whether or not they have or could have any effect on the rights acknowledged by Article 40, s. 3, sub-s. 3 of the Constitution.

Supreme Court

Finlay C.J.
16th March 1988

This is an appeal brought by the defendants against the order made by Hamilton P. in the High Court, dated the 27th April, 1987, which granted to the plaintiff a declaration that the activities of the defendants, their servants or agents, in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction were unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution, and which restrained the defendants and each of them, their servants or agents from counselling or assisting pregnant women within the jurisdiction to obtain further advice on abortion or to obtain an abortion.
The parties
These proceedings were originally instituted by the Society for the Protection of Unborn Children (Ireland) Ltd. (“the Society”). The defendants each in their defence challenged the locus standi of that Society to institute the proceedings and subsequently on the 24th September, 1986, by order of the High Court, the proceedings were amended and converted into proceedings in the name of the Attorney General at the relation of the Society. Amended defences were then filed by the defendants challenging the locus standi of the Attorney General to maintain the proceedings.

Constitutional provision in issue
The Eighth Amendment of the Constitution added to s. 3 of Article 40 of the Constitution the following sub-section:
“3 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The facts
The plaintiffs served, prior to the hearing, on each of the defendants a notice to admit facts and that notice coupled with the replies thereto constituted an agreed set of facts upon which the hearing in the High Court proceeded without any other oral or documentary evidence. Of these facts those material to the issues arising on this appeal with regard to each of the defendants may thus be summarised. The defendant Open Door Counselling Ltd.:
(a) By its servants or agents counsels in a non directive manner pregnant women resident in Ireland and the counselling takes place in Dublin.
(b) Abortion or termination of pregnancy may be one of the options discussed within that counselling.
(c) If a pregnant woman wants to consider the abortion options further, this defendant will arrange to refer her to a medical clinic in Great Britain.
(d) This defendant’s servants or agents inspect the medical clinic in Great Britain to satisfy themselves that the clinic operates at the highest standard.
(e) At these clinics abortions had been performed on pregnant women who had been previously counselled by this defendant.
(f) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years, including the months of November and December 1984.
With regard to the defendant Wellwoman Centre Ltd. the relevant agreed facts are as follows:
(a) It counsels in a non directive manner pregnant women resident in Ireland and that counselling takes place within the State.
(b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling if the question is raised by the person seeking counselling.
(c) If a pregnant woman wants to consider the abortion option further, this defendant will arrange to refer her to a medical clinic in Great Britain.
(d) In certain circumstances this defendant may arrange the travel requirements of such pregnant woman.
(e) This defendant inspects the medical clinic in Great Britain to satisfy itself that it operates at the highest standards.
(f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by this defendant.
(g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions are performed for many years including the months of November and December, 1984.
It was submitted on behalf of each of the defendants that the meaning of non directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgemental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase “non directive counselling” in the context of the activities of the defendants was not disputed on their behalf. It follows from this, of course, that non directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant woman receiving such counselling against choosing to have an abortion.
It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to the obtaining of abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the sub-section of the Constitution which I have already quoted, and this portion of that sub-section did not therefore arise for interpretation or decision in this case.
It was submitted on behalf of each of the defendants at the hearing of the appeal that they did not consider it essential to the service which they wished to provide for pregnant women in Ireland that they should take any part in arranging the travel of such women who wished to go abroad for the purpose of having an abortion or that they should make bookings in the clinics for such women.
They did, however, consider it essential to the service which they wish to provide that they should be at liberty to inform such women who wish to have an abortion outside the jurisdiction of the Court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard.
Grounds submitted on the hearing of this appeal
1. The defendants appealed against the finding of the learned President that the Attorney General had the locus standi to maintain this action on the grounds that the action did not concern any specific pregnant woman and her unborn child and by reason of that fact it was alleged that the Court should in its discretion refuse to grant any relief to the Attorney General because by doing so it might affect the position of the mother of an unborn child who had not been heard.
2. The defendants contended that the finding by the President of the High Court on the agreed facts that the activities of the defendants constituted the counselling of and assisting of pregnant women to go abroad for the purpose of having an abortion performed was not supported by the evidence and gave insufficient weight to the real meaning of non directive counselling.
3. It was contended on behalf of the defendants that an order restraining them from providing for pregnant women the service which they had been providing would be ineffective to prevent such women obtaining an abortion abroad and was, therefore, not an order which should be made by the Court.
4. It was contended that one of the unenumerated constitutional rights was a right to receive and impart information. It was submitted that that right included a right in pregnant women within the jurisdiction to receive information about the availability of abortion outside the jurisdiction and that the Court could not make an order impeding the exercise of that constitutional right.
5. It was contended that a question arose in this case as to the interpretation of the Treaty of the European Economic Community and that a decision on that question was necessary to enable this Court to give judgment and that therefore this Court, as a court of final appeal, was bound to request the Court of Justice of the European Communities to give a ruling on that question pursuant to Article 177 of the Treaty. It was submitted that the question of interpretation of the Treaty arose in the following way. It was asserted that a pregnant woman residing in this state had a right, pursuant to Articles 59 and 60 of the Treaty, to travel to part of another member state, to wit, the United Kingdom, for the purpose of being the recipient of a service consisting of the performing of an abortion upon her. It was further asserted that a necessary corollary to that right vested in such pregnant woman by the Treaty was the right to information about the availability of that service.
On these issues I have come to the following conclusions.
Locus standi
The guarantee contained in Article 40, s. 3, sub-s. 3 of the Constitution by the State in its laws to respect and as far as practicable by its laws to defend and vindicate the right to life of the unborn imposes an obligation not only on the legislature but also upon the courts. The fundamental nature of this obligation on the courts and its importance is well stated in the decision of this Court in The State (Quinn) v. Ryan [1965] I.R. 70, where Ã“ DÃ¡laight C.J., at page 122, stated as follows:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured
to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set those rights at nought or circumvent them, and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires.”
If it is established to the satisfaction of the Court that the admitted activities of the defendants constitute an assistance to pregnant women within the jurisdiction to go out of the jurisdiction for the purpose of having an abortion, then that is an activity which directly threatens the right to life of the unborn, not only in a single case but in all cases of women who are assisted by those activities to have an abortion.
If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn, the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts.
I am satisfied that the Attorney General, who is the holder of a high constitutional office, is an especially appropriate person to invoke the jurisdiction of the Court in order to vindicate and defend the right to which I have referred. The defendants’ appeal on the issue of locus standi must, therefore, fail.
Finding that the defendants were counselling and assisting pregnant women to go abroad for the purpose of having an abortion
The learned President in the course of his judgment dealt with the meaning of the word “counsel” to some extent in the context of the criminal law. He stated as follows:
“A person counsels the commission of an act if before the commission of the act he/she conspires to commit it, advises its commission or knowingly gives assistance to one who may commit it . . . Counselling implies consensus but not causation and involves an intention to assist in the commission of the act.
The intention to assist involves knowledge of the nature of the act to be committed and such intention to assist need not involve a desire that the act should be committed or attempted.”
Having so defined counselling, the learned President later in his judgment stated as follows:
“I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion.”
In making this finding the learned President did not indicate which of the three meanings of counselling which he had previously set out he was referring to.

If he intended by this finding to hold that the defendants were conspiring to procure an abortion out of the jurisdiction or were advising the procuring of an abortion outside the jurisdiction, those findings would not be supported by the evidence.
I am satisfied, however, that the essential issues in this case do not in any way depend upon the plaintiff establishing that the defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s. 3, sub-s. 3 of the Constitution is the issue as to whether the defendants’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn?
I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me to be an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial judge that the defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence and that, therefore, this ground of appeal must fail.
Alleged ineffectiveness of the restraining order
It was strenuously submitted on behalf of the defendants that if they did not provide this counselling service and, in particular, did not provide the identification, name and address of and method of communication with a properly run clinic the probability was that in many or all cases the pregnant woman concerned, who had decided upon the option of abortion, would succeed in obtaining an abortion in England, and probably in circumstances less advantageous to her health. No evidence was adduced to support this contention. There are no grounds for inferring it from any of the facts which are agreed as the basis for the trial of the action.
Even if it could be established, however, it would not be a valid reason why the Court should not restrain the activities in which the defendants were engaged.
The function of the courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them.
If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The courts cannot take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to the making of an order restraining these defendants’ activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants’ activities. This ground of appeal also fails.
Alleged constitutional right to information about the availability of abortions outside the State.
The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s. 3, sub-s. 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.
It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s. 6, sub-s. 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails.
European Communities law
As I have already outlined in this judgment the defendants contend that the pregnant woman who has decided within the State to have an abortion and who wishes to travel to another member state of the European Communities to be the recipient of the service of abortion has, by virtue of the provisions of Articles 59 and 60 of the E.E.C. Treaty, a right to do so.
They did not suggest that the order made in the High Court in this case prevented such women from travelling out of the State for the purpose of obtaining an abortion. They did assert that as a necessary corollary to that right to travel and receive the service of abortion in another member state there was a right to be given information relating to that service.
Counsel for the defendants expressly conceded that the corollary right for which they contended was confined to the obtaining of information about the availability or existence of the service and could not be extended to the obtaining of assistance to avail of or receive the service.
It follows from this unavoidable concession that the issue of European law raised in the pleadings does not arise in the case unless what is sought to be restrained by the plaintiff is the obtaining by a pregnant woman of information concerning the availability of the service of abortion in another member state.
What is sought to be restrained in this case is in noway confined to the question of information nor does the order of the High Court in any way prevent a pregnant woman from becoming aware of the existence of abortion outside the jurisdiction. In fact what is here sought to be restrained is assistance to a pregnant woman to travel abroad and obtain the service of abortion. Since no claim is made on behalf of the defendants that that is a corollary right to whatever rights such woman may have under the Treaty, it follows that no question of the interpretation of the Treaty falls to be decided in this case for the purpose of determining the issue between the parties. Therefore, the making of a reference to the Court of Justice of the European Communities pursuant to Article 177 of the Treaty does not arise.
Having regard to this conclusion it is not necessary for me to express any view on certain issues which have arisen in the course of the submissions before this Court and I do not intend to do so. Those issues are:
(a) Whether there exists in the mother of an unborn child a right pursuant to the E.E.C. Treaty to travel abroad for the purpose of having an abortion, thus terminating the life of an unborn child which has been guaranteed by the Constitution.
(b) Whether these defendants are entitled by way of defence against the injunction sought against them to raise a right under European law which is not vested in them but in the mother of an unborn child.
(c) The general nature of the right to travel to another member state in order to receive cervices referred to in Articles 59 and 60 of the E.E.C. Treaty.
Form of order
Having regard to the difference between the interpretation of the word”counselling” in the criminal law and the interpretation of the word “counselling”in the form of non directive counselling which is part of the services which have been provided by these defendants, it seems to me that in order to avoid any possibility of ambiguity it would be desirable to vary to a limited extent the forms of the orders made in the High Court.
I would, therefore, substitute for the declaratory order made in the High Court the following order:
“The Court doth declare that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s. 3, sub-s. 3 of the Constitution.”
I would vary the order restraining the defendants so that it reads in the following terms:
“And it is ordered that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.”
Save for these variations in the form of the orders made, I would dismiss this appeal.

Walsh J.
I agree.

Henchy J.
I agree.

Griffin J.
I agree.

Hederman J.
I agree.

SPUC v Grogan

Supreme Court

19 December 1989

[1990] I.L.R.M. 350
(Finlay CJ, Walsh, Griffin, Hederman and McCarthy JJ)

FINLAY CJ

(Griffin and Hederman JJ concurring) delivered his judgment on 19 December 1989 saying: This is an appeal brought by the plaintiff against an order made in the High Court on 11 October 1989 by Carroll J on an application made by it for an interlocutory injunction against the defendants.

By plenary summons issued on 25 September 1989 the plaintiff claimed against the defendants:

1. A declaration that any publication published or distributed under the aegis of the defendants which contains information calculated to inform persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed is contrary to the provisions of the Constitution of Ireland and in particular Article 40.3.3° thereof.

2. An injunction restraining the publication or distribution of such information.

By notice of motion dated 25 September 1989 and made returnable for 9 October 1989, the plaintiff sought an injunction by way of interlocutory injunction restraining the defendants from publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed.

The defendants are persons who are members of three separate groups, namely, the Union of Students of Ireland, the Students’ Union of University College Dublin, and the Students’ Union of Trinity College Dublin.

Affidavits filed in support of the motion for an interlocutory injunction established that each of these three groups had published and asserted that the defendants, amongst others, were intending to distribute the information mentioned in the injunction claimed.

The affidavits filed on behalf of the defendants did not dispute that they were publishing and intending to distribute information of the identity and location of and the method of communication with specified abortion clinics in the United Kingdom. In these affidavits and through counsel at the hearing in the High Court, the defendants claimed to be entitled to publish and distribute this information by virtue of European Community law. The submission made on their behalf was and is before this Court that pregnant women in Ireland had a right under European Community law to travel to any other member state where abortion was legal in order to have the service of an abortion performed on them; that a corollary to that legal right was a right to information about the identity, location and method of communication with abortion clinics in the United Kingdom. Having regard to that right vested in a pregnant woman in Ireland, it was urged that the defendants had a corresponding right vested in them by European Community law to publish and distribute that information.

Having heard submissions on the application for an injunction, Carroll J decided to refer certain questions to the Court of Justice of the European Communities for a preliminary ruling in accordance with Article 177 of the Treaty establishing the European Economic Community.

The relevant curial part of the High Court order of 11 October 1989 reads as follows:

And it appearing to the court that a decision of the Court of Justice of the European Communities on questions to be formulated and submitted to the court is necessary to enable this Court to give judgment on the plaintiffs’ said motion for an interlocutory injunction herein it is ordered that the said questions be referred to the said Court of Justice of the European Communities for a preliminary ruling in accordance with Article 177 of the Treaty Establishing the European Economic Community and the court doth request the said Court of Justice to give a ruling thereon.

There is no express order refusing or adjourning the application for an interlocutory injunction, and when counsel for the plaintiff after Carroll J had delivered judgment, inquired what ruling she was making concerning the application for an interlocutory injunction the learned trial judge stated:

In order to reach a decision as to whether it should be granted I need an opinion from the European Court.

Counsel for both parties agree that the probable time required for the delivery of an opinion from the European Court is a minimum of eighteen months, and more probably longer.

Jurisdiction of this Court to entertain this appeal
Counsel for the defendants has challenged the jurisdiction of this Court to entertain this appeal on the grounds that the only ‘decision’ made by Carroll J in the High Court was a decision to refer questions pursuant to Article 177 of the Treaty to the European Court of Justice and that having regard to the judgment of this Court in Campus Oil Ltd v Minister for Industry and Energy (No. 1) [1983] IR 82, such a decision to refer was not appealable.

Counsel for the plaintiff submits that irrespective of the form of the order made by Carroll J, she in fact made two decisions, one being to refer the questions pursuant to Article 177 and the other being to decline or refuse an interlocutory injunction.

I have come to the conclusion that the submission made on behalf of the plaintiff is correct.

The application before the High Court was for an interlocutory injunction, that is, for an injunction lasting only until the trial and determination of the action. The purpose of an interlocutory injunction is, of course, to maintain a particular situation, without alteration, from the time when the order is made until the court can adjudicate on all the issues involved between the parties. To defer or postpone reaching a decision on such an application for a period which certainly equals and probably exceeds the time necessary to bring the action to hearing is, in my view, to decline or refuse to make an interlocutory injunction.

The appellate jurisdiction of this Court in respect of matters arising in the High Court is provided for in Article 34.4.3° of the Constitution, which reads as follows:

The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

The interests of the plaintiff are very clearly affected by the ruling of Carroll J on its application for an interlocutory injunction. In seeking to reverse that ruling by appeal in this Court the plaintiff is asserting an important constitutional right.

The judgments of O’Higgins CJ and Walsh J in People v Conmey [1975] IR 341 which formed the majority decision of the court in that case, both emphasised that for any Act of the Oireachtas to provide an exception or regulation to the constitutional right of appeal from the High Court to the Supreme Court, clear and unambiguous terms would be necessary because of the fundamental nature of that right.

For the same reasons I am satisfied that no mere absence of formal words from a High Court order could be permitted to remove from the appellate jurisdiction of this Court a determination of a High Court judge which affects one of the parties involved and has all the characteristics of a decision.

It is clear from the decision of this Court in Campus Oil Ltd v Minister for Industry and Energy (No. 2) [1983] IR 88, that it was open to the learned High Court judge in this case to grant an interlocutory injunction at the same time as she decided to refer questions of law for the determination of the European Court of Justice.

There is, therefore, in my view, no question of her decision to make a reference under Article 177 having automatically the effect of postponing a decision on the application for an interlocutory injunction. Her declining to grant an injunction, therefore, when applied for, clearly, constitutes a decision of the High Court appealable, by virtue of the Constitution, to this Court.

I reject the contention that for this Court to consider an appeal involving the question as to whether or not an interlocutory injunction should be granted at this stage is, in effect, reviewing on appeal a decision to refer under Article 177 in a manner inconsistent with the decision of this Court in Campus Oil Ltd v Minister for Industry and Energy (No. 1). The making of the reference remains unaltered, the only matter being reviewed is the question of the granting of an interlocutory injunction. I am, therefore, satisfied that this preliminary objection to the jurisdiction of the court fails and that the court must then consider the merits of the plaintiff’s appeal against the decision of the High Court declining to make an interlocutory injunction.

The nature of the injunction sought
The nature of the plaintiff’s asserted cause of action in aid of which the injunction is sought and the defendants’ main defence to it is of fundamental importance for the determination of this appeal.

The plaintiff seeks to protect by injunction the right to life of the unborn which is acknowledged and guaranteed protection by Article 40.3.3° of the Constitution.

The defendants assert that the acknowledgment and guarantee of protection to the life of the unborn contained in Article 40.3.3° of the Constitution must, by virtue of the provisions of Article 29.4.3° of the Constitution, be interpreted as being subject to and qualified by a right in the defendants, arising from European Community law, by the publication and distribution of material in Ireland, to inform the mother of an unborn child of the location, identity and method of communication with abortion clinics in the United Kingdom in which she may, if she so wishes, obtain a service consisting of the intentional termination of the life of her unborn child.

It is submitted on behalf of the defendants that since it appears from the affidavits that the information, publication and distribution of which was sought to be restrained, had already been published and distributed in various ways prior to the application that the status quo ante was the availability of such information and that accordingly no injunction could or should be granted.

This submission, in my view, completely ignores the nature of this action and the principles applicable to it. It was decided by this Court in Attorney General (Society for the Protection of Unborn Children Ireland Ltd) v Open Door Counselling Ltd [1989] ILRM 19‘that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making of their travel arrangements, or by informing them of the identity and location and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40.3.3° of the Constitution.’ This Court by the same order restrained the defendants in that action by permanent injunction from carrying on these activities.

That decision clearly establishes that the actual activity which the defendants in this case are claiming and intending to pursue as of right is unlawful, having regard to the provisions of Article 40.3.3° of the Constitution.

I reject as unsound the contention that the activity involved in this case of publishing in the students’ manuals the name, address and telephone number, when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in the Open Door Counselling case on the grounds that the facts of that case were that the information was conveyed during periods of one-to-one non-directive counselling.

It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation.

This application for an interlocutory injunction, therefore, consists of an application to restrain an activity which has been clearly declared by this Court to be unconstitutional and therefore unlawful and which could assist, and is intended to assist in the destruction of the right to life of an unborn child, a right acknowledged and protected under the Constitution.

That constitutionally guaranteed right must be fully and effectively protected by the courts.

If and when a decision of the European Court of Justice rules that some aspect of European Community law affects the activities of the defendants impugned in this case,the consequence of that decision on these constitutionally guaranteed rights and their protection by the courts will then fall to be considered by these courts.

Having regard to that duty of the court, it is clearly quite inappropriate to approach the exercise of the discretion to grant or refuse an interlocutory injunction, upon the basis of a supposed status quo ante consisting of activities which are constitutionally forbidden acts.

The true principle which falls to be considered in this case in relation to the exercise of that discretion is the unqualified existence of the relevant provisions of the Constitution at the time of the application for an injunction which, in my view, having regard to the constitutional law applicable, replaces the ordinary concept of status quo ante arising in interlocutory injunction cases.

With regard to the issue of the balance of convenience, I am satisfied that where an injunction is sought to protect a constitutional right that the only matter which could properly be capable of being weighed in a balance against the granting of such protection would be another competing constitutional right.

I am quite satisfied that in the instant case where the right sought to be protected is that of a life, there can be no question of a possible or putative right which might exist in European law as a corollary to a right to travel so as to avail of services, counterbalancing as a matter of convenience the necessity for an interlocutory injunction.

One further submission remains to be considered. On behalf of the defendants it was submitted as a final alternative that if all the other contentions made on their behalf were to fail that this Court was obliged by the terms of Article 177 of the Treaty to refer to the European Court of Justice for preliminary determination the question as to whether the granting of an interlocutory injunction was possible or appropriate according to European law. This submission was almost entirely based on the decisions of the House of Lords in Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692.

In that case what was being sought pending the determination by the European Court of Justice of certain questions of community law rights pursuant to Article 177, was an injunction restraining the implementation of an Act of the United Kingdom parliament.

Having regard to the supremacy of parliament in the constitutional law of the United Kingdom, such a relief was absolutely prohibited by national law.

The question, therefore, which was by the decision of the House of Lords referred under Article 177, was as to whether such an interim or interlocutory injunction was either obligatory or permissible under European Community law and if it were permissible only, by what standards the discretion as to whether to grant or refuse it should be exercised.

No such question arises in our national law where an injunction such as is here sought is not only consistent with but is in full accord with our constitutional law.

It is quite clear that where the courts of a member state decide to refer a question pursuant to Article 177 of the Treaty, for a preliminary ruling by the European Court of Justice, that both the question as to the stage of the action in the member state at which that reference is made and what steps, if any, other than a final determination of the action the courts of the member state may take pending that determination, is peculiarly a matter for the national courts to be considered and decided in accordance with national law.

I would, therefore, allow this appeal, and I would grant to the plaintiff an injunction in terms of the notice of motion of 25 September 1989. Such injunction should last until the trial and final determination of this action, with liberty to either party to apply to the High Court for a variation of this order in the light of the preliminary ruling by the European Court of Justice, prior to that time, of the questions referred to it by the High Court under Article 177 of the Treaty.

Any application in respect of the enforcement of this injunction would, of course, be made in the High Court.

WALSH J

(Hederman J concurring): I fully agree with the judgment which has just been delivered by the Chief Justice and I have little to add to it.

The very wording of the Eighth Amendment of the Constitution forecloses any attempt to argue that life does not exist before birth. The decision of this Court in the action between the present plaintiffs and Open Door Counselling and others has given an interpretation to the Eighth Amendment which is not open to question in any court in this State or in any other State or in any international court. The interpretation of the Constitution of Ireland is within the exclusive competence of the courts of Ireland.

The procedural issue raised in this case is subordinate to the overriding issue in the case which is the issue of life and death. The unquestionable purpose of the eighth Amendment is the preservation of life. The most basic of all human rights is life itself. All procedural questions must be subordinated to the defence of that fundamental right.

In the present case it has been sought to argue that the activities of the defendants in relation to the question of abortion can be distinguished from those of the defendants in the Open Door Counselling case. In the latter case what was involved was described as ‘one to one’ counselling. The present case involves the same type of assistance being offered in a broadcast manner to all pregnant women whether married or unmarried. This is not a lesser infringement of the Constitution than was impugned in the ‘one to one’ form of assistance and by its very nature is greater and more indiscriminate.

The defendants and the student body they represent are right to be concerned with the problems which arise from pregnancy among their fellow female students although their booklet is not in any sense strictly confined to those. The defendants are to be commended for their efforts to explain the options which are available and which necessarily involve the preservation of life namely, that the mother should retain her child or put it into fosterage or have the child adopted. As the courts know only too well the last course is one frequently fraught with great emotional distress to the mother of the child and the prospective adopting parents who frequently are themselves childless. It is a drastic step which cannot be recalled but it does ensure the preservation of life. The fourth option put forward by the defendants though admittedly in a ‘non-directive and non-judgemental manner’ is the option of the death of the unborn life. This is beyond question in open conflict with the Eighth Amendment and no effort has been made to disguise that fact. The intentional destruction of unborn life is not a permissible option. This Court has already held that when a pregnant woman is intent upon the destruction of the life of her unborn child that all of those who assist her or facilitate her in the accomplishment of that intention are acting in violation of the Constitution. The information provided by the defendants in the present case is indisputably the offer of such assistance and facilities. The booklet is notable for the fact that there is a total omission of any reference to the right to life of the unborn child.

When a woman becomes pregnant she acquires rights which cannot be taken from her namely, the right to protect the life of her unborn child and the right to protect her own bodily integrity against any effort to compel her by law or by persuasion to submit herself to an abortion. Such rights also carry obligations the foremost of which is not to endanger, or to submit to, or bring about the destruction of, that unborn life. There is no doubt that particularly in the case of an unmarried pregnant woman intense pressures of a social kind may be brought to bear upon her to submit to an abortion, even from her peers or her parents. There may even be specious arguments of an economic nature ranging from those of the neo-Malthusian type to those which would seek to determine for economic reasons that the population should be structured in a particular way even to the point of deciding that the birth of too many persons of one sex should be prevented. The destruction of life is not an acceptable method of birth control. The qualification of certain pregnancies as being ‘unwanted’ is likewise a totally unacceptable criterion. The total abandonment of young children or old persons or of those who by reason of infirmity, mental or physical, or those who are unable to look after themselves too often occurs throughout the world. There is clear evidence that they are unwanted by those who abandon them. That would however provide no justification whatever for their elimination. On the economic plane there are, no doubt, some distorted minds which could make a case for the elimination of what they would regard as all useless and unproductive human units. To be unwanted is not justification for the destruction of one’s life.

When the present matter came before the High Court it was clear beyond all doubt that the activities complained of were contrary to the Constitution. The decision of the High Court judge to adopt the course which she did namely, to leave the matter undecided was in effect to suspend the provisions of the Eighth Amendment of the Constitution for an indefinite period. It is not open to any judge to do anything which in effect suspends any provisions of the Constitution for any period whatsoever. Article 177 of the Treaty of Rome does not oblige any judge of first instance to refer a case for preliminary opinion to the Court of Justice of the European Communities and any such national judge is quite free to determine any matter of Community law arising in a case without any such reference. Therefore any judge of first instance who decides to refer a case for preliminary opinion must bear in mind that such power does not give a completely free and untrammelled power in respect of all other issues in the case. The power of a judge of first instance to make such a reference for a preliminary opinion has been upheld in this Court in its decision in the Campus Oil (No. 1) case and such power, per se, is protected against interference. The exercise of this power to refer does not by its nature affect the parties concerned in the sense that it does not determine any of the issues in the case. But neither does it permit the judge concerned to avoid deciding issues in a case which must be decided and the failure to decide which may be the subject of an appeal procedure or review procedure in a higher national court. The stage at which the High Court judge decided to refer the question in the present case was during the application for an interlocutory order.

The Campus Oil (No. 1) case was not an interlocutory matter. If the learned trial judge had decided to treat the hearing of the interlocutory application as the hearing of the action similar issues would arise and similar consideration would apply as are applicable in the present case. So far as the interlocutory application is concerned the failure to grant it amounted to a withdrawal, for a period at least, of the protection of unborn lives in being from the effects of the activities of the defendants. Apart from the question of the maintenance of the juridical status quo, already referred to by the Chief Justice, this in truth was in fact a failure to maintain the status quo of those unborn lives namely, their continued existence. The destruction of any such life could never be remedied. By its nature the case could not give rise to any question of the balance of convenience being tilted against the unborn lives. It is the undoubted duty of this Court to ensure that the protection guaranteed by the Eighth Amendment is not put in abeyance. It is a matter to be worked out between the High Court judge and the Court of Justice of the European Communities to decide what, if any, steps should be taken on foot of the decision to refer, but it does not appear to me to preclude the consideration of the matter in the terms of the reference which may be of assistance in the final determination of this case.

It has been sought to be argued in the present case that the effect of the amendment of Article 29 of the Constitution, which was necessary to permit our adhesion to the treaties of the European Communities, is to qualify all rights including fundamental rights guaranteed by the Constitution. The Eighth Amendment of the Constitution is subsequent in time, by several years, to the amendment of Article 29. That fact may give rise to the consideration of the question of whether or not the Eighth Amendment itself qualifies the amendment to Article 29. Be that as it may, any answer to the reference received from the European Court of Justice will have to be considered in the light of our own constitutional provisions. In the last analysis only this Court can decide finally what are the effects of the interaction of the Eighth Amendment of the Constitution and the Third Amendment of the Constitution.

What has been sought by the High Court in the present case is an opinion on the question of the right to receive information on certain services which are available in other member States of the European Community although available under differing conditions. The availability of abortion is subject to differing regulations and restrictions. The fact that abortion is virtually available on demand in some of the member states can scarcely be regarded as a criterion. Although the provision of abortions within the law in particular member states provides profit for those engaged in it that could scarcely qualify it to be described as a service of economic significance of a type which must be available in all the member states of the Communities especially when it is manifestly contrary not only to the public morality of the member state in question and to the ordre public but also destructive of the most fundamental of all human rights namely, the right to life itself. The fact that particular activities even grossly immoral ones, may be permitted to a greater or lesser extent in some member states does not mean that they are considered to be within the objectives of the treaties of the European Communities, particularly the Treaty of Rome, which is the treaty of the European Economic Community. A fortiori it cannot be one of the objectives of the European Communities that a member state should be obliged to permit activities which are clearly designed to set at nought the constitutional guarantees for the protection within the State of a fundamental human right.

It appears to me that the High Court judge in the present case made a fundamental error in her initial premise by assuming that there was a right vested in a pregnant woman to receive in this State information calculated to assist her in the accomplishment of her intent to terminate, either within or without this State, the protected unborn life. Such a right does not exist.

In my opinion the interlocutory injunction sought by the plaintiffs must be granted.

McCARTHY J:

The status of the appellants to maintain proceedings to call the judicial power in aid of the guarantee contained in Article 40.3.3° of the Constitution has been clearly established in Society for the Protection of Unborn Children Ireland Ltd v Coogan [1990] ILRM 70.

In Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd) v Open Door Counselling [1989] ILRM 19, this Court held that the activities of the defendants in that case constituted a clear breach of the subsection. Those activities included, admittedly in a one to one situation, giving information as to the names, addresses and telephone numbers of abortion clinics in England. The defendants here do not deny that they are giving similar information to the public but claim that it is not ‘assisting’ in the same manner as in the Open Door Counselling case. I am bound by the decision of this Court in the latter case; I cannot identify any real difference between the conduct of the defendants here and that of Open Door Counselling save that these defendants are more flamboyant in the manner of giving the information. It follows, there being a continuing breach of the constitutional guarantee and a status to sue in the plaintiffs that the courts must enforce the guarantee and must do so forthwith.

In the High Court, as here, the defendants submitted that there was a question of European Community law to be resolved and this required a reference under Article 177 of the Treaty of Rome. The question was whether or not Article 59 of the Treaty is to be interpreted as meaning that a member state may forbid the giving of information within its territory about the provision of a service in another member state where the provision of that service is illegal in the first but lawful in the second member state (affidavit of Ivana Bacik).

Assuming that the students union guide books, insofar as they deal with abortion, are confined to providing information about the availability of the service of abortion in Great Britain and related information, the respondents contend that they have such a right under community law and under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Article 40.3.3° is self executing. In the order made in the Open Door Counselling case this Court declared that the activities of the defendants, their servants or agents, in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making of their travel arrangements or by informing them of the identity and location of and method of communication with a specified clinic or clincs (emphasis added) are unlawful having regard to the provision of Article 40.3.3° of the Constitution. The sole authority for the construction of the Constitution lies in the Irish courts, the final authority being this Court. Article 29.4.3° may exclude from constitutional invalidation some provision of the Treaty of Rome the enforcement of which is necessitated by the obligations of membership of the European Communities; it may be that in enacting the Eighth Amendment to the Constitution as explained by this Court in the Open Door Counselling case, the People of Ireland did so in breach of the Treaty to which Ireland had acceded in 1973. In the course of argument, counsel for the respondents submitted that the wording of the Eighth Amendment itself recognised that there could, in certain circumstances, be a lawful abortion in this State. The constitutional guarantee by the State is ‘in its laws to respect and, as far as practicable, by its laws to defend and vindicate’ the right to life of the unborn. No relevant law has been enacted by the Oireachtas since the Eighth Amendment came into force, the direct criminal law ban on abortion still deriving from the Offences against the Person Act 1861. As was pointed out by the Chief Justice in the Open Door Counselling case:

If the Oireachtas enacts legislation to defend and vindicate the constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case (at 26).

It is unfortunate that the Oireachtas has not enacted any legislation at all in respect of this constitutionally guaranteed right.

In the High Court Carroll J, requiring as she said the view of the Court of Justice as to the validity of the defendants’ argument, in referring the matter under Article 177 made no other order, even an order of adjournment of the motion for the interlocutory injunction. In the course of argument, counsel for SPUC was invited to make a submission on whether or not it was suggested that the learned High Court judge was avoiding the issue. He declined to do so stating he did not wish to personalize the matter. Whatever the intent in making the reference, the clear effect was to postpone the issue — the real issue as to whether or not the constitutional guarantee would be immediately enforced. It is common case that the reference would, in effect, postpone the determination of the interlocutory motion for at least 18 months. Such a result, in my view, is a breach of the constitutional guarantee and a refusal of the duty of the courts to enforce that guarantee.

The fact that Carroll J made no order of adjournment is, in my view, of no importance. The effect of the order of the High Court was to deny the undoubted right to have the guarantee enforced. No argument was advanced calling in aid the constitutional guarantee of freedom of expression or its effect, if any, on that contained in Article 40.3.3°.

In the light of the availability of such information from a variety of sources such as imported magazines etc., I am far from satisfied that the granting of an injunction to restrain these defendants from publishing the material impugned will save the life of a single unborn child, but I am more than satisfied that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in the Open Door Counselling case, then the rule of law will be set at naught.

I would allow this appeal.

Dublin Wellwoman Centre Ltd and Ors v Ireland and Ors

[1995] 1 ILRM 408
Denham J
This is an appeal by the third named defendant, the Society for Protection of Unborn Children (Ireland) Ltd, hereinafter referred to as the appellant, from the judgment and order of the High Court delivered on 12 October 1994 refusing the appellant’s application requesting the learned High Court judge to discharge herself from hearing and determining the proceedings inter partes herein.

History
The first named plaintiff is a company limited by guarantee, incorporated in 1977 and at all material times providing a range of services relating to counselling on marriage, family planning, procreation and health. The second and third named plaintiffs are each a member, director and employee of the first named plaintiff.

From its incorporation until 19 December 1986 the first named plaintiff provided non-directive counselling to pregnant women resident within the State. Abortion or termination of pregnancy was one of the options liable to be discussed during the said counselling and information provided to the said women regarding the availability of abortion services lawfully available within member states of the European Community, including informing them of the identity and location and the method of communication with a specified clinic or clinics.

On or about 28 June 1985 the appellant instituted proceedings against, inter alia, the first named plaintiff seeking a declaration that the activities of the first named plaintiff in counselling pregnant women within the State as aforesaid, was unlawful having regard to Article 40.3.3° of the Constitution of Ireland. By order of the High Court dated 24 September 1986 the said proceedings were converted into a relator action brought at the instance of the second named defendant. By order of the High Court dated 19 December 1986 and by a varied order of the Supreme Court dated 16 March 1988, the first named plaintiff its servants or agents were perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

On 23 December 1992 the President of Ireland signed an Act entitled the Fourteenth Amendment of the Constitution Act 1992 following and consequent upon a referendum of the people of Ireland on 28 November 1992. Article 40.3.3° of the Constitution as amended by the addition of the 13th and 14th Amendments now states:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

In 1992 Carroll J was chairwoman of the Second Commission on the Status of Women hereinafter referred to as the commission which made a statement and representations which the appellant submits are relevant to this case. On 12 March 1992, in the context of the run up to the referendum on the Maastricht Treaty and the government’s announcement that it intended to seek an amendment to the Protocol to provide for the freedom to travel, a letter was written by Carroll J in her capacity as chairwoman of the commission:

CSW. 284

12 March 1992

Mr Albert Reynolds, T.D.,

Taoiseach.

Dear Taoiseach,

As part of its task of drawing up recommendations to the government on matters affecting women’s lives the Commission on the Status of Women has been considering the issue of abortion, with particular reference to the ban on counselling and information deriving from the Supreme Court decisions under the Eighth Amendment to the Constitution.

The case of the 14 year old girl and the Supreme Court decision on foot of the case (5 March 1992, Attorney General v. X and others) underlines how serious and complex the issues arising in this area are.

Now that the individual circumstances of that case have been dealt with, the most urgent aspect for consideration is the Protocol entered by Ireland to the Treaty on European Union (the Maastricht Treaty) and the treaties establishing the European Communities.

The referendum to approve the Maastricht Treaty risks being distorted by people voting against the treaty, if they consider that the rights they presently enjoy to apply to the European Court of Justice are being taken away from them.

The commission has deliberately avoided comment on topical issues as they have arisen but because the implications of the Irish Protocol to the treaties are of such importance to Irish women and because of the urgency involved we feel it is incumbent on us to comment on this matter.

The basic premise of our statement is that women should have the right to avail of counselling and information as well as the right to travel. Indeed, if counselling were permissible some women might well decide against a termination in favour of another option.

When drafting this statement the intention was to circulate it for discussion at the commission’s forthcoming meeting on 19 March 1992. However, in view of the urgency of the matter it seems imperative that it should issue immediately. Of the nineteen members of the commission, fifteen have approved this statement. It has not proved possible to contact three members in the short time available, and one member, Dr Finola Kennedy, is not in agreement with the statement being issued. Dr Kennedy’s statement is enclosed as an appendix.

The Commission on the Status of Women is making this, our second statement to government, in the hope that it may usefully contribute to resolution of a very difficult problem.

Yours sincerely,

Mella Carroll

Chairwoman, Commission on the Status Women

The statement stated:

12 March 1992

COMMISSION ON THE STATUS OF WOMEN SECOND STATEMENT TO GOVERNMENT

The decision of the Supreme Court in Attorney General v. X (5 March 1992) affirmed the right of a mother to a medical termination of pregnancy where as a matter of probability there is a real and substantial risk to her life if the pregnancy continues. In the same case the Supreme Court decided by a three-two majority that the mother of an unborn child did not have an unqualified right to travel and that she could be restrained by injunction from travelling abroad for the purpose of terminating the pregnancy.

The protocol to the Maastricht Treaty provides:

… Nothing in the treaty on European Union, or in the treaties establishing the European Communities, or in the treaties or Acts modifying or supplementing those treaties, shall affect the application in Ireland of Article 40.3.3° of the Constitution of Ireland ….

It appears to be generally accepted that the effect of this protocol would be to remove the present right of litigants to refer to the European Court of Justice any apparent conflict between national law and European law in relation to the provision of medical termination of pregnancy. This service is a service within the meaning of Article 60 of the Treaty of Rome, SPUC v. Grogan, ECJ, 4 October 1991 ([1991] 3 CMLR 849).

The government has announced that it intends to seek an amendment to the protocol to provide for the right of freedom to travel instead of deleting it in its entirety.

The commission wishes to make the point that an amendment confined to the right to travel is too limited. Any amendment to the protocol should also provide for freedom for counselling and freedom of information because of past Supreme Court decisions.

The Supreme Court has decided in Attorney General (SPUC) v. Open Door Counselling Ltd ([1988] IR 593) that non-directive counselling to pregnant women is forbidden by Article 40.3.3° of the Constitution.

It has been submitted to the commission, and the commission accepts, that following that judgment the lack of counselling, even from a GP, and the difficulty in getting information has resulted in women going to England for termination, without any counselling. Many of these women are at an advanced stage of pregnancy. If they had decided to consider the possibility of termination further, at least they would have had the opportunity to reflect at an early stage of the pregnancy on the other options open to them.

At present, the opportunity for reflection after counselling given in the clinics in England is minimal. Having gone that far, the impetus for the individual woman is to complete the purpose of the journey and go ahead with the termination.

The government chose to hold three referenda on 26 November 1992 the result of which was the amended Article 40.3.3° as set out hereinbefore. The commission in its final report stated:

11.3.14 Counselling and information.

In 1991, 4, 152 women from the Republic of Ireland had abortions in England, up from 4,063 in 1990. The Republic accounts for more than one-third of the non-resident abortions — more than any other state. The rise in Irish figures goes against the trend of a decline in abortions in England and Wales both among residents and non-residents as a whole. In view of the reported incidence of women travelling for the purposes of an abortion, the commission believes that non-directive counselling should be made available on a countrywide basis now that the constitutional ban on freedom of information has been altered. The commission recommended to the government on 3 September 1992 that non-directive counselling should be made available as soon as it was legally possible. Since the amendment on information has been passed, this recommendation is no longer necessary. When legislation to implement the amendment is introduced, unreasonable restrictions should not be imposed. The aim should be that the appropriate information should be available to those who require it.

Pleadings
The essence of the action to be heard in the High Court is the interpretation of Article 40.3.3° of the Constitution as to information on abortion services lawfully available in other member states of the European Union. The plaintiffs seek:

A declaration that the plaintiffs, their servants or agents, may make available within the State information relating to abortion services lawfully available in another member state of the European Community and may inform pregnant women of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

This Court has been informed that there will be no oral evidence at the trial of the action in the High Court but that all facts are set out in the pleadings.

The essence of the case is the meaning and extent of the right to information in Article 40.3.3°. The notice for particulars and the relevant replies thereto set out the issues. These include, inter alia, claims as to the persons to whom it is submitted the plaintiffs may make available the information; whether the information comprehends advertising to the public at large or sectoral advertising; whether such information is to be provided gratis and if not by what criteria will the fee be determined; whether the information now sought to be given is equivalent to or exceeds the non-directive counselling to pregnant women resident in the State provided by the plaintiffs from 1977 until 19 December 1986; also the elements which constitute ‘non-directive counselling to pregnant women resident within the State’ will be litigated.

The High Court
On 12 October 1994 the plaintiffs’ action seeking a declaration as to the giving of information as set out above came into the list for hearing in the High Court. By chance the judge in the relevant court was Carroll J. Counsel for the appellant applied to the learned trial judge to discharge herself on the grounds that her activities as chairwoman for the Commission on the Status of Women were calculated to create a reasonable apprehension of bias in respect of the matters in issue in the proceedings.

In the High Court the Attorney General through his counsel indicated that he did not intend to make any submission and would abide by the order of the court. He has not appealed against the order of the High Court. Also in this Court the Attorney General felt that the proper course was to abide by the court order and not to take the side of either party.

Mr Hardiman SC, for the plaintiffs, stated that they had attended in court on 12 October 1994 and were met with the objection to the learned trial judge. They were ready and wished to have the case heard. They did not regard as sound the allegation of bias and so they opposed such an application then and did so before this Court.

There was legal argument in the High Court. After hearing submissions in the matter Carroll J reserved her decision until after lunch when she gave a written judgment. She stated:

When I was sworn in fourteen years ago I made a declaration in the presence of Almighty God that I would duly and faithfully to the best of my knowledge and power execute my office as a judge of the High Court without fear, favour, affection or ill will towards any man and that I would uphold the Constitution. I have always followed that declaration to the best of my ability.

Today I am told that one defendant believes that I am biased, and the other defendant expresses no opinion. I did not read the papers in this case before today and it is fortuitous that I happen to be sitting in this Court this week to hear this case.

The essence of the action concerns the interpretation of the Constitution ….

Having referred, inter alia, to the historical facts leading up to the constitutional amendments to Article 40.3.3° on 26 November 1992 and the commission’s final report she concluded:

As I see it, the perceived bias referred to by Mr Kelly SC has no basis. I know I do not have a bias. I will hear this case with an open mind and I will interpret the Constitution to the best of my ability, but I refuse to disqualify myself on the ground that I have a bias in this matter because I know that I do not.

Issues
There are two issues for determination before this Court. First, as to whether or not an appeal lies at this stage from Carroll J to the Supreme Court. Mr Hardiman SC for the plaintiffs submitted that a refusal of a judge to discharge herself was not a decision which could be the subject of an appeal apart from the substantive issue.

Secondly, if the judgment of Carroll J is capable of being appealed, the question is whether her decision on the issue of bias was correct.

Decision pursuant to Article 34.4.3°
The first issue is whether the determination of Carroll J in this matter was a ‘decision’ which may be appealed to the Supreme Court.

In this case the order of the High Court of 12 October 1994 states:

This action coming on for hearing this day in the presence of counsel for the respective parties

Whereupon and on reading the pleadings herein and upon the application of counsel for the added defendant [the appellant herein] that the judge discharge herself from the hearing of this action

And upon hearing what was offered by said counsel and by counsel for the plaintiffs and by counsel for the first and second named defendants

It is ordered that the said application be and the same is hereby refused

And the added defendant [the appellant herein] by its counsel undertaking to serve a notice of appeal forthwith against this order and duly enter same

It is ordered that the said added defendant [the appellant herein] do have liberty to proceed with said notice of appeal ….

The reserved written judgment of the learned High Court judge was opened in full to this Court and a portion has been quoted previously herein.

Article 34.4.3° states:

No exceptions or regulations apply to the determination of the High Court in this case and thus it is essentially an issue as to whether or not it was a ‘decision’ within Article 34.4.3°.

The ordinary meaning of the word ‘decision’ is defined in the Oxford English Dictionary as:

The action of deciding (a contest, controversy, question, etc.), settlement, determination.

The legal meaning of the word ‘decision’ in Article 34.4.3° was considered by the Supreme Court in Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan [1989] IR 753; [1990] ILRM 350 where Finlay CJ stated at pp. 763/354–5:

No mere absence of formal words from a High Court order could be permitted to remove from the appellate jurisdiction of this Court a determination of a High Court judge which affects one of the parties involved and has all the characteristics of a decision.

In this case there were formal words — the order and a reserved judgment. There was a determination by a High Court judge of an issue. The determination affected the interest of one of the parties. Carroll J in refusing to discharge herself from the case between the parties on the basis that there was no bias made a decision, against the application of one party, on constitutional justice. The issue of bias goes to the root of constitutional justice — to the constitutional right to a fair and impartial hearing. The issue is one to be determined in accordance with Irish law and the Constitution.

The determination had all the characteristics of a decision. The preliminary issue had been raised before the High Court, arguments were submitted on behalf of opposing parties, the law and the Constitution were referred to, the judge reserved her decision, and then delivered a written judgment in which she gave her determination and the reasons therefor. Thereafter a High Court order on the issue, and regulating the appeal, was drawn up.

The fact that it is an issue preliminary to a trial does not divest it of the status of a ‘decision’ under Article 34.4.3°. Preliminary matters, such as for example a request for an adjournment, are not infrequently appealed to this Court. It has been the practice of this Court, quite rightly in my view, to treat such as a decision from which an appeal may lie. Such a decision is analogous to the decision in this case.

It is appropriate that the issue be tried now rather than after a full hearing of the substantive action in the High Court. It is a decision on an interlocutory matter in the course of an action.

I am satisfied that in substance and in form, the judgment and order of the High Court in this case are a ‘decision’ pursuant to Article 34.4.3° of the Constitution. Consequently an appeal lies therefrom to the Supreme Court.

Bias
In the general sense ‘bias’ is an emotive word. It is defined in the Oxford English Dictionary as:

An inclination, leaning, tendency, bent, a preponderating disposition or propensity, predisposition, predeliction, prejudice.

It is also a technical legal term and as such has been defined by the courts in many cases. The concept of bias developed through cases considering material interest. It also arose in cases on pre-judgment, prior involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this wider concept. First, that there should be no actual bias, i.e. a subjective test. And secondly, that there should be no reasonable apprehension that there is bias, i.e. the objective test. Both of these streams of thought are equally important in the broad river of justice. The idea was expressed in R. v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 and at p. 259 Lord Hewart CJ made his famous statement:

… a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.

Of that concept O’Flaherty J in O’Reilly v. Cassidy [1995] 1 ILRM 306 stated at p. 310:

While that was articulated on that particular occasion it is probably a concept as old as the common law itself and it is in perfect harmony with our constitutional situation.

It is a concept that requires the absence of actual bias which I shall call ‘subjective bias’, and the absence of what a reasonable person in the circumstances may perceive as bias, which I shall call ‘objective bias’. Lack of bias in either form underpins the administration of justice.

The question of subjective bias was not raised by counsel for the appellant in the High Court. On the other hand it was submitted there that the learned High Court judge’s position as chairwoman of the Commission on the Status of Women, and the steps which she took as such, manifested in the letter, statement and report of the commission set out previously, were such as to raise an apprehension of bias by a reasonable person, i.e. objective bias.

The text
The appropriate test was recently applied by this Court in O’Reilly v. Cassidy (ibid.) where Finlay CJ at p. 309 of his judgment stated:

The second matter on which I am satisfied an arguable ground has been established is that the daughter of the learned Circuit Court judge who was sitting to try the case appeared on behalf of the State and on behalf of the garda objector. An objection to that fact was taken on behalf of the applicant and that is fundamental in my view. If no objection is taken to any relationship between an advocate and a judge there could be no conceivable impropriety in the judge continuing to hear the case. There is no suggestion being made in this case, and I have seen a transcript of the hearing as one of the documents, of any bias being displayed by the judge at all of any description, nor does Mr McCullough make the suggestion of bias. The suggestion he makes is that the test to be applied was, would a reasonable person apprehend that there might be bias because of that relationship. Given the applicant’s very considerable stake involved in the decision in the case, having instructed her counsel to object to the relationship, I am satisfied that the court possibly should have discontinued the matter and either got another judge to do it or take some step. I am not saying that must be done, I am not saying that should be done but I think this is an arguable ground and it is appropriate that it should be included in the grounds on which judicial review should be commenced.

In the above ex tempore judgment Finlay CJ was applying a similar test to that which he had previously expounded in O’Neill v. Beaumont Hospital Board [1990] ILRM 419 where he stated at p. 438:

The bias alleged in this case is a bias consisting of pre-judgment. The plaintiff’s case, in very brief summary, is that a consideration of the question of the making of the decision as to the continuance or termination of his service as a consultant in the hospital cannot fairly be carried out by reason of the fact that the persons who should carry it out have pre-judged his case. There is no suggestion of personal animosity, personal gain or personal self-interest in any member of the board as a form of bias. The sole form of bias alleged is pre-judgment ….

I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it may be subtly different from the standard which was applied in the High Court, is the question as to whether a person in the position of the plaintiff, Mr O’Neill, in this case who was a reasonable man, should apprehend that his chance of a fair and independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of the pre-judgment of the issues which are involved in that by the members of the board. That in my view is the proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a case of this description.

That standard is applicable to this case. In the High Court there was no suggestion of personal favour or personal interest, i.e. subjective bias of the learned High Court judge. The actual state of mind of the judge was and is not in issue. What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge on issues which are at the kernel of this case.

The facts as set out fully hereinbefore in this judgment indicated a situation where the learned High Court judge in her capacity as chairwoman of the Commission on the Status of Women has voiced a view on the constitutional article in question. Obviously this was not in her capacity as a judge, nor was it a legal decision. However, in a letter to the Taoiseach, a statement, and the report the issue is referred to, albeit superficially and with brevity.

This concept, somewhat differently phrased, is fundamentally that stated in 1968 by Lord Denning MR in Metropolitan Properties Co. (FGC) Ltd v. Lannon [1969] 1 QB 577 at p. 599:

… In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand …. Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough …. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.

No actual bias
I am quite satisfied that the learned High Court judge was not lobbying on this issue, as submitted by counsel for the appellant. I am quite satisfied that she had no actual bias and I accept her judgment in full on the issue of subjective bias. However, the judgment did not address the matter of reasonably apprehended bias, i.e. objective bias. It is on this issue that the High Court erred.

There is no suggestion or finding that the court gave or would have given anything but an honest answer. But the test is objective; not whether the learned High Court judge considered she was or was not biased; nor whether the appellant considered the judge was or was not biased; but whether a person in the position of the appellant in this case, a reasonable person, should apprehend that his chance of a fair and independent hearing by reason of the actions by the learned High Court judge in her capacity as chairwoman of the Commission on the Status of Women would prevent a completely fair and independent hearing of the issues which arise. The apprehension of the reasonable person in the position of the appellant is what has to be considered.

Judicial practice
It has long been a practice of the judiciary in this State not to act as a judge in a case where they have an interest, or where there are grounds on which a reasonable person might fear that in respect of the issues involved he would not get an independent hearing. This is a convention which the learned High Court judge has herself practised in not unrelated circumstances previously.

Perception of the Administration of Justice
The concept of the perception of the administration of justice, as well as the content of justice is as important today as in years gone by. The statement of Lord Hewart CJ is as relevant today as when it was made in 1923. With the development of the modern communications media and an increasingly educated and enquiring society the public perception of the impartiality of the courts is a cornerstone of the administration of justice in our constitutional democracy.

Before the High Court the issue will be the interpretation of the 14th Amendment to the Constitution. The appellant is putting forward a meaning that is apparently different to that maintained by the plaintiffs. It may be that the only contradictor to the plaintiffs’ action will be the appellant. The view of the plaintiffs may be consistent with the second statement to government of the Commission on the Status of Women — which stated:

The Supreme Court has decided in Attorney General (SPUC) v. Open Door Counselling Ltd [1988] IR 593 that non-directive counselling to pregnant women is forbidden by Article 40.3.3° of the Constitution.

It has been submitted to the commission, and the commission accepts, that following that judgment the lack of counselling even from a GP and the difficulty in getting information has resulted in women going to England for termination, without any counselling. Many of these women are at an advanced stage of pregnancy. If they had access to counselling, it might have enabled them to decide to complete the pregnancy. If they had decided to consider the possibility of termination further, at least they would have had the opportunity to reflect at an early stage of the pregnancy on the other options open to them.

The majority report of the commission recommended:

That any amendments to the Maastricht protocol should provide not only for freedom of travel but also for freedom to give and receive counselling and for freedom of information.

Of the amendments to Article 40.3.3° of the Constitution in 1992 the learned High Court judge said in her reserved judgment herein:

The commission in its final report said that the result achieved what the commission had recommended in one of its alternatives, and the only recommendation made by the commission was that the Oireachtas should pass legislation as recommended in Chapter 11 (paragraph 11.6.1.). So the commission accepted the constitutional position as it was when it presented its final report and made no recommendations about any further amendments. The commission cannot therefore be labelled as not supporting the constitutional position.

The appellant now comes to court seeking an interpretation of Article 40.3.3° and the provision on information therein referred to.

Abortion
The nature of the matter for consideration in this case is of particular importance and relevance. The issues of abortion and the related amendments regarding travel and information are perhaps the most emotive and divisive topics in our community today. The courts have to be ever-vigilant to protect constitutional rights, constitutional interpretation, and justice, and to be seen to be so.

It is a fundamental and age old concept in common law that justice must manifestly and visibly be seen to be done. It is expressed now as constitutional justice. In cases such as this where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of pre-existing non-judicial position and actions, it would be contrary to constitutional justice to proceed with a trial.

I am satisfied that the learned High Court judge should have discharged herself. There is no question of a personal interest of the learned High Court judge — no subjective bias. However, applying the test set out and the conclusions reached herein the appellant has made out the case of reasonably apprehended bias in the circumstances — objective bias. Consequently I would allow the appeal.

Attorney General (SPUC) v Open Door Counselling Ltd

[1989] ILRM 19

Finlay CJ

This is an appeal brought by the defendants against the order made by Hamilton P. in the High Court, dated 27 April 1987, which granted to the plaintiff a declaration that the activities of the defendants, their servants or agents, in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction were unlawful, having regard to the provisions of Article 40.3.3° of the Constitution, and which restrained the defendants and each of them, their servants or agents from counselling or assisting pregnant women within the jurisdiction to obtain further advice on abortion or to obtain an abortion.

The parties
These proceedings were originally instituted by the Society for the Protection of Unborn Children (Ireland) Ltd (the Society). The defendants each in their defence challenged the locus standi of that Society to institute the proceedings and subsequently on 24 September 1986 by order of the High Court, the proceedings were amended and converted into proceedings in the name of the Attorney General at the relation of the Society. Amended defences were then filed by the defendants challenging the locus standi of the Attorney General to maintain the proceedings.

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Constitutional provision in issue
The Eighth Amendment of the Constitution added to Article 40.3 of the Constitution the following subsection:

3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

The facts
The plaintiffs served, prior to the hearing, on each of the defendants a notice to admit facts and that notice coupled with the replies thereto constituted an agreed set of facts upon which the hearing in the High Court proceeded without any other oral or documentary evidence. Of these facts those material to the issues arising on this appeal with regard to each of the defendants may thus be summarised. The defendants’ Open Door Counselling:

(a) By its servants or agents counsels in a non-directive manner pregnant women resident in Ireland and the counselling takes place in Dublin.

(b) Abortion or termination of pregnancy may be one of the options discussed within that counselling.

(c) If a pregnant woman wants to consider the abortion options further, these defendants will arrange to refer her to a medical clinic in Great Britain.

(d) These defendants’ servants or agents inspect the medical clinic in Great Britain to satisfy themselves that the clinic operates at the highest standard.

(e) At these clinics abortions had been performed on pregnant women who had been previously counselled by these defendants.

(f) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years, including the months of November and December 1984.

With regard to the defendant Wellwoman Centre the relevant agreed facts are as follows:

(a) It counsels in a non-directive manner pregnant women resident in Ireland and that counselling takes place within the State.

(b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling if the question is raised by the person seeking counselling.

(c) If a pregnant woman wants to consider the abortion option further, these defendants will arrange to refer her to a medical clinic in Great Britain.

(d) In certain circumstances these defendants may arrange the travel requirements of such pregnant women.

(e) These defendants inspect the medical clinic in Great Britain to satisfy themselves that it operates at the highest standards.

*23

(f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by these defendants.

(g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions are performed for many years including the months of November and December 1984.

It was submitted on behalf of each of the defendants that the meaning of non-directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgemental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase non-directive counselling in the context of the activities of the defendants was not disputed on behalf of the respondent. It follows from this, of course, that non-directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant woman receiving such counselling against choosing to have an abortion.

It was not part of the facts of this case nor of the submissions of the appellants that the service which they were providing for pregnant women in relation to the obtaining of abortion outside this jurisdiction was in any way confined to or especially directed towards the due regard to the equal right of life of the mother mentioned in the subsection of the Constitution which I have already quoted, and this portion of that subsection did not therefore arise for interpretation or decision in this case.

It was submitted on behalf of each of the appellants at the hearing of the appeal that they did not consider it essential to the service which they wished to provide for pregnant women in Ireland that they should take any part in arranging the travel of such women who wished to go abroad for the purpose of having an abortion or that they should make bookings in the clinics for such women.

They did, however, consider it essential to the service which they wish to provide that they should be at liberty to inform such women who wish to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard.

Grounds submitted on the hearing of this appeal
1. The appellants appealed against the finding of the learned President that the Attorney General had the locus standi to maintain this action on the grounds that the action did not concern any specific pregnant woman and her unborn child and by reason of that fact it was alleged that the court should in its discretion refuse to grant any relief to the Attorney General because by doing so it might affect the position of the mother of an unborn child who had not been heard.

2. The appellants contended that the finding by the President of the High Court on the agreed facts that the activities of the defendants constituted the counselling of and assisting of pregnant women to go abroad for the purpose of having an abortion performed was not supported by the evidence and gave insufficient weight to the real meaning of non-directive counselling.

3. It was contended on behalf of the appellants that an order restraining them from providing for pregnant women the service which they had been providing would be ineffective to prevent such women obtaining an abortion abroad and was, therefore, not an order which should be made by the court.

4. It was contended that one of the unenumerated constitutional rights was a right to receive and impart information. It was submitted that that right included a right in pregnant women within the jurisdiction to receive information about the availability of abortion outside the jurisdiction and that the court could not make an order impeding the exercise of that constitutional right.

5. It was contended that a question arose in this case as to the interpretation of the Treaty of the European Economic Community and that a decision on that question was necessary to enable this Court to give judgment and that therefore this Court, as a court of final appeal, was bound to request the Court of Justice of the European Communities to give a ruling on that question pursuant to Article 177 of the Treaty. It was submitted that the question of interpretation of the Treaty arose in the following way. It was asserted that a pregnant woman residing in this State had a right, pursuant to Articles 59 and 60 of the Treaty, to travel to part of another Member State, to wit, the United Kingdom, for the purpose of being the recipient of a service consisting of the performing of an abortion upon her. It was further asserted that a necessary corollary to that right vested in such pregnant woman by the Treaty was the right to information about the availability of that service.

On these issues I have come to the following conclusions.

Locus standi
The guarantee contained in Article 40.3.3° of the Constitution by the State in its laws to respect and as far as practicable by its laws to defend and vindicate the right to life of the unborn imposes an obligation not only on the legislature but also upon the courts. The fundamental nature of this obligation on the courts and its importance is well stated in the decision of this Court in State (Quinn) v Ryan [1965] IR 70, where Ó Dálaigh CJ, at p. 122, stated as follows:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no-one can with impunity set those rights at nought or circumvent them, and the the Court’s powers in this regard are as ample as the defence of the Constitution requires.

*25

If it is established to the satisfaction of the court that the admitted activities of the defendants constitute an assistance to pregnant women within the jurisdiction to go out of the jurisdiction for the purpose of having an abortion, then that is an activity which directly threatens the right to life of the unborn, not only in a single case but in all cases of women who are assisted by those activities to have an abortion.

If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts.

I am satisfied that the Attorney General who is the holder of a high constitutional office is an especially appropriate person to invoke the jurisdiction of the court in order to vindicate and defend the right to which I have referred. The defendants’ appeal on the issue of locus standi must, therefore, fail.

Finding that the Defendants were counselling and assisting pregnant women to go abroad for the purpose of having an abortion
The learned President in the course of his judgment (reported at [1987] ILRM 477) dealt with the meaning of the word counsel to some extent in the context of the criminal law. He stated at p. 498 as follows:

A person counsels the commission of an act if, before the commission of the act, he/she conspires to commit it, advises its commission or knowingly gives assistance to one who may commit it…. Counselling implies consensus but not causation and involves an intention to assist in the commission of the act. The intention to assist involves knowledge of the nature of the act to be committed and such intention to assist need not involve a desire that the act should be committed or attempted.

Having so defined counselling, the learned President later in his judgment stated at p. 499 as follows:

I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion.

In making this finding the learned President did not indicate which of the three meanings of counselling which he had previously set out he was referring to.

I am satisfied, however, that the essential issues in this case do not in any way depend upon the plaintiff establishing that the defendants were *26 advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40.3.3.° of the Constitution is the issue as to whether the defendants’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn?

I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the defendants to obtain the precise location, address and telephone number of and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial judge that the defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence and that, therefore, this ground of appeal must fail.

Alleged ineffectiveness of the Restraining Order
It was strenuously submitted on behalf of the appellants, that if they did not provide this counselling service and, in particular, did not provide the identification, name and address of and method of communication with a properly-run clinic that the probability was that in many or all cases the pregnant woman concerned who had decided upon the option of abortion would succeed in obtaining an abortion in England, and probably in circumstances less advantageous to her health. No evidence was adduced to support this contention. There are no grounds for inferring it from any of the facts which are agreed as the basis for the trial of the action.

Even if it could be established, however, it would not be a valid reason why the court should not restrain the activities in which the defendants were engaged.

The function of the courts, which is not dependant on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them.

If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The courts can not take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to *27 the making of an order restraining these defendants’ activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants’ activities. This ground of appeal also fails.

Alleged constitutional right to information about the availability of abortions outside the State
The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Articel 40.3.3° it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40.6.1 (i) of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails.

European Communities law
As I have already outlined in this judgment the appellants contend that the pregnant woman who has decided within the State to have an abortion and who wishes to travel to another Member State of the European Communities to be the recipient of the service of abortion has, by virtue of the provisions of Articles 59 and 60 of the EEC Treaty, a right to do so.

They did not suggest that the order made in the High Court in this case prevented such women from travelling out of the State for the purpose of obtaining an abortion. They did assert that as a necessary corollary to that right to travel and receive the service of abortion in another Member State there was a right to be given information relating to that service.

Counsel for the appellants expressly conceded that the corollary right for which they contended was confined to the obtaining of information about the availability or existence of the service and could not be extended to the obtaining of assistance to avail of or receive the service.

It follows from this unavoidable concession that the issue of European law raised in the pleadings does not arise in the case unless what is sought to be restrained by the plaintiffs is the obtaining by a pregnant woman of *28 information concerning the availability of the service of abortion in another Member State.

What is sought to be restrained in this case is in no way confined to the question of information nor does the order of the High Court in any way prevent a pregnant woman from becoming aware of the existence of abortion outside the jurisdiction. In fact what is here sought to be restrained is assistance to a pregnant woman to travel abroad and obtain the service of abortion. Since no claim is made on behalf of the appellants that that is a corollary right to whatever rights such woman may have under the Treaty, it follows that no question of the interpretation of the Treaty falls to be decided in this case for the purpose of determining the issue between the parties. Therefore, the making of a reference to the Court of Justice of the European Communities pursuant to Article 177 of the Treaty does not arise.

Having regard to this conclusion it is not necessary for me to express any view on certain issues which have arisen in the course of the submissions before this Court and I do not intend to do so. Those issues are:

(a) Whether there exists in the mother of an unborn child a right pursuant to the EEC Treaty to travel abroad for the purpose of having an abortion, thus terminating the life of an unborn child which has been guaranteed by the Constitution.

(b) Whether these appellants are entitled by way of defence against the injunction sought against them to raise a right under European law, which is not vested in them but in the mother of an unborn child.

(c) The general nature of the right to travel to another Member State in order to receive services referred to in Articles 59 and 60 of the EEC Treaty.

Form of Order
Having regard to the difference between the interpretation of the word counselling in the criminal law and the interpretation of the word counselling in the form of non-directive counselling which is part of the services which have been provided by these defendants, it seems to me that in order to avoid any possibility of ambiguity it would be desirable to vary to a limited extent the forms of the orders made in the High Court.

I would, therefore, substitute for the declaratory order made in the High Court the following order.

The court doth declare that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40.3.3° of the Constitution.

I would vary the order restraining the defendants so that it reads in the following terms:

And it is ordered that the defendants and each of them their and each of their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

Save for these variations in the form of the orders made, I would dismiss this appeal.

The Attorney General v. X

[1992] IR 1
Finlay C.J.
S.C.

5th March, 1992

This is an appeal brought by the defendants against an order made by Costello J. in the High Court on the 17th February, 1992, which was made in these proceedings upon an application for an interlocutory injunction which by consent of the parties was treated as the hearing of the action.
The first defendant is a fourteen and a half year old girl and the second and third defendants are her parents.
Upon the facts proved in the High Court, the first defendant was, in the month of December, 1991, raped, and as a result of such rape became pregnant of which fact she and her parents became aware at the very end of January, 1992. The rape was then reported to the Garda Siochana and a statement given by the first defendant to them of the facts surrounding the alleged rape.
All the defendants were distraught as a result of the revelation of the fact of rape and as a result of the fact that the first defendant was pregnant and after careful consideration all of them reached a decision that she should travel to the United Kingdom and undergo an operation for abortion. The family informed the Garda Siochana of that fact and inquired from them whether any particular process was available for testing the foetus so aborted in order to provide proof in any subsequent charge of the paternity of the accused. The Garda Siochana apparently submitted that inquiry to the Director of Public Prosecutions and he in turn communicated the information thus arising to the Attorney General.

The Attorney General on the 7th February, 1992, having applied ex parteto Costello J. in the High Court, obtained an order of interim injunction restraining the first defendant and the other defendants from leaving the country or from arranging or carrying out a termination of the pregnancy of the first defendant. At the time that order was ready to be served on the defendants they apparently had left this country and were in England arranging for the carrying out of the termination of the pregnancy. Upon being informed whilst there of the order which had been made by the court, they returned to this country.
The interim injunction was to last until the 10th February, 1992, or until further order made in the meantime.
The application for an interlocutory injunction, which was treated as the hearing of the action, was tried before Costello J. on the 10th and 11th February, 1992, and his reserved judgment was delivered on the 17th February, 1992.
The order which he then made and against which this appeal is brought was in the following terms:
“IT IS ORDERED
(a) that the defendants their servants or agents or anyone having knowledge of the order be restrained from interfering with the right to life of the unborn as contained in Article 40, s. 3, subs. 3 of the Constitution of Ireland;
(b) that the first defendant be restrained from leaving the jurisdiction of this Honourable Court or the second and third named defendants their servants or agents or anyone having knowledge of the said order from assisting the first defendant to leave the aforesaid jurisdiction for a period of nine months from the date hereof;
(c) that the first defendant her servants or agents or anyone having knowledge of the said order be restrained from procuring or arranging a termination of pregnancy or abortion either within or without the jurisdiction of the Honourable Court.”
Against the making of that order a notice of appeal to this Court was filed on behalf of the defendants on the 21st February, 1992.
The grounds of appeal set out in that notice were as follows:
“1. That the learned trial judge was wrong in law and in fact in holding that upon the information that the defendants intended to go to England for the purposes of obtaining an abortion for the first defendant being conveyed to the Attorney General it was his duty in the circumstances to apply to the High Court for the relief sought herein.
2. That the learned trial judge was wrong in law and in fact in holding that the High Court had power to make an order in these proceedings notwithstanding the failure of the Oireachtas to enact any law to reconcile the right to life of the unborn with the equal right to life of its mother as the same is referred to in the Eighth Amendment of the Constitution.
3. That the learned trial judge was wrong in law and in fact in holding that the right to life of the unborn acknowledged in the Eighth Amendment to the Constitution was clear and unambiguous and that the duty of the courts to protect it was imperative.
4. That the learned trial judge was wrong in law and in fact in holding that, although complicated and difficult issues of fact may arise in individual cases, the fact that the Oireachtas had failed to legislate on how the courts were to have regard to the equal right to life of the mother did not inhibit the courts from applying the clear rule of law laid down in the Eighth Amendment.
5. That the learned trial judge was wrong in law and in fact in the test that he applied to measure in the circumstances of this case the comparative risk to the right to life of the first defendant as mother.
6. That in balancing the right of the first defendant to her life as mother and that of the unborn the learned trial judge was wrong in law and in fact in failing to give a preference to the life of the first defendant as mother such life being a life in being against the life of the unborn which life was contingent and putative.
7. That the learned trial judge was wrong in law and in fact in treating the life of the unborn as a life of equal certainty with that of the first defendant.
8. That the learned trial judge was wrong in law and in fact in holding that the risk that the first defendant may take her own life if the orders made herein should be made was much less and of a different order of magnitude than the certainty that the life of the unborn would be terminated if the order was not made.
9. That the learned trial judge was wrong in law and in fact in finding that the danger to the right to life of the mother was a lesser danger than the danger to the right to life of the unborn.
10. That the learned trial judge was wrong in law and in fact in holding that in the circumstances of this case it was the Court’s duty to protect the life of the unborn by making the order sought.
11. That the learned trial judge was wrong in law and in fact in holding that by travelling abroad to procure an abortion the first defendant would be committing a wrong and/or an unlawful act and that the court ought to restrain such wrongful act even though this might involve the curtailment of the exercise by the first defendant of her constitutional right to liberty as provided in Article 40, s. 4 of the Constitution.
12. That the learned trial judge was wrong in law and in fact in holding that to travel abroad to procure an abortion was to commit an unlawful or wrongful act.
13. That the learned trial judge was wrong in law and in fact in holding that in the circumstances of this case the Eighth Amendment of the Constitution empowered the court to stop the first defendant from going abroad to terminate the life of her unborn.
14. That the learned trial judge was wrong in law and in fact in holding that there was no provision or principle of community law which would prohibit the exercise of the discretionary power to derogate from the requirements of the Treaty of Rome and community law in the manner contained in the Eighth Amendment of the Constitution.
15. That the learned trial judge was wrong in law and in fact in holding that the first defendant did not have a right under community law to travel abroad to obtain an abortion.
16. That the learned trial judge was wrong in law and in fact in holding that the Eighth Amendment to the Constitution and the legal consequences flowing from it amounted to a derogation on grounds of public policy by Ireland from the principles of community law permitting the first defendant to travel abroad to another state within the European Community to obtain and receive services there.
17. That the learned trial judge was wrong in law and in fact in holding that the concept policy as applied to the laws of the Community relating to the freedom of movement of workers could be applied in relation to the freedoms to provide and to receive services under Articles 59 and 60 of the Treaty of Rome and the other measures giving effect thereto.
18. That the learned trial Judge was wrong in law and in fact in finding no provision or principle of Community Law prohibiting a derogation by the State in the manner contained in the Eighth Amendment of the Constitution.
19. That the learned trial judge was wrong in law and in fact in holding that the Eighth Amendment of the Constitution amounted to a derogation from the laws of the European Community by Ireland on grounds of public policy.
20. That the learned trial judge was wrong in law and in fact in holding that such derogation by the State by way of the Eighth Amendment of the Constitution from the effect and operation of the laws of the European Community passed the test of proportionality under community law.
21. That the learned trial judge was wrong in law and in fact in finding that the Constitution required the making of the orders sought.
22. Such further or other grounds as may be relied upon.”
The proceedings
In the High Court the learned trial judge exercised the jurisdiction conferred on him by s. 45 of the Courts (Supplemental Provisions) Act, 1961, to hear the matter of the application for an injunction as a ‘minor’ matter otherwise than in public. His reason for so doing, as set out in his judgment, is as follows:
“As the first defendant was a minor and as the distress from which she was suffering would have been immeasurably increased had her name become known and the facts of this case given publicity, I concluded that in her interests I should accede to the request. In camera hearings in minor matters are by no means uncommon. When they raise issues of law which require a written judgment, then the judgment is so drafted as to preserve the minor’s anonymity, and then circulated and made public in the ordinary way.”
Against that decision by the learned trial judge in relation to the method of proceeding there was no appeal to this Court. This Court accordingly listed the case as one in which the appeal was to be heard in camera. At the commencement of the appeal counsel on behalf of the defendants was asked whether his clients still wished that the matter should be held in camera.The Court was informed that the application for the hearing of the case in camera had been made in the High Court on behalf of the Attorney General in the first instance, but had been supported by counsel on behalf of the family whose most urgent desire was as far as possible to protect their anonymity. Counsel then informed this Court that that was still the urgent desire of the family.
In these circumstances, the Court reached the same conclusion as did the learned trial judge in the High Court, namely, that the interests of justice and the dominant welfare of the first defendant, in particular, required that the proceedings should continue in camera.
The appeal was at hearing before this Court on 24th, 25th and 26th February.
On the last-mentioned date, the Court having heard all the submissions from both sides on the constitutional issues arising, with the exception of questions which might have arisen under the provisions of european law, came to the conclusion that the appeal should be allowed and that the order of the High Court should be set aside. That ruling was given in open court on 26th February, and it was then stated that reasons for the decision would be given at a later stage.
I now, in this judgment, give my reasons for that decision.
The judgment in the High Court
At the commencement of his judgment, Costello J. dealt first with the question of the initiation of the proceedings by the Attorney General, in the following terms, and I quote:
“The information that the defendant and her parents intended to go to England for the purposes of an abortion was conveyed to the Attorney General. The duty of the Attorney General in the circumstances cannot be in doubt. Provision is made in the Constitution for the office of Attorney General. He is legal adviser to the Government. But in addition, the Constitution imposes on him duties which he must fulfil independently of the Government. As was pointed out by the Chief Justice in The Attorney General (S.P.U.C) v. Open Door Counselling Ltd [1988] I.R. 593 at p. 623, once it is established that activities constitute assistance to pregnant women to go out of the jurisdiction for the purpose of having an abortion, then this is an activity directly threatening the right to life of the unborn, and the Attorney General is an especially appropriate person to invoke the jurisdiction of the court in order to vindicate and defend the right to life of the unborn. Acting as required by the Chief Justice, the Attorney General instructed counsel to apply to the High Court so that the court could, in the light of the facts to be established before it, make an appropriate decision.”
As appears from the grounds of appeal set out in this judgment, an appeal against that part of the judgment was originally formulated. No submissions, however, were made at the hearing of this case in furtherance of those grounds. I feel, however, that I should state that the view expressed by Costello J. in this part of his judgment is correct, and I see no reason to alter the view which I expressed and to which he refers in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 with regard to the function of the Attorney General. It would have been, in my view, quite incorrect for him in this case, and in the absence of legislation providing any alternative procedure, to take it upon himself to make a decision on the facts available to him, instead of, as he did, bringing the matter before the courts.
The first issue submitted before the High Court on behalf of the defendants was that because the Oireachtas had not enacted any law regulating the manner in which the right to life of the unborn and the right to life of the mother, referred to in the Eighth Amendment, could be reconciled the court could make no order in a case in which an issue of reconciliation arose. The learned trial judge in rejecting this submission stated as follows:
“It seems to me that if the court is apprised of a situation in which the life of the unborn is threatened, then it would be failing in its constitutional duty to protect it merely because the Oireachtas had failed to legislate on how it was to have regard to the equal right of the mother, as provided for in the Eighth Amendment. Complicated and difficult issues of fact may, of course, arise in individual cases, but that does not inhibit the court from applying the clear rule of law laid down in the Amendment.”
The second issue which was submitted on behalf of the defendants in the High Court was that although the Eighth Amendment required the courts to defend and vindicate the life of the unborn, they were in doing so to have regard to the equal right to life of the mother; that in doing so in this case the court should not make the order sought because this would prejudice the mother’s right to life, because of the very real danger, which, it was said, the evidence established, that she would take her own life if the order was made and she was unable to procure an abortion. Dealing with this issue the learned trial judge stated as follows:
“I am quite satisfied that there is a real and imminent danger to the life of the unborn and that if the court does not step in to protect it by means of the injunction sought, its life will be terminated. The evidence also establishes that if the court grants the injunction sought there is a risk that the defendant may take her own life. But the risk that the defendant may take her own life, if an order is made, is much less and of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made. I am strengthened in this view by the knowledge that the young girl has the benefit of the love and care and support of devoted parents who will help her through the difficult months ahead. It seems to me, therefore, that having had regard to the rights of the mother in this case, the court’s duty to protect the life of the unborn requires it to make the order sought.”
Submissions of the defendants with regard to these two issues
With regard to the issue concerning the question of the inability of the court to make any order where a reconciliation of a conflict between the right to life of the unborn and the right to life of the mother, both dealt with in the Eighth Amendment, arose, it was submitted on this appeal that the word ‘laws’ contained in that amendment must be construed to mean laws enacted by the Oireachtas, and that since no laws had been enacted by the Oireachtas to vindicate or defend the right of the unborn, following upon the enactment of the Eighth Amendment of the Constitution, the court had no jurisdiction to intervene in that behalf.
With regard to the finding by the learned trial judge concerning the disparity between the risk to life of the unborn and the risk to life of the mother, the following submission was made. It was contended that the true test, having regard to the proper interpretation of Article 40, s.3, sub-s. 3, of the Constitution, was that if it was established as a matter of probability that the continuation of the life of the unborn child constituted a real and substantial risk to the life of the mother then the conflict thus arising should be resolved by preferring the life of the mother. This submission was based upon an assertion, having regard to the meaning which should be placed upon the two phrases ‘as far as practicable’ and ‘with due regard to’ contained in sub-s. 3 of s. 3 of Article 40, that the protection of the life of the mother must, by reason of it being a life in being as distinct from an unborn life, in the circumstances where a real and substantial risk to it was established, be preferred. It was further submitted on behalf of the Attorney General that the phrases ‘due regard’ and ‘as far as practicable’ contained in the sub-section of the Constitution made it necessary that in interpreting this sub-section one looked elsewhere at the position of a woman who is a mother and a member of a family group and a member of society in the terms of the rights and obligations which, as such, she may have, together with, in relevant cases, the rights and obligations of her parents as well.

Submissions of the Attorney General on these two issues
With regard to the submission that by reason of the absence of legislation vindicating and defending the right identified and guaranteed in Article 40, s.3, sub-s.3 the court had no power or function to protect that right by any particular order, counsel on behalf of the Attorney General relied upon the judgment of Kenny J. in The People v. Shaw [1982] I.R. 1. He also relied on the judgment delivered by me, with which the other members of the Court agreed, in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593. He submitted that it would be quite inconsistent with the obligation and right of the courts to uphold the Constitution and the rights therein identified and guaranteed, if it were not empowered to act without the intervention in any particular instance of the Oireachtas.
With regard to the question of the true interpretation of the provisions of Article 40, s. 3, sub-s.3, it was submitted on behalf of the Attorney General, firstly, that the terms of that sub-section must not be interpreted in isolation from the other provisions of the Constitution: that the use of the phrase ‘due regard’ and of the phrase ‘as far as practicable’ necessarily involved, for the interpretation of the provisions of the sub-section of the Article, a consideration of the entire provisions of the Constitution, of the principles in accordance with which the courts should approach its interpretation, and with the need for harmonisation between this particular provision of the Constitution and other rights and obligations identified, granted or guaranteed by it. In this context reliance was placed by counsel on the judgments of this Court in McGee v. The Attorney General [1974] I.R. 284; on the judgment of O’Higgins C.J. in The State (Healy) v. Donoghue [1976] I.R. 326 and the judgment of O’Higgins C.J. in The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412. Having regard to the principles thus laid down by this Court, it was submitted on behalf of the Attorney General that the phrases ‘due regard’ and ‘as far as practicable’ contained in the sub-section of the Constitution made it necessary that in interpreting this sub-section one looked elsewhere at the position of a woman who is a mother and a member of a family group and a member of society in the terms of the rights and obligations which, as such, she may have, together with, in relevant cases, the rights and obligations of her parents as well.
Having regard to these principles, it was submitted that the true test to be applied was that under the terms of the sub-section if it was established in any case that the continuation of the life of the unborn constituted a risk of immediate or inevitable death to the mother the termination of the pregnancy would be justified and lawful.
Such a test, it was urged, had due regard to the principles which had been submitted and to the rights and obligations and constitutional situation of the mother as a life in being.
It was consequently contended that the test proposed on behalf of the defendants of a real and substantial danger to the life of the mother, as justifying the termination of the pregnancy, was disproportionate and even having regard to the considerations which it was conceded were relevant, was a failure to approach sufficiently equality between the two rights concerned.
On behalf of the Attorney General it was further submitted that, even if the test for reconciliation of the fight to life of the unborn and of the mother proposed by the defendants were correct, the evidence adduced on behalf of the defendants did not establish a risk complying with that test.
Article 40, s. 3, sub-s. 3 of the Constitution as inserted by the Eighth Amendment
“The State acknowledges the fight to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Decision on these two issues arising in the appeal Powers of the Court in the absence of legislation
In The State (Quinn) v. Ryan [1965] I.R. 70 O’Dalaigh C.J. with whose judgment the other members of the Court agreed, stated as follows:
“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that fights of substance were being assured to the individual and that the courts were the custodians of these fights. As a necessary corollary it follows that no one can with impunity set these rights at naught or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.”
In his judgment in The People v. Shaw [1982] I.R. I Kenny J., stated as follows at p. 62 of the report at p. 122:
“When the People enacted the Constitution of 1937, they provided (Article 40, s. 3) that the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen and that the State should, in particular, by its laws protect as best it might from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. I draw attention to the use of the words ‘the State’. The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws: Article 6. The word ‘laws’ in Article 40, s. 3, is not confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges and by ministers of State when they make statutory instruments or regulations.”
In my judgment in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 at p. 621, dealing with the guarantee contained in Article 40, s. 3, sub-s. 3 of the Constitution, having quoted from the decision of O’Dalaigh C.J. in The State (Quinn) v. Ryan [1965] I.R. 70 as applicable to an issue which arose in that case concerning the locus standiof the plaintiff to maintain the proceedings, I stated as follows:
“If it is established to the satisfaction of the Court that the admitted activities of the defendants constitute an assistance to pregnant women within the jurisdiction to go out of die jurisdiction for the purpose of having an abortion, then, that is an activity which directly threatens the right to life of the unborn, not only in a single case but in all cases of women who were assisted by those activities to have an abortion.
If, therefore, the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constritutionally guaranteed right to life of the unborn, the courts as the judicial organ of government of the State would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts.”
Having regard to these statements of the law expressed by this Court to the principles underlining them, I have no doubt that the submission that the courts are in any way inhibited from exercising a function to vindicate and defend the right to life of the unborn which is identified and guaranteed by Article 40, s. 3, sub-s. 3 of the Constitution by reason of a want of legislation is incorrect and that the appeal of the defendants upon this ground must fail.
Interpretation of Article 40, s. 3, subsection 3
In the course of his judgment in McGee v. The Attorney General [1974] I.R. 284 Walsh L, stated as follows at pp. 318/319 of the report:
“In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle, as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good, with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
In the course of his judgment in The State (Healy) v. Donoghue [1976] I.R. 325, O’Higgins C.J. stated as follows at p. 347 of the report:
“The preamble to the Constitution records that the people seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.
In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. Walsh J. expressed this view very clearly in McGee v. The Attorney General when he said at p. 319 of the report . . .”
The learned Chief Justice then quoted from that portion of the judgment of Walsh J. which I have set out above in this judgment. I not only accept the principles set out in these two judgments as correct and appropriate principles which I must follow in interpreting the provisions of this sub-section of the Constitution, but I find them particularly and peculiarly appropriate and illuminating in the interpretation of a sub-section of the Constitution which deals with the intimate human problem of the fight of the unborn to life and its relationship to the right of the mother of an unborn child to her life.
I accept the submission made on behalf of the Attorney General, that the doctrine of the harmonious interpretation of the Constitution involves in this case a consideration of the constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and, of course, with the right to life of the unborn child as well.
Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, as they have been explained in the judgment of Walsh J. in McGee v. The Attorney General [1974] I.R. 284 leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life.
I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40, s. 3, sub-s. 3 of the Constitution.
Has the first defendant by evidence satisfied this test?
With regard to this issue, the findings of fact made by the learned trial judge in the High Court at p. 7 of the report are as follows:
“When the defendant learned that she was pregnant she naturally was greatly distraught and upset. Later she confided in her mother that when she learned she was pregnant she had wanted to kill herself by throwing herself downstairs. On the journey back from London she told her mother that she had wanted to throw herself under a train when she was in London, that as she had put her parents through so much trouble she would rather be dead than continue as she was. On the 31st January, in the course of a long discussion with a member of the Garda Siochana, she said: ‘I wish it were all over, sometimes I feel like throwing myself downstairs.’ And in the presence of another member of the Garda Siochana, when her father commented that the ‘situation was worse than a death in the family’ she commented: ‘Not if it was me’.”
On the day of her return from London the defendant’s parents brought her to a very experienced clinical psychologist. He explained in his report that he had been asked to assess her emotional state; that whilst she was co-operative she was emotionally withdrawn; that he had concluded that she was in a state of shock and that she had lost touch with her feelings. She told him that she had been crying on her own, but had hidden her feelings from her parents to protect them. His opinion was that her vacant, expressionless manner indicated that she was coping with the appalling crisis she faced by a denial of her emotions. She did not seem depressed, but he said that she ‘coldly expressed a desire to solve matters by ending her life.’ In his opinion, in her withdrawn state ‘she was capable of such an act, not so much because she is depressed but because she could calculatingly reach the conclusion that death is the best solution.’ He considered that the psychological damage to her of carrying a child would be considerable, and that the damage to her mental health would be devastating. His report was supplemented by oral testimony. He explained that in the course of his consultation with the defendant she had said to him: ‘It is hard at fourteen to go through the nine months’ and that she said: ‘It is better to end it now than in nine months’ time.’ The psychologist understood this to mean that by ending her life she would end the problems through which she was putting her parents with whom she has a very strong and loving relationship.
The psychologist who gave oral evidence as well as submitting a report, (which was admitted by agreement in evidence before the learned trial judge) stated that when he had interviewed this young girl and was anxious to have a continuing discussion with her parents who accompanied her and not having anybody available to remain with the young girl in the waiting room, his view of the risk of her committing suicide was so real, on his past experience in this field of medicine, that notwithstanding its obvious inappropriateness he requested her to remain in the room while he discussed the problem with her parents.
I am satisfied that the only risk put forward in this case to the life of the mother is the risk of self-destruction. I agree with the conclusion reached by the learned trial judge in the High Court that that was a risk which, as would be appropriate in any other form of risk to the life of the mother, must be taken into account in reconciling the right of the unborn to life and the rights of the mother to life. Such a risk to the life of a young mother, in particular, has it seems to me, a particular characteristic which is relevant to the question of whether the evidence in this case justifies a conclusion that it constitutes a real and substantial risk to life.
If a physical condition emanating from a pregnancy occurs in a mother, it may be that a decision to terminate the pregnancy in order to save her life can be postponed for a significant period in order to monitor the progress of the physical condition, and that there are diagnostic warning signs which can readily be relied upon during such postponement.
In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored in that sense and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide.
I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy.
It is for this reason that, in my view, the defendants were entitled to succeed in this appeal, and the orders made in the High Court have been set aside.

Further issues arising under domestic and constitutional law, other than issues arising under European law
The remaining issues under domestic and constitutional law which were submitted on this appeal, as distinct from being formulated in the notice of appeal, can briefly be summarised as follows.
(a) It was asserted that the mother’s right to travel, including travelling out of the jurisdiction, was an absolute right which could not be restricted by any vindication or defence of the right of the unborn child to life.
(b) In the alternative it was submitted that such right to travel could not be restricted by any vindication or defence of the right of the unborn to life in the absence of a legislated restriction.
(c) In the further alternative it was submitted that even if an injunction restraining the mother from travelling out of the jurisdiction in order to have an operation of abortion performed was constitutionally permissible, it was so incapable of enforcement or supervision that it basically constituted a futile order which the courts should not make by way of injunction.
(d) If the defendant were prevented by court order from travelling out of the jurisdiction for the purpose of having an operation of abortion performed, such order would apply to her in effect a form of preventive detention which, in the decision of this Court in Ryan v. The Director of Public Prosecutions [1989] I.R. 399, reaffirming the views previously expressed by this Court in The People v. O’Callaghan [1966] I.R. 501, has been declared constitutionally impermissible. Particular reliance was placed in this argument on the fact that it was submitted that the act which it was sought to prevent, namely, the termination of the pregnancy, was not extraterritorially unlawful.
Of necessity, these submissions were presented as alternatives to the main contention of the defendants that on the particular facts of this case and on the appropriate test to be applied to the conflict between the right to life of the unborn and the right to life of the mother, as provided for in Article 40, s. 3, sub-s. 3, a termination of the defendant’s pregnancy was permissible, having regard to the constitutional provisions.

The conclusions which I have reached and which are shared by a majority of my colleagues on this Court as to the true test to be applied to the reconciliation of the right to life of the unborn and the light to life of the mother identified and guaranteed under Article 40, s. 3, sub-s. 3 of the Constitution and on the facts which have been established by the defendants to satisfy that test make it unnecessary for the purpose of deciding this appeal to reach any conclusion on these further issues which were raised.
These issues having, however, been fully argued and being matters of considerable public interest, it seems to me that I should express my views upon them, even though those views may fall as a matter of law within the category of being obiter dicta.
The right to travel was identified by me in a judgment delivered when I was President of the High Court in The State (M.) v. The Attorney General [1979] I.R. 73, as an unenumerated constitutional right. That it exists as an important and, in a sense, fundamental light closely identified with the characteristics of any free society, cannot be challenged. The making of an order by way of injunction restraining a person from travelling out of the jurisdiction of the State, whether confined to travelling for a particular purpose or for a particular period, constitutes a major restriction of such right to travel, placing the right in actual abeyance.
The questions raised by these submissions obviously are questions as to whether there can be a reconciliation between the right to life of the unborn child and the right to travel of its mother, and if there can, by what principles such reconciliation must be applied.
Right to travel
I accept that where there exists an interaction of constitutional lights the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in those instances I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights.
Notwithstanding the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society, I would be forced to conclude that if there were a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel. I therefore conclude that the submission made that the mother of the unborn child had an absolute light to travel which could not be qualified or restricted, even by the vindication or defence of the right to life of the unborn, is not a valid or sustainable submission in law.
Furthermore, for the reasons set out by me earlier in this judgment concerning the ample powers of the Court, even in the absence of legislation, to vindicate and defend the right to life of the unborn, I reject also the submission that the power of the Court to interfere with the right to travel of the mother of an unborn child is in any way limited or restricted by the absence of legislation, except in so far as such absence of legislation may be a relevant factor on the questions of ineffectiveness or futility of the granting of orders restricting travel.
The order made in the High Court in this case was an order prohibiting the travelling by the mother of the unborn child outside the State for a period of nine months. At the commencement of the submissions made on behalf of the Attorney General it was indicated that the Attorney General no longer sought to stand over that precise order but was content instead, if the Court concluded that a restriction on the right to travel could and should be applied, that it would be confined to an injunction restraining the mother from travelling outside the State for the purpose of having an operation of abortion carried out.
It was stated by counsel on behalf of the Attorney General that whilst the Attorney General was in this case seeking the more limited order of restraining travel, not in general but for the purpose of having an abortion performed, he did not concede that the more extensive order might not be appropriate in another case.
It is a principle applicable to the making of orders by the courts by way of injunction that the Court should avoid making a futile or unenforceable order. That principle would prima facie apply to injunctions made in order to protect constitutional rights in the same way as it applies to injunctions made in the protection of rights arising under private law. Furthermore, the duty which is imposed upon the State under the terms of Article 40, s.3, sub-s. 3 of the Constitution which is being discharged by the courts in granting injunctions in the context with which I am now concerned, is a duty to vindicate and defend the right of the unborn to life ‘as far as practicable.’ This duty, with that qualification, must it seems to me necessarily apply in any event to the discretions vested in the Court the principle that it cannot and should not make orders which are futile, impractical or ineffective.
It is therefore necessary to examine the submissions made that orders, either in the form made in the High Court in this case or even in the more limited form now contended for by counsel on behalf of the Attorney General, are orders which are so incapable of supervision or enforcement that they must be deemed to be futile and, therefore, never orders which can properly be made by the courts.
I would accept that in a great number of instances, living in a country which has a land frontier and in an age which has such wide and varied facilities of travel, the making of orders restraining an individual from travelling out of the jurisdiction either for a specified time or for a specified purpose would be impossible to supervise and impossible to enforce except in the negative sense of possible imposition of punishment or sanctions after the order had been disobeyed. The imposition of such penalties, except to the extent that they might provide a deterrent, would not be an effective defence of the right of the unborn to life.
Whilst this is so, it is clear that in the instant case the orders made in the High Court, firstly, by way of an interim injunction and subsequently by way of a permanent injunction, were orders which until they were discharged by the ruling of this Court on appeal were wholly effective to achieve the purpose for which they were made. The fact that they were so effective was entirely due to the strikingly commendable attitude of all of the three defendants in this case, notwithstanding the anguish which they were suffering, of being willing and anxious to abide by the lawful orders of the court. It may, unfortunately, be true that a great number of people exist who would not have such a proper approach to the orders made by a court in pursuance of the defence of the right to life of the unborn.
Having regard, however, to the obligation of the courts to vindicate and defend that right and to use every power which they may have in an attempt to achieve that objective I do not consider that it can be said that a mere expectation that a significant number of people may be unwilling to obey the orders of a court could deprive that court from attempting, at least, in appropriate cases to discharge its constitutional duty by the making of an injunction restricting, to some extent, the right to travel of an individual.
Issues which arose under European Law
It was submitted on behalf of the defendants as a further alternative to all other submissions that even if the orders restraining the first defendant from leaving the jurisdiction for the purpose of having an abortion carried out, were permissible under Irish constitutional law, they were prohibited by European law as being in breach of Article 59 of the Treaty of Rome, which effectively provides a freedom for persons to travel from one Member State to another for the purpose of availing of a service in that other Member State, the performance of the operation of abortion being, within the meaning of European law, such a service. A prohibition on that right, it was submitted would have been in conflict with Directive 73/148/EEC. In the High Court this submission was disputed on behalf of the Attorney General by reference to Article 8 of the Council Directive 73/148/EEC, which provides that:
“Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health.”
It was submitted that the Eighth Amendment and the legal consequences which flow from it, including the jurisdiction of the courts to prohibit persons from leaving the country to obtain an abortion, amounted to a derogation by Ireland from those principles which is permitted on the grounds of public policy. The learned trial Judge was not requested to make any reference of that issue to the European Court of Justice under Article 177, and was not, of course, as a court of first instance obliged to make such a reference. He concluded that the amendment and the legal consequences did constitute such a derogation and that the making of such an order would not be inconsistent with European law. Article 177 of the Treaty of Rome provides as follows:
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”
In a judgment delivered by me in Avonmore Creameries Ltd v. An Bord Bainne Co-Operative Ltd (Unreported, Supreme Court, 21st March, 1991), with which McCarthy J. and O’Flaherty J. agreed, I set out the consequences of that Article in so far as they affected the Supreme Court as a court of ultimate appeal, in the following terms:

“In any case where a judge of first instance has, as he is clearly entitled to do, reached a decision on one or more questions of European Community law coming within the categories mentioned in Article 177 of the Treaty, this Court as a final court of appeal cannot affirm, vary or reverse such a decision, but must, if the resolution of such questions is necessary to enable it to give its judgment, refer those questions for a preliminary ruling to the Court of Justice of the European Communities pursuant to Article 177. If, of course, this Court decides that the resolution of such questions is not necessary to enable it to give judgment in the case, then, no reference is made. In either event, it is not appropriate for this Court to express any view on issues of European Community law arising in this manner, except for the particular instance where it may conclude that what was alleged to be an issue of EC law is in fact incapable of any but one resolution, and has so clearly been determined.”
In this case the Court has decided the question at issue in the case without reference to the submissions which were, of necessity, alternative submissions made under European law. No decision on any question of European law is therefore necessary to enable the Court to give its judgment. In these circumstances, I am satisfied that there can be no question of referring any question of such law to the Court of Justice of the European Community pursuant to Article 177, as there is no provision in that code for the determination by that court of any question of law as a moot at the instance of a national court.
In Doyle v. An Taoiseach [1986] I.L.R.M. 693, Henchy J. delivering judgment in this Court, with which the other members of the Court agreed, stated as follows, at p. 714 of the report:
“I consider that a decision on a question of Community law as envisaged by Article 177 of the Treaty of Rome is not necessary to enable this Court to give judgment in this case. Just as it is generally undesirable to decide a case by bringing provisions of the Constitution into play for the purpose of invalidating an impugned law when the case may be decided without thus invoking constitutional provisions, so also, in my opinion, should Community law, which also has the paramount force and effect of constitutional provisions, not be applied save where necessary for the decision in the case.”
Apart from the practical time scale difficulties of obtaining a ruling by way of preliminary ruling from the Court of Justice of the European Community, pursuant to Article 177 of the Treaty, in time for the due resolution of the problems arising in this case, it is consistent with the jurisprudence of the Court that there being a ground on which the case can be decided without reference to European law, but under Irish law only, that method should be employed.

Hederman J.
5th March, 1992

I agree with the judgment delivered by the Chief Justice regarding the right of the Attorney General to institute these proceedings. Once the matter was brought to his attention he was obliged in the discharge of his office to bring the matter immediately to the attention of the court. It was his duty to ascertain as quickly and as fully as he could the facts of this particular case but the decision on whether the girl should be allowed to have an abortion was exclusively a matter for the court.
I also agree that though the Oireachtas had not enacted any law purporting to regulate the manner in which the right to life of the unborn and the right to life of the mother referred to in the Eighth Amendment should be reconciled, the Court has jurisdiction to make such orders as it thinks proper to give effect to the Amendment. In the absence of legislation not in conflict with the Constitution it must fall to the Court pursuant to Article 40, s. 3, sub-s. 3 to reconcile the conflict between the right to life of the unborn and the right to life of the mother.
The nature and effect of the Eighth Amendment
Counsel for the defendants submitted that as parents and as a family the defendants are entitled to pursue a decision “made in conscience” after the alleged rape of their daughter who became pregnant. He submitted that the case comes down to a matter of law; of interpretation of the Eighth Amendment and the rights of the first defendant in the title. He further submitted she has rights under the Constitution to do what she decided to do, i.e. to go to England for the purpose of having an abortion. He submitted that there was no guidance to define the equal rights to life of the mother with the unborn and submitted that the trial judge purported to define a clear rule of law from the Amendment. He further submitted that the Court, in determining the mother’s rights under the Eighth Amendment, should have regard to the decisions of this Court in G. v. An Bord UchtÃ¡la [1980] I.R. 32; McGee v. The Attorney General [1974] I.R. 284 and in particular pp. 318/319 of that judgment and Norris v. Attorney General [1984] I.R. 36. Counsel also submitted that the manner in which the law was to be applied should be as set out in Rex v. Bourne [1939] 1 K.B. 687.

In that case a fifteen year old girl became pregnant as a result of a violent rape. A surgeon of the highest skill, without fee, performed the operation of abortion. He was subsequently tried under s. 58 of the Offences against the Person Act, 1861. The jury were directed that it was for the prosecution to prove beyond reasonable doubt that the operation was not performed in good faith for the purpose only of preserving the life of the girl. The surgeon had not got to wait until the girl was in peril of immediate death but it was his duty to perform the operation “if a doctor using his best judgment comes to the opinion that the continuance of the pregnancy will endanger the life of the mother or make her a physical or mental wreck, he is not only entitled but it is his duty to perform the operation, and the operation will not. be unlawful.” Counsel in this case accepted that if the consequences of the continued pregnancy would be to make the patient a physical and mental wreck, that fact alone would not suffice to justify an abortion. He submitted that the true test is, “as a matter of probability, is there a real or substantial risk of the right to life of the mother?” This test, he submitted, the learned High Court judge had not applied. He further submitted that the Eighth Amendment does not give the absolute right to life to the unborn child or to the mother. “The two rights are juxtaposed as equal.” The Amendment recognises the conflict which may arise and require reconciliation. Explicit in the Amendment is the duty to defend and vindicate that right, i.e. the right of the unborn. He submitted that the “real or substantial risk to the life of the mother” is a test which is consistent with the Eighth Amendment. If any other test is applied it would not be right for the courts to second-guess the decision of the parents which was justified by the evidence in this case. He further submitted that if a court were to adopt a higher test than that, then there is not an adequate protection of the mother as that would be in breach of her equal right to life and such a decision would be contrary to the common good. If the test is immediate danger he submitted it was not an adequate protection of the mother’s equal right to life. The learned trial judge, he submitted, resolved the question by putting too great an emphasis on the risk to the unborn against the risk to the health of the mother, as in this case, on his submissions, the risk of death of the mother is “real and substantial”. Because the learned trial judge held that the risk is much less and of a different order of magnitude to that of the mother, therefore he says that the risk to the mother must always be less than the risk to the unborn. He submitted that the life of the unborn is “putative”, if there is no life for the mother, then there is no life for the unborn. The unborn life he submitted,”is contingent” on the life of the mother and justifies the tests that he submits should apply to the mother’s right to life.
The evidence on which the above submissions were made
In an affidavit sworn on the 10th February, 1992, the mother of the girl, the third defendant, in the course of her affidavit stated that the first defendant was born on the 15th July, 1977; that on the 22nd January, 1992, the first defendant complained to her and to her husband that she had been sexually abused for over eighteen months by a close male friend of the family and that on the 7th December, 1991, she “had been raped” by this man. On the 4th February it was medically confirmed that the first defendant was nine weeks pregnant. She said that on discovering she was pregnant her daughter was extremely upset and distraught and informed both her and her husband that she wanted to kill herself by throwing herself down the stairs. She also stated that both herself and her husband were also extremely upset. She said that as a family they went through the options available; that her daughter had been through a harrowing experience, having been raped by a person who had sexually abused her over a period of time. The daughter emphatically stated she felt no love for the child. The daughter also expressed the view that were she to have the baby she would not be able to look at its face when it was born, but at the same time felt that she could not give up the child for adoption lest it would suffer the same fate as she had at the hands of the man who had abused her. The mother went on to depose:
“We discussed the possibility of termination of her pregnancy and the first defendant was totally in agreement with the suggestion. I say and believe that both myself and the second defendant (the father) felt that in the circumstances of the case it was the best option and the option that would serve our daughter’s welfare to the greatest extent.”
She went on to depose that arrangements were made to travel to London for the termination of the pregnancy but prior to the time set for the operation the husband was in contact with the gardaÃ in Dublin and was informed over the telephone of the making of the orders of the High Court. Immediately all plans in relation to the termination of the pregnancy ceased and the family returned to Ireland. Continuing her deposition the mother avers that the family:
“truly believes that the best course of action in the interests of the first defendant is to terminate her pregnancy.”
She said that she and her husband were fearful of their daughter’s mental health if she had to bring the pregnancy to full term and further that, while returning from London her daughter said that she wanted to throw herself under a train. The daughter felt she had put the parents through a lot of difficulty because of her situation and would rather be dead than continue as she was. She said that the daughter is clear in her own mind and “has repeated to us on a number of occasions because of the circumstances of its conception. I this deponent and the second defendant herein are extremely fearful that she may suffer a complete mental breakdown if a termination does not take place. I believe because of the distress and difficulty the first defendant was experiencing on her return to Ireland . . . we brought her to a clinical psychologist for counselling” and the deponent exhibits the opinion of the psychologist.
A member of the gardaÃ swore an affidavit on the 5th February, 1992. He deposes that he first became aware of these events on Friday the 31st January, 1992, when informed by a woman garda and was present at a garda station on the 3rd February, 1992, when the first defendant gave a detailed statement of alleged indecent assaults and alleged rape. He further averred that the first defendant, while making the statement, said she feared she would not be believed as the person whom she named in the statement is an adult and much older than she. After the interview the mother of the first defendant mentioned the possibility of the use of D.N.A. “fingerprinting”to assist in corroboration of the matters of which the daughter complained. On enquiries the garda was satisfied that such testing could not be carried out on a foetus in the womb. On the 4th February the deponent was informed by a doctor that the first defendant was pregnant. The garda was also informed by the mother that the family had discussed the possibility of ending the pregnancy and asked him if they were to decide to take this course, would it be possible to arrange a person to attend or be present in England to carry out tests on the foetus for the purpose of corroboration. On making enquiries the garda was informed that any such evidence by way of D.N.A. “fingerprinting” in the circumstances described, would be illegal, unconstitutional and not admissible in evidence. On the 5th February he telephoned the defendants’ household and informed them of the advice he had received. Both parents were disappointed and distressed. The mother then informed the detective that all three of the defendants were going to England on the following day.
A woman garda also made a deposition on the 6th February, 1992. She deposed that on the 30th January she was contacted by the same doctor, attached to a sexual assault unit to the effect that the presence of a garda was required at the unit. There she saw all three defendants and ultimately on the 3rd February took a detailed statement from the first defendant in the presence of her mother.
In the High Court on the 11th February, 1992, the garda was sworn for the purpose of being examined by counsel for the defendants. In the course of her corss-examination she stated that when she met the first defendant while in the sexual assault unit, she told the witness that she thought about running away; that would be the end of the matter. She also stated:
“She did not say in my presence that she thought about killing herself but did say she was looking at ways out of this particular situation and thought about running away.”
That was on the Thursday. On the following morning the witness was with the first defendant for approximately five hours. She said the first defendant seemed fairly withdrawn but that when she did talk she was very specific about what she said. The defendant said:
“I wish this was all over. Sometimes I feel like throwing myself down the stairs.”
A clinical psychologist practising in Ireland since 1979, with six years experience in child psychology, but not a medical practitioner, was called by counsel for the defendants. His report had already been exhibited. He examined the first defendant on 7th February at the request of her parents. In the course of this report he states:
“She seemed almost in a trance and she herself stated that she could not believe this was happening to her. While she told me she had been crying on her own she hides her feelings deliberately from her parents in order to protect them from further distress. Her vacant expressionless manner suggests she is coping with this appalling crisis in her life by denial of her emotions. For this reason she did not seem depressed, but I fear that when her feelings surface she will face a psychological crisis.
She coldly expressed a desire to solve matters by ending her life. In this withdrawn state, she is capable of such an act, not so much because she is depressed, but because she could calculatingly reach the conclusion that death is the best solution. As her pregnancy proceeds, the psychological damage of carrying a child that she has emotionally rejected, and which she blames for the ruination of her life could be considerable. She is only too aware that her schooling will suffer, that she will have to repeat a year and lose her friends. Her sense of being a victim, and of self blame will increase. There is no doubt in my mind that the damage of this pregnancy to her mental health is going to be devastating.”
In the course of replies to questions during the High Court hearing he stated:
“I was asked to see her (the first defendant) with one specific question to be answered what was her emotional state given the recent events? My assessment was on that alone.”
He said he found the child strangely distanced from her emotions . . . she did not seem depressed but seemed almost calculatingly rational about her state.
“This is what disturbed me most of all, that she was able to talk about not wishing to put her parents through more of this ‘I thought about not putting my parents through more, it would be better to end it now than nine months more. It is hard to understand . . . it is hard at fourteen to go through nine months’.”
He was asked “Have you met adolescent teenagers who are a danger to themselves?”
Answer: “I have, as have all psychologists and people who work in this area. I have had patients who have unfortunately taken their lives.”
Question: “Could I put it like this, is this a constant element of your experience?”
Answer: “It is always a constant worry with depressed people but in this particular case I felt it was something I would have to protect myself against . . . I wanted to speak to the parents on their own. I decided I could not risk leaving her on her own in a waiting room. Professionally I could not take that risk. I brought her into the room and sat her behind the parents while I was talking to them.”
Later the witness said:
“She is in a crisis but I don’t think she has realised the full emotional impact of that. Currently the pregnancy for her is ‘a pain’. A pain is all she is aware of. If she was aware of more she might become panicky about the situation she was in.”
The witness went on to say:
“She did not state an intention of how she would do it (suicide). Simply I concluded it. That is why I used the term ‘clearly to me ending her life might end her parents’ problems’.”
Question: “. . . This morning the detective said that on the 30th January he was at the home of the first defendant for a number of hours and heard her remark that she would throw herself down the stairs. Does that reflect what you found in the interview?”
Answer: “That certainly is one of the kinds of behaviour I would have seen as a risk with this girl.” Question: “The final sentence of your report ‘There is no doubt in my mind the damage of this pregnancy to her mental health is going to be devastating.”
Answer: “Yes.”
Question: “Can you express to my Lord the dimensions of this?”
Answer: “It is all hypothetical at present. I am willing to stand over my statement. This girl is going through a traumatic episode and the pregnancy will involve further trauma which will be permanent damage to her state. For example, there is a high level of guilt and confusion within the child . . . That wonderment . . . that confusion is going to persist and this is going to go on and on and on and even after there is no real end to the concern . . . this kind of concern is something we must bear in mind in the case of this girl. Her state, as I saw it, was suggesting that she was going to go through this kind of distress for years to come.”
Later, he was asked:
Question: “In relation to her parents, is there a well-founded relationship with her parents so far as you could establish?”
Answer: “Yes, and one of the things she said, perhaps three times ‘I don’t know why I kept it to myself so long. I should have told them more.’ In the same context ‘I should not be putting them through this. I cannot be putting them through this . . . I cannot put them through more. I have put them through enough’.”
Question: “We know the parents and the first defendant resolved that they would deal with this by going to London and getting a termination of the pregnancy. If that were not to occur now, would it have an effect on her? Would you be able to answer?”
Answer: “I believe we are in a dilemma whatever happens this child now. The damage and it is a question of minimising the damage. It was my belief minimising it would be best achieved by minimising the episode, by putting some certainty into her life.”
Question: “Can you say the effect to which that uncertainty affects her mental stability?”.
Answer: “She seems to be a bright child, I did not do any testing to confirm this, but she seemed also to be under-achieving. I felt she has potential and that is going to suffer. She herself is only too aware. She is going to miss a year, be kept down in school and be harmed socially as a result, as well as academically.”
In cross-examination the psychologist said:
“My recommendation would be she was not safe unless under supervision. I would have thought, given the state which I found her
in, in-patent treatment would be essential. I don’t think the parents can offer 24-hour supervision.”
The witness also said that in the last two years he had come across about half a dozen girls under seventeen who were pregnant. Two went for adoption, two for termination, the other three he did not know what happened. One was fifteen, nearly sixteen, the other two in their sixteenth year and another had a child under seventeen. Two of the pregnancies were as a result of incest, three by boyfriends but the girls were under age and another was by an uncle. When asked “have you ever had a patient say she would in effect destroy herself because she had become pregnant in this way?” he answered:
“Not within the age-range I am talking about. I have had wives say they would not tolerate another pregnancy from a man they detested. The specific situation relating to the first defendant. No.”
Question: “As far as her physical health is concerned, insofar as it is within your competence, how would you describe that to the court, her physical well-being, her psychological well-being?”
Answer: “I saw her probably at her weakest. She had been vomiting for four days and had not kept food down. She was in pain. I was concerned about her physical state and was relieved when told by her parents she had been admitted to the hospital and placed in a situation where she could be fed. She was pale, wan and weak-looking.”
Question: “Apart from that, from an ordinary physical prospect, did you see her life as being in danger?”
Answer: “I don’t think I am competent to talk about whether her life was in danger from the pregnancy. That is best asked of the people supervising her. If she went on vomiting I don’t think I need to be an expert to say it would endanger her health. She had not been able to hold anything down for four days.”
Later the witness was asked:
Question: “Is it your professional view that she would destroy herself if matters continue as they are?”
Answer: “I would not have taken it on myself to leave that girl alone in the state I saw her.”
Question: “But you only dealt with similar traumatic experience with slightly older girls where a pregnancy obviously ran full term?”
Answer: “In Stafford I once left a distressed girl on her own. She ran away. It took the police a day and a half to find her. I was chastened by that experience, never to take a risk with anybody emotionally disturbed. I did
feel she would pose a risk if I left her on her own.”
Question: “How would she be at risk?”
Answer: “It depends how long we protract this trauma for her.”
Question: “Do I take it therefore that she in effect would commit suicide if there was not a termination or abortion?”
Answer: “I feel she might commit suicide or decide to terminate it herself by throwing herself down the stairs or something like that. That is the kind of thing that happened in previous cases I dealt with where girls attempted to gain abortion.”
Question: “Is that more prevalent when pregnancy is just confirmed or might it lessen if the matter is not ended?”
Answer: “It often increases because you can feel the kicking of the child inside you and you perhaps become more aware of the pregnancy. At present there are no physical symptoms. The child just feels pain.”
The fact that this girl is pregnant clearly proves that somebody is guilty of unlawful carnal knowledge of a girl under the age of fifteen years. The proof of such an offence does not depend on the absence of consent of the girl. So far as the allegation of rape is concerned it must for the purpose of this case remain an allegation as neither the High Court nor this Court can decide whether or not there was a rape by the person alleged by the first defendant or any person.
The law
The case on behalf of the defendants has not been presented on the basis that a rape would justify an abortion.
The Eighth Amendment to the Constitution of Ireland is contained in Article 40, s. 3, sub-s. 3 and reads as follows:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Article 40, s. 3, sub-s. 3 is preceded by Article 40, s. 3, sub-s. 2 which states:
“The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
In interpreting any Article in the Constitution the Court must give to the words in that Article their ordinary meaning with due regard to the other Articles of the Constitution.
In the decision of this Court in McGee v. Attorney General [1974] I.R. 284 at p. 315, Walsh J. stated his opinion that by virtue of the terms of Article 40, s. 3 of the Constitution, the State had the positive obligation to ensure by its laws as far as is possible (relying on the Irish text of the Constitution) that a married woman should have available to her a means which would prevent a conception which was likely to put her life in jeopardy over and above the ordinary risks inherent in pregnancy. The reference to s. 3 of Article 40 was a reference to the general obligation undertaken by the State to vindicate the life of its citizens and indeed to protect their lives, and would be applicable to all lives which would require protection in particular circumstances. The context in which it arose in McGee’s case was the context of prevention of the creation of life. That is legally, morally and psychologically different from acts interfering with a life already created. But that constitutional provision could also be invoked in circumstances where a life had already been created as was pointed out by Walsh J. at p. 312 of the same report. The application of the provision, and the nature of the form of application adopted by the State to honour its guarantees must necessarily depend upon the particular circumstances of every case in which it is sought to invoke the Article in question. It would be a mistake to think that Article 40, s. 3, sub-s. 2 or the Eighth Amendment refer only to the creation or destruction of life. It appears to me that they can also be invoked to deal with other situations, and might be invoked by the mother of an unborn child or others to protect it from injury by adverse environmental conditions, the use of various toxins in the air and other health or life threatening situations. It is a protection which all lives may invoke or have invoked on their behalf. Article 40, s. 3, sub-s. 2 as invoked in the McGee case could have been equally invoked at the time for the protection of an unborn life, as if, for example, Mrs. McGee had been pregnant and was in some way being deprived of some procedure or other treatment or medicines, the absence of which would threaten the life of the child she was carrying. The Eighth Amendment to the Constitution was quite clearly designed to prevent any dispute or confusion as to whether or not unborn life could have availed of Article 40 as it stood before the Eighth Amendment. The Eighth Amendment made it clear, if clarity were needed, that the unborn life was also life within the guarantee of protection. It went further, and expressly spelled out a guarantee of protection of the life of the mother of the unborn life, by guaranteeing her life equality equality of protection, to dispel any confusion there might have been thought to exist to the effect that the life of the infant in the womb must be saved even if it meant certain death for the mother. The death of a foetus may be the indirect but foreseeable result of an operation undertaken for other reasons. Indeed it is difficult to see how any operation, the sole purpose of which is to save the life of the mother, could be regarded as a direct killing of the foetus, if the unavoidable and inevitable consequences of the efforts to save the mother’s life leads to the death of the foetus. But like all examples of self-defence, of which this would be one, the means employed to achieve the self-protection must not go beyond what is strictly necessary. The most significant aspect of the provisions of Article 40, s. 3 and of the Eighth Amendment is the objective of protecting human life which is the essential value of every legal order and central to the enjoyment of all other rights guaranteed by the Constitution. The constitutional provisions amount to a dedication to the fundamental value of human life. The Eighth Amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that the life must be one which has achieved an independent existence after birth. The right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born life. Clearly the State’s duty of protection is far reaching. Direct State interference in the developing unborn life is outlawed and furthermore the State must protect and promote that life and above all defend it from unlawful interference by other persons. The State’s duty to protect life also extends to the mother. The natural connection between the unborn child and die mother’s life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal organism. The extinction of unborn life is not confined to the sphere of private life of the mother or family because the unborn life is an autonomous human being protected by the Constitution. Therefore the termination of pregnancy other than a natural one has a legal and social dimension and requires a special responsibility on the part of the State. There cannot be a freedom to extinguish life side by side with a guarantee of protection of that life because the termination of pregnancy always means the destruction of an unborn life. Therefore no recognition of a mother’s right of self-determination can be given priority over the protection of the unborn life. The creation of a new life, involving as it does pregnancy, birth and raising the child, necessarily involves some restriction of a mother’s freedom but the alternative is the destruction of the unborn life. The termination of pregnancy is not like a visit to the doctor to cure an illness. The State must, in principle, act in accordance with the mother’s duty to carry out the pregnancy and, in principle must also outlaw termination of pregnancy.
The State’s obligation is to do all that is reasonably possible having regard to the importance of preserving life.
In the sphere of criminal law, in the Offences against the Person Act, 1861, the penalty for unlawful termination of pregnancy can be life imprisonment. This is what might be thought to be the endeavour to achieve the objective by deterrents which have not proved, where similar statutory provisions apply, to have done much to save lives. Therefore in Article 40, s. 3, sub-s. 3 of the Constitution the State has not confined itself by any means to the field of penal law by relying upon punitive provisions. Obviously to succeed in saving a life is of far greater benefit than the infliction of punishment for the destruction of that life. The State therefore can be obliged to take positive action to intervene to prevent an imminent destruction of life and one obvious way is by a restraining order directed to any person who is threatening the destruction of the unborn life where known to the State. That can include restraint of the mother of the child where she is the person or one of the persons threatening the continued survival of the life. In such a case the most appropriate person to move for such restraint is the Attorney General. One of his functions is to represent the public interest and to defend the public interest as has been recognised by this Court in its decisions in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593 and S.P.U.C. v. Grogan [1989] I.R. 734. When the protection of the courts is invoked it will only be granted where the life to be protected is within the jurisdiction of the Courts, or the threat lies within the jurisdiction and the persons sought to be restrained are also within the jurisdiction of the courts.
If that involves restraint upon the removal of the protected life from the jurisdiction it necessarily involves the restraint of the movement of the pregnant woman. A restraint upon leaving the territory of the jurisdiction of the courts would in the ordinary way be a restraint upon the exercise of the constitutional right to travel but the competing right is the preservation of life and of the two the preservation of life must be deemed to be paramount and to be sufficient to suspend for at least the period of gestation of the unborn life the right to travel. This is much less a diminution of constitutional rights than the irrevocable step of the destruction of life. With regard to the principles applicable to competing constitutional rights see the judgments of this Court in The People (Attorney General) v. O’Brien [1965] I.R. 142; Quinn’s Supermarket v. The Attorney General [1972] I.R. 1 and The People v. Shaw [1982] I.R. 1.
It is to be noted that there are several other areas in which the right to travel can be restricted as for example a person who is on bail can be bound not to leave the jurisdiction without the permission of the court; persons who are wards of court cannot be taken out of the jurisdiction without the express permission of the court.

It is necessary to emphasise that the application before the High Court and this Court is not in the sphere of criminal law and there is no question of the imposition of punishment on anybody. I have already referred to the existing criminal law dealing with the unlawful termination of pregnancy within the jurisdiction. However lest it should be thought that that is the limit of the legislative powers of the State it should be borne in mind that the Oireachtas enjoys power to make laws of extra-territorial jurisdiction also as is set out in Article 3 of the Constitution and as has been upheld by this Court in the reference of the Criminal Law Jurisdiction Act, 1976. See In re Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129. If the State was of opinion that further penal provisions should be enacted it is quite within the competence of the Oireachtas to make the Irish criminal law applicable to acts committed outside the jurisdiction regardless of the law of the place of commission. This is a type of extra-territorial jurisdiction which is exercised to a greater or lesser degree by all our fellow member states in the European Community. For example, within our existing penal law, the offence of bigamy is triable within this jurisdiction no matter where the offence is committed.
In the course of the arguments before this Court reliance was placed upon the ruling of the trial judge in Rex v. Bourne [1939] 1 K.B. 687 where he instructed the jury that if the object of the operation in that case was one made in good faith and had as its only purpose the saving of the life of the mother then it did not come within the term “unlawfully” as appears in the statute. It should be remembered however that that decision relied upon the Infant Life Preservation Act, 1929, as the judge said that the word”unlawfully” in the Act of 1861 imported the same meaning as that contained in the proviso to s. 1 of the Act of 1929 which imported a question of whether the act concerned was or was not done in good faith and for the purpose only of preserving the life of the mother. The Act of 1929 did not of course apply to this jurisdiction nor is there any similar provision. The Act of 1929 applied to cases where a child, who was born alive, was killed after it had an existence independent of its mother while under the Act of 1861 it is not necessary to prove that the child is capable of being born alive to establish the offence of what is popularly called a criminal abortion, although that term does not appear in the Statute. The killing acknowledged in the English Act of 1929 if adopted in this jurisdiction could lead to a charge of murder. At common law abortion was not treated as murder because by common law the definition of murder related only to the homicide of a person born alive although abortion as an offence also at one time was a capital offence. However the terms of the Constitution totally exclude any possible suggestion that the unborn fife is any less a human life than a life which has acquired an existence independent of its mother. The common law definition of murder excluded the killing of an unborn child and on the other hand the common law dealing with the law of property could deem an unborn child to be “a life in being”, for example, in the rule against perpetuities. While there has never been any court ruling in this jurisdiction on whether the successful defence in Rex v. Bourne [1939] 1 K.B. 687 would have been accepted as a correct interpretation of the Act of 1861, it is clear that the interpretation of the Constitution cannot be made to be dependent upon the provisions of a statute, particularly a statute which was passed almost a century before the Constitution itself was enacted. Even if one were to assume that the Bourne interpretation could be given in this jurisdiction to the statute it goes to the question of mens rea in a criminal case. It is also to be borne in mind that the learned judge in that case stated that “the desire of the woman to be relieved of her pregnancy is not justification”.
The Eighth Amendment does contemplate a situation arising where the protection of the mother’s right to live has to be taken into the balance between the competing rights of both lives, namely the mother’s and the unborn child’s. Abortion as a medical procedure is unique in that it involves three parties. It involves the person carrying out the procedure, the mother and the child. It is inevitable that if the procedure is adopted the child’s life is extinguished. Therefore before that decision is taken it is obvious that the evidence required to justify the choice being made must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability cost the mother her life and that any such opinion must be based on the most competent medical opinion available. In the present case neither this Court nor the High Court has either heard or seen the mother of the unborn child. There has been no evidence whatever of an obstetrical or indeed of any other medical nature. There has been no evidence upon which the courts could conclude that there are any obstetrical problems, much less serious threats to the life of the mother of a medical nature. What has been offered is the evidence of a psychologist based on his own encounter with the first defendant and on what he heard about her attitude and behaviour from other persons, namely the Garda Siochana, and her parents. This led him to the opinion that there is a serious threat to the life of the first defendant by an act of self-destruction by reason of the fact of being pregnant. This is a very extreme reaction to pregnancy, even to an unwanted pregnancy. But as was pointed out in this Court in S.P.U.C. v. Coogan [1989] I.R. 734 the fact that a pregnancy is unwanted was no justification for terminating it or attempting to terminate it. If there is a suicidal tendency then this is something which has to be guarded against. If this young person without being pregnant had suicidal tendencies due to some other cause then nobody would doubt that the proper course would be to put her in such care and under such supervision as would counteract such tendency and do everything possible to prevent suicide. I do not think the terms of the Eighth Amendment or indeed the terms of the Constitution before amendment would absolve the State from its obligation to vindicate, and protect the life of a person who had expressed the intention of self-destruction. This young girl clearly requires loving and sympathetic care and professional counselling and all the protection which the State agencies can provide or furnish.
There could be no question whatsoever of permitting another life to be taken to deal with the situation even if the intent to self-destruct could be traced directly to the activities or the existence of another person.
It has not been argued that the words “having regard to the equal right of life of the mother” should be construed more widely than preserving the life of the mother and should be construed to be wide enough to include a situation where the best expert opinion is to the effect that the continuance of the pregnancy would be to make the mother a physical wreck. I do not think the word “life” in this context is to be construed any differently from the word “life” in the earlier part of the same Article though the State would be obliged to do all it reasonably possibly can to take steps to prevent anybody becoming a physical or a mental wreck, short of taking innocent life to achieve it. Fortunately the Court does not have to decide this matter now but has to decide the matter in the context of a threat of suicide. Suicide threats can be contained. The duration of the pregnancy is a matter of months and it should not be impossible to guard the girl against self-destruction and preserve the life of the unborn child at the same time. The choice is between the certain death of the unborn life and a feared substantial danger of death but no degree of certainty of the mother by way of self-destruction.
On the vital matter of the threat to the mother’s life there has been a remarkable paucity of evidence. In my opinion the evidence offered would not justify this Court withdrawing from the unborn life the protection which it has enjoyed since the injunction was granted.
Since this hearing commenced the solicitors for the defendants sought particulars as to how the plaintiff would or could enforce the injunction preventing the first defendant from leaving the jurisdiction. In reply to these requisitions the Attorney General directed that counsel of his behalf should submit to the Supreme Court that in the event of its dismissing the appeal by the defendants that the Court should alter the order of the High Court insofar as it is unconditionally restraining the first defendant from leaving the jurisdiction (i.e. from leaving it under any circumstances or for any purpose). Instead it is considered that it would be sufficient to make an order restraining her from leaving the jurisdiction for the purpose of having an abortion outside the State.
In these new circumstances, unless the Court could make an injunction of the nature already granted by Costello J., prohibiting the defendant from leaving the jurisdiction, it could not effectively discharge its constitutional obligation of protecting the unborn life. If the defendants were to travel out of the jurisdiction and the first defendant had an abortion, the Court could only deal with the question of contempt of Court if the defendants returned to the jurisdiction, but could not restore the unborn life. Therefore this Court should not grant the injunction at (b) in the terms now sought by the Attorney General.
I would uphold the order of the High Court at paragraphs (a) and (c) of his order and would make no order in respect of paragraph (b).

McCarthy J.
The facts of this matter have been fully set out in the judgment of the Chief Justice.
(1) The role of the Attorney General
In S.P.U.C. v. Coogan [1989] I.R. 734, this Court held that any party who had a bona fide concern and interest, which interest connoted proximity or an objective interest, in the protection of the constitutionally guaranteed right to life of the unborn had sufficient standing to invoke the jurisdiction of the courts to take such measures as would defend and vindicate that right, affirming its view as expressed in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 at page 623. I disagreed with the conclusion in Coogan’s case since I did not consider the point to have been decided in the Open Door case. I accept the law as stated by the majority in Coogan’s case. All the judgments identified the Attorney General as the person appropriate to call in aid the courts to enforce the right of the unborn; in S.P.U.C. v. Grogan [1989] I.R. 753, this Court endorsed the earlier decision. In my judgment in Coogan’s case at p.751 I observed that “If, as submitted on behalf of the Society, the whole nature and quality of Irish society is affected by the right, it would appear to be a public right, ordinarily in the province of the Attorney General”. It is beyond question that the Attorney General is empowered to invoke the guarantee. If, as in this case, the termination of pregnancy is imminent, and the prospective mother is leaving or has left the jurisdiction for that purpose, in my view the Attorney General is constitutionally entitled to apply to the court to make such order as is necessary and appropriate. It is a power, function and duty imposed on him by the Constitution.
(2) The guarantee
Article 40, s.3, sub-s. 3 provides:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
In the course of this appeal some discussion took place as to the version of this sub-section in the Irish language and, in particular, in respect of the phrase “sa mhÃ©id gur fÃ©idir Ã©” which in English is stated “as far as practicable”. A like discussion arose in O’Donovan v. The Attorney General [1961] I.R. 114 and In re The Electoral (Amendment) Bill, 1961 [1961] I.R. 169. It was there considered that in the context of Article 16, s.2, sub-s 3, like but not identical words in English and identical words in Irish did not contain any material discordance. Despite the fact that there have been instances of the courts adverting to the Irish text in order to construe that in English, the debate on this being conducted in English, I have some difficulty in identifying the conflict referred to in Article 25, s.5, sub-s 4 as the circumstance under which the Irish text shall prevail. Historically, the Irish text is a translation of that in English.
If there be a hierarchy of constitutional rights, as argued by the Attorney General, it is, perhaps easier to compare two of them rather than to identify the level of each particular right. This is all the more so since the catalogue of unenumerated rights remains incomplete. Life itself, although until 1990 qualified as a fundamental right (see s. 1 of the Criminal Justice Act, 1990, and Article 13, s.6 of the Constitution), would appear to rank at the top of the scale. I would prefer to seek harmony between the various rights guaranteed and to reconcile them to each other rather than to rank one higher than another. True in The People v. Shaw [1982] I.R. 1 Griffin J., with whom Henchy and Parke JJ. agreed, said:
“If possible, fundamental rights under a Constitution should be given a mutually harmonious application, but when that is not found possible, the hierarchy or priority of the conflicting rights must be examined, both as between themselves and in relation to the general welfare of the society. This may involve the toning down or even the putting into temporary abeyance of a particular guaranteed light so that, in a fair and objective way, the more pertinent and important right in a given set of circumstances may be preferred and given application.”
Kenny J., at p. 63, of the report said:
“There is a hierarchy of constitutional rights, and, when a conflict arises between them that which ranks higher must prevail. This is the law for the exercise of all three powers of Government and flows from the conception that all three powers must be exercised to promote the common good: see the preamble to the Constitution. The decision on the priority of constitutional rights is to be made by the High Court and, on appeal, by this Court. When a conflict of constitutional rights arises, it must be resolved by having regard to (a) the terms of the Constitution, (b) the ethical values which all Christians living in the State acknowledge and accept, and (c) the main tenets of our system of constitutional parliamentary democracy.”
I find some conflict between these two statements because of some possible lack of objectivity identified in the latter. Walsh J. at p. 39 concluded that on the evidence there was no basis for the belief which might have justified the preferring of the right to life of one of the victims to the right to liberty of the accused. In the Court of Criminal Appeal (O’Higgins C.J., Finlay P. and McMahon J.), the court was satisfied “that, if it needs to be excused, the interference with the applicant’s right to liberty is amply excused by the circumstance that the paramount and primary purpose for continuing his detention was the hope of saving the life of the woman from imminent peril.” Disregarding what might have happened in Shaw’s case if he had access to a court during his detention, the words I have quoted from the judgment of McMahon J. in the Court of Criminal Appeal do indicate not, I suggest, a hierarchy of rights but, rather, the reconciliation of them.
The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery. It is not a question of setting one above the other but rather of vindicating, as far as practicable, the right to life of the girl/mother (Article 40, s.3, sub-s. 2), whilst with due regard to the equal light to life of the girl/mother, vindicating, as far as practicable, the right to life of the unborn. (Article 40, s.3, sub-section 3). If the right to life of the mother is threatened by the pregnancy, and it is practicable to vindicate that light, then because of the due regard which must be paid to the equal right to life of the mother, it may not be practicable to vindicate the right to life of the unborn. What then does “threatened” mean? The learned trial judge identified the question in these words:
“What the court, therefore, is required to do is to assess by reference to the evidence the danger to the life of the child and the danger that exists to the life of the mother. I am quite satisfied that there is a real and imminent danger to the life of the unborn and that if the court does not step in to protect it by means of the injunction sought its life would be terminated. The evidence also establishes that if the court grants the injunction sought there is a risk that the defendant may take her own life. But the risk that the defendant may take her own life if an order is made is much less and is of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made. I am strengthened in this view by the knowledge that the young girl has the benefit of the love and care and support of devoted parents who will help her through the difficult months ahead. It seems to me, therefore, that having had regard to the rights of the mother in this case, the court’s duty to protect the life of the unborn requires it to make the order sought.”
In my judgment, this was an incorrect approach to the problem raised by the terms of the Eighth Amendment. It is not a question of balancing the life of the unborn against the life of the mother; if it were, the life of the unborn would virtually always have to be preserved, since the termination of pregnancy means the death of the unborn; there is no certainty, however high the probability, that the mother will die if there is not a termination of pregnancy. In my view, the true construction of the Amendment, bearing in mind the other provisions of Article 40 and the fundamental rights of the family guaranteed by Article 41, is that, paying due regard to the equal right to life of the mother, when there is a real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not be practicable to vindicate the right to life of the unborn. It is not a question of a risk of a different order of magnitude; it can never be otherwise than a risk of a different order of magnitude.
On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established; it follows that she should not be prevented from having a medical termination of pregnancy.
This conclusion leads inevitably to the recognition that the wording of the Amendment contemplates abortion lawfully taking place within this State. In S.P.U.C. v. Grogan [1989] I.R. 753, I said at p.770 of the report:
“In the course of argument, counsel for the defendants submitted that the wording of the Eighth Amendment itself recognised that there could, in certain circumstances, be a lawful abortion in this State. The constitutional guarantee by the State is ‘in its laws to respect, and, as far as practicable, by its laws to defend and vindicate’ the light to life of the unborn. No relevant law has been enacted by the Oireachtas since the Eighth Amendment came into force, the direct criminal law ban on abortion still deriving from the Offences Against the Person Act, 1861. As was pointed out by the Chief Justice in the Open Door Counselling case at p. 625: ‘If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case’.
It is unfortunate that the Oireachtas has not enacted any legislation at all in respect of this constitutionally guaranteed light.”
In the course of argument, counsel for the Attorney General acknowledged that the Amendment does envisage the carrying out of a lawful abortion within the State. In my view, he was correct in so doing. From the wording of that portion of his judgment which I have cited, I conclude that Costello J. also considered that there could be circumstances in which an abortion within the State might lawfully be carried out.
Before the enactment of the Amendment, the provisions of s. 58 of the Offences Against the Person Act, 1861, made it a criminal offence to procure a miscarriage. The terms were wide enough to make the act of the prospective mother or any one taking part in the procedure guilty of an offence. Abortion, for any purpose, was unlawful. The Eighth, like any Amendment to the Constitution, originated in the legislature and, in this instance, was initiated by the executive. The relevant bill was passed by both houses of the Oireachtas and in accordance with the Constitution, it was then voted on by the People in a referendum. Its purpose can be readily identified it was to enshrine in the Constitution the protection of the right to life of the unborn thus precluding the legislature from an unqualified repeal of s. 58 of the Act of 1861 or otherwise, in general, legalising abortion. The guarantee to the unborn was qualified by the requirement of due regard to the right to life of the mother and made less than absolute by recognising that the right could only be vindicated as far as practicable. The guarantee was secured by the commitment of the State in its laws to respect and by its laws to defend and vindicate that right. I agree with the Chief Justice that the want of legislation pursuant to the amendment does not in any way inhibit the courts from exercising a function to vindicate and defend the right to life of the unborn. I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.
In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction. Does the right to bodily integrity, identified in Ryan v. Attorney General [1965] I.R. 294 and adverted to by Walsh J. in S.P.U.C. v. Grogan [1989] I.R. 753 at p. 767, involve the right to control one’s own body? Walsh J. graphically describes part of the problem:
“When a woman becomes pregnant she acquires rights which cannot be taken from her, namely, the right to protect the life of her unborn child and the right to protect her own bodily integrity against any effort to compel her by law or by persuasion to submit herself to an abortion. Such rights also carry obligations the foremost of which is not to endanger or to submit to or bring about the destruction of that unborn life. There is no doubt that, particularly in the case of an unmarried pregnant woman, intense pressures of a social kind may be brought to bear upon her to submit to an abortion, even from her peers or her parents. There may even be specious arguments of an economic nature ranging from those of the neo-Malthusian type to those which would seek to determine for economic reasons that the population should be structured in a particular way even to the point of deciding that the birth of too many persons of one sex should be prevented. The destruction of life is not an acceptable method of birth control. The qualification of certain pregnancies as being “unwanted”is likewise a totally unacceptable criterion. The total abandonment of young children or old persons or of those who by reason of infirmity, mental or physical, or those who are unable to look after themselves too often occurs throughout the world. There is clear evidence that they are unwanted by those who abandon them. That would however provide no justification whatever for their elimination. On the economic plane there are, no doubt, some distorted minds which could make a case for the elimination of what they would regard as old useless and unproductive human units. To be unwanted is not justification for the destruction of one’s life.”
Since the Amendment contemplates lawful abortion, how may the State still, as far as practicable, vindicate the right to life of the unborn? Legislation may be both negative and positive: negative, in prohibiting absolutely or at a given time, or without meeting stringent tests: positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly, at least, the role of the legislature. The courts are not equipped to regulate these procedures.
(3) Enforcement
At the time the original order was made, the girl and her parents were in London out of the jurisdiction. They have shown a most admirable sense of responsibility to the courts. They had no advance notice of any application for the order that was made and went to London without any intention of evading the jurisdiction of the courts. They returned to Dublin immediately on learning of the making of the order not having achieved the ultimate purpose of their journey. That is not to say that up to the very moment of medical intervention, the girl and her parents might not well have changed their minds. It would be unreal not to recognise that there are many who would not show the same respect for the courts and who, because of this case and the extraordinary publicity, charged with emotion, that it has attracted would take great care to ensure that their intention of leaving the jurisdiction would not come to the notice of any person, in public office or otherwise, who might seek to call the courts in aid of preventing them going outside the jurisdiction in order to terminate the pregnancy.
(a) Has the Court jurisdiction to prevent a person leaving the State in order to have an abortion?
(b) Assuming there is such jurisdiction, should such an order be made where it is highly unlikely to be obeyed?
(c) How wide is the application of such a possible order?
Counsel for the Attorney General expressly conceded that, if such a power existed, it could not be confined to a girl under age, as here, a citizen, as here, or in any way to restrict the ambit of its application from any pregnant woman then in the State, irrespective of her nationality, citizenship, or, indeed, where the conception had taken place. If, as in this case is quite a reasonable possibility, the girl was living with her parents in London and had come to Ireland on holiday, a holiday perhaps as part of the treatment for her ordeal, she not merely could but should be prevented from returning to her home if her objective in doing so, partly or otherwise, was to have an abortion.
Ranged against these arguments or the unreality alleged to underlie them, is the simple propositionthe failure of the legislature to enact the appropriate laws does not relieve the courts, and, in particular, this Court, of its duty, as one of the great organs of State, to vindicate the fundamental right identified in the Amendment, although clearly ante-dating it, as detailed in judgments in this Court. See: G. v. An Bord UchtÃ¡la [1980] I.R. 32; McGee v. The Attorney General [1974] I.R. 284 at p. 312 and Norris v. The Attorney General [1984] I.R. 36 at page 103.
The short answer, in the instant case, is that the order was effective; it may well be that others will be less responsible than the family involved here but that would not, of itself, be a ground for not making the order. If one examines other possibilities, however, the propriety of making such an order seems to be more in question. If, for instance a citizen of another State who did not at the time of her arrival in Ireland know she was pregnant, learned of her condition whilst here and wished immediately to go home in order to terminate the pregnancy, she is unlikely to inform any official authority or any interested bystander. If, however, she did so would the courts make an order detaining her in Ireland for nine months? I think not, but why not? It introduces the next problem.
(4) The right to travel
Such a right has been identified in The State (M.) v. The Attorney General [1979] I.R. 73 as one of the unenumerated rights, all of which enjoy the same guarantee as contained for those expressed in Article 40. If the purpose of exercising the right to travel is to avail of a service, lawful in its own location, but unlawful in Ireland, is the right curtailed or abolished because of that local illegality and/or because of the guarantee in the Amendment? If it were a matter of a balancing exercise, the scales could only tilt in one direction, the right to life of the unborn, assuming no threat to the life of the mother. In my view, it is not a question of balancing the light to travel against the right to life; it is a question as to whether or not an individual has a right to travel which she has. It cannot, in my view, be curtailed because of a particular intent. If one travels from the jurisdiction of this State to another, one, temporarily, becomes subject to the laws of the other state. An agreement, commonly called a conspiracy, to go to another state to do something lawfully done there cannot, in my opinion, permit of a restraining order. Treason is thought to be the gravest of crimes. If I proclaim my intent to go to another country there to plot against the Government here, I may, by some extension of the law against sedition, be prosecuted and, consequently, subject to detention here, but I cannot be lawfully prevented from travelling to that other country there to plot the overthrow, since that would not be a crime in the other country. I go further. Even if it were a crime in the other country, if I proclaim my intent to explode a bomb or shoot an individual in another country, I cannot lawfully be prevented from leaving my own country for that purpose.
The reality is that each nation governs itself and enforces its own criminal law. A court in one state cannot enjoin an individual leaving it from wrong-doing outside it in another state or states. It follows that, insofar as it interferes with the right to travel, there is no jurisdiction to make such an order. In this context, I cannot disregard the fact that, whatever the exact numbers are, there is no doubt that in the eight years since the enactment of the Amendment, many thousands of Irish women have chosen to travel to England to have abortions; it is ironic that out of those many thousands, in one case of a girl of fourteen, victim of sexual abuse and statutory rape, in the care of loving parents who chose with her to embark on further trauma, having sought help from priest, doctor and gardaÃ, and with an outstanding sense of responsibility to the law of the land, should have the full panoply of the law brought to bear on them in their anguish.
In short
(1) The Attorney General acted properly in bringing the matter before the court.
(2) The terms of the Eighth Amendment, now contained in Article 40, s. 3, sub-s. 3 contemplate lawful abortion within the State.
(3) Despite the absence of regulating legislation, the judicial ann of government must seek to enforce the guarantee.
(4) On the facts of this case, the mother is not to be prevented from having an abortion.
(5) In any event, she cannot be lawfully prevented from leaving the State, whatever her purpose in doing so.
(6) The failure of the legislature to provide for the regulation of Article 40, s. 3, sub-s. 3 has significantly added to the problem.
It was for these reasons that I agreed that the order of the High Court should be set aside.

O’Flaherty J.
The enactment of Article 40, s. 3, sub-s. 3 in 1983 did not I believe bring about any fundamental change in our law. Already, s. 58 of the Offences Against the Person Act, 1861, made it an offence unlawfully to bring about the miscarriage of a woman.
In G. v. An Bord UchtÃ¡ia [1980] IR 32 Walsh J. articulated the right to life thus when he said at p. 69 of the report:
“[A child] has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth . . . The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life. . . .”
It should be recalled, also, that s. 58 of the Civil Liability Act, 1961, provides as follows:
“For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.”
Thus, to take a simple example, if a pregnant woman is involved in a car accident and the child in the womb sustains injuries through someone’s negligence, that child, on birth, would be entitled to have proceedings brought on his behalf to recover damages for such injuries. I know that there are many in other jurisdictions who in times past would have wished to have such enlightened legislation in force putting beyond doubt the entitlements of the unborn child. So I believe we can have pride in the measures taken in our statute and case law to affirm and protect the rights of the child in the womb.
The fact is that this right to life is now, by reason of the Eighth Amendment of the Constitution, in express words enshrined in the document. The case in hand puts in question a particular form of intervention by the State in an attempted vindication of that right. It is our duty, therefore, to define what it means and to set out the scope of its application. Prior to making such a decision, it would have been desirable that we would have had an opportunity to consider a jurisprudence built up on a case-by-case basis. We as judges of final appeal have to bring all our powers of concentration to bear to provide a substantial interpretation of this constitutional provision and to provide it now.
This provision cannot, of course, be taken in isolation from its historical background which I have already briefly sketched: it must also be considered as but one provision in the whole Constitution. The Constitution has at its core a commitment to freedom and justice. It treats the family with such respect and in language of such clarity and simplicity that any attempt to summarise or paraphrase it must be inadequate.
Can it be that a Constitution which requires the State to look to theeconomic needs of mothers is unconcerned for the health and welfare and happiness of mothers? I am certain that reading the Constitution as a whole, as I believe one must do, then the answer is clearly not. A broad dimension must be given to the Constitution and a narrow or pedantic approach to its provisions has to be put aside. I repeat and adopt what Henchy J. said in The People v. O’Shea [1982] I.R. 384 at p. 426:
“Any single constitutional light or power is but a component in an ensemble of interconnected and interacting provisions which must be brought into play as part of a larger composition, and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a constitution, more than of any other legal instrument, that ‘the letter killeth, but the spirit giveth life'”.
I believe the sub-section is clear in the following respects:
(i) Abortion, as such, certainly abortion on demand, is not something that can be legalised in this jurisdiction.
(ii) Promotional propaganda in respect of abortions abroad is prohibited. The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593.
(iii) The legislators when they come to enact legislation must have due regard to the mother’s light to lifea right protected throughout the Constitution in any event. Until legislation is enacted to provide otherwise, I believe that the law in this State is that surgical intervention which has the effect of terminating pregnancybona fide undertaken to save the life of the mother where she is in danger of death is permissible under the Constitution and the law. The danger has to represent a substantial risk to her life though this does not necessarily have to be an imminent danger of instant death. The law does not require the doctors to wait until the mother is in peril of immediate death.
I believe the instant case to come within this principle.
Having regard to the principles of interpretation that in my judgment should apply, the further question to be asked is whether officers of the State are obliged to invoke what may be called the police power of the State to interfere with the freedom of the individual, especially the individual’s freedom of movement in and out of the jurisdiction?
I leave aside the entitlement of the Oireachtas to enact legislation in regard to the provision and take it as self-executing in the absence of such legislation. I believe that its positive thrust is that the State should provide every practical assistance to pregnant women who find themselves unwillingly in that situation to help them make a decision which is in accordance with the Constitution and the law. The responsibility for this devolves primarily on the executive branch of government pending the enactment of legislation; but, in addition, no effort of heart or mind or resource should be spared by all citizens to provide encouragement for such mothers.
The State’s role in such a case should be a positive rather than a negative one. In particular, I do not believe that the Court should grant an injunction to interfere to this extraordinary degree with the individual’s freedom of movement. In this case the injunction granted also involves, in my judgment, an unwarranted interference with the authority of the family.
It should be known that once an injunction is granted by a court it is an order that must be obeyed. If there is a failure to obey the order, then that disobedience may be punished by the imposition of various penalties, including the possibility of imprisonment or fines. To say that it is unlikely that such penalties would ever be invoked in this case is no answer; the fact is that such severe remedies are available.
Such a regime is impossible to reconcile with a Constitution one of the primary objects of which, as stated in its Preamble, is to assure the dignity and freedom of the individual.
I join with the other members of the Court in agreeing that the Attorney General acted correctly in seeking the opinion of the High Court in the circumstances of this case.

Egan J.
This is an appeal from an order of Costello J. dated the 17th February, 1992, by which it was ordered:
(a) that the defendants, their servants or agents or anyone having knowledge of the order be restrained from interfering with the right to life of the unborn as contained in Article 40, s. 3, sub-s. 3 of the Constitution of Ireland;
(b) that the first defendant be restrained from leaving the jurisdiction of the court or the second and third defendants, their servants or agents or anyone having knowledge of the order from assisting the first defendant to leave the said jurisdiction for a period of nine months from the date of the said order,
(c) that the first defendant, her servants or agents or anyone having knowledge of the said order be restrained from procuring or arranging a termination of pregnancy or abortion either within or without the said jurisdiction.
Counsel for the Attorney General submitted on his instructions, however, that in the event of this Court dismissing the appeal by the defendants it should alter the order of the High Court in so far as it unconditionally restrains the first defendant from leaving the jurisdiction (i.e. from leaving it under any circumstances or for any purpose) and that instead an order should be made restraining her from leaving the jurisdiction for the purpose of having an abortion outside the State. The evidence in the case was partly oral and partly on affidavit and it was agreed by all parties that the application for interlocutory relief should be treated as the trial of the action. The facts as found by Costello J. are set out fully by him in his judgment but I will attempt to summarise his findings. The first defendant (to whom I will subsequently refer as “X”) is a young girl aged 14 years. She did not give evidence in court but her statement to the gardaÃ disclosed that the father of a friend of hers who was also a friend of her parents began molesting her sexually when she was less than 13 years of age. The abuse was of a continuing nature becoming more serious in time and resulting eventually in December, 1991, in full sexual intercourse to which she did not consent. On the 27th January, 1992, she told her parents all that had happened and she and her parents learned from their local doctor that she was pregnant. This fact was confirmed on the 4th February by the hospital to which she had been referred.
X and her parents travelled to England on the 6th February and arrangements were made for an abortion. The garda authorities had been informed on the previous day that they intended doing so. Later in the day, however, they cancelled the arrangements after being informed that an interim injunction had been granted prohibiting abortion.
X confided in her mother that when she learned that she was pregnant she had wanted to kill herself by throwing herself down the stairs and, on the 31st January, she again said much the same to a member of the garda authorities. In between, on the journey back from England she told her mother that she had wanted to throw herself under a train when she was in London and that she would rather be dead than be the way she was. Again in the presence of another member of the Garda Siochana when her father
commented that the situation was worse than a death in the family, she commented: “Not if it was me.” On her return from England, X was brought by her parents to a very experienced clinical psychologist. He found that she was emotionally withdrawn, in a state of shock and that she had lost touch with her feelings. He took this as indicating that she was coping with the appalling crisis she faced by a denial of her emotions. He stated that she did not seem depressed but that she coldly expressed a desire to end matters by ending her life. He was of opinion that she was capable of such an act not just because of depression but because she could “calculatingly reach the conclusion that death is the best solution.” He considered that the psychological damage to her of carrying a child would be considerable and that the damage to her mental health would be devastating. She told him that: “It’s better to end it now than in nine months time” and he understood her to mean that by ending her life she would end the problems through which she was putting her parents.
At question 81 of the transcript the psychologist was asked: “Do I take it therefore that you feel she, in effect, would commit suicide if there was not a termination or abortion?” and his reply was: “I feel she may commit suicide or decide to terminate it herself by throwing herself down the stairs or something like that. That is the kind of thing that happened in previous cases I dealt with where girls attempted to gain abortion.” At question 78 he was asked: “Is it your professional view that she would destroy herself if matters continue as they are?” and his reply was: “I would not have taken it on myself to leave that girl alone in the state I saw her.”
The justification which was advanced for the making of the injunction was the Eighth Amendment of the Constitution of 1983, which amends Article 40 by adding a new sub-section 3, as follows:
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.”
It will be noted that the Amendment refers twice to “laws” and it was argued on behalf of the defendants that no order should have been made because no “laws” existed which would constitute or provide a guideline as to the manner or principles upon which the right to life of the mother could be reconciled with the right to life of the unborn. It is true that no statute has been passed following on the Amendment but “laws” are not confined to statutes. As stated very simply by Kenny J. in The People v. Shaw [1982] I.R. 1 at p.62 of the report:
“The word ‘laws’ in Article 40, s. 3 is not confined to laws which have been enacted by the Oireachtas but comprehends the laws made by judges and by Ministers of State when they make statutory instruments or regulations.”
Specifically in reference to the Amendment the following was stated by Finlay C.J. in The Attorney General (S.P.U.C.) v. Open Door Counselling Ltd [1988] I.R. 593 at p. 622 of the report:
“The guarantee contained in Article 40, s.3, sub-s 3 of the Constitution by its laws to respect and as far as practicable by its laws to defend and vindicate the right to life of the unborn imposes an obligation not only on the Legislature but also on the courts.”
It is abundantly clear, therefore, that the absence of legislative action does not relieve the courts of their duty to implement the constitutional guarantee.
In regard to the criminal law abortion is dealt with in s. 58 of the Offences Against the Person Act, 1861, which provides:
“Every woman being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony.”
Not every abortion, however, was regarded as unlawful. In Rex v. Bourne [1939] 1 K.B. 687 a London surgeon stood trial in the Central Criminal Court in London on a charge of unlawfully procuring the abortion of a very young girl who had become pregnant as a result of rape. The jury were directedinter alia that it was for the prosecution to prove beyond reasonable doubt that the operation was not performed in good faith for the purpose only of preserving the life of the girl and they were directed that the surgeon did not have to wait until the patient was in peril of immediate death. It did not matter that his diagnosis could be wrong provided that there was a real and substantial risk to the girl’s life if the pregnancy were allowed to continue.
The wording of the Eighth Amendment which guarantees to defend and vindicate the right to life of the unborn recognises by the inclusion of the words “with due regard for the equal right to life of the mother” and the words “as far as practicable” that an abortion will not in every possible circumstance be unlawful.
In the present case Costello J. accepted that there was a risk that X might take her own life. He held, however, that it was much less and of a different order of magnitude than the certainty that the life of the unborn would be terminated if an injunction were not granted. Even although that be so, however, can it be said that he applied the proper test? I would regard it as a denial of the mother’s light to life if there was a requirement of certainty of death in her case before a termination of the pregnancy would be permissible.
In my opinion the true test should be that a pregnancy may be terminated if its continuance as a matter of probability involves a real and substantial risk to the life of the mother. The risk must be to her life but it is irrelevant, in my view, that it should be a risk of self-destruction rather than a risk to life for any other reason. The evidence establishes that such a risk exists in the present case.
For reasons stated by the Chief Justice I avoid referring to any considerations relating to European Community law but I regard myself as free to express an opinion on the arguments addressed to the Court on the constitutional right to travel. In the The People v. Shaw [1982] I.R. 1 Kenny J. stated that there was a hierarchy of constitutional lights and, when a conflict arises between them, that which ranks higher must prevail. This cannot be taken to mean that an immutable list of precedence of rights can be formulated. The light to life of one person (as in Shaw’s case) was held to be superior to the right to liberty of another but, quite clearly, the right to life might not be the paramount light in every circumstances. If, for instance, it were necessary for a father to kill a man engaged in the rape of his daughter in order to prevent its continuance, I have no doubt but that the right of the girl to bodily integrity would rank higher than the right to life of the rapist.
The right to travel can only effectively arise in reference to an intention to procure an unlawful abortion and must surely rank lower than the right to life of the unborn. It may well be that proof of an intention to commit an unlawful act cannot amount to an offence but I am dealing with the question of an unborn within the jurisdiction being removed from the jurisdiction with the stated intention of depriving it of its right to life. In the face of a positive obligation to defend and vindicate such a right it cannot reasonably be argued that a right to travel simpliciter can take precedence over such a right, (I again emphasize that the question of European Community law is not being considered).
It may well be that instances of a declared intention and proof of such would be very rare indeed and there is also the position that the supervision of a court order would be difficult but these considerations must, in my opinion, yield precedence to the defence and vindication of the light to life.
Having regard to the construction and meaning, however, of the Eighth Amendment and my opinion that an abortion in this case would not be unlawful, I was satisfied that the orders made in the High Court should be set aside.

Attorney General, ex rel. The Society for the Protection of Unborn Children (Ireland) Ltd v Open Door Counselling Ltd

[1994] 1 ILRM 256
Finlay CJ
This is a notice of motion brought by the second named defendants in the above entitled proceedings seeking the following relief:

1. An order discharging the order of this Honourable Court dated 16 March 1988 that the said defendant/appellant, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

On 27 April 1987, by order of the High Court made by Hamilton P in the above entitled proceedings the court did declare:

that the activities of the defendants, their servants or agents in counselling pregnant women within the jurisdiction of this Court to travel abroad to obtain an abortion or to obtain further advice on abortion within that foreign jurisdiction are unlawful having regard to the provisions of Article 40.3.3° of the Constitution of Ireland.

In addition, by the said order it was ordered:

that the defendants and each of them, their servants or agents be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice on abortion or to obtain an abortion.

Against that order the defendants, including these applicants, appealed, and by order of this Court made on 16 March 1988 that appeal was dismissed.

By that order this Court varied the order made in the High Court

1. By substituting the following declaration for the declaration therein:

The court doth declare that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making of their travel arrangements or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful having regard to the provisions of Article 40.3.3° of the Constitution

and

(2) By substituting the following order for the injunction therein:

And it is ordered that the defendants and each of them, their and each of their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

The notice of motion now before the court was grounded on an affidavit filed on behalf of the second named defendants by their chief executive and director. No similar motion was brought by the first named defendants before this Court, but they attended on the hearing of this application and stated without objection by or on behalf of the plaintiffs that they supported the application being made and would be seeking a similar remedy themselves.

This application is based upon the terms of the amendments of the Constitution duly enacted pursuant to the referendum had in accordance with the provisions of the Constitution to consider the proposals contained in the Thirteenth and Fourteenth Amendments to the Constitution Bills 1992.

These two amendments add to the provisions of Article 40.3.3° of the Constitution as enacted at the time of the order made in 1988, the following clauses:

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

Whilst the motion as brought simply sought as relief the discharge of the entire of the injunctive order made by this Court on 16 March 1988, counsel for the applicant in the alternative, upon the hearing of the motion submitted that it might be appropriate for variations to be made in the injunction.

The motion which was brought was opposed on behalf of the Society for the Protection of Unborn Children (Ireland) Ltd, the relators in the action.

The first issue which, I am satisfied, arises in this case is as to whether there is any jurisdiction in this Court to discharge part of, or to vary any part of, the order made by it on 16 March 1988.

It is quite clear on the terms of the order then made that it was a final determination of the appeal brought to the court in these proceedings and it did not contain any liberty to any party to apply in respect of any matter contained in the order. The question of the common law principles applicable to the power of a court to vary or amend a final order made by it otherwise than under the ‘slip rule’ contained in O. 28 r. 11 of the Rules of the Superior Courts was recently dealt with in a judgment delivered by me in this Court, in the case of Belville Holdings Ltd v. Revenue Commissioners [1994] ILRM 29, with which the other members of the court agreed. In that judgment I stated as follows, at pp. 36–37:

The position and principles appear however, to be accurately stated in the judgment of Romer J in Ainsworth v. Wilding reported in [1896] 1 Ch 673 where, at p.677 he stated as follows:

So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:

(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O. 28, r. 11;

(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.

Having referred to the decision of the Court of Appeal in In Re Swire (1885) 30 ChD 239, Romer J quoted from the judgments in that case as follows:

Cotton LJ says:

‘It is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy yet, in my opinion the court has jurisdicion over its own records and if it finds that the order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon, then, in my opinion it has jurisdiction which it will in a proper case exercise to correct its record that it may be in accordance with the order really pronounced.’

Lindley LJ says:

‘If it is once made out that the order, whether passed and entered or not, does not express the order actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.’

And Bowen LJ says:

‘An order as it seems to me, even when passed and entered may be amended by the court so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.’

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. The finality of proceedings both at the level of trial and, possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached.

To this principle so stated, exceptions may occur in cases where it is established to a court that a judgment has been obtained by a fraud, but no considerations of that kind occur in this case.

What is at issue in this case is as to whether the court having delivered a judgment and made an order in accordance with the law as it then was, which was perfectly correct and carried out the full meaning and intent of the court in 1988, can now discharge or vary that order by virtue of an amendment in the law which has occurred since it was made.

To that issue, if it were dealing with a question of any statutory amendment of law or any amendment of the law arising from a further judicial decision in another case, there can be only one answer, namely, that the court has not got, as a court of ultimate appeal, any such jurisdiction and that it must be obliged, as a matter of fundamental principle, to refuse to alter the order it previously made.

It is contended on behalf of the applicant, however, that different considerations can and should apply to the question of amendments of constitutional law and to an order made by this Court in defence of constitutional rights as, undoubtedly, the order of 16 March 1988 is.

To deal with this submission, it is necessary to consider the situation concerning the amendments of the Constitution which are relied on.

The amendment of the Constitution submitted to the people by referendum in pursuance of the Thirteenth Amendment of the Constitution Bill 1992 constitutes a prohibition on the limitation of the freedom to travel between the State and another state, by virtue of the application of Article 40.3.3° of the Constitution. The applicants submit that by reason of that amendment they are entitled, at least, to have excluded from the permanent injunction already made against them the restraint imposed upon them from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by the making for them of travel arrangements. On behalf of the plaintiffs it is contended that the clause thus added to Article 40.3.3° deals only with the right of an individual to travel, and in no way affects the activities of a person who for the purpose of assisting pregnant women within the jurisdiction to travel abroad to obtain abortions makes travel arrangements for them.

In relation to the addition to Article 40.3.3° enacted by virtue of the amendment submitted by referendum to the people pursuant to the Fourteenth Amendment of the Constitution Bill 1992, dealing with the obtaining and making available of information with regard to certain services the following issue arose.

It is submitted on behalf of the applicants that in the absence so far of any legislation by the Oireachtas of conditions subject to which this freedom to obtain or make available in the State information relating to services lawfully available in another state may be exercised, that it is an unconditional freedom. On behalf of the plaintiffs, on the other hand, it was contended that this is not a self-executing addition to Article 40.3.3°, but that a freedom to obtain or make available the information concerned does not become a constitutional right until such time as the conditions subject to which it can be exercised have been laid down by law on the part of the Oireachtas.

It is clear, therefore, that the issues raised by this application, even if a special jurisdiction were to be assumed by this Court in the case of constitutional issues, which it otherwise would not have to interfere with a previous order, would involve this Court in adjudicating upon the interpretation of each of these two new additions to Article 40.3.3° in the Constitution.

I am quite satisfied that under the terms of Article 34 of the Constitution this Court is a court of appeal only, and has not got any originating jurisdiction of any kind, other than the following.

(a) Jurisdiction to render to the President, pursuant to Article 26 of the Constitution, a decision on the question as to whether a Bill passed, or deemed to have been passed, by both Houses of the Oireachtas or any specified provision or provisions of such Bill is or are repugnant to the Constitution or to any provision thereof.

(b) The function pursuant to Article 12.3 of the Constitution to inquire into the question as to whether it has been established to its satisfaction that the President has become permanently incapacitated.

(i) by a judge of the High Court hearing an appeal pursuant to s. 38 of the Courts of Justice Act 1936;

(ii) by a judge of the Circuit Court pursuant to s. 16 of the Courts of Justice Act 1947.

Even in an appeal still pending before the Supreme Court, and at hearing before it, the court has consistently declined, otherwise than in the most exceptional circumstances, dictated by the necessity of justice, to consider an issue of constitutional law which, though arising in a case not yet determined by it, has not been fully argued and decided in the High Court.

I am quite satisfied that it is wholly inconsistent with the constitutional obligations and the jurisprudence of this Court, for it to consider a question of the interpretation of the Constitution by way of motion to vary an order previously made in an appeal finally determined by it which, by inevitable necessity has never arisen in the High Court or been decided by the High Court and, furthermore, is in the instant case a provision of the Constitution which was not in force or enacted at the time when the appeal was determined.

I am therefore satisfied that this motion should be refused.

DENHAM J:

This is a notice of motion brought by the second-named defendant Dublin Well Woman Centre Ltd (hereinafter referred to as the applicant) seeking:

The order of the Supreme Court, which was made on 16 March 1988, states:

It is ordered and adjudged that the said appeals of the defendants do stand dismissed and that the said order of the High Court be varied:

(1) by substituting the following declaration for the declaration therein:

The court doth declare that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making of their travel arrangements or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful having regard to the provisions of Article 40.3.3° of the Constitution and

(2) by substituting the following order for the injunction therein:

And it is ordered that the defendants and each of them, their and each of their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.

The above order of the Supreme Court is a specific substitution of the prior High Court order applying to the applicant, and inter alia, injuncting the actions set out therein. It is the above named injunction which the applicant seeks to have discharged. No application to amend the declaration was made. It is an important factor that the order in question takes the form of a permanent injunction. This order has an effect over and above the declaratory order and specifically enforces the law it has determined is correct.

This motion is grounded on the affidavit of Rita Burtenshaw, chief executive of the applicant. No other affidavit was filed by any other person to this application. The application is brought consequent on the 13th and 14th Amendments to the Constitution having been signed into law by the President on 23 December 1992.

Ms Burtenshaw set out the facts grounding the application. The applicant is a limited liability company which was established in 1977 to provide a broad range of services relating to counsel on marriage, family planning, procreation and health. Since 19 December 1988 it has been a registered charity. Since its formation, and until 19 December 1986, the applicant provided non-directive counselling to pregnant women resident in the State. Abortion or termination of pregnancy was one of the options liable to be discussed during the said counselling, if raised by the person seeking same. If a pregnant woman wished to consider the option of an abortion, the applicant would arrange to refer her to a clinic for that purpose in Great Britain. In certain circumstances, the applicant would arrange travel requirements of such pregnant women. While the applicant was and is an entirely non-profit making body, a fee was charged in respect of such counselling. Clinics to which women were so referred by the said defendant were inspected by it prior to such referral to ensure that it operated at the highest standards.

Ms Burtenshaw referred to the proceedings heard in the case. On or about 28 June 1985 the Society for the Protection of Unborn Children (Ireland) Ltd instituted proceedings against the first named defendant and the applicant seeking a declaration that the activities of the said companies in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion were unlawful having regard to Article 40.3.3° of the Constitution. By order of the High Court dated 24 September 1986 the said proceedings were converted to a relator action brought in the suit of the Attorney General. Those proceedings were heard by Hamilton P, President of the High Court, who on 19 December 1986 determined that the activities of the defendants in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion and to obtain further advice on abortion within a foreign jurisdiction, were unlawful having regard to the provisions of Article 40.3.3° of the Constitution. He granted an order against the said defendants, that they, and each of them, their servants or agents be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of the said court to obtain further advice on abortion or to obtain an abortion.

In the High Court action no evidence was adduced, and the case proceeded on the basis of certain admitted facts. When the matter was appealed to the Supreme Court, the Chief Justice referred to the agreed set of facts upon which the High Court proceeded without any other oral or documentary evidence and summarized those agreed facts relevant to the appeal of the applicant as:

(a) It counsels in a non-directive manner pregnant women resident in Ireland and that counselling takes place within the State.

(b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling if the question is raised by the person seeking counselling.

(c) If a pregnant woman wants to consider the abortion option further this defendant will arrange to refer her to a medical clinic in Great Britain.

(d) In certain circumstances this defendant may arrange the travel require ments of such pregnant women.

(e) This defendant inspects the medical clinic in Great Britain to satisfy itself that it operates at the highest standards.

(f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by this defendant.

(g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years including the months of November and December 1984.

On this motion coming before the Supreme Court there was no contest on fact, nor was there any application that the agreed facts of the previous High Court and Supreme Court hearings should be varied in any way.

Submissions
Mr Hardiman SC, for the applicant applied to have the injunction discharged. He submitted that the application was properly before the Supreme Court as the order in question to be discharged is an order of the Supreme Court which substituted its own order for that of the High Court. He submitted that arising out of the 13th and 14th Amendments to the Constitution the injunction is not now maintainable. He submitted that the amendments came into full and immediate effect, that constitutional rights could not be postponed by law, and that the effect of the 14th Amendment is that freedom to obtain or make available information on services lawfully available in another state shall not be limited by Article 40.3. He submitted that on the agreed facts the applicant should not now be restricted by the permanent injunction. He further submitted that the applicant on the agreed evidence was subject to a judicial decision, with which it has complied, and with which it continues to comply, but that now the restraints of the injunction are not maintainable under the Constitution. The order when made by the Supreme Court was valid under the Constitution, but that it is not now valid under the Constitution as amended.

Mr O’Reilly SC for the Society for the Protection of Unborn Children (Ireland) Ltd (hereinafter referred to as ‘SPUC’) submitted that until legislation was introduced to deal with the 14th Amendment it would be inappropriate to lift this injunction. He submitted that the unborn has to be protected, that all organs of government must protect that life, and that if this order is vacated in advance of legislation a vacuum would be created and in the vacuum the unborn would suffer. He considered that if the order was vacated it would mean anyone could provide the information, which would be inappropriate.

As regards the present state of the 14th Amendment to the Constitution he considered there may be a discretion in the court to postpone the matter, because of the unique nature of the rights involved. He submitted that until there is legislation this Court, as a matter of discretion, should not vary the order. As regards the ‘travel’ part of the Supreme Court’s order he stood over it as it exists because he considered not to do so would mean that abortion referral would come about.

Mr O’Reilly submitted that the 14th Amendment does not come into effect until legislation is in place. He reasoned that the court should take account of the unique nature of the rights, and that in the clash of rights there is a balance to be drawn and in these circumstances the court has jurisdiction to postpone making an order, or to make a limited order, relating to information only.

Mr Shane Murphy, also on the behalf of SPUC, submitted that because of the unique right in issue, the right of the unborn child to life, the court should not vary the order; that there was a clash of rights, but the effect on the unborn cannot subsequently be put right.

Mr Shanley SC, for the Attorney General, pointed out that the Attorney General had not participated in the matter until then; that the applicant had written to the Attorney General on 22 January 1993 to which the Attorney had responded on 29 January 1993 referring to the original proceedings and stating:

You state that your client is anxious to resume non-directive counselling and that you require the High Court to vacate certain orders made against your client. The solicitors for Open Door Counselling Ltd, the second-named defendants in the above entitled proceedings have by letter sought the consent of the Society for the Protection of the Unborn Child (SPUC) to their application to have the injunctions lifted. SPUC’s solicitors who initiated the proceedings have through the Chief State Solicitor sought the attitude of the Attorney General towards such an application by Open Door. The Attorney General has stated that he has no objection to the application to lift the injunctions.

Should a similar application be brought by your clients the Attorney General will be pleased to make a similar response.

Mr Shanley said that that was the Attorney General’s attitude then and now; that the order of the Supreme Court was correct when it was made, but that it is now inconsistent with the Constitution because of the amendments. He submitted that the 14th Amendment was now operative, and that the words ‘subject to such conditions as may be laid down by law’ in the 14th Amendment did not postpone the right to information therein.

In reply Mr Hardiman for the applicant submitted that it may be false to assume that there will be legislation under the 14th Amendment.

Jurisdiction
This is an application to vary an injunction made by the Supreme Court. The injunction was made by the Supreme Court in terms different to those of the High Court orde
The Supreme Court is fundamentally an appellate court. The Constitution states:

Article 34.2: The courts shall comprise Courts of First Instance and a Court of Final Appeal.

Article 34.3.1: The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.

Article 34.3.2: Save as otherwise provided by this article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any court established under this or any other article of this Constitution other than the High Court or the Supreme Court.

Article 34.4.1: The Court of Final Appeal shall be called the Supreme Court.

Article 34.4.2: The president of the Supreme Court shall be called the Chief Justice.

Article 34.4.3: The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

Article 34.4.4: No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.

Article 34.4.6: The decision of the Supreme Court shall in all cases be final and conclusive.

Thus the Supreme Court is the final appellate court in the State and its decisions are conclusive.

Whereas the Constitution sets out clearly the appellate function of the Supreme Court, and forbids its exclusion as an appellate court on the question of the validity of any law in regard to the Constitution thus fostering its special role in regard to the Constitution, this does not mean that the court is exclusively an appellate court.

In State (Browne) v. Feran [1967] IR 147 at p. 157 Walsh J stated, in a judgment with which Haugh, Budd, and Fitzgerald JJ agreed,

By Article 36 of the Constitution all courts other than the Supreme Court and the High Court derive their existence and their jurisdiction only from Acts of the Oireachtas. Counsel for the prosecutor relied upon the provisions of Article 36, and particularly paragraph (iii) thereof, in support of his arguments that the Constitution sought to retain in the hands of the Oireachtas the constitution and organisation of the courts and the distribution of jurisdiction among the courts. Article 36 expressly states that such matters which may fall to be regulated in accordance with law are ‘subject to the foregoing provisions’ of the Constitution. So far as the Supreme Court and the High Court are concerned the provisions of Article 36, while not permitting any restriction of the jurisdiction of those courts not already permitted in the foregoing articles, may add jurisdictions to those jurisdictions already derived from the Constitution. Examples of such statutorily conferred jurisdictions would be an appellate jurisdiction in the High Court and a consultative jurisdiction in the High Court. In the case of the Supreme Court such conferred jurisdictions could include a consultative jurisdiction in the Supreme Court and an appellate jurisdiction from decisions of courts other than the High Court. In several instances such jurisdictions have already been conferred. An original jurisdiction could also be conferred upon the Supreme Court though in that case the court would be a court of first and final instance. In my view the provisions of Article 34.4.1° that ‘the Court of Final Appeal shall be called the Supreme Court’ means that the only court of final appeal shall be the Supreme Court, not that the Supreme Court shall be only a court of final appeal. The Constitution has itself, as already pointed out with reference to Article 12.3.1° and to Article 26, expressly provided otherwise.

Thus under the Constitution the Supreme Court has an original, non-appellate jurisdiction explicitly in the Constitution under Articles 26 and 12.3.1°. In addition, in certain rare instances, it has an implied jurisdiction to determine an issue not decided by the High Court.

In Murphy v. Attorney General [1982] IR 241 the Supreme Court, on appeal from the High Court, heard and determined a case on the constitutionality of portion of the income tax statutory law which aggregated the income of married couples and the court held the relevant sections to be unconstitutional.

Some time later counsel for the Attorney General sought a decision specifying whether the impugned sections were void ab initio or only became invalid as from the date of the pronouncement of their invalidity by the High Court or the Supreme Court, and the extent of the relief to which the plaintiffs were entitled in respect of tax overpaid by them. These matters had not been raised or argued in the High Court.

The Supreme Court, without legal argument or decision on its jurisdiction, but after thorough argument on the supplemental issue in the case, ruled on the question of whether the establishment of repugnancy has a retroactive effect on the validity of the impugned law.

As the issue of the jurisdiction of the Supreme Court was not the subject of decision in the judgment this precedent is of limited value. However, I consider it important as it is an example of the exercise of the jurisdiction of the court on a matter relating to the operation of its own judgment to ensure that constitutional rights are enforced. Further, it was arising out of the decision of the Supreme Court on constitutional rights and ultimately their implementation, and thus is similar to the situation in this case.

The exceptions to the appellate jurisdiction of the Supreme Court were referred to in K.D. (otherwise C.) v. M.C. [1985] IR 697 ([1987] ILRM 189) where at p. 701 Finlay CJ stated:

It is a fundamental principle, arising from the exclusively appellate jurisdiction of this Court in cases such as this that, save in the most exceptional circumstances, the court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the interests of justice. This case cannot, in my view, however, provide such an exception.

Further, the concept of ‘appellate’ does not negate fresh evidence.

In B. v. B. [1975] IR 54 the Supreme Court held that its appellate jurisdiction enabled the court to hear new evidence in the course of an appeal, even though such evidence bore on an issue which had not been raised in the High Court.

The court has an inherent jurisdiction to ensure that the Constitution is not, and rights thereunder are not, circumvented. It is the duty of the Supreme Court to ensure that the Constitution, and justice, are upheld.

In State (Quinn) v. Ryan [1965] IR 70 Ó Dálaigh CJ said at p. 122:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the courts’ powers in this regard are as ample as the defence of the Constitution requires.

The courts have a duty to act so as not to permit a person to be deprived of constitutional rights and must see to it that these rights are protected.

In Meskell v. CIE [1973] IR 121 the Supreme Court recognized the correlative right to abstain from joining associations and unions. The judgment of Walsh J in dealing with the recognition of a constitutional right, on an appeal from the High Court, stated at pp. 132–3:

It has been said on a number of occasions in this Court, and most notably in the decision in Byrne v. Ireland [1972] IR 241, that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. As was pointed out by Budd J in Educational Company of Ireland Ltd v. Fitzpatrick [1961] IR 345 at 368, it follows that ‘if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it.’ He went on to say that the courts would act so as not to permit a person to be deprived of his constitutional rights and would see to it that those rights were protected.

While the above is not addressing the issue of jurisdiction it is emphasising the protection the courts give to constitutional rights and as such is relevant to the inherent power of the court on the jurisdiction issue.

Apart from the protection of constitutional rights the court has an inherent jurisdiction to ensure justice is done. In McGee v. Attorney General [1974] IR 284 at p. 318 Walsh J stated:

The very structure and content of the articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of Article 40.3 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue.

The Supreme Court has an inherent jurisdiction to protect constitutional rights and justice. This jurisdiction must be exercised sparingly in a non-appellate way as the fabric of the administration of justice and the system of courts is best served by a clear hierarchical structure concluding in the Supreme Court. However, in certain circumstances, to protect constitutional rights, or to ensure that justice is upheld, it is appropriate that the Supreme Court exercise such jurisdiction.

Principles
Arising out of the aforesaid certain principles can be enunciated.

1. The Supreme Court, in general, should not hear and determine an issue which has not been tried and decided by another court.

2. To this there are certain rare exceptions when the Supreme Court will exercise a non-appellate jurisdiction.

3. Some of these exceptions are explicitly set out in the Constitution, and others are implied.

4. These implied rare exceptions arise when a constitutional right or justice lies to be protected.

5. The instances which arise are such that the Supreme Court has a duty to intervene to protect a constitutional right, or justice.

6. The instance does not arise when rights extant solely under law are in issue.

7. Nor, in general, could the jurisdiction arise if facts are in issue.

8. However, none of the above principles are sufficient to institute this jurisdiction without a requirement also that there be an element of transiency in the time in which this constitutional right can be protected.

The Constitutional Amendments
The issue which this Court has been asked to decide upon is the interpretation of the 13th and 14th Amendments to the Constitution and their application to the order of the Supreme Court of 16 March 1988.

The relevant order of the Supreme Court is:

The amendment to the Constitution now known as and hereinafter referred to as the 13th Amendment states:

This subsection shall not limit freedom to travel between the State and another state.

The amendment to the Constitution now known as and hereinafter referred to as the 14th Amendment states:

Thus Article 40.3.3° as amended by the addition of the said 13th and 14th Amendments now states:

This subsection shall not limit freedom to travel between the State and another state.

The wording added to the Constitution by the 13th Amendment is now in force. It recognises the freedom to travel, which was a pre-existing right. The clause commences ‘This subsection shall not limit freedom to travel ….’ If, as is stated in the amendment, Article 40.3.3°‘shall not limit freedom to travel’ then the right to travel cannot be limited by Article 40.3.3°. Thus the freedom to travel is not now limited by Article 40.3.3°. Therefore the right recognised is a full right to travel.

The right being an unencumbered right to travel, could assistance given to a person exercising this constitutional right be unconstitutional? I am satisfied that assistance given to a person exercising their right to travel is part and parcel of that right. In arriving at this conclusion I am aided by the fact that the 13th Amendment specifically precludes limitation of this right by reference to Article 40.3.3°.

Quite apart from the question of the logic of the analysis of the principle of assisting a person to do a constitutional act or exercise a constitutional right is the question of assisting a person to exercise a constitutional right and the place of such assistance in the constitutional scheme of things as regards the disadvantaged person.

Assistance would be unnecessary to many persons. The basic information alone will enable the economically and socially advantaged to travel. However, assistance may be essential to persons who are economically and socially deprived. A person who has no means and is socially deprived or intellectually disadvantaged, may be unable to travel even if given information. Thus this creates inequality between those who are economically and socially advantaged and those who are not. Restrictions on the provision of assistance to a disadvantaged person may result in their inability to exercise a constitutional right.

It is a basic tenet of our constitutional law that assistance may be given to enable the exercise of a constitutional right. Thus legal aid permits the exercise of the right of access to the courts.

The assistance in this case is of the limited form set out in the order from the applicant which is a charity which gives non-directive counselling. The limited assistance, as set out in the order, of a constitutional right enables the economically and socially disadvantaged, and geographically distant, pregnant person, to exercise a constitutional right.

It has been argued that the 14th Amendment, the freedom of information amendment, is not self-executing. However, on the usual rules of construction it is clearly a self-executing amendment.

The clear meaning of the words is that the right to information exists, but is ‘subject to such conditions as may be laid down by law’.

Thus the freedom of information may be subject to conditions set out in legislation. The absence of legislation does not nullify or postpone the right. Whereas the right to information may in the future be subject to conditions in legislation the legislature is not obliged to set out statutory conditions. It has been given a discretion, which it may or may not utilise.

The precise wording is:

Thus there is the right to ‘obtain’ in the State information relating to services lawfully available in another state. Under this subsection a person is entitled to obtain information here about services elsewhere. Clearly this includes the names and addresses of lawful clinics.

The concomitant right is the right to make this information ‘available’, as set out in the subsection. There is a constitutional right to make available information relating to services lawfully available in another state. Thus there is a constitutional freedom to give the names and addresses of clinics giving services lawfully available in another state.

Constitutional rights are not subordinate to law, or to putative legislation. We live in a pluralist society where the Constitution while acknowledging God as the ultimate source of all authority designates the people as the rulers of the State who in the final appeal decide all questions of national policy according to the requirements of the common good. In this instance by the two recent amendments to the Constitution the people have clarified the position of certain constitutional rights.

In this case in my view there are unique and specific factors which require the Supreme Court to exercise its inherent jurisdiction. These factors are:

1. The case in issue had been determined in the High Court and the Supreme Court.

2. The Supreme Court made its own order, varied from the High Court order.

3. If the matter now goes to the High Court it will be asked to vary an order of the Supreme Court.

4. This order in question is in the form of a permanent injunction applying a perpetual restraint.

5. The injunction was a determination consistent with the Constitution when it was made.

6. There have been two amendments to the Constitution by the people since that order.

7. The injunction is no longer consistent with the Constitution.

8. The case was and is at all times based on agreed facts.

9. Whereas there were submissions that the 14th Amendment was not in force pending legislation I am satisfied beyond any doubt that the amendment has the force of constitutional law irrespective of legislation. Constitutional rights are not subservient to legislation. The 13th Amendment is unambiguously in force now.

10. The applicant has stated that it will not breach the Supreme Court order.

11. By the Supreme Court order the applicant is not permitted to act in a manner which is now consistent with the Constitution.

12. Consequently constitutional rights are circumvented, and in certain circumstances set at nought, both for the applicant and for women dependent upon the applicant.

These unique and specific factors bring this case within the principles grounding the inherent jurisdiction of the Supreme Court set out previously.

This is one of the rare exceptions when the Supreme Court should exercise its implied non-appellate jurisdiction. Constitutional rights are impinged upon by the order of the Supreme Court of 16 March 1988. The rights in issue are constitutional rights. There are no facts in issue. There is an element of transiency in the time in which these constitutional rights can be protected.

The Supreme Court has a duty to uphold the Constitution. The Constitution now enfolds the 13th and 14th Amendments. The Supreme Court has a duty to ensure that its orders are consistent with the Constitution. As a result of the two recent amendments the order of the Supreme Court in this case no longer is consistent with the Constitution. Consequently, I am satisfied that the Supreme Court has both a jurisdiction and a duty to reconsider its own order in this case in light of the amendments to the Constitution, and to amend and vary its own order in light of the two amendments to the Constitution.

The reason for this duty is to ensure the constitutional rights are not circumvented. If this Court does not exercise jurisdiction to consider the effect of the two amendments on its injunction herein then the injunction will continue to stand and constitutional rights of women will be circumvented and in certain circumstances set at nought.

If this Court does not exercise jurisdiction to consider the effect of the two amendments on its injunction herein then the parties will have to go to the High Court to ask it to vary the Supreme Court order in light of the two amendments, and I have no doubt that the matter would then be appealed to the Supreme Court for final decision, which will involve the applicant in considerable expense.

What is at issue here is whether an extant order of the Supreme Court which is contrary to the Constitution should stand. I am satisfied that it should not.

There are at least three constitutional rights involved in these two amendments:

1. The right to obtain in Ireland information relating to services lawfully available in another state.

2. The right to make available in Ireland information relating to services lawfully available in another state.

3. The right to travel.

By the very nature of the matter involved these rights, unlike for example, certain property rights, have an essential transient, temporal, component. By the very nature of the situation postponement of the right is a denial of the right. To the pregnant woman who requires information pursuant to the amendments from the applicant time does not stand still. Their situation cannot be adjourned. The existence of this injunction results in a denial of the applicant’s constitutional right to make the information available and circumvents the right of a woman to obtain such information from the applicant.

The applicant will, pursuant to this order, postpone giving, for example, to a young pregnant woman information requested of services lawfully available in another state, pending further litigation. But the right both to give that information, and to receive it, has been set at nought by the postponement. Thus the consequence of the Supreme Court order is to breach constitutional rights.

These amendments are for the ultimate benefit of certain women. By the continuing of the injunction in question these rights are being circumvented and in certain circumstances set at nought.

Conclusion
The Supreme Court has jurisdiction to hear and determine this motion. The order as it stands is in breach of constitutional rights. There is a duty to determine this motion as constitutional rights are presently denied to the applicant by the order in issue.

A person may obtain information about services lawfully available in another state. A person may make available information relating to services lawfully available in another state. A person may be assisted in exercising a constitutional right. Article 40.3.3° may not limit such rights to travel and information. The order of the Supreme Court of 16 March 1988 is inconsistent with the Constitution as amended. I would grant the motion and discharge the order of 16 March 1988.This is an appeal by the plaintiff from the order of the High Court dated 7 September 1988 refusing its application for an interlocutory injunction restraining the defendants from printing, publishing or distributing a publication entitled ‘Welfare Guide UCD 88/89’.

The plaintiff is an incorporated body limited by guarantee which was formed with the object of protecting human life , particularly that of the unborn. It is the body at the relation of which the Attorney General instituted proceedings against Open Door Counselling Ltd and the Dublin Well-Woman Centre Ltd and obtained a declaration and injunction in the High Court affirmed with minor variations on appeal to this Court the purpose of which was to protect the right to life of the unborn.

The defendants respectively are: eight elected officers of the UCD Students’ Union, a printer and UCD itself.

In the High Court the plaintiffs’ motion was refused by Carroll J on the grounds that the plaintiff had not got a locus standi which would entitle it to obtain the injunction. No other issue was determined in the High Court and the learned trial judge expressed no view on the facts proved before her as to whether the plaintiff had established the probability of an infringement by the defendants or any of them of the provisions of Article 40.3.3° of the Constitution to the extent that would justify the granting of a quia timet injunction.

The only issue to be decided on this appeal, accordingly, is the issue of the plaintiff’s locus standi.

When the appeal was first listed before this Court and submissions were heard on behalf of the appellant and of the respondents, it became clear that a question arose as to whether, as was contended on behalf of the defendant, the exclusive right to seek an injunction in the circumstances of this case was vested in the Attorney General.

The court was satisfied that it would be inappropriate to reach any decision on that issue without having given to the Attorney General an opportunity to be heard and to present his views before the court.

Accordingly, the Attorney General was added as a notice party and the hearing was resumed when counsel on his behalf assisted the court.

On behalf of the Attorney General it was submitted that he did not claim to have any exclusive right with regard to the prosecution of proceedings of the kind concerned in this case, seeking to enforce compliance with the Constitution.

It was further submitted to the court on his behalf that the appropriate formula for ascertaining as to whether a person seeking to enforce the provisions of the Constitution has a valid locus standi was the test as to whether the proceedings were instituted by reason of a bona fide concern and interest in the actual or threatened constitutional infringement by a person who could establish a proximity to that infringement, proximity being understood as an interest when considered in an objective sense.

The Attorney General did not seek to make any submission to the court or to enter into the area as to whether on the facts of this case the plaintiff had established such a bona fide concern and therefore such a locus standi.

It was submitted on behalf of the Attorney General that a litigant who had not already got a locus standi in an action of this description could not acquire one merely by reason of being an incorporated body whose articles and memorandum appeared to give it a particular interest in the matter concerned.

In the course of my judgment in Attorney General (SPUC) v Open Door Counselling Ltd and the Dublin Well-Woman Centre Ltd [1989] ILRM 19, 25 I stated as follows:

If therefore the jurisdiction of the courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn, the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an order was represented before the courts.

I am satisfied that the Attorney General who is the holder of a high constitutional office is an especially appropriate person to invoke the jurisdiction of the court in order to vindicate and defend the right to which I have referred. The defendant’s appeal on the issue of locus standi must, therefore, fail.

I see no reason to alter the view expressed by me in that case. Counsel on behalf of the defendant in this appeal submitted that the paragraphs which I have quoted from that judgment must be construed as being qualified by the reference in the second paragraph to the particular position of the Attorney General and that the view there expressed did not constitute an expression of view that a person with a bona fide concern and interest for the protection of the right to life of the unborn could invoke the jurisdiction of the courts.

I am satisfied that this is not the correct interpretation of the view expressed by me in that case. The issue of locus standi, as the case came before the Supreme Court was one in which the right of the Attorney General to sue was being challenged, and it is for that reason that a particular reference is made to his position but the broad statement of principle contained in the first paragraph remains unqualified.

This Court in East Donegal Co-Operative Society Ltd v Attorney General [1970] IR 317 and Cahill v Sutton [1980] IR 269 considered the extent of interest and concern which was necessary to give to a person challenging a statute locus standi to invoke the jurisdiction of the courts.

In the instant case there is no question of challenge to any statutory provision, the remedy being sought by the plaintiff being the prevention or prohibition of what it alleges is a threatened breach of the Constitution by the defendants.

In such a case I am satisfied that the test is that of a bona fide concern and interest, interest being used in the sense of proximity or an objective interest. To ascertain whether such bona fide concern and interest exists in a particular case it is of special importance to consider the nature of the constitutional right sought to be protected. In this case that right is the right to life of an unborn child in its mother’s womb. The threat to that constitutional right which it is sought to avoid is the death of the child. In respect of such a threat there can never be a victim or potential victim who can sue.

If it were to be accepted as is contended on behalf of the defendants that only the Attorney General could sue to protect such a constitutional right as that involved in this case, that would, I am satisfied, be a major curtailment of the duty and the power of the courts to defend and uphold the Constitution.

On the evidence adduced in the High Court, there can be no question of the plaintiff being an officious or meddlesome intervenient in this matter. I would accept the contention that it could not acquire a locus standi to seek this injunction merely by reason of the terms of its articles and memorandum of association. The part, however, that the plaintiff has taken in the proceedings to which I have referred, which were successfully brought to conclusion by the Attorney General at its relation, and the particular right which it seeks to protect with its importance to the whole nature of our society constitute sufficient grounds for holding that it is a person with a bona fide concern and interest and accordingly has the necessary legal standing to bring the action.

I would, therefore, allow this appeal and remit the application out of which it arose to the High Court for further hearing.

It was suggested at the hearing of this appeal that the matter could only be remitted by this Court to the High Court to be tried in the High Court on the facts already established there as they were in September of 1988. I am satisfied that this is incorrect. This is an interlocutory application, the decision on which was based on a preliminary point of locus standi or jurisdiction, and upon that decision having been reversed, the appropriate order for this Court to make, in my view, is that the matter should be remitted to be tried by the High Court on such evidence as it (the High Court) sees fit to hear.

WALSH J

(Hederman J concurring): I agree with the judgment which has just been delivered by the Chief Justice. However there are some views I wish to add concerning the question of the status of the plaintiffs in these proceedings.

The activities sought to be restrained in the present case are ones which, if proved to exist as alleged, are designed and intended to evade the provisions of Article 40.3.3° of the Constitution. The attitude of the respondents to this case has been unconcealed. They boldly assert that no one but the Attorney General could seek to prevent them from engaging in the impugned activities and, in the absence of such intervention, the courts and the citizens in general must remain powerless to prevent activities designed not merely to evade the constitutional rights but totally to destroy them. Their expressions of indignation at being asked by the plaintiffs before being sued to give an undertaking to cease the activities complained of cannot be seriously accepted. They would have more justification for indignation if they were sued before being asked to desist. Every person against whom it is proposed to seek a restraining injunction should where possible first be asked to, or given an opportunity to, desist from the conduct complained of.

It has been argued on behalf of the respondents in this case that the order sought by the appellants was one which they, the respondents, claim is in respect of a public right and that only the Attorney General can sue in support of or in defence of a public right. It is to be noted that in the present case the Attorney General has disclaimed any such exclusive right.

The question in issue in the present case is not one of a public right in the classical sense (and I do not subscribe to the view that only the Attorney General can sue in respect of such public rights) but is a very unique private right and a human right which there is a public interest in preserving. The right to life of each of the unborn is the private and human right of that life. The parents or relatives of the unborn life have a private family right to seek to vindicate that right to life. They have no right to seek to extinguish it. What is in issue in this case is the defence of the public interest in the preservation of that private right which has been guaranteed by the Constitution. It is a right guaranteed protection by public law as it is part of the fundamental law of the State by reason of being incorporated in the Constitution.

In my view every member of the public has an interest in seeing that the fundamental law of the State is not defeated. The Constitution commits to the judicial organ of government the ultimate guardianship of the Constitution itself and of the vindication of the rights which are either guaranteed by it or conferred by it. But the courts cannot move until their powers are invoked. It is also clear that the Attorney General by virtue of his constitutional office also has cast upon him in the appropriate case the duty of defending the Constitution and vindicating the rights conferred or guaranteed by it. He has therefore a sufficient interest at all times to represent the public interest in the protection of the right in question in this case but not the exclusive right to move in the matter. Indeed there could well be occasions when he could legitimately be cited as a defendant in proceedings brought to defend or vindicate constitutional rights. He might well be called upon to defend the actions of the executive power of government or even the legislative power of government if protection was sought against the actions of the executive or legislative powers of government. If some department of state or some public health authority with the approval if not the encouragement of the executive power were to engage in activities which this Court in the Open Door Counselling case restrained as being a violation of the Constitution it would be an intolerable situation if the defence or vindication of constitutional rights was to be confined to the very officer of State who had been entrusted with the task of defending such impugned activities. In cases which call for the vindication of Article 40.3.3° it could often be that the parent or parents and indeed the relatives or other members of the family of the unborn life, who should normally be expected to vindicate the right, are the ones who are pursuing the goal of the destruction of the right. One of the fundamental political rights of the citizen under the Constitution, indeed one of the most valued of his rights, is that of access to the courts. The life most directly affected in these cases is the unborn life and that is the very one which cannot directly assert this right in court. If speedy access to the courts was not available the life itself could already have been extinguished. The citizen’s right of access to the courts in the appropriate case will include not only access in defence of his own personal and direct rights which are being threatened by the executive or by his fellow citizens, but also the right to seek to restrain the acts of the executive or other persons from breaching the constraints imposed by the Constitution if the public interest requires that such breaches or attempted breaches should be restrained.

In a case such as this the essential question is have the plaintiffs a bona fide interest to invoke the protection of the courts to vindicate the constitutional right in question. It would be an ironic situation if our law, which permits a citizen to bring a petty thief before the courts even though the citizen is not himself the victim of the theft, could yet deem the citizen to be unqualified to invoke the courts’ protection to prevent the destruction of the constitutional right to life. Such cases could often present an element of extreme urgency and if, as in the present case, the Attorney General sees no necessity for intervention on his part and not only shows no disapproval of the action taken by the plaintiffs but indeed is now willing to lend his name to the proceedings if the plaintiff so wishes, is indicative of the legitimacy of the plaintiff’s position.

In the unanimous decision of this Court in State (Ennis) v Farrell [1966] IR 107 O’Dalaigh CJ in rejecting the claim that the role of the private prosecutor no longer existed stated at 121:

[that role] was not only well established but … was (and is) rightly regarded as a salutary check in the rare case of failure and wisdom on the part of such a high constitutional officer as the Attorney General. Indeed, as those who have held that office can affirm, the existence of this power of private prosecution, far from being an embarrassment to the Attorney General, has not infrequently been of value where an Attorney General was being left in doubt as to the reliability of a complainant.

That view was shared by all five members of the court, four of those had previously held the office of Attorney General. I think the relevance and the applicability of that statement to the present case is obvious.

Article 30 of the Constitution provided for the creation of the office of Attorney General. That was the first time such a constitutional office had been established. S. 6 of the Ministers and Secretaries Act 1924 invested in the Attorney General among other matters ‘the assertion or protection of public rights’. The statute did not claim that these rights were exclusive to the office of Attorney General. The Constitution of Saorstat Eireann made no provision for the setting up of the office of Attorney General and s. 6 of the Ministers and Secretaries Act 1924 must be deemed to have been the basis of the existence of the office of Attorney General in Saorstat Eireann. Article 59 of the Constitution provided that the person who was Attorney General of Saorstat Eireann immediately before the Constitution came into operation should become the Attorney General as if appointed under Article 30. The fact that the functions of the Attorney General may be similar or in many cases even identical does not mean that the Constitution did not create a new office. Just as the Supreme Court and the High Court set up under the Constitution are quite distinct and new courts different from those set up under the Constitution of Saorstat Eireann, so also is the office of Attorney General. To the extent that Kenny J in the High Court in Macauley v Minister for Posts and Telegraphs [1966] IR 345 seems to suggest a different view that view ought not to be followed. S. 4 of the Constitution (Constitutional Provisions) Act 1937 conferred upon the new constitutional officer, subject to the express provisions of Article 30 of the Constitution, all the powers and functions set out in s. 6(1) of the Ministers and Secretaries Act 1924. Article 30 of the Constitution conferred directly upon the Attorney General certain powers and functions which no statute may restrict or modify, although provision may be made by law to extend some of these functions to other bodies or persons. At the time of the inauguration of the office of Attorney General by Article 30 of the Constitution there were already other bodies and persons entrusted by law with the prosecution of offences in addition to the continued right of the private prosecutor. As was pointed out by this Court in State (Ennis) v Farrell the phrase ‘or some other person authorised in accordance with law to act for that purpose’ in Article 30 in either the Irish language or the English language texts cannot be construed as only future authorisation, that is to say a law enacted after the coming into force of the Constitution. The court expressly stated that unlike for example, the language of Article 34.4.3°, the language of Article 30 was quite express as a present autonomous form in negativing the idea of the authorisation required being such only as might be made in the future.

Save when the Constitution vests exclusively in the Attorney General certain powers and rights the powers and rights conferred upon him can by law be shared or extended to other persons or bodies although they cannot be removed from the Attorney General. Although the Attorney General by virtue of his constitutional office also has cast upon him the duty of defending the Constitution and vindicating the rights guaranteed by the Constitution that function is not exclusively vested in him either by the Constitution or by statute. Indeed there must be some doubt on the question of whether any statute could validly seek to exclude members of the public from calling in aid the judicial power in defence of the public interest in the vindication of constitutional rights.

In the course of this case reference was made to various decisions of this Court dealing with the interest which a person must show before calling upon the judicial power to declare invalid some legislative provision enacted by the Oireachtas. While a challenge to the validity of a legislative provision is not the same as a claim for the direct applicability of a constitutional provision without the intervention of legislation, which is the present case, nevertheless the position is not as restricted as what is claimed by the respondents in the present case. In East Donegal Co-Operative Society Ltd v Attorney General [1970] IR 317 this Court at p. 338 held that persons seeking invalidation must be prompted by the desire to redress a wrong resulting or a threatened result. The court did envisage that there might be ‘circumstances in particular contests in which, in effect, such an action (actio popularis) may be allowed’. The case of O’Brien v Keogh [1972] IR 144 had one characteristic which could arise frequently in cases brought in defence of the constitutional provision under consideration in this case. In O’Brien v Keogh the parent whose duty it was to look after the interests of the infant plaintiff was one of the parties who raised his own neglect of his duties to his child as a defence to defeat the claims of that child. That child unlike the unborn had the ability to have his interests represented in court for the purpose of challenging the validity of the legislation in question, and in which he succeeded. The basis of that decision striking down the period of limitations in the statute was the fact that the differentiation made between children in the custody of their parents and those not in the custody of their parents had the effect of putting a premium on the neglect of a parent to the detriment of the child. The decision of this Court in Cahill v Sutton [1980] IR 269 is not of such sweeping application as it is sometimes thought. It can be understood only in the light of the narrow ground upon which the case is presented and argued and on the possible injustice of the defendant. At p. 276 of that case O’Higgins CJ states:

Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced , (emphasis supplied) the courts should not entertain a question so raised.

Henchy J at p. 285 of the same judgment states:

Since the paramount consideration in the exercise of the jurisdiction of the courts to review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case, there is a transcendent need to assert against the statute the constitutional provision that has been invoked . (emphasis supplied)

It is quite clear from these and other decisions that even in cases where it is sought to invalidate a legislative provision the court will, where the circumstances warrant it, permit a person whose personal interest is not directly or indirectly presently or in the future threatened, to maintain proceedings if the circumstances are such that the public interest warrants it. In this context the public interest must be taken in the widest sense.

A fortiori in a case such as the present where it is sought to restrain, on the basis of a well founded belief, a threatened breach of the Constitution there can be circumstances where the court will be justified in permitting such an action to proceed. Examples of this are to be found in the decisions of this Court in Crotty v An Taoiseach [1987] ILRM 400 and in Boland v An Taoiseach [1974] IR 338. In the last analysis it is a question reserved exclusively to the courts to decide whether or not in a given case a plaintiff who is not personally affected either individually or as a member of a group directly by the activities complained of may be permitted to maintain an action and to obtain an order restraining or restricting those activities complained of.

In the present case the plaintiffs have in my opinion shown a bona fide interest in seeking to curb the activities complained of and in calling upon the judicial power to vindicate the threatened constitutional right. Existing legislation, namely the Civil Liability Act 1961, and the Succession Act 1965, expressly recognises that an unborn life can in law acquire an interest which becomes vested upon its being born alive. Obviously in many such cases the failure of a live birth can be of material benefit to third parties. When the unborn life is threatened by the parent or parents with the encouragement or assistance of other persons there is an obvious need for somebody to assert the interest of the unborn. In the present case the plaintiffs have, in my opinion, shown a genuine interest in the protection of unborn life and it was reasonable on their part to raise the issue as representing the interest of unborn lives. To seek the vindication of the right to life of the unborn is a right which does not rest exclusively with any public authority or officer of State and may on occasion even depend solely upon the vigilance of the citizen.

GRIFFIN J:

I agree with the judgment delivered by the Chief Justice. I would like however to add a few comments.

The only issue necessary for decision on this appeal is whether the plaintiff has, in the circumstances of this case, standing to bring these proceedings. The plaintiff claims that the unique nature of the right given to the unborn in the Eighth Amendment of the Constitution must mean that this right must be protected by the courts, and that as the beneficiaries of this right (the unborn) cannot speak for themselves someone with a bona fide interest and concern for this right must be capable of bringing proceedings, and that the plaintiff has such interest and concern. The only case to which counsel referred the court was that of Attorney General (SPUC) v Open Door Counselling Ltd and The Dublin Well-Woman Centre Ltd [1989] ILRM 19.

On this issue, counsel for the defendants submitted that only the Attorney General could bring these proceedings and that the plaintiff society was acting as an ‘officious bystander’ and ‘a total stranger’. The only authority cited in support of that submission was two short passages from the speech of Lord Wilberforce in Gouriet v HM Attorney General [1978] AC 435, in which he said: (1) that it is the exclusive right of the Attorney General to represent the public interest — even where individuals might be interested in a larger view of the matter — and that this right was constitutional, not technical nor procedural nor fictional; and, (2) that the Attorney General’s right to seek, in the civil courts, anticipatory prevention of a breach of the law is a part of the aspect of his general power to enforce, in the public interest, public rights, and that the distinction between public rights, which the Attorney General can and the individual (absent special interest) cannot seek to enforce, and private rights, is fundamental in English law.

When the Attorney General was added as a notice party and was represented on the resumed hearing, his counsel informed this Court that the Attorney General does not claim an exclusive right to bring proceedings in a case of this kind, and that he was instructed not to make any submissions on the standing of the plaintiff to bring these proceedings. The nature and extent of the rights of the Attorney General and of individuals to bring proceedings for the protection of rights, constitutional or otherwise, was not therefore, fully argued and I would prefer to defer expressing any opinion on this question until it is fully argued in a future case. Likewise, no argument was addressed to the court on the decision of this Court in Cahill v Sutton [1980] IR 269, or on the extent or limits of that decision, or as to how, if at all, it should be qualified. I would accordingly refrain from expressing any view on the application of that decision until it arises for consideration in concrete cases.

For the purposes of this appeal, it is sufficient to show, as the plaintiff society has shown, that it has a bona fide interest and concern for the unborn, and therefore has the necessary standing to bring this action.

McCARTHY J:

The issue raised in this appeal is one of locus standi, the right of the society to seek an undertaking from a citizen that he will obey the law, and, failing such undertaking being given, to obtain an injunction restraining him. It is a grave constitutional issue.

In the first action the society, on 28 July 1985, issued proceedings against Open Door Counselling Ltd and Dublin Well-Woman Centre Ltd alleging a breach of the Constitution and, in particular, Article 40.3.3°. Being met with a plea in defence that it did not have sufficient standing or interest in law to institute the proceedings, the existing action was converted into an action by the Attorney General with a relator. In his judgment in the action now entitled Attorney General (SPUC) v Open Door Counselling Ltd and the Dublin Well-Woman Centre Ltd [1989] ILRM 19, Hamilton P, said at 485:

It is not necessary for me, in the events which have happened, to decide whether the then plaintiff, … had locus standi to maintain these proceedings because an existing action may, by amendment of the writ and statement of claim and by authority of the Attorney General, be converted into an action by the Attorney General with a relator, without prejudice to the proceedings pending in the action.

Subsequently, after debate on the issue of costs, Hamilton P dealt expressly with the issue and, having quoted from the objects set out in the memorandum of association of the society, said:

The court cannot fulfil its constitutional obligations unless its support is sought in proceedings where there is a real and substantial controversy between the parties admitting of specific relief wlthln the sphere of the remedial action. In the course of my judgment I refer to the statement of McCarthy J, in Norris v Attorney General [1984] IR 64 at 103 that:

The right to life of the unborn child is a sacred trust to which all the organs of government must lend their support.

In my view, having regard to the obvious fact that the unborn themselves cannot seek the protection of the court, the obligation which rests on all the organs of government to support the right to life of the unborn must and should be extended to all persons, artificial and real. In bringing these proceedings the society was fulfilling this obligation and I have no doubt but they had the locus standi to maintain these proceedings.

There was no order as to the costs of that action.

In his judgment in the appeal in the first action, Finlay CJ, on the issue of locus standi said:

The sweep of the judgment of the Chief Justice, with which the other members of the court agreed, was not as wide as that of Hamilton P, in the High Court.

Article 40.3.3° of the Constitution provides:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable by its laws to defend and vindicate that right.

The direct threat to that right to life is an abortion, a procedure which in the nature of things is likely to be procured by the expectant mother. The two whose rights are protected cannot or will not invoke the constitutional guarantee. Who will? On 20 July 1988 the solicitors for the society, which had sought undertakings from the defendants in respect of the intended publication of a welfare guide, sent relevant documents to the Attorney General writing ‘to enquire whether you are to take action in the courts to prevent the dissemination of this information.’ By letter dated 6 September 1988 from the Office of the Attorney General following, this Court was informed in the course of the hearing, a telephone conversation between the Office of the Attorney General and the society’s solicitors, it was stated:

The Attorney General has considered your enquiry and notes that proceedings have been commenced by your clients in the High Court. In the circumstances he has asked me to inform you that he does not propose taking legal proceedings.

It is clear that at this stage, whilst the society was ‘relating’ the events to the Attorney General, it has not sought his consent to the bringing of a relator action. After the initial debate on this appeal, the views of the Attorney General were invited.

He did not claim an exclusive right to enforce compliance with Article 40.3.3° but propounded the test that a litigant in such circumstances must show a bona fide concern and interest and a reasonable proximity to the anticipated infringement, proximity, as the Chief Justice says, being understood as an interest and considered in an objective sense. Pace the observations of Hamilton P, to which I have referred, the Attorney General expressly submitted that a corporate litigant who had not already got locus standi could not acquire it merely by reason of the contents of the memorandum of association. It was further stated that the Attorney General was now prepared to deal favourably with a request for his consent to a relator action; this invitation was expressly declined by the society.

The office of Attorney General is created by Article 30 of the Constitution; he is charged with the exercise and performance of ‘all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law.’ The Attorney General of Saorstat Eireann was described by a former Attorney General (Kennedy CJ in Moore v Attorney General (No. 2) [1930] IR 471 at 497) as being ‘… the only legal representative of the public in the courts, and … exclusively entitled to assert or defend public interests.’

Private rights are, ordinarily, asserted by private persons. The Constitution does make express provision (Article 40.4.2°) for assertion by a third party of a constitutional right in respect of unlawful detention resulting in a judicial enquiry under the Article. The court has not been referred to any jurisprudence concerning what appears to be the unique form of right guaranteed by Article 40.3.3°. I repeat the question — who will invoke the guarantee? It might be that the right was being infringed by the government whose legal adviser is the Attorney General. Neither the government nor the Attorney General enjoy a monopoly of proclaiming constitutional rights. If the Constitution ‘belongs’ to anyone, it belongs to the people. That is not to say, however, that any given individual or body of individuals may maintain proceedings vindicating that right. The fact that, because of the unique nature of the guarantee, there is apparently no jurisprudence directly in point, save what may be derived from the first action leaves the answer open. If, as submitted on behalf of the society, the whole nature and quality of Irish society is affected by the right, it would appear to be a public right, ordinarily in the province of the Attorney General.

Carroll J, in the High Court said that the society ‘has assumed the self-appointed role of policing the Supreme Court judgment. In my opinion, it has no right to seek undertakings from citizens and it is the Attorney General who is the proper party to move in such a case.’ It is not the Supreme Court judgment, with respect, that the society is seeking to police but, rather, Article 40.3.3° of the Constitution, If the government through the legislature or otherwise were to act so as to breach that sub-section, it must a priori, be open to any citizen to call the judicial organ of government in aid. If the feared breach is through the act of some other person or body, immediacy may require personal initiation of the suit. The only requirement in either case would be a bona fide intent; such is not in issue here. Where I differ from the judgment of the Chief Justice is in what may be properly permitted thereafter. In my view, it is the Attorney General, and he alone, who can in such a case validly pursue that claim to protect the right of the unborn to judgment. The Chief Justice is of opinion that the part which the society took in the first action and the particular right which it seeks to protect with its importance to the whole nature of our society constitutes sufficient grounds for holding that the society has a bona fide concern and interest and accordingly the necessary legal standing to bring the action. The only consideration that sets the society apart from the general run is its Involvement in the first action; the other considerations are common to all citizens with a bona fide concern.

I cannot agree that success in a relator action against other defendants adds, in any way, to the standing of the society to maintain this action. In my view, the society is in no better or worse a position than any other prospective litigant. I confess to a feeling of great unease at the prospect of any person or group of persons, however well intentioned, being held at law competent to maintain an action of this kind without the intervention of the Attorney General, despite his offer of assistance. Of far greater import is the claim by the society, as a preliminary to such action, to demand and receive an undertaking from a citizen or a group of citizens as to their future conduct. The implications to a free society of such a claim are alarming. Success in earlier proceedings against other defendants gives no licence for such a practice and the refusal of the Attorney General’s offer, in my judgment, disqualifies the society from having the necessary standing to maintain these proceedings.

I would dismiss this appeal.

Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995, In Re [1995] IESC 9; [1995] 1 IR 1 (12th May, 1995)
The Supreme Court

In Re Article 26 of the Constitution and the

Re Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995

1995 No 87

12 May 1995

HAMILTON CJ:

1. This is the decision of the Supreme Court on the reference to it by the President of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995, (hereinafter referred to as the Bill) pronounced pursuant to Article 26.2.1 of the Constitution.

The Reference

By order given under her hand and seal on the 18 March 1995 the President, Mary Robinson, in pursuance of the provisions of Article 26 of the Constitution after consultation with the Council of State referred the Bill to the Supreme Court for a decision on the question as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

The long title of the Bill states that it is:-

“An act to prescribe the conditions subject to which certain information relating to services lawfully available outside the State for the termination of pregnancies and to persons who provide such services may be given to individual women or the general public, to amend the Indecent Advertisements Act 1889 and the Censorship of Publications Acts 1929 to 1967 and to provide for related matters.”

Proceedings on the Reference

Having regard to the nature of the Bill and to the possibility of the challenge to its constitutionality being based on diametrically opposed viewpoints, namely, those based on or with particular reference to the right to life of the unborn and those based on or with particular reference to the right to life of the mother, and the Court’s duty in testing the provisions thereof to examine it in as wide a manner as possible, the Court considered it desirable to assign two teams of counsel and solicitors to argue against the constitutionality of the Bill, one set of arguments to be based on the right to life of the unborn and one set on the right to life of the mother, neither team however to be limited in the making of any arguments against the constitutionality of the Bill or any provision thereof.

Prior to the oral hearing, counsel assigned by the Court in pursuance of Article 26 of the Constitution presented in writing heads of the argument intended to be made by them and submissions of law in support of such argument. These were replied to in writing by and on behalf of the Attorney General together with submissions of law on his behalf.

The oral hearing then took place before the Court on the 4, 5, 6 and 7 of April 1995.

Summary of main provisions of the Bill

At this stage it is desirable to emphasise that both the Fourteenth Amendment to the Constitution and the Bill are concerned solely with the freedom to obtain or make available information. They do not purport to make lawful any act directly affecting the life of the unborn which would not have been lawful prior to the passing of the Fourteenth Amendment. They are exclusively concerned with the question of information and do not deal with the use which may be made of the information obtained. It does not address circumstances in which abortion may be legal either in this jurisdiction or outside the State.

The main provisions of the Bill may be summarised as follows:-

(1) The Bill applies to information, likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies being information which relates to such services and to the persons who provide them — such information being defined in the Bill as Act information.

(2) Section 3 of the Bill provides that it shall not be unlawful to publish or procure the publication of, in any of the ways set out below, Act information relating to services which are lawfully available in a particular place or to persons providing them in a particular place

(i) if the information relates only to services which are lawfully available in that place, and to persons, who, in providing them are acting lawfully in that place;

(ii) the information and the method and manner of its publication are in compliance with the laws of that place;

(iii) the information is truthful and objective; and

(iv) does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy.

The ways referred to are:-

(a) orally at a meeting to which the public have access whether upon payment or free of charge,

(b) in a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document,

(d) by means of radio or television, or

(e) by any other means to the public.

The provision of Act information is subject to the qualification set forth in Section 4 of the Bill.

(3) Section 4 of the Bill provides that it shall not be lawful to display a notice (including an advertisement) containing Act information in or at a place to which the public have access whether upon payment or free of charge or to distribute without solicitation by the recipients, a book, newspaper, journal, magazine, leaflet or pamphlet or any other document, or a film or a recording containing such information.

Consequently, it is not unlawful to publish or procure the publication of Act information to the public by any means, other than by a notice in a public place or in publications distributed without solicitation by recipients provided that the conditions set forth in Section 3 of the Bill are complied with.

(4) By virtue of the provisions of Section 3 of the Bill, if the information relates to services provided in a particular place or to persons providing them in a particular place and the information relates only to services which are lawfully available in that place and to persons who, in providing them, are acting lawfully in that place and the information and the method and manner of its publication are in compliance with the law of that place, and the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of, the termination of pregnancy, the publication of such information is not rendered unlawful by the act; neither is the sale or other distribution of such information rendered unlawful, subject of course to the provisions of Section 4 which render it unlawful to display a notice containing Act information in or at a place to which the public have access whether upon payment or free of charge, or to distribute without solicitation by the recipient, a book, newspaper, journal, magazine, leaflet or pamphlet or any other document, or a film or a recording containing act information.

(5) A person to whom Section 5 of the Bill applies is defined in Section 1(i) of the Bill as —

“a person who engages in, or holds himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy”.

Such persons are subject to the restrictions contained in Sections 5, 6, 7 and 8 of the Bill.

The provisions of these Sections apply when such a person is requested by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant to give information, advice or counselling in relation to her particular circumstances.

Section 5 provides that in such circumstances, it shall not be lawful to advocate or promote the termination of the pregnancy to the woman or any person on her behalf.

This Section also provides that it shall not be lawful to give Act information to the woman or anybody on her behalf unless

(i) the information and the method and manner of its publication are in compliance with the requirements of Par (i) and (ii) of Section 3(1)(a),

(ii) the information is given in a manner which does not advocate or promote the termination of pregnancy,

and

(a) at the same time, information (other than her in relation to her particular circumstances aforesaid, and

(b) the information, counselling and advice

(i) are truthful and objective,

(ii) fully inform the woman of all the courses open to her in relation to her particular circumstances, and

(iii) do not advocate or promote and are not accompanied by any advocacy or promotion of, the termination of pregnancy.

(6) Section 6 makes it unlawful for a person or body to whom Section 5 applies to give Act information if such person or body provides the services to which the Act information relates or has an interest in a body providing such services. No submission was made that this Section was unconstitutional. Section 7 makes it unlawful for a person to whom Section 5 applies:-

(1) To obtain directly or indirectly any financial or other benefit or advantage from any person who provides services outside the State or who has an interest in a body providing such services, or

(2) to obtain directly or indirectly from the woman concerned any financial benefit in respect of:

(a) the giving of Act information, or

(b) the availing by the woman of a service provided outside the State for the termination of pregnancy.

It was submitted by counsel on behalf of the mother that the section was unreasonably wide and could make the giving of information virtually impossible as anyone doing so might think they were at risk of breaking the law. The Court will deal with this submission when the other submissions made by counsel on behalf of the mother are being considered later in this judgment.

(7) Section 8(1) provides that —

“(1) it shall not be lawful for a person to whom Section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.”

Sub-section 2 provides that —

“Nothing in sub-section 1 shall be construed as prohibiting the giving to a woman by a person to whom Section 5 applies or the employer or principal of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in possession of the person or the employer or principal of the person or a copy or copies thereof in written form.”

While Section 8(1) of the Bill provides as aforesaid, it only relates to persons or bodies to whom Section 5 applies and there is no similar provision with regard to any other person or body.

(8) Section 10 of the Bill provides that a person who contravenes Sections 3, 4, 5, 6, 7, 8 or 9 shall be guilty of an offence and liable on summary conviction to a fine not exceeding £1,500.

Section 9 of the Bill provides for the issue of search warrants by a judge of the District Court and the seizure of certain documents by members of the Garda Siochana if they believe on reasonable grounds that they may be required to be used in evidence in any proceedings for an offence under Section 10 of the Bill.

(9) In the Bill, “woman” is defined as “a female person” and “termination of pregnancies” means “intentional procurement of miscarriages of women who are pregnant”.

It is clear from the aforesaid summary of the Bill that its purpose was, as stated in the long title thereto, “to prescribe the conditions subject to which certain information relating to services lawfully available outside the State for the termination of pregnancies and to persons who provide such services may be given to individual women or the general public and to provide for related matters”.

The information to which the Bill relates is information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies, relating to such services and the persons who provide them.

The information likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies includes information with regard to the identity and location and method of communication with a specified clinic or clinics for the purpose of termination of pregnancy.

The giving of such information, viz relating to the services and the persons who provide them, to a woman for the purpose of enabling her to avail of such services for the termination of pregnancy had been held by this Court in a number of cases, including The Attorney General v Open Door Counsellinq Limited and Anor [1988] IR 593 to be unlawful having regard to the provisions of Article 40, section 3 sub-section 3 of the Constitution, which at the time of such decisions, provided that:-

Were it not for the enactment and provisions of the Fourteenth Amendment to the Constitution, the provisions of the Bill in so far as it permitted the dissemination of such information would undoubtedly be repugnant to the Constitution.

The Fourteenth Amendment to the Constitution provided that:-

“This subsection shall not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.”

The Bill was passed by both Houses of the Oireachtas on the 14 March 1995 and purports to lay down the conditions subject to which the information relating to services lawfully available in another State may be given to an individual woman and to the General Public.

Presumption of constitutionality of the Bill

The Bill having been passed by both Houses of the Oireachtas, is entitled to the presumption that no provision thereof is repugnant to the Constitution.

This Court has held in many previous decisions viz the decision in the Reference of the Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129, the decision on the Reference of the Electoral (Amendment) Bill 1983, [1984] IR at p 273, the decision in the Reference of the Adoption (No 2) Bill 1987 [1989] IR 656 p 660 and its decision in the Reference of the Matrimonial Home Bill 1993 [1994] 1 ILRM 241 that there must be applied by the Court to a Bill referred to it by the President pursuant to Article 26 a presumption of constitutionality.

The Court in its consideration of this Bill on this Reference applies the presumption of constitutionality and if and where relevant to the provisions of the Bill the principles by way of presumption of constitutionality laid down by it in the East Donegal Co-operative Livestock Marts Ltd v The Attorney General [1970] IR 317 which are summarised in the decision of this Court in the Reference pursuant to Article 26 of the Adoption (No 2) Bill 1987 [1989] IR 656 at p 661 as follows:

“(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended t6 be conducted in accordance with the principles of constitutional justice, and

(2) that as between two or more reasonable constructions of the terms of the Bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions.”

The issue which falls to be decided by the Court is the question whether it has been established that the provisions contained in the Bill or any of them is or are repugnant to the Constitution or to any provision thereof.

Constitutional Provisions Particularly Involved

Article 5 of the Constitution provides that:-

“Ireland is a sovereign, independent, democratic state.”

Article 6 of the Constitution provides that:-

“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.” Article 40.3 of the Constitution provides that:-

“1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

3. The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right (hereinafter referred to as the Eighth Amendment).

This sub-section shall not limit freedom to travel between the State and another State (hereinafter referred to as the Thirteenth Amendment).

This sub-section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State (hereinafter referred to as the Fourteenth Amendment).”

Article 41 section 1 provides that:-

“1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 41 section 2 provides that:-

“1. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

Position prior to the passing of the Fourteenth Amendment

The determination of the issue as to whether or not the Bill or any provision thereof is repugnant to the Constitution or any provisions thereof, of necessity involves an examination of the relevant provisions of the Constitution. Prior to the passing of the Eighth Amendment to the Constitution, the right to life of the unborn was not one of the personal rights acknowledged specifically by the Constitution. However the right to life of the unborn had been referred to and acknowledged by Walsh J in the course of his judgment in G v An Bord Uchtala [1980] IR 32 when he stated at page 69 of the Report:-

“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary, natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such.

He then repeated what he had said in McGee v The Attorney General [1974] IR 284 at p 312 of the report:-

‘. . . any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question’.”

In the case of Norris v The Attorney General [1984] IR 36 McCarthy J stated at p 103 of the report that:-

“For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn is a sacred trust to which all the organs of government must lend their support.”

The right to life of the unborn was clearly recognised by the Courts as one of the unenumerated personal rights which the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate.

The Eighth Amendment of the Constitution added to Section 3 of Article 40 the following sub-section:-

“3. The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”, thereby acknowledging the right to life of the unborn.

The nature and extent of this right was considered in the case of the Attornev General (at the relation of The Society for the Protection of Unborn Children Ireland Limited), Plaintiff v Open Door Counselling Limited and Dublin Wellwoman Centre Limited, Defendants [1988] IR 593 (hereinafter referred to as the SPUC case).

The defendants in this case considered it essential to the service which they wished to provide that they should be at liberty to inform such women who wish to have an abortion outside the jurisdiction of the Court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard but it was declared by this Court:-

“That the activities of the Defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic: by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, section 3, sub-section 3 of the Constitution.”

Having so declared, this Court then ordered:-

“that the Defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise”.

In the course of his judgment in that case, Finlay CJ having considered the admitted facts stated at Page 624 that:-

“I am satisfied beyond doubt that having regard to the admitted facts the defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me to be an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective.”

and at Page 625:-

“The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, Section 3, sub-section 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40 section 6, sub-s 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails.”

The other members of this Court agreed with the judgment of Finlay CJ.

This case clearly decided that the giving of information with regard to the identity and location and method of communication with a specified clinic or clinics for the purpose of having an abortion or termination of a pregnancy was unlawful having regard to the provisions of Article 40 section 3 sub-section 3 of the Constitution even though such abortion or termination was to take place outside the State and would be lawfully available in another State.

This decision by this Court was based on its interpretation of the provisions of the Eighth Amendment to the Constitution, interpreted with particular emphasis on and with reference to the right to life of the unborn. As stated by Finlay CJ at p 621:-

“It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the sub-section of the Constitution which I have already quoted, and this portion of that sub-section did not therefore arise for interpretation or decision in this case”.

That this was so is exemplified by the following statement of Finlay CJ and the manner in which he identified the issue in that case:-

“I am satisfied, however, that the essential issues in this case do not depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40 section 3, subsection 3 of the Constitution is the issue as to whether the defendants admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn.”

The effect of the decision of this Court in that case was further considered by this Court in the case of The Society for the Protection of Unborn Children (Ireland) Ltd v Stephen Grogan and Ors [1989] IR 753 and in the course of his judgment Finlay CJ stated at Page 764 that:-

“it was decided by this Court in AG (SPUC) v Open Door Counselling Ltd [1988] IR 593 at p 627 ‘that the activities of the defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution’. This Court by the same order restrained the defendants in that action by permanent injunction from carrying on these activities. That decision clearly established that the actual activity which the defendants in this case are claiming and intending to pursue as of right is unlawful, having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution.

I reject as unsound the contention that the activity involved in this case of publishing in the students’ manuals the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in AG (SPUC) v Open Door Counselling [1988] IR 593 on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation.

This application for an interlocutory injunction, therefore, consists of an application to restrain an activity which has been clearly declared by this Court to be unconstitutional and therefore unlawful and which could assist and is intended to assist in the destruction of the right to life of an unborn child, a right acknowledged and protected under the Constitution. That constitutionality guaranteed right must be fully and effectively protected by the courts.”

This decision reiterated the opinion of the Court that the activities of informing pregnant women of the identity and location and method of communication with a specified clinic or clinics for the purpose of obtaining a termination of pregnancy were unlawful having regard to the provisions of Article 40 section 3 sub-section 3 of the Constitution (the Eighth Amendment).

The provisions of the Eighth Amendment to the Constitution were further considered by this Court in The Attorney General v X and Others [1992] 1 IR 1 (hereinafter referred to as the x case) but with particular regard to “the intimate human problem of the right to life of the unborn and its relationship to the right of the mother of an unborn child to her life”.

The events which gave rise to these latter proceedings were, in the words of Mr Justice Costello, painful and distressing and there is no need to refer to them in this judgment.

In this case, the Court was obliged to consider the effect of that portion of the Eighth Amendment which did not arise for “interpretation or decision” in the SPUC case and which dealt with the equal right to life of the mother.

One of the issues which arose in The Attorney General v X [1992] 1 IR 1 concerned the mother’s right to life which was acknowledged by the Eighth Amendment.

It was submitted on behalf of the Defendants in that case that although the Eighth Amendment required the Courts to defend and vindicate the life of the unborn, they were, in doing so, to have regard to the equal right to life of the mother.

In considering the terms of Article 40 section 3, sub-section 3 of the Constitution in this context, the Court recognised that, in certain circumstances, there could be a conflict between ‘the right to life of the unborn’ and ‘the equal right to life of the mother; that where such conflict of rights could not be avoided, the Constitution required that its provisions be interpreted harmoniously and that the rights thereby guaranteed should be interpreted in concert in accordance with the concepts of prudence, justice and charity. In the course of his judgment in this case, Finlay CJ stated:-

“I accept the submission made on behalf of the Attorney General, that the doctrine of the harmonious interpretation of the Constitution involves in this case a consideration of constitutional rights and obligations of the mother of the unborn child and the interrelation of those rights and obligations with the rights and obligations of other people and, of course, with the right to life of the unborn child as well.

Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, as they have been explained in the judgment of Walsh J in McGee v The Attorney General [1974] IR 284 leads me to the conclusion that in vindicating and defending as far as practicable the right or the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life.

I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40 section 3, sub-section 3 of the Constitution.”

The basis for the orders made in The Attorney General (at the relation of the Societv for the protection of Unborn Children Ireland Ltd) v Open Door Counselling Ltd & Anor [1988] IR 593 was that

“no right could constitutionally arise to obtain information the purpose of which was to defeat the constitutional right to life of the unborn child which right ‘must be fully and effectively protected by the Courts’.”

The X case however established that having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health of the mother and that that risk can only be avoided by the termination of her pregnancy.

In such a case, does a constitutional right arise or exist to obtain information the purpose of which is to vindicate the right to life of the mother though with the inevitable consequence of and at the expense of terminating the right to life of the unborn child?

Once the termination of the pregnancy is permissible the mother has the right to all relevant information necessary to enable her to have the pregnancy terminated and this includes the information which was the subject matter of the orders in the SPUC case, viz information with regard to the identity and location of and method of communication with a specified clinic or specified clinics.

The effect of the decision of the Supreme Court and the judgments of the majority of the Court in the Attorney General v X and Ors [1992] 1 IR 1 case is that where there is a real and substantial risk to the life, as distinct from the health of the mother, and that risk can only be avoided by the termination of the mother’s pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution.

In such circumstances, the mother would have the right to travel outside the jurisdiction to avail of such services to secure a termination of the pregnancy.

It would appear however that irrespective of the mothers constitutional right to travel, the exercise of that right would have to be subordinated to the constitutional right to life of the unborn in circumstances where the pregnancy constituted no threat to the life of the mother.

As stated by Finlay CJ in the course of his judgment in Attorney General v X [1992] 1 IR at Page 57 of the Report:-

“I accept that where there exists an interaction of constitutional rights the first objective of the Courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in those instances, I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights.

Notwithstanding the very fundamental nature of the right to travel and its particular importance to the characteristics of a free society, I would be forced to conclude that if there was a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel”.

He further stated that:-

“the submission made that the mother of the unborn child had an absolute right to travel which could not be qualified or restricted, even by the vindication or defence of the right to life of the unborn is not a valid or sustainable submission in law.”

In the course of his judgment in the X case [1992] 1 IR Egan J stated at Page 92 of the Report that:-

“The right to travel can only effectively arise in reference to an intention to procure an unlawful abortion and must surely rank lower than the right to life of the unborn”.

While these observations were made in respect of the right to travel, they can, with equal validity, be applied to the right to information.

If the purpose of the travel or the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution but if the purpose was the procurement of a permitted or lawful abortion, ie one that complies with the test laid down in the X case, then neither the travel nor the giving or obtaining of information with regard thereto would be unlawful.

That would appear to be the position with regard to the provision of information with regard to the services provided outside the State for the termination of pregnancies prior to the enactment of the Fourteenth Amendment to the Constitution.

This amendment provided that:-

“This sub-section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State”.

The sub-section referred to in the said amendment was that which provided that:

“The State acknowledges the right to life of the unborn and with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

For the reasons set forth in the course of this judgment, it is manifest that, were it not for the provisions of the Fourteenth Amendment to the Constitution, that many of the provisions of the Bill relating to the provision of information relating to services available in another State for the obtaining of abortions or termination of pregnancies, including the identity and locations of and method of communication with clinics where these services were available would be repugnant to the provisions of the Constitution despite the conditions imposed by the Bill on the availability and nature of the information to which the Bill related.

The giving of such information had been held to be unlawful having regard to the provisions of Article 40 section 3, sub-section 3 of the Constitution in that, in effect, it provided assistance in the destruction of the life of the unborn.

The provisions of the Fourteenth Amendment however provided that this sub-section should not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.

The purpose of this Amendment was to remove the inhibition placed on the granting of information with regard to these services relating to the termination of pregnancies, by the decisions of the Supreme Court based on the provisions of Article 40 section 3, sub-section 3 of thee Constitution.

The Fourteenth Amendment gave to the Oireachtas the power to lay down the conditions subject to which such information should be obtained or made available and expressly provided that the sub-section of the Constitution which acknowledged the right to life of the unborn should not limit freedom to obtain or make available in the State, such information.

Arguments were addressed to the Court that the provisions of the Fourteenth Amendment were self-executing and did not require any act of the Oireachtas to bring it into affect.

It is not necessary for this Court to decide in this reference whether the provisions of this Amendment were self-executing or only came into effect when such conditions were laid down by law.

The conditions laid down by law are contained in the Bill and the issue before this Court is whether the provisions of the Bill or any of them are or is repugnant to the provisions of the Constitution.

Before dealing with the issue as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or any provision thereof the effect of the Fourteenth Amendment to the Constitution must be determined and this necessarily involves the construction by this Court of its provisions.

The subject of this Amendment was ‘information relating to services lawfully available in another State’.

The medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out constitutes a service lawfully available in another State.

It also constitutes a service within the meaning of Article 60 of the Treaty of Rome.

The Court of Justice of the European Communities held in the Grogan case (Case C-159/90 [1991] ECRI — 4685 (at 4739) that:-

“It must be held that termination of pregnancy, as lawfully practised in several Member States is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity . . . . Consequently the answer to the national courts first question must be that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty”.

There can be no doubt but that the provisions of the Fourteenth Amendment relate, inter alia, to and include information relating to medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out.

The next matter for consideration is the nature of the information which may be obtained or made available in the State in relation to such services.

It was argued by Counsel assigned by the Court to present arguments against the constitutionality of the Bill based on the right to life of the unborn that the information permitted to be obtained or made available did not include information with regard to the identity, location and method of communication with specified clinics or a clinic where such services were lawfully available but was limited to information of a general nature relating to abortion.

He argued that it had already been held by this Court in the SPUC case [1988] IR 593 that the making available of such information constituted assistance in ‘the destruction of the life of the unborn’ and that the provisions of the Fourteenth Amendment should not be interpreted or construed so as to permit of the giving of such assistance.

He further argued that if the terms of the Amendment permitted the giving of such information, which amounted to assistance in the destruction of the life of the unborn, such amendment was inconsistent with the terms of the Eighth Amendment to the Constitution which acknowledged the right to life of the unborn, and that the principle of harmonious interpretation of the provisions of the Constitution did not permit of such interpretation.

It is not possible to construe the provisions of this Amendment in the manner so argued for as the terms of the Fourteenth Amendment specifically provided that the Eighth Amendment should not limit the freedom therein referred to.

They deal with ‘information relating to services lawfully available in another State’. Such information must include, and was intended to include, information with regard to the nature of the services, where and by whom they are provided and all information in relation thereto including the identity, location and method of communication with specified clinics or a specified clinic where such services are lawfully provided.

As the provision of such information would constitute assistance in the destruction of the life of the unborn; it was further argued by Counsel for the unborn that

(i) any provision in the Constitution or in any legislation which would permit or render lawful the giving or obtaining of such information was contrary to the natural law right to life of the unborn which right is acknowledged by the Eighth Amendment to the Constitution;

(ii) that the natural law is the foundation upon which the Constitution was built and ranks superior to the Constitution;

(iii) that no provision of the Constitution or of any Act enacted by the Legislature or any judicial interpretation thereof can be contrary to Natural Law, and if it is, cannot be enforced.

These arguments raise the question of the role of the natural law in the development of constitutional jurisprudence with regard to the identification ‘of the personal rights of the citizen’ referred to in Article 40 section 3 sub-section 1 of the Constitution and the guarantee therein set forth on the part of the State to respect, and as far as practicable, by its laws to defend and vindicate such rights.

It is fundamental to this argument that, what is described as ‘the natural law’ is the fundamental law of this State and as such is antecedent and superior to all positive law, including the Constitution and that it is impermissible for the People to exercise the power of amendment of the Constitution by way of variation, addition or repeal, as permitted by Article 46 of the Constitution unless such amendment is compatible with the natural law and existing provisions of the Constitution and if they purport to do so, such amendment had no effect.

The Court does not accept this argument.

By virtue of the provisions of Article 5 of the constitution, Ireland is a sovereign, independent, democratic State.

By virtue of the provisions of Article 6, all powers of Government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State, and, in final appeal to decide all questions of national policy, according to the requirement of the common good.

The powers of Government therein referred to are exercisable only by or on behalf of the organs of State established by the Constitution and are exercisable only in accordance with the provisions thereof.

In the course of his judgment in Byrne v Ireland [1972] IR p 241 Budd J stated that:-

“It is the people who are paramount . . . The State is not internally Sovereign but, in internal affairs, subject to the constitution, which limits, confines and restricts its powers.”

The Constitution limits, confines and restricts the powers of the State and the organs of State established by the Constitution.

Though Article 15, section 1, sub-section 1 of the constitution provides that ‘the sole and exclusive powers of making laws for the State is hereby vested in the Oireachtas’ these powers are restricted by the provisions of Article 15 section 4 which provide that:-

“1. The Oireachtas shall not enact any law which is in any respect repugnant to the Constitution or any provision thereof.

2. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.”

These provisions which prohibit the Oireachtas from enacting any law which is in any respect repugnant to the Constitution or any provision thereof clearly illustrate the supremacy of the Constitution in so far as the law making powers of the Oireachtas is concerned.

In addition Article 26 section 1 of the Constitution provides that:-

“The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provisions or provision of such Bill is or are repugnant to this Constitution or any provision thereof.”

Article 26 section 3, sub-section 1 provides that:-

“In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill.”

Again this provision clearly illustrates the supremacy of the Constitution. The decision upon which the President, after consultation with the Council of State, was entitled to seek from this Court was whether the Bill or any provision thereof was repugnant to the Constitution or any provision thereof.

Article 28 section 2 of the Constitution provides that:-

“The executive power of the State shall, subject to the provisions of this Constitution be exercised by or on the authority of the Government”.

The judicial organ of the State is also subject to the provisions of the Constitution and the law.

Article 34 section 1 of the Constitution provides that:-

“Justice shall be administered in Courts established by law by judges appointed in the manner provided by this Constitution . . .”

Article 35 section 2 of the Constitution provides that:-

“All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”

Before entering his or her duties as a judge every person appointed a judge under the Constitution is required to make and subscribe a declaration to, inter alia,

“uphold the Constitution and the law”.

These provisions of the Constitution clearly indicate and establish that all the organs of the State, the Oireachtas, the Executive and Judiciary are subject to the Constitution and the law.

In addition to administering justice in courts established by law, it is the responsibility of Judges of the High Court and the Supreme Court to interpret the Constitution and apply the provisions thereof.

In the course of his judgment in McGee v The Attorney General [1974] IR 284 Walsh J stated:-

“In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law and which are imprescriptible or inalienable.”

These rights are referred to in the various articles of the Constitution contained in the Sections thereof which is entitled “Fundamental Rights” and includes Article 40-44 inclusive of the Constitution.

These articles deal with Personal Rights, the Family, Education, Private Property and Religion.

In the course of its interpretation of these Articles and in particular Article 40 of the Constitution, this Court, agreeing with the view expressed by Kenny J in the course of his judgment in the High Court in Ryan v Attorney General [1965] IR 294 p 312, held that the ‘personal rights’ mentioned in Article 40 section 3, sub-section 1 of the Constitution are not exhausted by the enumeration of ‘life, person, good name and property rights’ in Section 3.2 of the Constitution, which states:-

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

In delivering the judgment of the Court in Ryan’s case [1965] IR 294 O Dalaigh CJ stated at Page 344-345 of the judgment that:-

“The Court agrees with Mr Justice Kenny that the ‘personal rights’ mentioned in Section 3.1 are not exhausted by the enumeration of ‘life, person, good name and property rights’ in Section 3.2 as is shown by the use of the words “in particular”: nor by the more detached treatment of specific rights in the subsequent sections of the Article. To attempt to make a list of all the rights which may properly fall within the category of “personal rights” would be difficult and fortunately is unnecessary in this present case.”

In the course of his judgment in McGee’s case, Walsh J at page 318 stated:-

“While the Constitution speaks of certain rights being imprescriptible or inalienable, or being antecedent and superior to all positive law, it does not specify them. Echoing the words of O’Byrne J in Buckley and Others (Sinn Fein) v The Attorney General [1950] IR 67 I do not feel it necessary to enter upon an inquiry as to their extent or, indeed, as to their nature. It is sufficient for the court to examine and to search for the rights which may be discoverable in the particular case before the court in which these rights are invoked.

In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the different religious denominations of either the nature or extent of these natural rights as they are to be found in the natural law. The same considerations apply also to the question of ascertaining the nature and extent of the duties which flow from natural law; the Constitution speaks of one of them when it refers to the inalienable duty of parents to provide according to their means for the religious, moral, intellectual, physical and social education of their children: see section 1 of Article 42. In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of section 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity — not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time: no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”

In the course of his judgment in The State (Healy) v Donoghue [1976] IR 326 O’Higgins CJ stated as follows:

“The preamble to the Constitution records that the people seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.

In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. Walsh J expressed this view very clearly in McGee v the Attorney General.”

The principles set out in these two judgments were accepted by Finlay CJ in the course of his judgment in the case of The Attorney General v X [1992] 1 IR where he stated at Page 53 of the Report as follows:-

“I not only accept the principles set out in these two judgments as correct and appropriate principles which I must follow in interpreting the provisions of this sub-section of the Constitution but I find them particularly appropriate and illuminating in the interpretation of a sub-section of the Constitution which deals with the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life.”

It is clear from the passages from these judgments set forth herein that the Courts in interpreting the Constitution and in ascertaining and declaring what are the personal rights which are guaranteed by the Constitution and in determining, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable, must act in accordance with the aforesaid guidelines as laid down in the Constitution and must interpret them in accordance with their ideas of prudence, justice and charity.

As stated by Walsh J in the course of his judgment in McGee’s case [1974] IR 284 in the passage quoted herein:-

“In a pluralist society such as ours, the Courts cannot as a matter of constitutional law be asked to choose between the differing views, where they exist, of experts on the interpretation by the differing religious denominations of either the nature and extent of these natural rights as they are to be found in the natural law.”

From a consideration of all the cases which recognised the existence of a personal right which was not specifically enumerated in the Constitution, it is manifest that the Court in each such case had satisfied itself that such personal right was one which could be reasonably implied from and was guaranteed by the provisions of the Constitution, interpreted in accordance with its ideas of prudence, justice and charity.

The Courts, as they were and are bound to, recognised the Constitution as the fundamental law of the State to which the organs of the State were subject and at no stage recognised the provisions of the natural law as superior to the Constitution.

The people were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the people.

It was further argued by Counsel for the unborn that the case of the Attorney General v X [1992] 1 IR 1 was wrongly decided because —

(a) no argument was addressed to the Court on the question of the natural law,

(b) the Attorney General had wrongfully conceded that the provisions of the Eighth Amendment envisaged a lawful abortion taking place in the State.

This submission was part of Counsel’s general argument that the natural law was superior to the Constitution.

Having regard to the judgment and decision of this Court, which recognises and emphasises the supremacy of the Constitution, this Court is satisfied that in the consideration of the issues raised in that case and the conflicting constitutional rights involved, the proper principles were applied to the interpretation of the relevant provisions of the Constitution and in the determination of the issues raised therein and rejects this submission.

The Bill which has been referred by the President to this Court must be examined to enable this Court reach a decision as to whether it or any specified provision thereof, in the words of Article 26 section 1 of the Constitution, “is or are repugnant to this Constitution”.

The Court is only concerned with the provisions of the Constitution.

The provisions of the Fourteenth Amendment give to the Oireachtas, which by virtue of the provisions of Article 15 section 2, sub-section 1 of the Constitution has vested in it the sole and exclusive power of making laws for the State, the power to lay down by law the conditions to which the obtaining or making available within the State information relating to services lawfully available in another State may be subject.

In determining the conditions to which the obtaining or making available of the information relating to services was subject, the Legislature, as one of the organs of State, was obliged to ensure that such conditions are in accordance with the provisions of the Constitution and in particular the provisions of Article 40 section 3, sub-section 3 which provide:-

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”

Normally the legislature in determining such conditions would be obliged to have regard to the provisions of Article 40 section 3, sub-section 3 which “acknowledges the right to life of the unborn and which the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate with due regard to the equal right to life of the mother”.

The terms of the Fourteenth Amendment specifically provide that the freedom to obtain or make available in the State information relating to services lawfully available in another State shall not be limited by the provisions of Article 40 section 3, sub-section 3 of the Constitution.

In laying down in the Bill the conditions to which the obtaining or making available of this information is subject the Legislature is not entitled and is indeed prohibited from having regard to the provisions of Article 40 section 3, sub-section 3 for the purpose of limiting the freedom to obtain such information.

The provisions of the Fourteenth Amendment with regard to information relating to services lawfully available in another State is in direct conflict with the effect of the provisions of the Eighth Amendment in this regard as decided by this Court in the SPUC case [1988] IR 593 and subsequent cases.

The People in enacting this Amendment were aware of this conflict because they specifically decided that the freedom to obtain or make available such information should not be limited by the provisions of the Eighth Amendment.

In passing the Bill, the Oireachtas was essentially engaged in laying down the conditions subject to which such information should be obtained or made available and in doing so was engaged in the balancing of constitutional rights and duties, including the right to life of the unborn, the right to life of the mother, the right to information and other constitutional rights.

Where such an exercise is involved the position is as enunciated by Finlay CJ in Tuohy v Courtney [1994] 2 ILRM 503, 514:-

“in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the Courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack, on some individuals constitutional rights. It is in accordance with these principles that the Court approaches the ultimate task of deciding upon the constitutional validity of those impugned statutory provisions.”

A similar approach should be and has been adopted by the Court in the consideration of a Bill referred to the Supreme Court for a decision in accordance with the provisions of Article 26 of the Constitution.

Consequently, the approach to be taken by the Court in determining whether the provisions of the Bill or any provision thereof are or is repugnant to the Constitution or any provision thereof is not to impose its view on the terms of the Bill as passed by the Oireachtas but rather to determine from an objective stance whether the provisions of the Bill represent a fair and reasonable balancing by the Oireachtas of the various conflicting rights and is not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons.

Right to life of the mother

Neither the provisions of the Fourteenth Amendment nor the provisions of the Bill purport to affect in any way any of the provisions of the Constitution other than in relation to information and the information, the giving and obtaining of which is authorised, is information relating to services lawfully available in another State and is such as is likely to be required by a woman for the purpose of availing herself of services outside the State for the termination of pregnancies and the information to be given relates to such services and/or to the persons who provide them.

It is fundamental to the provisions of the Bill that the information to be given does not advocate or promote the termination of pregnancy and is not accompanied by any advocacy or promotion of the termination of pregnancy.

This condition applies to information to which both Section 3 and Section 5 of the Bill relates.

In addition Section 8(1) of the Bill provides that:-

“It shall not be lawful for a person to whom Section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.”

The condition that the information to be given does not advocate or promote the termination of pregnancy and the prohibition on any person, to whom Section 5 applies, making an appointment or other arrangement on behalf of a woman with a person who provides services outside the State for the termination of pregnancies are a clear indication of the intention of the Legislature to respect and as far as practicable to defend and vindicate the respect to life of the unborn, having regard to the equal right to life of the mother.

It was argued by Counsel assigned by the Court to oppose the Bill from the perspective of the mother that in the case of a mother in respect of whom there was a real and substantial risk to her life which could only be avoided by the termination of her pregnancy that in so providing and thereby depriving her of the right to have advice, as distinct from information, and assistance in the making of arrangements for the termination of her pregnancy, the Oireachtas was failing to respect and, as far as practicable, to defend and vindicate her right to life and in the case of a mother, in respect of whom there is not a real and substantial risk to her life, the restrictions contained in Section 8 amount to an unreasonable interference with her right to health in circumstances where she has already decided to avail of a termination of pregnancy and where the only practical issue remaining is as to the circumstances, in which she may avail of such service lawfully available outside the State.

As already stated, the effect of the decision of this Court and the judgments of the majority of the Court in The Attorney General v X and Ors [1992] 1 IR 1 case was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother’s pregnancy then such termination is permissible and not unlawful having regard to the provisions of Article 40, section 3, sub-section 3 of the Constitution.

The position as therein set forth is unaltered by either the provisions of the Thirteenth or Fourteenth Amendment to the Constitution or of the Bill.

The provisions of the Thirteenth Amendment relate to travel, the Fourteenth Amendment relate to information and the Bill prescribes the conditions subject to which the information may be given to individual women or the general public.

The provisions of the Thirteenth Amendment or of the Fourteenth Amendment or of the Bill do not give a right to abortion or termination of pregnancy where none existed prior to their enactment.

The Bill merely deals with information relating to services lawfully available outside the State for the termination of pregnancies and the persons who provide such services.

The condition subject to which such information may be provided to a woman who indicates or on whose behalf it is indicated that she is or may be pregnant is that the person giving such information is

(i) not permitted to advocate or promote the termination of pregnancy to the woman or any person on her behalf;

(ii) not permitted to give the information unless it is given in a form and manner which do not advocate or promote the termination of pregnancy

and is only permitted to give information relating to services which are lawfully available in the other State and to persons, who in providing them are acting lawfully in that place if

(a) the information and the method and manner of its publication are in compliance with the law of that place, and

(b) the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of the termination of pregnancy.

At the same time information, counselling and advice must be given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances and such information, counselling and advice must not advocate or promote and must not be accompanied by any advocacy or promotion of, the termination of pregnancy.

Subject to such restrictions, all information relating to services lawfully available outside the State and the persons who provide them is available to her.

It was submitted that:-

(i) The prohibition on advocacy or promotion of termination of pregnancy prevents a doctor or adviser who bona fide forms the professional opinion that a termination of pregnancy is necessary to remove a real and substantial threat to life of such mother from giving proper advice.

(ii) The prohibition on the making of appointments or other arrangements on behalf of such a mother amounts to an unreasonable interference with the protection of the right to life of such mother.

(iii) The provisions of Section 8(ii) of the Bill which provides that:-

“Nothing in subsection (1) shall be construed as prohibiting the giving by a person to whom Section 5 applies or the employer of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in the possession of the person or the employer or principal of the person or a copy or copies thereof in written form”

are an insufficient protection of such rights placing as it does a serious barrier in what would otherwise be the normal communication between doctors treating a patient, and that the restriction on what would be in ordinary circumstances the normal communication between a doctor in the State and a doctor in a foreign jurisdiction amounts to an impermissible interference with her rights.

It was further submitted that in certain circumstances that a woman’s life and/or health may be placed at serious risk in the event that a doctor is unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated.

This submission is based on a misinterpretation of the provisions of the Bill and in particular that of Section 8(1).

This section prohibits a doctor or any person to whom Section 5 of the Bill relates from making an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.

It does not preclude him once such appointment is made from communicating in the normal way with such other doctor with regard to the condition of his patient provided that such communication does not in any way advocate or promote and is not accompanied by any advocacy of the termination of pregnancy.

While a doctor is precluded by the terms of the Bill from advocating or promoting the termination of pregnancy, he is not in any way precluded from giving full information to a woman with regard to her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continues and leaving to the mother the decision whether in all the circumstances the pregnancy should be terminated. The doctor is not in any way prohibited from giving to his pregnant patient all the information necessary to enable her to make an informed decision provided that he does not advocate or promote the termination of pregnancy.

In addition Section 8(2) does not prohibit or in any way prevent the giving to a woman any medical, surgical, clinical, social or other like records relating to her.

It was submitted also, as mentioned earlier in this judgment, that Section 7 was unreasonably wide and could make the giving of information almost impossible as anyone doing so might think that they were at risk of breaking the law. The Court does not accept this submission. All Section 7 does is to make it unlawful for a person to whom Section 5 applies to obtain directly or indirectly any financial or other benefit or advantage from any person who provides services outside the State or to obtain directly or indirectly from the woman concerned any financial benefit in respect of the giving of Act information or the availing by the woman of a service provided outside the State for the termination of pregnancies. It seems to the Court that the provisions of the section are quite clear so that a person to whom Section 5 applies would have no difficulty in understanding what it is that the Section makes unlawful.

The Court is also satisfied that there is no substance in the further contention put forward by counsel in relation to this section, namely, that it would create problems for women with medical insurance and also in regard to medical fees. There is no ground for suggesting that either of these matters would be affected by the section.

Having regard to the obligation on the Oireachtas to respect, and so far as practicable, to defend and vindicate the right to life of the unborn having regard to the equal right to life of the mother, the prohibition against the advocacy or promotion of the termination of pregnancy and the prohibition against any person to whom Section 5 of the Bill applies making an appointment or any other arrangement for and on behalf of a woman with a person who provides services outside the State for the termination of pregnancies does not constitute an unjust attack on the rights of the pregnant woman. These conditions represent a fair and reasonable balancing of the rights involved and consequently Sections 5 and 8 of the Bill are not repugnant to the Constitution on these grounds.

Right to life of unborn

The main argument made by Counsel appointed by the Court to argue against the constitutionality of the provisions of the Bill from the perspective of the unborn, viz that the natural law was superior to the Constitution and that no provision of the Constitution or of any Act enacted by the Oireachtas or any judicial interpretation thereof can be contrary to Natural Law has already been considered and rejected by this Court for the reasons set forth earlier in this judgment.

In addition they have argued that the provisions of the Bill are repugnant to the Constitution because

(i) By virtue of the definition of ‘woman’ contained in the Bill as meaning ‘a female person’, it is permitted to give the information to which it relates to a minor, who is or maybe pregnant, without creating any obligation to inform the parents of the minor of the fact that such information was sought and had been given;

(ii) a wife is entitled to seek and obtain such information, which would provide assistance in the procurement of a termination of pregnancy, without the knowledge and consent of her husband and father of the unborn child.

It was argued that the failure of the Oireachtas to require in the Bill that, where such information was sought and/or given, the parents of the minor should be so informed and in the case of a wife, the husband should be so informed, amounted to a failure by the Oireachtas to respect and so far as practicable to defend the constitutional rights of the parents, when the information is given to a minor, and of the husband, when the information is given to a wife.

The constitutional rights and obligations of parents with regard to the care and control of their children and the rights of a husband, as a member of a family, remain unaffected by the provisions of the Fourteenth Amendment and of the Bill. The question to be considered is whether the Bill infringes the rights of the parents of a minor or a husband by failing to contain a provision requiring that they or he be notified of the fact that the minor or the wife has sought and obtained the information to which the Bill relates.

This objection to the Bill relates to a situation where a woman, be she a minor or a wife, indicates or has indicated on her behalf, that she is or may be pregnant and requests from a person to whom Section 5 of the Bill applies, information, advice or counselling in relation to her particular circumstances, having regard to the fact that she is or may be pregnant.

In these circumstances the person giving the information is obliged by the provisions of Section 5 of the Bill to give, at the same time, information (other than information to which the Bill relates), counselling and advice directly to the woman in relation to all the courses of action which are open to her.

In the consideration of the Bill and any particular provision thereof, the Court should apply to such consideration the principles laid down by it in East Donegal Co-operative Livestock Mart Limited v Attorney General [1970] IR 317 which are summarised in the decision of this Court in the Adoption (No 2) Bill 1987 Reference which is reported in [1989] IR 656 as follows:-

“That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice.”

The Oireachtas was also entitled to make that presumption.

As stated by Walsh J in the course of the judgment in East Donegal Co-Operative v Attorney General [1970 IR] 317 at 341:-

“At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from these principles would be restrained and corrected by the Courts.”

Persons to whom Section 5 of the Bill applies are obliged to give information, counselling and advice directly to the woman in relation to all the courses of action which are open to her in relation to her particular circumstances and it must be presumed that in the giving of such information, counselling and advice, the person giving same will have regard to and give advice in accordance with the principles of constitutional justice and if there is any departure from these principles, such departure would be restrained and corrected by the Courts.

Constitutional justice requires that in the giving of such information, counselling and advice regard be had to the rights of persons likely to be affected by such information, counselling and advice.

Having regard to such presumption the fact that the Bill does not contain any provision requiring notification to parents of minors or to husbands of wives, requesting information to which the Bill relates, does not render it repugnant to the provisions of the Constitution by failing to respect and so far as practicable to defend and vindicate the constitutional rights of parents or husbands.

In such circumstances the Court considers that the provisions of Section 5 and Section 8(1) and (2) represent a fair and reasonable balancing of conflicting rights and are not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn, of the mother or any other person.

Section 3 of the Bill sets forth the conditions under which information may be given to the public at large at meetings, in publications, in a film or recording, and by means of radio or television or by any other means to the public.

The conditions to which the giving of such information is subject are set forth in detail in Section 3 which has been summarised earlier in this judgment and it is unnecessary to set them forth in detail at this stage.

Again the Oireachtas has expressly provided that such information must not advocate or promote or be accompanied by any advocacy or promotion of, the termination of pregnancy.

The giving of information to the public is further restricted by the provisions of Section 4 of the Bill which provides that it shall not be lawful to display a notice (including an advertisement) containing information, to which the Bill applied, in or at a place to which the public have access whether upon payment or free of charge or to distribute without solicitation by the recipients a book, newspaper, journal, magazine, leaflet or pamphlet, or any other document, or a film or a recording (whether of sound or images or both) containing such information.

The requirement that the information to be given relates only to services lawfully available outside the State, is truthful and objective, and does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy represents a fair and reasonable balancing by the Oireachtas of the conflicting rights herein and is not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or any other person.

It was further argued that the penalty fixed by the Oireachtas for contravention of the provisions of the Bill viz a fine not exceeding £1,500 was so inadequate as to amount to a failure by the Oireachtas to respect and as far as practicable to defend and vindicate the right to life of the unborn.

The question of the determination of the appropriate penalty for the commission of an offence created by statute is a matter purely for the Oireachtas and the adequacy or otherwise of any such penalty cannot be regarded by this Court as a ground for holding that the provision in regard to the creation of the offence and providing the penalty therefor is repugnant having regard to the provisions of the Constitution.

The Court has dealt in detail with the provisions and effects of Sections 3, 4, 5, 8 and 10 of the Bill and is not satisfied that any of them is repugnant to the Constitution or any provision thereof.

It was submitted by counsel on behalf of the unborn that the manner in which the phrase “termination of pregnancies” is defined in section 1 of the Bill does not cover all possible ways in which a pregnancy might be determined. The definition provides that it means the “intentional procurement of miscarriages of women who are pregnant”. It was submitted that methods other than the intentional procurement of a miscarriage are currently in regular use for the termination of pregnancies, which cause the embryo to be absorbed and not aborted.

Since no evidence is received when the Court is considering a Bill referred to it under Article 26, it is not possible for the Court to make any finding as to the accuracy of the facts underlying this submission but even if they are accurate, that could not affect the constitutionality of the Bill. At most it would indicate a possible defect in the Bill, something which does not come within the ambit of what this Court has to consider.

The Court has considered all the remaining provisions of the Bill, whether arguments have been addressed to the Court with regard thereto or not, and is not satisfied that any of them is repugnant to the Constitution or to any provision thereof.

Conclusion

The decision of the Court therefore is that the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995, is not repugnant to the Constitution or to any provision thereof.

I certify this to be the judgment and decision of the Court.

Society for the Protection of the Unborn Child v. Grogan [1997] IESC 4; [1989] IR 753 (6th March, 1997)
Supreme Court

Society for the Protection of the Unborn Child v Grogan and Others

317/92

6 March 1997

HAMILTON CJ:

1. This is an appeal brought by the Defendants in these proceedings (hereinafter referred to as the Appellants) against the judgment of the High Court (Morris J) delivered on the 7 August 1992 and the order made in pursuance thereof. By the said order the Defendants (Appellants) their servants or agents or anyone having knowledge of the said order were to be permanently restrained from printing, publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of, and the methods of communication with a specified clinic or clinics where abortions are performed.

This order was sought by the Plaintiff company (hereinafter referred to as the Respondent) in proceedings instituted by it by way of plenary summons issued on the 25 September 1989.

As appears from the Statement of Claim delivered on behalf of the Respondents on the 29 January 1990 the first to sixth named Defendants are sued in their representative capacities as the officers of the Union of Students in Ireland, an unincorporated association with its head office at 16 North Great Georges Street in the City of Dublin; the seventh to tenth named Defendants are sued in their representative capacities as the officers of the University College Dublin Students Union, an unincorporated association with offices at the temporary Union Centre, University College Dublin, Belfield and the eleventh to fourteenth named Defendants are sued in their capacities as the officers of the Trinity College Dublin Students Union, an unincorporated association with offices at Trinity College in the City of Dublin. The fifteenth named Defendant is a printer carrying on business from premises at 375 North Circular Road in the City of Dublin and printed a welfare guide on behalf of the University College Dublin Students Union for the years 1987-1988 and 1988-1989. This latter Defendant has taken no part in these proceedings.

The Appellants other than the 15th named Defendant are persons who are members of three separate groups, namely, the Union of Students of Ireland, the Students’ Union of University College Dublin, and the Students’ Union of Trinity College Dublin.

By Notice of Motion dated the 25 September 1989 and made returnable for the 9 October 1989, the Plaintiff sought an interlocutory injunction restraining the Defendants from publishing, distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed.

Having heard submissions on the application for the said interlocutory injunction the learned High Court Judge (Carroll J) decided to refer certain questions to the Court of Justice of the European Communities for a preliminary ruling in accordance with Article 177 of the Treaty establishing the European Economic Community and made no order on the application for the interlocutory injunction other than referring the following questions to the Court of Justice:-

1. Does the organised activity or process of carrying out an abortion or the medical termination of pregnancy come within the definition of “services” provided for in Article 60 of the Treaty establishing the European Economic Community?

2. In the absence of any measures providing for the approximation of the laws of Member States concerning the organised activity or process of carrying out an abortion or the medical termination of pregnancy, can a Member State prohibit the distribution of specific information about the identity, location and means of communication with a specified clinic or clinics in another Member State where abortions are performed?

3. Is there a right at Community law in a person in Member State “A” to distribute specific information about the identity, location and means of communication with a specified clinic or clinics in Member State “B” where abortions are performed, where the provision of abortion is prohibited under both the Constitution and criminal law of Member State “A” but is lawful under certain conditions in Member State “B”?

Though there was no express order refusing or adjourning the application for an interlocutory injunction, the Respondent in these proceedings appealed to the Supreme Court against the failure of the learned High Court Judge to grant the said application for an interlocutory injunction.

By its judgments delivered on the 19 December 1989 and the order made in pursuance thereof, the Supreme Court allowed the appeal and made the order sought.

It did, however, grant

“liberty to any party to apply to the High Court before the said trial or determination for a variation of the said order in the light of the preliminary ruling by the Court of Justice of the European Communities on the questions referred to it by the High Court under Article 177 of the Treaty”.

By its judgment delivered on the 4 October, 1991 the European Court ruled in relation to Question No 1 that “medical termination of pregnancy, performed in accordance with the law of the State to which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty”.

Questions 2 and 3 of the Reference were considered together by the European Court and its ruling was:-

“It is not contrary to community law for a Member-State in which medical termination of pregnancy is forbidden to prohibit students, associations from distributing information about the identity and location of clinics in another Member-State where voluntary termination of pregnancy is lawfully carried out and the means of communicating with those clinics, where the clinics in question have no involvement in the distribution of the said information.”

The ruling of the European Court of Justice is binding on the national court. (See Murphy v Bord Telecom Eireann (1989) IRLM page 53 and Crotty v An Taoiseach (1987) ILRM page 400).

The Respondents’ claim in these proceedings was heard by Morris J on the 17, 23 and 24 July 1992. The proceedings on the 17 July related to the evidence and on the 23 and 24 of July contained submissions by both parties.

In the course of his judgment, delivered on the 7 August, 1992 the learned trial judge stated:-

“I accordingly accept that by virtue of this ruling [the ruling of the European Court of Justice] a pregnant woman who is travelling to the United Kingdom for the purposes of an abortion is travelling to avail of a service as defined by the Treaty of Rome. However, a provision in this country which prohibited third parties from furnishing her with information relating to these clinics is not in conflict with the Treaty of Rome. It is well settled and has been found by the Supreme Court both in Society for the Protection of Unborn Children of Ireland Ltd v Open Door Counselling Ltd and Wellwoman Centre Ltd (1988) LR 593 and by the Supreme Court when hearing this case at the interlocutory stage (Society for the Protection of Unborn Children of Ireland Ltd v Grogan & Others, [1989] IR 753 that the distribution and provision of this information is unconstitutional.”

The information to which he referred was the information contained in the publications distributed by the Defendants.

In the further course of his judgment, the learned trial judge stated that:-

“It is submitted by Counsel for the Defendants that the Supreme Court in the Attorney General v X and Others (1992) 1 IR 1 identifies a class of person and a circumstance in which an abortion can be regarded as permissible. The test to identify such a person is to be found in the following passage from the judgment of Finlay CJ —

‘I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother which can only be avoided by the termination of her pregnancy, such termination is permissible having regard to the true interpretation of Article 40.3.3 of the Constitution.’

It is submitted by Counsel in these circumstances the communication of information to such person would be justified and permissible so as to enable her to have the abortion, and it is submitted that the Defendant’s conduct is lawful as a consequence.

I identify a profound distinction between the distribution of the documentation and information which the Defendants are engaged in in the circumstances of this case, which involves the distribution of this information to the community at large and to University students in particular, on the one hand and the communication of such information to a clearly defined and extremely restricted type of person identified in the test. No case has been made to me, nor could it be made, that the conduct of the Defendants which it is sought to justify relates only to persons coming within the class identified by applying that test nor is it suggested that the Defendants wish to confine their activities to the distribution of information to that class. Accordingly, this argument fails on the grounds that it does not have any application in the circumstances of this case.”

It is clear from the judgment of the learned trial judge that he considered that he was bound by the rulings of the European Court of Justice and the decisions of the Supreme Court in the two cases to which he referred and being so bound he made the order which is the subject matter of the appeal by the Appellants herein.

The constitutional and legal position as to the provision of information with regard to the Termination of Pregnancies has been altered by the provisions of the Fourteenth Amendment to the Constitution and the provisions of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995 (hereinafter referred to as the 1995 Act). However the Appellants submit that the provisions of the said amendment to the Constitution and the said Act have no relevance to the appeal herein; that the appeal must be determined by this Court in accordance with the law prevailing at the time of delivery of the judgment and of the making of the order appealed.

For the reasons given by Mr Justice Blayney in the course of the judgment he is about to deliver, which I have read and with which I agree, I am satisfied that this submission is incorrect and that in considering whether the injunction granted by the learned trial judge should be confirmed or not, the Court must look at what the present state of the law is and not at what it was at the time the proceedings commenced.

However, it is necessary to deal with the state of the law prior to the passing of the 14th Amendment to the Constitution for the purpose of determining whether the order of the High Court was correct at the time it was made.

Law prior to the passing of the Fourteenth Amendment

The law prevailing at the time of delivery of the said judgment was set forth in detail by me when delivering the reasons of the Court in the Reference under Article 26 of the Constitution in the matter of the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 (hereinafter referred to as The Reference) at [1995] 2 IR 28, and [1995] 2 ILRM 81 appropriately summarised as follows:-

“The right to life of the unborn was clearly recognised by the courts as one of the unenumerated personal rights which the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate.

The Eighth Amendment of the Constitution added to s 3 of Article 40 the following sub-section:-

‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right,’

thereby acknowledging the right to life of the unborn.”

In The Attorney General (SPUC) v Open Door Counselling [1988] IR 593, the Supreme Court considered the nature and extent of the right to life of the unborn, and in particular, whether it was constitutionally permissible for the defendants to provide information to pregnant women concerning the availability of abortion services in foreign jurisdictions. This behaviour was held to be unconstitutional. Finlay CJ stated at p 625:

“The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3, sub-s 3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.

The other members of the Court agreed with this judgment.

The decision in that case was further considered by this Court in SPUC v Grogan [1989] IR 753. The Court rejected an attempt to distinguish its decision in Open Door. Finlay CJ said at p 764:

“I reject as unsound the contention that the activity involved in this case of publishing in the students’ manuals the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in The Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR 593 on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation.”

The provisions of the Eighth Amendment to the Constitution received further attention by the Court in The Attorney General v X [1992] 1 IR 1. I quote from my judgment in The Reference:

“The events which gave rise to these latter proceedings were, in the words of Costello J, painful and distressing: and there is no need to refer to them in this judgment.

In that case, the Court was obliged to consider the effect of that portion of the Eighth Amendment which did not arise for ‘interpretation or decision’ in The Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR 593 and which dealt with the equal right to life of the mother . . .

In considering the terms of Article 40, s 3, sub-s 3 of the Constitution in this context, the Court recognised that, in certain circumstances, there could be a conflict between ‘the right to life of the unborn’ and ‘the equal right to life of the mother’; that where such conflict of rights could not be avoided, the Constitution required that its provisions be interpreted harmoniously and that the rights thereby guaranteed should be interpreted in concert in accordance with the concepts of prudence, justice and charity. In the course of his judgment, Finlay CJ stated at p 53 of the report:-

‘Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, as they have been explained in the judgment of Walsh J in McGee v The Attorney General [1974] IR 284, leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur . . .

In such a case, does a constitutional right arise or exist to obtain information the purpose of which is to vindicate the right to life of the mother though with the inevitable consequence of, and at the expense of, terminating the right to life of the unborn child?

Once the termination of the pregnancy is permissible, the mother has the right to all relevant information necessary to enable her to have the pregnancy terminated and this includes the information which was the subject matter of the orders in The Attorney General (SPUC) v Open Door Counselling Ltd [1988] IR 593 viz information with regard to the identity and location of and method of communication with a specified clinic or specified clinics . . .

In such circumstances, the mother would have the right to travel outside the jurisdiction to avail of such services to secure a termination of the pregnancy.

It would appear, however, that irrespective of the mother’s constitutional right to travel, the exercise of that right would have to be subordinated to the constitutional right to life of the unborn in circumstances where the pregnancy constituted no threat to the life of the mother . . .

While these observations were made in respect of the right to travel, they can, with equal validity, be applied to the right to information.

If the purpose of the travel or the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provisions of Article 40, s 3, sub-s 3 of the Constitution, but if the purpose was the procurement of a permitted or lawful abortion ie one that complies with the test laid down in The Attorney General v X [1992] 1 IR 1, then neither the travel nor the giving or obtaining of information with regard thereto would be lawful.

Counsel on behalf of the Appellants has submitted that the case of The Attorney General v Open Door Counselling Ltd and Anor (hereinafter referred to as the Open Door Counselling case) upon which such reliance was placed by the learned trial judge was wrongly decided and should be departed from by this Court.

In this connection it is relevant to refer to a portion of the judgment of Henchy J in Mogul of Ireland Ltd v Tipperary (North Riding) County Council (1976) IR 260 where he stated at 272-273 of the Report:-

“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General v Ryan’s Car Hire Ltd the judgment of the Court gave examples of what it called exceptional cases, the decisions in which might be overruled if a later Court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions such as ‘convinced’ and ‘for compelling reasons’ and ‘clearly of opinion that the earlier decision was erroneous’ that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies . . .”

However the first question for determination in this Appeal is whether the Open Door Counselling case was clearly wrongly decided by the Supreme Court, as it is only in such circumstances that it would be open to this Court to overrule it.

In considering this question, it is important to emphasise that the function of the Court in the Open Door Counselling case must have been and was confined to the issues and the parties before them.

As stated by Finlay CJ at page 624 of the Report —

“The function of the Courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them.

The constitutional provision in issue in the Open Door Counselling case was the Eighth Amendment of the Constitution which added to s 3 of Article 40 of the Constitution the following sub-section:-

As stated by Finlay CJ at page 621:-

“It was not part of the facts of this case nor of the submissions of the Appellants that the service which they were providing for pregnant women in relation to the obtaining of abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right to life of the mother mentioned in the sub-section of the Constitution which I have already quoted, and this portion of that sub-section did not therefore arise for interpretation or decision in this case.”

Finlay CJ identified the essential issue in that case where he stated at page 624 of the Report that:-

“I am satisfied, however, that the essential issues in this case do not in any way depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s 3, sub-s 3 of the Constitution is the issue as to whether the Defendants admitted activities were assisting pregnant women within the jurisdiction to travel outside the jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is; were they thus assisting in the destruction of the life of the unborn?”

Having posed the question, he answered it in the following passage:

“I am satisfied beyond doubt that having regard to the admitted facts the Defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the Defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial judge that the Defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence.”

At page 625 of the Report, Finlay CJ stated:-

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of, a service of abortion outside the State which, if availed of would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s 6, sub-s 1 of the Constitution, since it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right, the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child.”

This passage dealt with the constitutional right to life of the unborn child and did not purport to deal with the equal right to life of the mother. Indeed it was expressly stated, in the passage quoted herein, that the service being provided was not in any way confined to, or specially directed towards the due regard to the equal right to life of the mother mentioned in the sub-section of the Constitution and did not arise for interpretation or decision in the case.

The nature of the “equal right to life of the mother” did however arise for interpretation and decision in the case of the Attorney General v X and Anor (1992) 1 IR page 1 (hereinafter referred to as the X case).

The X case established, that having regard to the true interpretation of the Eighth Amendment, termination of the life of the unborn is permissible if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that that risk can only be avoided by the termination of her pregnancy.

In the Reference under Article 26 of the Constitution in the Matter of Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 this Court stated that:-

“If the purpose . . . of the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provisions of Article 40 of the Constitution but if the purpose of the procurement of a permitted or lawful abortion, ie one that complies with the test laid down in the X case, then . . . the giving or obtaining of information with regard thereto would be lawful.”

As already stated, this issue had not arisen for determination in the Open Door Counselling case nor does it arise in this instant case save to the limited extent outlined in the judgment of Morris J where he stated:-

“It is submitted by Counsel for the Defendants that the Supreme Court in the case of the Attorney General v X and Others (1992) 1 IR page 1 identifies a class of person and a circumstance in which an abortion can be regarded as permissible”.

and

“It is submitted by Counsel in these circumstances the communication of information to such person would be justified and permissible so as to enable her to have the abortion, and it is submitted that the Defendant’s conduct is lawful as a consequence.

I identify a profound distinction between the distribution of the documentation and information which the Defendants are engaged in in the circumstances of this case, which involves the distribution of this information to the community at large and to University students in particular, on the one hand and the communication of such information to a clearly defined and extremely restricted type of person identified in the test. No case has been made to me, nor could it be made, that the conduct of the Defendants which is sought to justifyrelates only to persons coming within the class identified by applying that test nor is it suggested that the Defendants wish to confine their activities to the distribution of information to that task. Accordingly, this argument fails on the grounds that it does not have any application in the circumstances of this case.”

Having regard to the admitted activities of the Defendants in the Open Door Counselling case and of the Appellants in these proceedings it is not open to them to rely on the right of a woman to whom the test set forth in the X case applies to obtain information with regard to the termination of her pregnancy, as a justification of such activities.

In neither case was the Court required or entitled to consider the right of a woman to whom the test set forth in the X case applies to information with regard to the termination of her pregnancy. No such person was a party to the proceedings in the Open Door Counselling case or in this case.

The Appellants, in their defence to these proceedings, have pleaded that:-

“10. The Constitution of Ireland, and in particular Article 40.3.3 thereof, protects the right to life of the mother which must encompass her having access to information where her life may be threatened or endangered by the continuation of the said pregnancy. The Defendants have a corresponding right to impart such information relating to medical termination of pregnancy.”

This right vested in the mother was clearly acknowledged by this Court in The Reference but the admitted activities of the Appellants in this case are not confined to the provision of such information.

In the course of his judgment on the application for an interlocutory injunction in this case Finlay CJ stated at page 764 of the Report (1989 IR 753) that:-

“I reject as unsound the contention that the activity involved in this case of publishing in the students manuals the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in the Open Door Counselling case on the grounds that the fact of that case were that information was conveyed during periods of one-to-one non directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation.”

Counsel on behalf of the Appellants submitted that the Open Door Counselling case was wrongly decided because it was based upon a literal interpretation of the Constitution rather than a harmonious interpretation thereof which would have involved a consideration of the right to life of the unborn, the right to life of the mother (Article 40, s 3, sub-s 3) and the right of the citizens to express freely their convictions and opinions and a consideration of the issue whether in the particular circumstances of the case it was necessary to interfere with one constitutionally protected right in order to protect another.

Counsel relied on the passage from the judgment of Henchy J in The People (DPP) v O’Shea [1982] IR 384 where he stated at page 426 of the Report that:-

“I agree that if the relevant sub-section of the Constitution is looked at in isolation and is given a literal reading, it would lend itself to that interpretation. But I do not agree that such an approach is a correct method of constitutional interpretation. Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions which must be brought into play as part of a larger composition, and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a Constitution, more than of any other legal instrument that ‘the letter killeth but the spirit giveth life’. No single constitutional provision (particularly one designed to safeguard personal liberty or social order) may be isolated and construed with undeviating literalness.”

In the Open Door Counselling case the question whether a right to receive and give information which, it was alleged, existed and was material to the case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40.6.1 of the Constitution, since it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information.

This question was considered by the Court but it was held that

(1) the performing of an abortion on a pregnant woman terminated the life she was carrying;

(2) that such termination was a direct destruction of the constitutionally guaranteed right to life of that unborn child within the terms of Article 40.3.3 of the Constitution, and that

(3) there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which if availed of, would have the direct consequence of destroying the expressly guaranteed right to life of the unborn, and

(4) no right could constitutionally arise to obtain information the purpose of which was to defeat the constitutional right to life of the unborn.

Having regard to the parties who were before the Court and the issues raised by them I am satisfied that this case was rightly decided.

I would again refer to and emphasise the statement of Finlay CJ where he stated:-

“It was not part of the facts of this case nor of the submissions of the Defendants made in this case that the service which they were providing for pregnant women in relation to abortion outside this jurisdiction was in any way confined to, or specially directed towards the due regard to the equal right to life of the mother mentioned in the sub-section of the Constitution which I have already quoted and this portion of that sub-section did not therefore arise for interpretation or decision in this case.”

Similarly, it is clear from the evidence in this case and indeed the terms of the defence delivered on behalf of the Defendants herein that the service that they were providing for pregnant women in relation to abortion outside this jurisdiction was not in any way confined to or specially directed towards pregnant women who comply with the test set forth in the X case.

Paragraph 5 of the Defence provides that:-

“The Trinity College Dublin Students Union has published the Trinity College Dublin Guide Book and Diary 89/90 for distribution to students. The said guide book and diary includes a welfare section which provides information for students concerning pregnancy, with information as to the options available to women students who become pregnant, including keeping the baby, adoption, foster care and abortion. The said guide book and diary provides information as to the availability of abortion as a lawful service in the United Kingdom and related information. The said guide book and diary does not advocate or promote abortion.”

Paragraph 6 provides that:-

“The University College Dublin Students Union has published a University College, Dublin Welfare Guide 89/90 for distribution to students. The said welfare guide includes a section on pregnancy information which provides information of a similar kind to set out at paragraph 5 of this Defence.”

Paragraph 7 provides that:-

“The Union of Students in Ireland has published a monthly publication entitled ‘USI News’. The said publication has provided information for students concerning the availability of abortion as a lawful service in the United Kingdom and as to the means of contacting certain abortion services where medical termination of pregnancy is lawfully carried out in the United Kingdom.”

The activities involved in this case consisted of publishing in the students manuals referred to the name, address and telephone number when telephoned from this State, of abortion clinics in the United Kingdom and distributing such manuals in Ireland.

The fact that such information is conveyed to pregnant women is unconstitutional and illegal; the manner of such communication or the motives underlying such communication is irrelevant to the unconstitutional illegality of the act of communication. Consequently, the evidence of Dr Randals and Dr O’Carroll given in this case is irrelevant to the fundamental issues raised in this case.

The giving of the information in these manuals is not confined to pregnant women, in respect of whom it is established as a matter of probability that there is a real and substantial risk to her life, as distinct from her health but is available to all students of the respective universities.

The fact that the information may be given to a pregnant woman who complies with the test in the X case does not render lawful the activities of the Appellants because their avowed intention is to distribute such information generally.

It was also submitted in the written submissions furnished on behalf of the Appellants, although not seriously pressed on the hearing of the appeal, that, since the European Court of Justice had ruled that the medical termination of pregnancy, performed in accordance with the law of the State in which it was carried out, constituted a “service” within the meaning of Article 60 of the Treaty of Rome in respect of which pregnant women were entitled to obtain information, provided that there was an economic link between the clinics, it could not be unconstitutional for the defendants to give information to people who had, as a matter of European Union law, the right to receive such information. It was said that this would create an absurd situation without legal precedent from any of the Member States of the Union.

The ruling of the European Court of Justice, by which the High Court and this court were both bound, made it clear that such a right to receive information in European Union law had no application where the clinics in question had no involvement in the distribution of the said information. That was unarguably the position in this case. Since, for the reasons already given in this judgment, the rights of the Defendants under the Irish Constitution were not infringed by the relief granted in the High Court and were, as conceded in effect by the Defendants, not in violation of European Union law, it follows that this argument is without foundation.

I am satisfied that the activities of the Appellants in this case were unlawful at the time of the making of the Order under appeal.

It is further submitted on behalf of the Appellants that the granting of an injunction restraining their activities offends the principal of proportionality because it is neither necessary nor effective to restrain the availability of such information which is available generally in many publications containing information from abortion clinics which have a commercial interest in the availability of such information, which the Appellants do not have.

On this issue, I agree with the statement of McCarthy J in the course of his judgment on the interlocutory application in this case where he stated that:-

“In the light of the availability of such information from a variety of sources such as imported magazines etc. I am far from satisfied that the granting of an injunction to restrain these Defendants from publishing the material impugned will save the life of a single unborn child, but I am more than satisfied that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in the Open Door Counselling case, then the rule of law will be set at nought.”

Consequently, I am satisfied that the judgment and the order of the High Court was correct when delivered and made viz 7 August, 1992.

Subsequent to the said judgment and order, the 14th Amendment of the Constitution provided that the following paragraph be added to Article 40.3.3:-

“This sub-section shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law information relating to services lawfully available in another State.”

The conditions referred to therein are set forth in the 1995 Act. I agree with the statement contained in the judgment about to be delivered by Mr Justice Blayney where he states that:

“If the Appellants are complying with these conditions, they are protected by the provisions of the Fourteenth Amendment. If they are not complying with them, they are committing criminal offences and the only party who has the right to obtain an injunction against them is the Attorney General.”

Consequently, I am satisfied that though the injunction granted by Order dated the 7 August 1992 was lawfully granted at the time it cannot now be confirmed by this Court which must have regard to the law as it is now and not what it was at the date of the Order.

BARRINGTON J: The facts and the background to this case are sufficiently stated in the other Judgments. I do not propose to restate them here. I agree with the Chief Justice that the case of the Society for the Protection of Unborn Children of Ireland Ltd v Open Door Counselling Ltd and Well Woman Centre Ltd (1988) IR page 593 was rightly decided on the facts and the issues before the Court at that time. The issue in that case was between the right to life of the unborn, on the one hand and the right of freedom of expression of the Defendants on the other hand. As between these two rights it appears to me that the Court was correct to prefer the right to life of the unborn even if this meant restricting the freedom of expression of the Defendants. No issue arose in that case as to the right to life of the mother. Indeed it is doubtful if the Defendants would have had locus standi to set up the right to life of the mother had it occurred to them to do so (See Cahill v Sutton [1980] IR 269).

It is true, however, as Mrs Justice Denham says in her Judgment, that there is nothing like a hard concrete case for illustrating the implications and the limitations of a principle of Constitutional Law and that we all have a better understanding of the relevant constitutional provisions as a result of the decision in Attorney General v X and Ors (1992) 1 IR 1. But to my mind this rather raises the problem of whether it is wise to limit debates in Constitutional Law cases in the manner contemplated in Cahill v Sutton.

The learned trial Judge, in the present case, felt obliged to follow the decision of this Court in the Society for the Protection of Unborn Children of Ireland Ltd v Open Door Counselling Ltd and Well Woman Centre Ltd (1988) Irish Reports page 593. It may be true that the Defendants in the present case like the Defendants In the Open Door Counselling case are claiming a general right to disseminate information. I doubt however if this Court, would now, after the X case, grant an injunction in such wide terms conscious that such an injunction might have the effect of denying to a mother in the position of the mother in the X case the right to receive information to which she might otherwise be entitled.

It therefore appears to me that the injunction granted in the High Court must in any event be modified. However I also agree with the Chief Justice and with Mr Justice Blayney that the whole situation has now been changed by virtue of the provisions of the 14th amendment to the Constitution and the Regulation of Information (Services outside the State for Termination of pregnancies) Act 1995. If and insofar as the activities of the Defendants are covered by the 14th Amendment they are lawful and cannot be restrained. If and insofar as their activities violate the provisions of the legislation they can be prosecuted by the Director of Public Prosecutions or restrained by an injunction obtained by the Attorney General.

I would therefore discharge the injunction.

DENHAM J: On 4 August, 1992 the High Court ordered, in these proceedings, that:

“the Defendants their servants or agents or anyone having knowledge of this Order be permanently restrained from printing, publishing or distributing or assisting in the printing publishing or distribution of any Publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed.”

The Learned Trial Judge in making his order followed case law, being Society for the Protection of Unborn Children Limited v Open Door Counselling Limited and Well Woman Centre Limited [1988] IR 593 (hereinafter referred to as Open Door Counselling 1988) and Society for the Protection of Unborn Children Ireland Limited v Grogan and Others [1989] IR 753 which applied Open Door Counselling 1988. The Defendants/Appellants have appealed against the order and submit that the said previous cases were decided in error and should be departed from by this Court.

Stare decisis.

The Supreme Court may depart from a previous decision when there is a compelling reason, where it appears to be clearly wrong: State (Quinn) v Ryan [1965] IR 70; Attorney General v Ryan’s Car Hire Ltd [1965] IR 642. As Kingsmill Moore J said at p 654 in the latter case:

“In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases.”

The issue then is whether the decision in Open Door Counselling 1988 is erroneous.

Should Open Door Counselling 1988 be followed?

The Constitutional provision in issue in Open Door Counselling 1988 was the Eighth Amendment of the Constitution which added to Article 40.3 of the Constitution the following subsection:

“3. The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.”

1. To protect life of the mother.

In Open Door Counselling 1988 the Defendants submitted that it was essential for their service that they should be at liberty to inform women who wished to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard. It was ordered, at p 627:

“. . . that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise.”

The Chief Justice stated at p 624.

This determination is clearly based on the premiss, and the inference may be drawn, that an abortion could never be lawful. This conclusion is indicated also by the words at p 625:

“The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3, subsection 3, it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.”

Such a premiss is an error. Arising out of Article 40, s 3, subsection 3 there exist extremely limited circumstances, when, to protect the life of the mother, an abortion is lawful. In Attorney General v X [1992] 1 IR 1 the Chief Justice stated at p 53:

“I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3 of the Constitution.”

The premiss in Open Door Counselling 1988 being in error the decision flowing therefrom is flawed.

2. Constitution right to information about the availability of abortions outside the State.

The right to information was considered in the Open Door Counselling 1988 (following the words quoted previously) at p 625:

As this conclusion rested on the flawed premiss that abortion is never lawful, by inference not even to protect the life of the mother, then equally such determination following thereon as to information is also in error. As there are extremely limited circumstances when, to protect the life of the mother, abortion is lawful, it follows that there is at least a right to information in such cases and a corollary right to give the information.

3. Right to information arising in other sections of the Constitution.

The right to information was also related to Article 40.6.1 ie the right of citizens to express freely their convictions and opinions. At p 625 it was held:

“As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s 6, sub-s 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails.”

The absolutism of the approach to the rights of the unborn, and the failure to acknowledge the duty to protect the life of the mother, undermines this statement of law. It is illogical and incorrect to analyse the situation and determine that there can be no information given to or received by a party to actions which may include situations where the actions are lawful. The fact that there is constitutional provision to protect the life of the mother means that there is a corollary right to relevant information. To deny a right under the Constitution to information on the basis that another constitutional right exists, without any attempt at harmonising the rights, is to fall into error.

4. Abstract analysis of right to life of the unborn.

The Open Door Counselling 1988 was decided on abstract facts as part of an analysis of the rights of the unborn. It is a grave disadvantage to a case not to be founded on particular facts relative to the parties. Because of the nature of the case, the way it was presented, there is throughout an air of unreality. The abstract nature of the case meant that the issues were neither fully argued nor fully considered. This is evidenced by the subsequent decision in AG v X. The fundamental flaws in Open Door Counselling 1988 were exposed by the decision in AG v X. The reasoning in Open Door Counselling 1988 has infact already been superseded by that case.

5. “Due regard to the equal right to life of the mother.”

The Eighth Amendment now incorporated in the Constitution in Article 40.3.3 refers to two rights to be protected. On the one hand there is “the right to life of the unborn”. On the other hand there is “due regard to the equal right to life of the mother.” The equal right to life of the mother did not arise for interpretation in Open Door Counselling 1988. It was stated at p 621:

“It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant women in relation to the obtaining of abortion outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the subsection of the Constitution which I have already quoted, and this portion of that subsection did not therefore arise for interpretation or decision in this case.”

The consideration of one right in isolation, to the exclusion of consideration of the due regard to the equal right to life of the mother, is a flaw in the reasoning and decision. The question of information may affect the right of life of the mother. The decision resulted in an order relevant to women, including pregnant women who, applying the test in AG v X, are in a situation where there is as a matter of probability a real and substantial risk to their life.

To analyse the question of information by reference solely to the rights of the unborn is flawed reasoning. The failure to consider the right to life of the mother resulted in a defect in that it lead to an order which in certain circumstances would endanger that right. This flaw is thus a reason to reconsider the constitutional position.

6. Scope of the Order.

The injunction granted by the Supreme Court in the Open Door Counselling 1988 was very broad. Its terms are set out earlier in this judgment.

This order would include a prohibition on information to a pregnant woman who is seeking a life-preserving abortion. It is not unconstitutional to give information to a person, or receive information, of a constitutional activity. Consequently, the injunction is too broad and encompasses activity which it should not and therefore is erroneous.

The absolute and broad nature of the injunction was noted by the European Court of Human Rights in Open Door Counselling and Dublin Well Woman v Ireland [1992] 15 EHRR 244 at p 266.

“73. The Court is first struck by the absolute nature of the Supreme Court injunction which imposed a ‘perpetual’ restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v X and others and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court’s judgment in that case, were now free to have an abortion in Ireland or abroad.

74. On that ground alone the restriction appears over-broad and disproportionate. Moreover, this assessment is confirmed by other factors.”

While that decision is not part of our domestic law it is a persuasive analysis of the situation. It is clear that the injunction is over-broad. I conclude that the decision in Open Door Counselling 1988 was in error on this ground also.

In light of the analysis of the over-broad scope of the decision in Open Door Counselling 1988 it is appropriate to note that the order made by the Learned Trial Judge in this case extends not only to the Defendants, their servants or agents but also to “anyone having knowledge of this Order”. It is thus even broader than that in Open Door Counselling 1988.

7. Inveterate.

The reasoning in Mogul of Ireland Ltd v Tipperary (North Riding) County Council [1976] IR 260 at p 272-3 by Henchy J where he outlined the situation where a court may follow a previous decision even if it was wrong, if it has become inveterate and people have acted on it to such an extent that greater harm would result from overruling it, does not apply. In this case at issue are extant constitutional rights. It would not be constitutional or just to deny these rights.

Conclusion on stare decisis.

In conclusion, for the reasons stated above, I am clearly of the opinion that Open Door Counselling 1988 was an erroneous decision and should not be followed. Thus, the Order by the Learned High Court Judge based on the said case should not be confirmed.

The law relevant to this case.

The next issue is whether the appropriate law is that of 1992 or 1997. I am satisfied that the appropriate law to determine the validity of the injunction is the current law as at issue are constitutional rights and duties in an ongoing situation. These constitutional rights and duties must be protected in accordance with the constitutional law as it stands.

The current law includes the 13th and 14th Amendments to the Constitution which added to Article 40.3.3:

“This subsection shall not limit freedom to travel between the State and another state.

The ‘conditions laid down by law’ appear in Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995. It has been determined in In re Article 26: Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995 [1995] 1 IR 1 that this Bill was not repugnant to the provisions of the Constitution. It was held that in passing the Bill the Oireachtas has been engaged in the balancing of constitutional rights and duties, including the right to life of the unborn, the right to life of the mother, the right to information and other constitutional rights. Hamilton CJ stated at p 53:

“The requirement that the information to be given relates only to services lawfully available outside the State, is truthful and objective, and does not advocate or promote and is not accompanied by any advocacy or promotion of the termination of pregnancy represents a fair and reasonable balancing by the Oireachtas of the conflicting rights herein and is not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or any other person.”

This, together with the Constitution, is the current law relevant to the provision of information. This is the applicable law, not that of 1992, to the order in issue. In view of the current law the Order made by the High Court cannot be confirmed. It is not necessary for the purpose of this application to draw the boundaries of the extant law.

The injunction should not be upheld by this Court. I would allow the appeal.

BLAYNEY J: The full history and background of this appeal are set out in detail in the judgment of the Chief Justice and it is not necessary for me to repeat them.

The principal ground on which the appellants sought to have the decision of Morris J set aside was that the learned trial judge was wrong to follow the decision of this Court in The Attorney General (at the Relation of the Society for the Protection of Unborn Children Ireland Limited) v Open Door Counselling Limited and Dublin Well Woman Centre Limited [1988] IR 593 (hereinafter referred to as the Open Door case). It was submitted that that case was wrongly decided and its decision should now be overruled. I agree with the Chief Justice that it should not be.

One of the issues in the Open Door case was whether it was lawful for the defendants to provide pregnant women with the names and addresses of abortion clinics in the United Kingdom where abortions were performed. It was submitted by the defendants that pregnant women had an implied constitutional right to such information. Finlay CJ, with whose judgment the entire Court concurred, dealt with this submission as follows at p 625 of the report:

“Alleged constitutional right to information about the availability of abortions outside the State.

The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s 3 sub-s 3 it was a direct destruction of the constitutionally guarantee to life of that unborn child.

It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case, was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Art 40, s 6, sub-s 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of obtaining of which was to defeat the constitutional right to life of the unborn child. This ground of appeal, therefore, fails.”

It was submitted by Mr Rogers, on behalf of the appellants, that the approach of the Chief Justice was wrong, that he had approached the issue on the basis of a hierarchy of rights, namely, that the right to life came before the right to information. It was submitted that the Chief Justice did not seek to harmonise the conflicting rights as he ought to have.

This submission assumes that there was in fact a conflict. But it is clear from what the Chief Justice said that there was not. He expressly excluded the possibility of there being any constitutional right to information the purpose of obtaining which was to defeat the constitutional right to life of the unborn child. Since there was no such right there was never any question of there being a conflict between it and the right to life of the unborn.

But even if one were to accept that there could be a constitutional right to information in such circumstances, I think it is clear that the right to life of the unborn child would prevail over it. In the case of The Attorney General v X [1992] 1 IR 1 Finlay CJ said in his judgment at p 57:

“I accept that where there exists an interaction of constitutional rights the first objective of the courts in interpreting the Constitution and resolving any problem thus arising should be to seek to harmonise such interacting rights. There are instances, however, I am satisfied, where such harmonisation may not be possible and in those instances I am satisfied, as the authorities appear to establish, that there is a necessity to apply a priority of rights.

Notwithstanding the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society, I would be forced to conclude that if there were a stark conflict between the right of a mother of an unborn child to travel and the right to life of the unborn child, the right to life would necessarily have to take precedence over the right to travel. I therefore conclude that the submission made that the mother of the unborn child had an absolute right to travel which could not be qualified or restricted, even by the vindication or defence of the right to life of the unborn, is not a valid or sustainable submission in law.”

If there were a constitutional right to information, it must in my opinion rank lower than the right to travel, and since the latter would have to give way to the right to life of the unborn, the right to information would have to give way also.

For these reasons I am satisfied that it has not been shown that the Open Door case was wrongly decided and I reject the appellants’ submissions on this issue.

I now turn to consider what seems to me to be the substantial issue in this appeal: whether this Court, following the decision in the Open Door case, should confirm the injunction granted by the learned trial judge.

Mr Rogers contended that we should decide the appeal in accordance with the law as it stood when the case came before the learned trial judge in August 1992. If this contention is correct, and the Court were to follow the decision in the Open Door case, the logical conclusion would appear to be that the injunction should be confirmed. However, it seems to me that Mr Rogers’ submission is not correct.

This appeal is against the granting of an injunction which is an equitable remedy and is discretionary. Furthermore, in the case of injunctions, as is stated in Bean on Injunctions (7th edition 1996) at page 14 “The Court must make its decision by reference to the state of the law at the date when the question has to be resolved and not the date when the writ was issued.” The authority cited for this statement of the law is Application DES GAZ SA v Falks Veritas Limited [1974] Ch 381. The plaintiff was a French company which issued a writ in April 1972 seeking inter alia an injunction for breach of copyright. Before the action came on for trial the United Kingdom became a member of the European Economic Community and the defendants applied for leave to amend their defence and counterclaim to allege “concerted practices” and “abuse of dominant position” by the plaintiff company contrary to Articles 85 and 86 of the Treaty of Rome. The defendants were granted leave to amend and the plaintiffs’ appeal against this order was dismissed by the Court of Appeal. They held that where a plaintiff claimed relief in the form of an injunction the question whether it should be granted had to be determined by reference to the state of the law at the date when the question came to be decided and not at the date when the writ was issued. Lord Denning MR said in his judgment at p 392:

“In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute, on its true intendment, shows an intention to vary such rights: see Hutchinson v Jauncey [1950] 1 KB 574 and Wilson v Dagnall [1972] 1 QB 509, but in this case the French Gaz company claim an injunction. They seek to prevent the English Veritas company in the future from making or selling the orange Veritas tins. If an injunction is granted, it will operate from the date of trial onwards. In my opinion that point — an injunction or not — will have to be decided according to the law as it stands at the date of the trial. The French Gaz company’s counsel recognised this, but he urged that the amendment should await that time.”

And Stamp LJ said in his judgment at p 399:

“It was submitted that the rights and liabilities of the parties fall to be determined as at the date of the issue of the writ and that it would be wrong to allow an amendment to the defence based on subsequent legislation. I do not find it necessary to discuss the limitations on or the exceptions to that principle: for it is abundantly clear that the question whether an injunction ought to be granted is one which falls to be determined by reference to the circumstances and the state of the law existing at the date when the question falls to be determined and not at the date of the issue of the writ.”

I am satisfied that the passages cited are a correct statement of the law. It follows that in considering whether the injunction granted by the learned trial judge should be confirmed or not, the Court must look at what the present state of the law is in regard to providing information here in regard to abortion services in the United Kingdom and not at what it was at the time the proceedings commenced.

There have been two significant changes in the law since August 1992. Firstly, there has been the Fourteenth Amendment of the Constitution whereby Art 40.3.3. was amended by the addition of a paragraph dealing specifically with the right to make information available and secondly, the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act, 1995 (hereinafter referred to as the 1995 Act) was passed on the 12 May 1995 and laid down the conditions which must be observed in the giving of information.

The paragraph added to Art 40.3.3. by the Fourteenth Amendment is as follows:

“This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.”

The effect of this amendment was to make lawful the type of information being published by the appellants “subject to such conditions as may be laid down by law”. These conditions are now laid down in the Regulation of Information Act 1995.

It was submitted by Mr Murphy, junior counsel, on behalf of the respondent that the information being published by the appellants does not comply with the conditions laid down by the 1995 Act, and in particular that it does not comply with the conditions contained in ss 4 and 5, so in effect the appellants were claiming that they are entitled to act in breach of the law. Mr Murphy further submitted that notwithstanding the amendment of the Constitution, and the passing of the 1995 Act, the substance of the law remained the same and the appellants are therefore precluded from acting in the way they are. Mr Murphy submitted that the 1995 Act maintained the status quo.

In response to Mr Murphy’s submissions on this issue, Mr Rogers submitted that the only evidence before the Court was of the situation in 1992, and that it was possible that what was being done then by the appellants then may have been abandoned. He argued that the proper course for the Court to take was to make a ruling one way or the other on the findings of the learned trial judge. As regards the Regulation of Information Act 1995, he submitted that it is a self-contained code which does not confer any jurisdiction on the courts to make orders inter partes. S 10 makes contraventions of the Act criminal offences. The respondents’ correct course, he said, if they considered that the appellants were acting in breach of the 1995 Act was to apply to the appropriate authorities to institute criminal proceedings.

Having carefully considered the relevant law as it now is, and counsel’s submissions, the conclusion I have reached is that this Court should not continue the injunction granted by the learned trial judge.

It seems to me that the legal position may be summarised in a few very brief words. The appellants are either complying with the conditions set out in the 1995 Act or they are not. If they are complying with those conditions, they are protected by the Fourteenth Amendment of the Constitution. If they are not complying with them, they are committing criminal offences and the only party who has the right to obtain an injunction against them is the Attorney General (see Attorney General v Paper Link Limited [1984] ILRM 373).

As a result of the Fourteenth Amendment and the passing of the 1995 Act, the legal position has been wholly altered since the proceedings were instituted. At that time the appellants’ activities were unlawful as being in breach of the constitutional right to life of the unborn, but they were not criminal. At the present time, their activities are either lawful or criminal and whichever it is, they cannot be restrained by the respondent. Since the Court, in considering whether an injunction should be granted, must look at the law as it is now, and not as it was when the proceedings were commenced, I am satisfied that the injunction granted by the trial judge cannot be continued and I would allow the appeal to the extent of lifting the injunction. I have come to this conclusion solely because of the change in the law since the decision in the High Court and I am satisfied that that decision, when given, was correct.

KEANE J: The facts relevant to this appeal are fully set out in the judgment of the Chief Justice and need not be repeated. It is, however, relevant to draw attention to what might be described as the most significant legal landmarks which have preceded the hearing in this court.

The logical starting point is s 58 of the Offences Against the Person Act 1861 which provides that:-

“every woman being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life . . . or to be imprisoned for any term, not exceeding two years . . .”

Section 59 of the same Act provides that:-

“whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable . . . to imprisonment for any term not exceeding two years . . .”

In R v Bourne [1939] 1 KB 687, the defendant, an obstetrician at St Mary’s Hospital, in London, was charged with having used a instrument with intent to procure the miscarriage of a young girl, contrary to the provisions of s 58. The facts in the case were that the girl, who was then under the age of 15, had been raped with great violence by a man who was in due course convicted of the crime. As a result of the rape, the girl became pregnant and her case was brought to the attention of the defendant, who, after examination of the girl, performed the operation with the consent of her parents. The defendant gave evidence that in his opinion the continuance of the pregnancy would probably cause serious injury to the girl, injury so serious as to justify the termination of the pregnancy at a time when the operation could be performed without any risk to her and under favourable conditions. That view was confirmed by two independent experts one of whom, a specialist in medical psychology, expressed the view that, if the girl gave birth to a child, the consequence was likely to be that she would become “a mental wreck”.

McNaghten J directed the jury as follows:-

“the burden rests on the Crown to satisfy you beyond reasonable doubt that the defendant did not procure the miscarriage of the girl in good faith for the purpose only of preserving her life. If the Crown fails to satisfy you of that, the defendant is entitled by the law of this land to a verdict of acquittal. If, on the other hand, you are satisfied that what the defendant did was not done by him in good faith for the purpose only of preserving the life of the girl, it is your duty to find him guilty. It is said, and I think said rightly, that this is a case of great importance to the public and, more especially, to the medical profession; but you will observe that it has nothing to do with the ordinary case of procuring abortion to which I have already referred. In those cases the operation is performed by a person of no skill, with no medical qualifications, and there is no pretence that it is done for the preservation of the mother’s life. Cases of that sort are in no way affected by the consideration of the question which is put before you today.”

Having gone on to point out that there had been much discussion in the case as to the difference between “danger to life” and “danger to health” and expressed his view that the words “for the purpose of preserving the life of the mother” should be given “a reasonable interpretation” by the jury, he went on:-

“if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother.”

Bourne’s case does not appear to have been considered by any Irish court (save for a brief reference in the judgment of Hamilton P, as he then was, in AG (SPUC) v Open Door Counselling Limited, [1988] IR 593,) until the decision of this court in X v Attorney General, [1992] 1 IR 1.

That is not to say, of course, that illegal abortions were not being performed in Ireland in the past. However, the situation changed radically following the enactment in Great Britain of the Abortion Act 1967 and the growing ease of travel between the two islands.

The Offences Against the Person Act, 1861, remains in force in this country and indeed s 10 of the Health (Family Planning) 1979 made it clear that nothing in the Act was to be construed as authorising

“(a) the procuring of abortion,

(b) The doing of any other thing, the doing of which is prohibited by s 58 or 59 of the Offences Against the Person Act 1861 . . . or

Prior to the enactment by the people of the Eighth Amendment to the Constitution in 1983, there were serious doubts as to whether the approach to the law in Bourne’s case was consistent with the Constitution. In McGee v The Attorney General [1974] IR 284 Walsh J said:-

“any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”

Similarly, in the course of his judgment in Norris v The Attorney General reported in [1984] IR 36 but decided prior to the enactment of the Eighth Amendment, McCarthy J said:-

“for myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn is a sacred trust to which all the organs of Government must lend their support.”

Those views, essentially resting on the premiss that the right to life of the foetus is one of the unenumerated rights protected by Article 40.3.1o, were obiter. As will be seen, differing views were expressed in this court in X v Attorney General as to whether, prior to the enactment of the Eighth Amendment, the interpretation given in Bourne’s case to the 1861 Act represented the law in Ireland. All one can say with confidence at this stage is that the preponderance of judicial opinion would suggest that the Bourne approach could not have been adopted in this country consistently with the Constitution prior to the Eighth Amendment.

That amendment (contained in Article 40.3.3o) is as follows:-

This amendment was considered by the High Court and the Supreme Court in Attorney General (SPUC) v Open Door Counselling Limited, which was inevitably the subject of much discussion in the present case. The facts as found in the High Court and summarised in the judgment of Finlay CJ in this court are obviously of critical importance and are as follows:-

“The defendant Open Door Counselling Limited:-

(a) By its servants or agents, counsels in a non-directive manner pregnant women resident in Ireland and the counselling takes place in Dublin.

(b) Abortion or termination of pregnancy may be one of the options discussed within that counselling.

(c) If a pregnant woman wants to consider the abortion options further, this defendant will arrange to refer her to a medical clinic in Great Britain.

(d) This defendant’s servants or agents inspect the medical clinic in Great Britain to satisfy themselves that the clinic operates at the highest standard.

(e) At these clinics abortions have been performed on pregnant woman who have been previously counselled by this defendant.

(f) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years, including the months of November and December 1984.”

Broadly similar findings of fact were made in respect of the second named defendant in those proceedings, the Well Woman Centre Limited.

The relief given to the plaintiff in that case, as varied by the order of this court, was a declaration:-

“that the activities of the defendant, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40, s 3 sub-s 3 of the Constitution.”

An injunction perpetually restraining the defendants from so assisting pregnant woman was also granted.

In the High Court, Hamilton P, as he then was, expressed his conclusions (at p 617) as follows:-

“I am satisfied that the activities of both defendants, through their servants and agents amount to counselling and assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion. Are such activities unlawful having regard to the provisions of Article 40, s 3 sub-s 3 of the Constitution of Ireland?

“I have no doubt but that they are.

“In this Article the State acknowledges the right to life of the unborn and, with due regard to equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate such rights.

“I do not, in the circumstances of this case, have to have regard to the effect of ‘the equal right to life of the mother’ on the right to life of the unborn acknowledged by this Article.

“As I have already stated, that right to life of the unborn includes the right to have that right preserved and defended and to be guarded against all threats to its existence before and after birth, and that it lies not in the power of a parent to terminate its existence and that any action on the part of any person endangering that life was necessarily not only an offence against the common good but also against the guaranteed personal rights of the human life in question . . .

“The qualified right to privacy, the rights of association and freedom of expression and the right to disseminate information cannot be invoked to interfere with such a fundamental right as the right to life of the unborn, which is acknowledged by the Constitution of Ireland.”

Those conclusions were unanimously upheld by this court. Speaking for the court, Finlay CJ said:-

“It was not part of the facts of this case nor of the submissions of the defendants that the service which they were providing for pregnant woman in relation to the obtaining of abortions outside this jurisdiction was in any way confined to, or especially directed towards, the due regard to the equal right of life of the mother mentioned in the subsection of the Constitution which I have already quoted, and this portion of that subsection did not therefore arise for interpretation or decision in this case.”

The learned Chief Justice, having gone on to consider certain legal aspects of the case, not all of which arise for consideration in this case, went on to say that:-

On the issue which was of central importance in this case, he had this to say:-

“Alleged Constitutional Right to Information about the Availability of Abortions outside the State

“It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s 6, subs 1 of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child.”

After that case had been decided, the plaintiffs instituted the present proceedings. As is clear from the recital of the facts in the judgments already given, however, the activities of the defendants in these proceedings went considerably further than the form of counselling restrained in Open Door Counselling, consisting as it did of the publication and distribution of information as to the identity, location of and method of communication with specified abortion clinics in England. It will be necessary at a later point to refer to the judgment of Morris J on the plenary hearing in the High Court from which the present appeal is taken. Before doing so, however, the decision in Attorney General v X, which was pronounced after the grant of an interlocutory injunction by this court but before the plenary hearing in the High Court, must be considered.

The facts in that case are so well known that they need not be set out again. It was held by this court (Hederman J dissentiente), in allowing the appeal, that Article 40.3.3o permitted the termination of a pregnancy when it was established as a matter of probability that there was “a real and substantial risk” to the life of the mother if such termination was not effected. The majority rejected the submission advanced on behalf of the Attorney General that such a termination was only lawful if it was established that the continuation of the life of the foetus constituted a risk of ‘immediate or inevitable death’ to the mother. So to hold, it was said, would not be to have due regard to the equal right to life of the mother and, in such circumstances, it was not practicable to uphold the right to life of the foetus.

In the course of his judgment, Finlay CJ said:-

“In vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependant, with, in other instances, persons who are dependant upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life.

In that judgment, Finlay, CJ said that he was satisfied that, while it was the first objective of the courts in resolving any problem arising from the interaction of constitutional right to seek to harmonise them, there were instances where such harmonisation might not be possible, in which case it was necessary to apply “a priority of rights”. McCarthy J, while agreeing with the Chief Justice as to the “real and substantial risk to life” test, adopted a different approach to the question of resolving apparently conflicting constitutional rights, saying that, in his view, the authorities did not indicate

“a hierarchy of rights but, rather, the reconciliation of them.”

In agreeing with the conclusion of the Chief Justice as to the appropriate test to be applied in that case, he added:-

“this conclusion leads inevitably to the recognition that the wording of the amendment contemplates abortion lawfully taking place within this State.”

He also expressed a clear view, that, prior to the enactment of the Eighth Amendment, abortion, for any purpose, was unlawful.

O’Flaherty J, while agreeing with the “real and substantial risk to life” test, expressed no opinion on the “hierarchical” approach to competing constitutional rights. Egan J, while also accepting that test and that a hierarchy of constitutional rights existed, added:

“this cannot be taken to mean that an immutable list of precedence of rights can be formulated.”

It would appear that Egan J was of the view that Bourne’s case was the law prior to the enactment of the Eighth Amendment.

Hederman J dissented from the majority in holding that:-

“before that decision [to terminate a pregnancy] is taken it is obvious that the evidence required to justify the choice being made must be of such a weight and cogency as to leave open no other conclusion but that the consequences of the continuance of the pregnancy will, to an extremely high degree of probability, cost the mother her life and that any such opinion must be based on the most competent medical opinion available.”

He concluded that there had not been such evidence before the High Court in that case.

Hederman J, who conducted the most detailed analysis of the decision in Bourne’s case, was in agreement with McCarthy J that it did not represent the law in Ireland prior to the Eighth Amendment.

It remains to note that, in the course of his judgment, O’Flaherty J, observed that:-

“promotional propaganda in respect of abortions abroad is prohibited. The Attorney General (SPUC) v Open Door Counselling Limited [1988] IR 593. ” [Emphasis added]

The course of the proceedings in the present case, culminating in the judgment of Morris J in the High Court, have already been fully set out in the judgment of the Chief Justice. Some significant developments which followed that judgment must also be mentioned, although the extent to which they are relevant to the present proceedings is a matter for argument. In 1992, as the result of a referendum, the following additional paragraphs were added to Article 40.3.3o:-

“This subsection shall not limit freedom to travel between the State and another state.

The conditions referred to in the Fourteenth Amendment to the Constitution were purportedly prescribed by the Information (Services outside the State for the Termination of Pregnancies) Bill, 1995, which was passed by both Houses of the Oireachtas but referred to this court by the President for an opinion as to its validity pursuant to Article 26 of the Constitution.

The Chief Justice in delivering the opinion of the court (In Re: Article 26 of the Constitution and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill [1995] IR 1 said:-

“If the purpose of . . . travel or the securing of information is to procure an unlawful abortion, then it would be unlawful having regard to the provision of Article 40.3.3o of the Constitution, but if the purpose was the procurement of a permitted or lawful abortion, ie one that complies with the test laid down in Attorney General v X then neither the travel nor the giving or obtaining of information with regard thereto would be unlawful.”

Having considered the arguments advanced by two teams of counsel and the Attorney General, the court went on to uphold the validity of the bill which was then signed by the President and became law.

In the course of his judgment in this case, Morris J identified what he described as a “profound distinction” between the distribution of the information in the present case and the communication of that information to what he described as a “clearly defined and extremely restricted type of person identified in the test,” ie pregnant women coming within the criteria laid down in Attorney General v X. I think, however, that it is quite clear that, apart altogether from that distinction which he drew, Morris J would have considered himself bound by the decision of this court in Open Door Counselling Limited to grant the perpetual injunction sought in this case. He was undoubtedly correct in so holding, but the Defendants have submitted that the latter case was wrongly decided by this court and should be overruled. If that submission of the Defendants is not well founded, it would follow inevitably that the decision of Morris J should be upheld by this court. Accordingly, the first question that arises is as to whether that case was wrongly decided.

In approaching that question, it is necessary at the outset to examine the circumstances in which this court will exercise the freedom to depart from the strict application of the rule of stare decisis first referred to in The State (Quinn) v Ryan [1965] IR 70 and Attorney General v Ryan’s Car Hire Limited (1965) IR 642.

The Chief Justice has referred in his judgment to the following statement of the law by Henchy J in Mogul of Ireland Limited v Tipperary (North Riding) Co Council [1976] IR 260:

“a decision of the full Supreme Court . . . given in a fully argued case and on a consideration of all the relevant materials, should not normally be over-ruled merely because a later court inclines to a different conclusion.” [Emphasis supplied]

That statement, carefully worded as it is, was not intended, I would respectfully suggest, to apply to every invitation to this court to reconsider a previous decision, irrespective of the specific context in which the earlier decision was reached. Such an approach, in my view, would have more in common with the old unbending approach to stare decisis in this court than with the new found flexibility heralded by the State (Quinn) v Ryan. It is to be observed that Mogul of Ireland was a case concerning the interpretation of a particular statutory code affecting a limited and defined section of the community (those whose property had been maliciously injured and the local authorities obliged to compensate them), a construction which had been adopted and applied for many decades and had been unanimously upheld by the former Supreme Court. It was in that context that Henchy J observed:-

“even if the later court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies . . .”

The contrast with the present case is plain. In this case, the court is concerned with the constitutional rights, not merely of every woman of child bearing age and of the embryos and foetuses which they are carrying, but of the even wider range of citizens who will be affected, identified by Finlay CJ in the Attorney General v X in the passage to which I have already referred. The recent history of the jurisprudence of this court affords a number of instances in which the possible infringement of the constitutional rights of citizens or other weighty constitutional considerations have been seen as justifying a departure from earlier decisions of this court: see McGimpsey v Ireland [1990] 110 IR 129; The People v Kenny [1990] 2 IR 110; Finucane v McMahon [1990] 1 IR 165. It is true that, in some at least of those decisions, dissenting opinions had been voiced, whereas in Open Door Counselling the judgment of Finlay CJ was concurred in without reservation by the other four members of the court. I do not think, however, that the absence of dissent in the earlier decision can be regarded as foreclosing any further judicial determination of the issue at the level of this court, particularly when constitutional rights and their protection are in issue. So to hold would be seriously to encroach on the role of this court as the guardian of last resort of the Constitution and might oblige it to perpetuate an erroneous interpretation of the Constitution.

In considering the question as to whether Open Door Counselling was correctly decided, the complex and much debated problem presented by what appear to be conflicting constitutional rights inevitably arises. The “hierarchical” approach adopted in DPP v Shaw [1982] IR 1 at first sight presents an attractive solution to the problem, particularly where the right to life is involved. As Hederman J observed in Attorney General v X:

“the objective of protecting human life . . . is the essential value of every legal order and central to the enjoyment of all other rights guaranteed by the Constitution.”

What is at issue in this case, however, as it was in Open Door Counselling and Attorney General v X, is not the identifiable superiority of one constitutional right (such as the right to life) to another: it is whether the duty to protect and vindicate that highest of constitutional rights may sometimes have to be reconciled with the exercise of other constitutional rights and duties with which it is in conflict.

The right to life itself, in other words, is not an absolute right, as the Constitution itself acknowledges, by implicitly recognising the right of the State to provide for capital punishment: see Articles 13.6 and 40.4.5o. The same legal considerations underlie the right of the security forces of the State, in extreme circumstances, to take human life and the right of self defence involving, again in extreme circumstances, the killing of another human being, aspects of our law the constitutionality of which has never been challenged.

The task of the courts in cases such as the present, accordingly, is not simply to determine whether one constitutional right can properly be regarded as superior to another in the hierarchy of such rights. It is rather to decide whether, in the specific circumstances of a particular case, a constitutional right, such as the right to life of the unborn, can enjoy the protection which would normally be available to it, having regard to the paramount necessity to uphold the Constitution as a whole.

Those considerations apply with particular force in the present case where we are concerned with a provision of the Constitution which makes it clear that the right thereby acknowledged and guaranteed is protected only to the extent that such protection is consistent with “due regard to the equal right to life of the mother” and, in any event, only to the extent that its protection is “practicable”.

In this case, the court is concerned with the relationship between the right to life of the unborn and the right to communicate (and the corresponding right to receive) information rather than with that between the right to life of the unborn and the equal right to life of the mother.

It was held by Costello J as he then was, in Attorney General v Paperlink Limited [1984] ILRM 373 that what he described as “the very general and basic human right to communicate (information)” was not guaranteed by Article 40.6.1oi, dealing with freedom of expression, but was one of the unenumerated rights protected by Article 40.3.1o. It is a necessary corollary of that proposition that other citizens have a constitutional right to receive such information. As was pointed out by the court in the passage already cited in In Re: Article 26 of the Constitution and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995, even prior to the Fourteenth Amendment the obtaining of information with regard to permitted or lawful abortions was not unlawful.

The extract which I have already cited from the judgment of the learned Chief Justice in Open Door Counselling is, in my view, only consistent with the right to life of the unborn being regarded as an absolute right which must be protected in every case, notwithstanding the existence of other relevant constitutional rights. In the context of the present proceedings, it is necessary, at the risk of repetition, to refer again to the concluding sentence in that passage:-

“I am satisfied that no right can constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child.”

That unequivocally worded statement admits of no exception or qualification in the case of information afforded to pregnant women with a view to the obtaining of an abortion in circumstances where the purpose was the procurement of an abortion that complied with the test laid down in Attorney General v X. As a statement of the law, it is, in my respectful view, impossible to reconcile with the decision of this court in the Attorney General v X and the statement I have already quoted from the opinion of the court in In Re Article 26 of the Constitution and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill, 1995.

It is also noteworthy that the European Court of Human Rights have held by a majority that the injunction granted in Open Door Counselling was not consistent with the provisions of Article 10 of the European Convention on Human Rights and Fundamental Freedoms. That judgment is not, of course, in any sense binding on this court, but it lends, in my view, powerful support to the view that the comprehensive nature of the injunction granted cannot be reconciled with the right to communicate, and to receive, information relating to abortion in certain circumstances.

It was said that:-

“the court . . . struck by the absolute nature of the Supreme Court injunction which imposes a ‘perpetual’ restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v X & Ors and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court’s judgment in that case, were now free to have an abortion in Ireland or abroad. On that ground alone the restriction appears over broad and disproportionate . . .” [Open Door Counselling and Another v Ireland, 15 EHRR 244 at p 266.]

I agree that the decision of this court in Open Door Counselling should not be regarded as having decided any issues other than those which were expressly before the court. I would not, however, with respect, agree that the fact that no woman in the position of the defendant in Attorney General v X was a party to the case is a ground for treating the decision as confined in its application to cases other than those falling into the Attorney General v X category.

It is important to bear in mind the nature of the proceedings in Open Door Counselling. It was not an action between individual citizens involving only the application of principles of private law. It was a public law action instituted by the Attorney General (at the relation of the plaintiffs in the present case) raising far reaching questions of constitutional law which had never before been considered by the courts. Any rulings of law made by the High Court and implemented by declarations and injunctions were, to the extent that they were upheld by this court, binding, not merely on the defendants, but on every citizen in the land. I find it difficult to understand how, in these circumstances, the conclusion was reached that the portion of the subsection requiring “due regard to the equal right to life of the mother” did not arise for interpretation or decision in that case. The passage already cited from the judgment of the learned Chief Justice on one reading would suggest that this was the result of a concession by counsel on behalf of the defendants. (The report of the arguments of counsel for the defendants in that case, admittedly lamentably uninformative, contain no indication as to whether such a concession was made.)

The extent to which a decision is binding on other courts may sometimes depend on whether the point in question was the subject of argument in the decision under consideration. That does not arise in this case, where we are solely concerned with whether Open Door Counselling was correctly decided. I am satisfied that the exclusion from any consideration in that case of the words “with due regard to the equal right to life of the mother” led to a decision which was erroneous in point of law, ie that there could not in any circumstances be an implied and unenumerated constitutional right to information about the availability of the service of abortion outside the State which, if availed of, would have as a direct consequence the termination of a pregnancy. That statement of the law, is, in my opinion, inconsistent with the statement of the law in this court in X v The Attorney General, and the passage cited from the opinion of this court in Re: Article 26 of the Constitution and the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 and should not now be followed.

It has been emphasised in the present case that the defendants were not merely confining their activities to cases falling within the category identified in Attorney General v X but were also distributing the information “to the community at large and to university students in particular”, as it was put by Morris J. The decision in Open Door Counselling was not, however, confined in any way to the distribution of the information in that fashion, as Finlay CJ made clear on the hearing of an appeal from the refusal by Carroll J to grant an interlocutory injunction in the present proceedings, in the passage from his judgment already cited by the Chief Justice. It follows that even if the defendants had restricted their activities prior to the hearing in the High Court to the giving of information on a confidential one-to-one basis to any students who sought it, the High Court would have been obliged to grant an injunction, although one couched in different terms from the one under appeal.

The question remains as to whether this court should now substitute for the order granted in the High Court an injunction restraining the defendants from communicating the relevant information save in cases in which the person giving the information is satisfied that, as a matter of probability, there is a real and substantial risk to the life, as distinct from the health, of the mother.

It is at least questionable whether relief should be granted in that form when the High Court was never invited to make such an order and there has consequently been no hearing at first instance of the issue. However, even if one were to assume that this court could properly grant such an injunction, the question would arise as to whether it should be granted, having regard to the fact that a perpetual injunction is a discretionary remedy. No doubt that discretion is more likely to be exercised in favour of the plaintiff in a case, such as this, where the upholding of constitutional rights is in issue. There are, however, in this case, weighty factors which, in my view, would have to be taken into account in deciding whether such an injunction should be granted.

It would appear from the statement of the facts in Attorney General v X that, at the stage when her parents sought an abortion, the girl was — at the most — eight weeks pregnant. Would different considerations arise in a similar case if the foetus had developed to a point where it was viable outside the womb? Can the more expansive interpretation of “life” adopted in Bourne’s case ever be adopted at any stage of a pregnancy? What qualifications, if any, are required of a person before he or she determines that the risk to the mother’s life is of such a nature as to justify the giving of information? On what evidence is he or she entitled to reach such a conclusion?

In the Attorney General v X, McCarthy J said:-

“In the context of the eight years that have passed since the (Eighth Amendment) was adopted and the two years since Grogan’s Case [the present case] the failure by the legislature to enact the appropriate legislation is no longer just unfortunate: it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction . . .

“Since the amendment contemplates lawful abortion, how may the State still, as far as practicable, vindicate the right to life of the unborn? Legislation may be both negative and positive; negative, in prohibiting absolutely or at a given time, or without meeting stringent tests; positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly at least, the role of the legislature. The courts are not equipped to regulate these procedures.”

The 1995 Act provides no answers to any of these question and was clearly not designed so to do. Almost five years have elapsed since that judgment was delivered and successive governments have failed to introduce any form of statutory regime. It is not the function of this court to supplement this governmental and legislative inertia by the making of orders so uncertain and fraught with difficulty.

Apart altogether from the reasons which I have already given, there are other matters to be taken into account in deciding whether the declaration and injunctions granted by the High Court in this case should be upheld. In Attorney General v X, differing views were expressed by the members of the court as to whether the right to travel of the Plaintiff was abridged to an unconstitutional extent by the injunction granted by the High Court in that case. Since those observations were obiter (as was made clear by the learned Chief Justice in that case), it is open to this court without any departure from stare decisis to choose between the differing views. I would prefer the view of McCarthy J and O’Flaherty J that it did impermissibly violate the Plaintiffs right to travel.

That right, as found by Finlay P (as he then was) in the State (M) v Attorney General [1979] IR 73 is one of the hallmarks of a democratic society which distinguish our State and others from totalitarian regimes. While it has been pointed out by the learned editors of Kelly on The Irish Constitution (3rd Edtn at pp 809/10) that the word “freedom” rather than “right” is used in the Fourteenth Amendment, arguably implying that there was no corresponding duty on the State to protect that freedom, I would take the view that a harmonious interpretation of the Constitution would suggest that such a construction was not open to the courts. Whether it be a right or a freedom, however, it can be exercised for a huge range of purposes. One such purpose is availing of abortion facilities in other States applying different laws. If that decision results in the termination of a pregnancy in circumstances where the Irish Constitution would have outlawed the procedure in question, it follows that the right to life of the unborn acknowledged by the Constitution is not protected by our laws in that particular case. That, however, is a necessary consequence of living in a democratic society. It follows inevitably that to deny the woman concerned the information which enables her to exercise that decision is to violate her constitutional freedom to travel and is, in addition, a clear encroachment on the right of people to communicate and receive information, an aspect of freedom of expression which is also of fundamental importance in every democratic society.

If one were to reach the conclusion that the granting of the injunction in the High Court was correct, it would be necessary to consider whether the injunction should nevertheless be discharged, having regard to the provisions of the Fourteenth Amendment and the 1995 Act. That, on the view I take of this case, is a matter which does not now arise and was not, in any, event fully argued. I accordingly express no opinion on that matter.

I would allow the appeal.

A. and B. v. Eastern Health Board

[1998] 1 I.L.R.M. 460

GEOGHEGAN J

Introductory
This is an application brought pursuant to leave granted by Flood J for judicial review of an order of the District Court made by Judge Mary Fahy on 21 November 1997 in proceedings under the Child Care Act 1991 between the Eastern Health Board as applicant and the above named A. and B. and the above named C. as respondents though under different initials. The primary relief sought is the quashing of the said order of the District Court but there are a number of consequential injunctions and declarations also sought. Essentially, however, the allegation is that the district judge had no jurisdiction to make the order which she did make. The relevant proceedings in the District Court took the form of an application by the Eastern Health Board for an interim care order in respect of a 13 year old girl, the above named C., who is the child of the marriage of the above named A. and B. The jurisdiction to grant the interim care order arises under s. 17 of the Child Care Act 1991. Subs. (4) of that section provides as follows:

Where an interim care order is made, the justice may order that any directions given under s. 13(7) may remain in force subject to such variations, if any, as he may see fit to make or the justice may give directions in relation to any of the matters mentioned in the said subsection and the provisions of that section shall apply with any necessary modifications.

S. 13(7) of the 1991 Act allows a court when making an emergency care order under s. 13 to give directions in relation to a number of specified matters. One of those specified matters is:

The medical or psychiatric examination, treatment or assessment of the child.

The application for the s. 17 interim care order in this case was successful but the court was asked to exercise its power under s. 17(4) and make a particular direction allegedly in respect of ‘the medical … treatment … of the child’. The directions applied for and made took the following form:

An order pursuant to ss. 13(7)(a)(iii) and 17(4) of the Child Care Act 1991

(i) directing that the child [C.] be permitted to proceed to such place as may be appropriate for the purpose of securing treatment, to wit, a termination of her pregnancy;

(ii) directing that the said [C] be afforded the said treatment, to wit, the termination of her pregnancy;

(iii) directing that the Eastern Health Board, its servant or agent be permitted to execute all such documents whether in respect of consent to the said treatment being afforded to the said child or otherwise as may be necessary or incidental to the child receiving the said treatment or such further treatment or examination as may be advised by her medical advisers;

(iv) directing that the said child be afforded such further treatment(s) and/or examination(s) as may be advised by her medical advisers;

(v) permitting the Eastern Health Board to make all such arrangements as may be required to facilitate the implementation of these directions forthwith.

No attack is being made on the interim care order. That order was only to last till today but, as I understand it, there is agreement between all the parties that it would be renewed. Furthermore, in case there should be any doubt about the continued operation of the directions there is to be consent of all the parties this morning and on a ‘without prejudice’ basis to those directions being continued or renewed. I emphasise that this was being done by agreement and not by any authority coming from this Court because, of course, until this judgment is delivered this Court could not express any view on the validity of the order giving the directions sought to be impugned and therefore could not expressly authorise a repeat order. But for the reasons which I have indicated the above list of directions is still prima facie in force.

Grounds of application
The challenge to the directions of Judge Fahy is made on 16 grounds as set out in the statement of grounds for judicial review. But I think that these grounds can be neatly summarised as follows:

1. That the applicants who, at the stage of the District Court hearing were opposed to the proposed abortion, did not get a fair hearing.

2. That the expression ‘medical or psychiatric examination, treatment or assessment’ could never be interpreted to include a termination of pregnancy whether lawful or unlawful.

3. That an interpretation of those words which included a termination of pregnancy or even only a lawful termination of pregnancy necessarily involved construing the statutory provisions and that that task in turn necessarily involved consideration of conflict between and the reconciliation of different constitutional rights, an exercise which the District Court allegedly is not empowered to do.

4. That if the expression ‘medical or psychiatric examination, treatment or assessment’ does cover terminations of pregnancy whether lawful or unlawful the relevant statutory provision is invalid having regard to the Constitution on the grounds that such a provision would then be an unjust attack on the right to life of the unborn child and on the constitutional authority of the family and would also be a breach of the State’s guarantee to respect the inalienable right and duty to provide for the moral education of C.

5. That she failed properly to have regard to the rights and duties of parents as she was obliged to do under s. 24 of the Child Care Act 1991 or alternatively if the judge correctly construed that section and her powers under it, it is unconstitutional.

6. That the judge in her judgment had held that the evidence before her failed to satisfy the tests set down in the Attorney General v. X. [1992] 1 IR 1; [1992] ILRM 401 but that she nonetheless made the direction sought.

Representation
As these proceedings have been held in camera and as media reports as to the nature of representation have not been entirely accurate, I think I should explain what parties were represented and in what capacity. Mr Iarfhlaith O’Neill SC and Mr Bernard McDonagh appear for the parents, A. and B., of the child C. and they are the applicants in the proceedings. Mr Durcan SC and Mr McDermott, appear for the child in care, C. Mr McDowell SC and Ms Stewart appear for the health board and there are then two sets of counsel appearing for the Attorney General. When granting leave Flood J had thought it proper that the Attorney General should be given notice and at any rate he would have had to be made a notice party once there was a challenge to the constitutionality of any post 1937 statutory provision. Mr Donal O’Donnell SC and Mr Barniville have been in structed by the Attorney General for this purpose and for the purpose of assisting the court in the constitutional interpretation of the statutory provisions generally. Mr James O’Reilly SC and Mr Shane Murphy have been instructed by the Attorney General to represent the unborn child whose rights are being asserted in the case.

Grounds of opposition
The application has been opposed by counsel for C. on the grounds that the procedures in the District Court were fair to the applicants and that the relevant statutory provisions are constitutional but more importantly Mr Durcan contends that the expression ‘medical treatment’ must necessarily include termination of pregnancy in all circumstances but at the very least it must include it in the circumstances of this case having regard to medical evidence that termination of pregnancy was in the interest of C. He then goes on to argue:

1. That the district judge had found as a fact that there was a real and substantial risk to the life of the mother and that she was likely to take her own life if she was not allowed to terminate her pregnancy and that this danger of suicide was not otherwise preventable. Such a finding, of course, if established would bring the case within the principles laid down by the Supreme Court in Attorney General v. X. [1992] 1 IR 1.

2. That if he was wrong in that submission, then pursuant to the so called ‘travel amendment’ incorporated into Article 40.3.3° of the Constitution, the judge was lawfully permitting the child C. to travel to another jurisdiction to have an abortion. Mr McDowell and Mr O’Donnell have essentially adopted the first of these arguments and adopted a neutral stance on the second or in the case of Mr O’Donnell it might now be more accurate to note that he did not see any reason to argue the point as he did not think it arose.

Background facts
The young girl C. is now 13½ years of age. She was brutally raped by an adult male on 27 August 1997 and became pregnant as a result. She is a member of the travelling community and one of a family of twelve. The evidence before the District Court indicated that she lived in particularly squalid conditions which were quite unlike the conditions in which most travelling people lived. The alleged rapist is also of the travelling community and a long-standing friend of the family. It is not necessary to go into the facts in too much detail. It is sufficient to say that the girl was very severely traumatised by the rape and that there was a well-founded view that the behaviour of her parents, the applicants A. and B. after the rape did not correspond in various respects to the kind of behaviour one would expect of parents in such appalling circumstances. It was in this context that temporary care orders were sought and made, though no permanent care order has yet been made. With the approval of the parents the girl C. has been with a foster mother who has her own family some 50 miles away. The foster mother is a loving and caring person and would be happy to support and abide by the wishes of C. in relation to her baby, that is to say the foster mother would be supportive of a decision to keep the baby or a decision to have an abortion. The girl at all times has wanted to have an abortion because she is quite unable to relate to the baby inside her and cannot accept and claims that she will never accept that that baby is really hers. For quite some time the parents and particularly the father were not only supportive of the idea of an abortion but were advocating it. They had doubts about this at times however and ultimately changed their minds and opposed any idea of termination of pregnancy. It is clear from the evidence in the District Court that although the mother is now absolutely opposed, the father’s opposition is qualified and that he would favour it if otherwise his daughter was going to take her own life.

The District Court hearing took place on Friday, 21 November 1997. But as late as the previous Tuesday, i.e. Tuesday, 18 November it had been decided with the approval of the parents and indeed encouragement of the parents that the health board would not seek a further interim care order but that instead the parents would undertake to leave the girl with the foster mother and would permit the foster mother to travel to England with the girl so that she could have her pregnancy terminated in England. Very properly Mr Durcan SC, counsel for the girl and who had only just been instructed, asked for a short adjournment first to enable him to discuss the matter with his client and make absolutely sure that that was her wish. That was done and Mr Durcan confirmed that it was her wish but in the meantime and it would appear as the result of outside influence, the parents changed their minds, discharged their solicitors and counsel and engaged new solicitors and counsel with a view to opposing any abortion. The first inkling of this change of mind came on Wednesday, 19 November in Judge Fahy’s court when the father, who at that time was still being represented by his original counsel Mr Coleman Fitzgerald, personally informed the court that he was now opposing the abortion. He was told by Judge Fahy that all of these matters would be gone into at a full hearing on the Friday and that she was clearing her list so as to devote Friday to the case. The importance of this is that Mr Durcan and Mr McDowell strongly argued that at the very latest from that Wednesday, the applicant B. was aware that the question of a proposed termination of pregnancy would be aired in court on the Friday. It is true however, that although an application for the interim care order and unspecified directions was served on the Thursday night on the applicants, no notice was given of the particular directions sought to accompany the care order until the Friday morning in court when the applicants were represented by their new counsel, Mr O’Neill.

The applicants’ case
At this point it is appropriate to deal in turn with each of the grounds on which the applicants seek to impugn Judge Fahy’s order. As I have already indicated the first of these grounds is that the applicants were not given a fair hearing. There are several respects in which this is alleged. They are:

1. That Mr O’Neill was unable to do proper justice to his client’s case, in that he had no knowledge that an authority to terminate the pregnancy was being sought until the morning of the hearing.

2. That the District Court judge refused his request to make a direction under s. 17(4) of the Child Care Act 1991 that C. be assessed by a psychiatrist nominated by the applicants.

3. That an application made in the late evening for a short adjournment until the Monday to enable the applicants’ lawyers consult with a psychiatrist in order to be in a position to challenge the psychiatric evidence before the court was refused.

4. That a stay on the order pending an appeal was also refused.

There can be no doubt that in a conventional situation it might be a breach of fair procedures to embark upon the hearing of an application for an important order when the complaining party had had no prior notice of the particular order sought. But the situation in this case was exceptional. Quite a long period had already elapsed from the commencement of the pregnancy and if there was going to be a termination it was essential that the matter be dealt with as quickly as possible. Whatever of his counsel, the applicant B. for the reasons which I have indicated and I have little doubt his wife as well would have been well aware that the question of the termination of pregnancy was a very live issue and had become all the more so as a result of their change of mind and it had been indicated to them that it would be dealt with on the Friday. Furthermore, the proceedings in my view under the Child Care Act are in the nature of an inquiry rather than adversarial in nature. The judge was entitled to take the view that as the girl had been assessed by two psychiatrists, one on behalf of the health board and one on behalf of the girl herself, she was entitled to proceed with the hearing. It might of course have been a different matter if it was appropriate for her to have acceded to the parents’ application to have the girl assessed by yet another psychiatrist. This indeed is the second ground of objection. She did not accede to that request and in my opinion quite rightly so. There was evidence before her that further investigations either by a new psychiatrist or indeed by the psychiatrists who had already questioned C. were not in the interests of C.’s own mental health. The court had the benefit of two very reputable psychiatrists, Dr McCarthy and Dr Gerard Byrne the paediatric psychiatrist who regularly gives evidence in the family courts. The judge was entitled in my view to decide what witnesses were necessary for her to make up her mind what was in the best interests of the child, while of course giving a fair hearing to all relevant parties. She did this, in as much as she heard the evidence of each of the applicants. She did not think it desirable that another psychiatrist should be introduced into the case and I believe that not only was she entitled to take that view but that it was the correct view. In expressing the view that the proceedings should be regarded as an inquiry rather than as a lis inter partes I find support in the judgment of O’Flaherty J in Southern Health Board v. C.H. [1996] 1 IR 219; [1996] 2 ILRM 142. Having regard to the clear urgency of the matter the judge was entitled also to proceed with the case notwithstanding the late notice of the direction sought.

The third of Mr O’Neill’s procedural objections is rather different and I believe it to be well-founded. Towards the end of a very long day of hearing Mr O’Neill applied to the judge that he should have the benefit at least of a short adjournment until the Monday so that he could consult a psychiatrist with a view to cross-examining Dr Byrne. In my view she wrongly and unreasonably refused that application as, although the matter was urgent, there had to be a balance between the urgency and the adoption of fair procedures. It was obvious that this case was at any rate going to end up in the High Court and the Supreme Court. In other circumstances and in a different type of case this Court might take the view that the order ought to be quashed and that the matter be sent back to the District Court for further hearing because of the refusal of that adjournment. But certiorari is a discretionary remedy and I am quite satisfied that in all the circumstances of this case, including the nature of the hearing which did in fact take place and the absolute urgency for finality and the firm belief that even if such an adjournment had been granted it would have made no difference to the order made by the district judge, that as a matter of discretion I ought not to quash the order on this ground.

The fourth procedural objection of Mr O’Neill’s is not sustainable in my view. The judge had a discretion whether to grant a stay or not. She chose not to do so but even if she ought to have done so the applicants have not suffered in that they went the route of judicial review and got an immediate leave accompanied by an injunction in the form of a stay from Flood J. I therefore refuse to quash the order of the District Court on any of the natural justice grounds.

I now turn to the second main ground of challenge as summarised above. This is the question of the interpretation of the expression ‘the medical or psychiatric examination, treatment or assessment of the child’. Mr O’Neill argues that the expression ‘medical treatment’ could never include termination of pregnancy. I disagree. Mr Durcan has drawn my attention to the fact that in the English abortion legislation, termination of pregnancy is regarded as a medical treatment. I do not think much importance can be attached to that as there could have been political and other reasons for such definition. But where a psychiatrist as in this case gives strong evidence to the effect that a child is likely to commit suicide unless she has a termination of pregnancy, that termination of pregnancy which is a medical procedure is clearly in my view also a medical treatment for her mental condition. It is not necessary therefore to consider whether all terminations of pregnancy come within the expression ‘medical treatment’. I am satisfied that on the facts of this case it would come within that expression. At this point it might be useful to refer briefly to some of the relevant evidence of Dr Byrne. In answer to question 336 in the transcript i.e. ‘Did she go any further in regard to what her intentions were if she did have a child?’ he replied that she said ‘I would kill myself if I had the child’. He explained that he asked her why she might do that and she replied ‘Because it is not my child’. He then went on to say that she was very vehement when she said that. At question 364 Dr Byrne was asked did he form any clinical judgment in regard to her thoughts about suicide, he said that he did and that he felt they were real and he further felt that if she did not achieve the termination of the pregnancy that she would act on them. When asked about the degree of the risk, he said it was a very significant risk and he had very little doubt about that. When he was asked at question 374 how great were his fears for her, he said they were very great but the threat was to her life. In answer to question 376 he said that the risk of suicide was becoming more immediate because as time went on she was getting less and less able to deny the existence of the pregnancy. It was becoming more and more real that up to now she has been able to avoid facing up to it in the hope of having the termination carried out and that if that did not happen the suicidal risk was immeasurably increased making the termination a matter of urgency.

At question 381 Dr. Byrne said there was an urgent situation because of the suicidal risk which was an immediate risk. At question 392 Dr Byrne was asked about time scales. He said that the termination of pregnancy should take place as soon as possible. Although agreeing that therapy was required, Dr Byrne also made it clear in answer to question 395 that he was still of the view, whether there was therapy or not, that the termination of the pregnancy was the priority. In the light of this evidence coming from a consultant psychiatrist including the advice that she undergo medical procedures involving the termination of her pregnancy because of her suicidal tendencies, such medical procedures must, in my view, constitute ‘medical treatment’ within any normal definition. I am therefore of opinion that the direction of Judge Fahy did involve medical treatment and came within the statutory provision.

This brings me to the next main ground of challenge put forward by Mr O’Neill. He says that if a termination of pregnancy was ever to be included in the expression ‘medical treatment’ which he disputes, it could only be a termination of pregnancy which was lawful, having regard to the Irish Constitution, and that in order to consider whether such termination was constitutional or not the District Court judge would have to reconcile different rights under the Constitution including above all the right of the unborn and would have to deal with conflicts of rights. He seems to think that that is not appropriate for the District Court and certainly not an exercise that should be done in the context of an application to the District Court under the Child Care Act 1991. I agree with the arguments put forward by Mr McDowell, Mr Durcan and Mr O’Donnell that underlying that submission of Mr O’Neill is a misconception as to the powers and jurisdiction of the District Court. The District Court is a court established under the Constitution. Its judges are sworn in to uphold the Constitution. In relation to every matter that a District Court judge decides, he or she must always be conscious of the Constitution and rights under it. The only constitutional area in respect of which there is no jurisdiction in the District Court is the question of the validity of any statutory enactment having regard to the Constitution. That function is peculiarly reserved to the High Court or on appeal to the Supreme Court. But every other area of the Constitution comes within the province of both the District Court and the Circuit Court in the carrying out of their ordinary jurisdictions. Far from considering that a District Court judge dealing with applications under the Child Care Act 1991 is an inappropriate court to determine whether in any given case a termination of pregnancy should occur, I think that the opposite is the case. If anything, with the regular experience of dealing with children and their welfare, he or she may well be better equipped than a judge of the High Court. Furthermore, I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in the High Court. The High Court undoubtedly has a function in granting injunctions to prevent unlawful terminations taking place and it may in certain circumstances properly entertain an action brought for declarations and consequential orders if somebody is being physically prevented without just cause from having a termination. But it would be wrong to turn the High Court into some kind of licensing authority for abortions and indeed it was for this reason that I have rejected a suggestion made by Mr Durcan in this case that I should effectively convert the judicial review proceedings into an independent application invoking the inherent jurisdiction of the High Court and grant leave for such a termination to take place. I took the view that the case should continue in the form of a judicial review and nothing more. The Child Care Act is a perfectly appropriate umbrella under which these questions can be determined. I therefore wholly reject the argument that a termination of pregnancy could not be included within the expression ‘medical treatment’ because it would involve the consideration of various constitutional rights which is not the province of the District Court.

It is obvious from what I have already said that I totally reject the fourth and alternative ground of challenge put forward by the applicants, namely, that the relevant statutory provisions under the Child Care Act under which this direction was made are unconstitutional. In this regard I accept and adopt the arguments that have been made in court for the upholding of the constitutionality of those provisions and particularly the arguments of Mr O’Donnell, counsel for the Attorney General.

The next main ground of challenge is a somewhat related one. S. 24 of the Child Care Act 1991 provides as follows:

In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall —

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.

It is suggested that in disregarding the wishes of the applicants the judge failed in the application of s. 24 to have proper regard to the presumption that the paramount welfare of the child and her unborn child is best served by the care and control of the applicants as her parents contrary to the guarantee given by the State to protect the family in its Constitution. The first point to be made is that in relation to the unborn child the applicants would be grandparents and they have no constitutional rights as such but they would, prima facie, of course, have rights in relation to their daughter. However, it is quite clear from the transcript that full regard was given to the rights and duties of the natural parents. First of all the judge took the view and was entitled to take the view that the parents were neglectful parents and that the child should properly be in temporary care and secondly, not only did the judge listen to the evidence of the father B. but she specially asked that the mother A. should give evidence. It is clear that she listened to and absorbed the submissions made to her in relation to the X. case. It is perfectly obvious, in my view, that she would have had regard to the constitutional right to life of the unborn, though it is not an absolute right. Under s. 24 the court must undoubtedly regard the welfare of the child as the first and paramount consideration and must give due consideration to the wishes of the child but it must do so within a constitutional framework and there is nothing whatsoever in s. 24 to indicate that the court is to ignore the right to life of the unborn conferred by the Constitution. Accordingly, there can be no question of s. 24 being invalid, having regard to the Constitution, which is the alternative claim.

The last ground of challenge relates to the actual findings of the judge. Mr O’Neill argues that she did not find that as a matter of probability, there is a real and substantial risk to the life of C. which can only be avoided by the termination of her pregnancy but that rather she made her order without regard to the X. case and in the belief that she could make it pursuant to ‘the travel amendment’.

Judge Fahy heard this case over many hours on the one day and gave judgment that evening. It is perfectly understandable that when the judgment was not reserved it could contain an unintended ambiguity, as I think there is in this case but I do not say that by way of any criticism of the District Court judge who obviously prepared it under great pressure. What has given rise to the controversy is the wording of the following two paragraphs in the judgment which follow criticism of the parents:

Therefore I am not satisfied that their daughter’s welfare is the most important consideration for them. Having talked to [C.] and having regard to the professional medical evidence from Dr McCarthy and Dr Byrne, I am of the opinion that the test as set down in the X. case has not been met, as I do not believe that the threat of suicide is imminent.

However, I am satisfied that if the pregnancy is allowed to continue the risk will increase substantially and therefore I make the order that the child be afforded the right to travel to another jurisdiction to avail of the facility of termination of her pregnancy, with all ancillary services to include counselling for her to be provided.

Those two passages in her judgment must be put in the context of the evidence as a whole with special reference to the evidence of Dr Byrne and also to the legal submissions made to the judge by counsel. When she says that the threat of suicide is not imminent, I am satisfied that she is not intending to say anything different from what Dr Byrne had said in evidence. What she is saying is that it is not immediately imminent and of course it is not required by the X. case that the danger of suicide be immediate or imminent. But importantly she goes on to say that she is satisfied that if the pregnancy is allowed to continue the risk will increase substantially and I think that the use of that word ‘substantially’ was deliberate and intended to correspond with the wording of the test under the X. case. It is true that she does refer to Dr McCarthy as well as Dr Byrne. Dr McCarthy had carried out an assessment which was largely directed at competency and was never directed at the question of whether the girl had suicidal intentions. Although it did not occur to him that she could have suicidal intentions, he did not in any way demur from the report and evidence of Dr Byrne. When one reads the transcript as a whole, including the various interjections by the judge, I cannot interpret those passages in the judgment as being tantamount to saying that the grounds for a lawful termination of pregnancy in Ireland do not exist and that the termination of pregnancy can only take place in a foreign jurisdiction pursuant to an alleged right to travel. I am bound to say that on a reading of the transcript of the evidence, I fail to see how any judge could have avoided the conclusion that as a matter of probability there was a real and substantial risk to the life as distinct from the health of C. which could only be avoided by the termination of her pregnancy and I do not interpret Judge Fahy as coming to any different conclusion. I believe that her reference to ‘imminent’ related in part to the answer which Dr Byrne gave to question 332 in which he said that he had asked C. if she had any immediate intent of killing herself with a knife and she had said that she did not and partly also from the evidence of Dr Byrne to the effect that the suicidal intention would become real and immediate once she realised a court was not going to permit termination of her pregnancy.

The acceptance by the judge of the medical evidence is further indicated by her question to B. when he gave evidence at question 494:

Q.Do you accept anything of the evidence that was given by the medical people here. I am sure that you listened to it?

A.I did and I accept quite a lot of Dr Byrne’s evidence. It was quite sufficient to me and he seemed to be a very educated man. I took a lot of it in and I know what he is talking about. The little girl herself is talking suicidal and I know if she says something it is more likely that there is a danger that she will do it. She is headstrong and that is being honest with you. She is headstrong, but at the same time if we can avoid an abortion, if she is counselled a bit more and given a little bit more help let her have the baby if she can have it and if not then go for the abortion.

However, A. then gave evidence to the effect that she did not believe that if the child was back with her parents she would be suicidal. All the indications from the transcript, however, are that Judge Fahy accepted the evidence of Dr Byrne. An example of this is at p. 137 of the transcript where the judge, in dealing with submissions by Mr O’Neill, says the following:

Well as I understand that medical evidence, I understand what the doctor said was that the threat of suicide would increase as the pregnancy progressed.

As I have earlier indicated, Mr Durcan argues that even if the learned District Court judge was not holding that there was a substantial risk of suicide which could only be avoided by the termination of the pregnancy, she was still lawfully entitled to make an order in all the circumstances permitting C. to travel to another jurisdiction to have an abortion. His argument is that as a result of ‘the travel amendment’, the child, in the care of her parents, can be brought to England by her parents to have an abortion on one of the grounds for which abortions are carried out in England. He says that if that is so, why should a child who is in care be disadvantaged and be not permitted to do so. He concludes from that, that a District Court judge, exercising the jurisdiction under the Child Care Act, could authorise such travel. While of course I see the force of his argument and the anomaly in the eyes of a layman (though possibly not in the eyes of a lawyer), which arises if he is wrong. On the other hand, Mr O’Neill points out that some pregnant children who might want an abortion in England would not be allowed to travel to have it by their parents whereas others would be and therefore he says that there is not necessarily anything unique about a child in care being prevented from doing so. Whether it throws up an anomaly or not, I cannot really accept Mr Durcan’s argument in this regard. The original part of Article 40.3.3° of the Constitution reads as follows:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.

If there had not been the two amendments, that provision of the Constitution quite clearly not merely prohibits abortion but gives a positive right to life to the unborn, subject only to the exception where the mother’s life is endangered. The so called travel amendment provides as follows:

This subsection shall not limit freedom to travel between the State and another State.

This amendment is framed in negative terms and must, in my view, be interpreted in the historical context in which it was inserted. There was, I think, a widespread feeling in the country that a repetition of the X. case should not occur in that nobody should be injuncted from actually travelling out of the country for the purpose of an abortion. It must be remembered that three out of the five judges of the Supreme Court took the view that in an appropriate case a travel injunction could be granted. It was in that context, therefore that the amendment was made and I do not think it was ever intended to give some new substantial right. Rather, it was intended to prevent injunctions against travel or having an abortion abroad. A court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must, I believe, be confined to considering the grounds for termination which would be lawful under the Irish Constitution and cannot make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose. I think that the view which I have taken conforms with the view of the Supreme Court in Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1; [1995] 2 ILRM 81 and as expressed in the judgment of Hamilton CJ at pp. 47/110. The Chief Justice says the following:

As already stated, the effect of the decision of this Court and the judgments of the majority of the court in the Attorney General v. X. [1992] 1 IR 1 was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother’s pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40.3.3° of the Constitution.

The position as therein set forth is unaltered by either the provisions of the thirteenth or fourteenth amendment to the Constitution or of the Bill.

The provisions of the thirteenth amendment are the provisions relating to travel. Mr Durcan in his argument relies particularly on the judgment of Keane J in the Supreme Court in Society for the Protection of Unborn Children Ireland Ltd v. Grogan Supreme Court 1992 No. 317, 6 March 1997 where at p. 34 Keane J says the following:

Apart altogether from the reasons which I have already given, there are other matters to be taken into account in deciding whether the declaration and injunctions granted by the High Court in this case should be upheld. In Attorney General v. X., differing views were expressed by the members of the court as to whether the right to travel of the plaintiff was abridged to an unconstitutional extent by the injunction granted by the High Court in that case. Since those observations were obiter (as was made clear by the learned Chief Justice in that case), it is open to this Court without any departure from stare decisis to choose between the differing views. I would prefer the view of McCarthy and O’Flaherty JJ that it did impermissibly violate the plaintiff’s right to travel.

Keane J then goes on to refer to the importance of the right to travel as a constitutional right and as discerned by Finlay P (as he then was) in State (M.) v. Attorney General [1979] IR 73. But the fact that there may be different views as to the importance of the constitutional right to travel does not in my view affect the issue of whether the District Court under the Child Care Act 1991 can actually exercise a jurisdiction authorising travel for a particular purpose, namely, for an abortion in circumstances where the proposed abortion would not be allowed under Irish law. I think that the court would be prevented from doing so by the terms of the right to life of the unborn expressed in the Constitution and as the Supreme Court has held, unaffected by ‘the travel amendment’.

But, as I have at any rate taken the view that the termination of pregnancy which was authorised by Judge Fahy was one which, both in her view and in my view, was lawful under the Irish Constitution, the question which I have just been discussing does not arise. But in case, as seems likely, this judgment is appealed to the Supreme Court, I think I should make clear that while I am refusing the judicial review sought for the reasons which I have indicated, I would have taken a different view and would have granted the order if contrary to my view on a true analysis the effect of the order is to authorise an abortion outside Ireland of a kind which would not be in conformity with the Irish Constitution. In the event, however, I refuse the orders and reliefs sought.

n vitro.

E v Minister for Justice, Equality and Law Reform

[2008] I.E.H.C. 68

JUDGMENT delivered by Ms. Justice Irvine on the 4th day of March, 2008
The applicant in these proceedings was born in Ireland on the 24th March, 2006. The applicant’s father, O. E., is a Nigerian national, who was born on the 10th January, 1985. The applicant’s mother (“AH”) is an Irish citizen, who was born on the 4th June, 1986 and who at all times has resided in Ireland.
The within proceedings arise as a result of a refusal by the respondent on the 15th March 2006 to revoke a deportation Order which he had earlier made in respect of the applicants father on the 14th March 2006. In making his said decision the respondent was exercising the Statutory powers afforded to him under s. 3 of the Immigration Act 1999 (“the Act”). The applicant was granted leave by the High Court to apply for judicial review in respect of that decision on the 7th July 2007.

Historical Background
O. E. came to Ireland as an unaccompanied minor of 17 years of age on 26th February, 2002. O.E. thereafter applied for refugee status on 14th March, 2002 but was not granted asylum notwithstanding an appeal to the Refugee Commissioners.
On 21st January, 2005 a deportation order was signed by the respondent and O.E. was deported back to Nigeria on the 14th March 2005. O.E. has maintained that following his deportation, he was detained and imprisoned in Lagos where he alleges he was alone and without support. At all times O.E. has contended that his father was shot on religious ground in Nigeria and that thereafter he became dislocated from his mother and extended family.
As a result of significant media controversy and in particular petitions by his schoolmates from Palmerstown Secondary School, the respondent on 24th March, 2005 revoked the deportation order and permitted O.E. to return to Ireland on a study visa with permission to remain until 30th September, 2005 so as to complete his Leaving certificate. Accordingly, O.E. arrived back in Ireland on the 1st April, 2005.
The affidavits in this application suggest that the applicant’s father started dating AH in early April 2005 and that following four months of that relationship AH became pregnant with an unplanned pregnancy. On the 1st September, 2005 O.E. was notified that his permission to remain in Ireland was due to expire on the 30th September, 2005 and he was invited to make representations regarding his status. On the 15th September, 2005 O.E.’s solicitors sought an extension of time to deliver submissions on his behalf and by letter dated the 23rd September, 2005 O.E. was granted until the 14th October, 2005 to make representations. Further O.E.’s visa was extended for an additional period of twenty eight days.
On the 28th October, 2005 O.E.’s solicitors made representations to the respondent. Included within that submission was an assertion that O.E. would not be safe if repatriated to Nigeria and that he would be persecuted. Humanitarian reasons were also advanced on behalf of O.E. and significant emphasis was placed upon the extent of his connections with Ireland at that time.
By letter dated the 3rd November, 2005 the respondent sought confirmation that the submissions made on behalf of O.E. were complete and a letter on the 4th November, 2005 from O.E. solicitors confirmed that this was so. It is common case that O.E.’s solicitors made no mention of AH or her pregnancy. At that time AH, it is asserted, had not advised her parents of the pregnancy and consequently O.E.’s solicitor made no disclosure of these facts in the representations made on his behalf. Included with the submissions was O.E.’s own life story written by him setting out details of his life in Nigeria prior to arriving in Ireland as an unaccompanied minor, his account of what occurred following his deportation to Nigeria in March 2005, and details of his plans to study and support himself through further education in Ireland. No mention was made of any relationship with AH.
A chronology of the events leading up to the decision the subject matter of these judicial review proceedings is set out in the memorandum of Amanda Carolyn, Clerical Officer to the Repatriation Unit of the department dated the 8th March 2006 and which memorandum is exhibited at “EO 2” in O.E.’s Affidavit. This exhibit reveals that on the 20th January, 2006 the respondent decided to reject the submissions made on behalf of O.E. and he was immediately by letter of the 24th Jan 2006 notified of this fact. He was also advised of the Minister’s reasons for his proposed deportation. The reasons given were:-
1. The original permission to remain in the State was for the purpose of having an asylum application processed and that this was unsuccessful.
2. That following initial deportation O.E. was re-admitted to the State to complete his Leaving Certificate and that this had been achieved.
3. That he had not been in compliance with the laws of the State that he had not been in compliance with the laws of the State in that he had been convicted of a number of minor road traffic offences.
4. That to grant O.E. permission to remain would be contrary to the common good in that it would have implications for the integrity of a coherent and efficient immigration and asylum system.
In the same letter O.E. was invited to make further submissions within fifteen days.
On the 10th February, 2006 O.E.’s solicitors, Colgan and Company, made further representations pursuant to s. 3 of the Act. The form furnished by the Department of Justice, Equality and Law Reform, referred to as the Section 3 Form 1, is pre-printed and sets out each of the factors to which the respondent must have regard in reaching a decision under s. 3(6). The Form provides space for inclusion by the applicant of information relevant to each of the considerations referred to in the Section includes the applicant’s “family and domestic circumstances”. In dealing with the detail of his “family and domestic circumstances” it was stated on behalf of O.E. that he was in a relationship with an Irish citizen and that his deportation would have adverse consequences for both of them. AH’s name was not mentioned nor was any further detail given regarding her pregnancy or the consequences which were likely to ensue should deportation be pursued by the respondent. The Affidavits assert that a deliberate decision had been made by O.E. and AH not to disclose the pregnancy as her parents at that time were only just coming to terms with knowledge of same. It is further alleged that AH feared that such information might, if disclosed, find its way into the media.
The exhibits to the respondent’s affidavit show that Amanda Carolan, first supervisor and clerical officer to the Repatriation Unit, considered O.E.’s file under s.3 of the Act and prepared a report dated the 8th March, 2006. In her report dealing with O.E.’s family circumstances under s. 3(6) she stated that O.E.’s solicitors had advised that he was in a relationship with an Irish citizen but had given no further information regarding that relationship other than that his deportation would have adverse consequences for both of them. Ms. Carolan in her report went on to refer to the voluminous representations received from members of the Oireachtas and the public both for and against O.E.’s application for leave to remain in the State, many of which attested to his good character. Notwithstanding the aforegoing, she advised that the integrity of the asylum and immigration process would favour deportation.
On the 9th March, 2006 Audrey Walsh, Executive Officer in the Repatriation Unit, prepared a further report on the application of O.E.. In her report Ms Walsh referred to the fact that the Minister was obliged to have regard to the eleven factors set out in s. 3(6) of the Act. Having referred to these matters herself she concluded from all of the information she had seen that O.E. should be repatriated.
From the documentation exhibited at “EO 2” to O.E.’s affidavit it is clear that the report of Audrey Walsh was brought to the attention of Dermot Cassidy, Assistant Principal of the Repatriation Unit. He has made a note on Audrey Walsh’s report to the following effect:-
“I have read and considered the papers in this case. I agree with the recommendation below that the Minister should sign the deportation order in respect of O. E. in the file pocket opposite.”
It appears to be the case that the report of Audrey Walsh dated the 9th March, 2006 as endorsed by Dermot Cassidy was thereafter forwarded to Noel Dowling Principal Officer. In turn by his own report dated the 10th March, 2006 Mr. Dowling advised the Minister in favour of O.E.’s deportation. Mr. Dowling’s report to the Minister set out a number of matters in favour of permitting O.E. to stay in Ireland. These included the fact that O.E. had arrived in Ireland as an unaccompanied minor, that he was a good student, that he had integrated well and that he had been in the country for four years. On the other hand Mr. Dowling drew attention to the fact that the objective of re-admitting O.E. to Ireland had been to permit him to complete his Leaving Certificate and that this had been achieved. He also referred to the fact O.E. had committed a number of minor road traffic offences whilst in Ireland and that these were factors which might favour his deportation.
There is one matter which is somewhat surprising in relation to Mr. Dowling’s report. Mr. Dowling’s report makes no mention whatsoever of O.E.’s relationship with AH or any Irish citizen notwithstanding the fact that the submissions made on his behalf had included reference to the existence of such a relationship and also having regard to the Minister’s obligation under s. 3(6)(c) of the Act to consider the family circumstances of an individual whom he was considering for deportation. Clearly, given that O.E. had not disclosed the existence of a pregnancy this factor was not weighted either in favour or against his deportation in Mr. Dowling’s report.
Mr. Dowling’s recommendation to the Minister was in favour of his signing the deportation order on the four grounds upon which the initial order had been made and which grounds are referred to earlier in this judgment.
On the 14th March, 2006 O.E. was advised that his submissions had been rejected and the deportation order was served personally on him. He was served with copies of the memorandum prepared by the relevant departmental officials and was also furnished with the Minister’s handwritten decision dated the 14th March, 2006. The Minister’s decision reads as follows:-
“1. I have carefully considered the papers submitted in this and the accompanying file. I have also had regard to various other statements and messages in support of granting O.E. humanitarian leave to remain.
2. I decided to re-admit O.E. to Ireland to complete his leaving certificate because I was of the view that it would have been unfair not to do so having regard to the intention prior to his deportation order that the order would not be enforced before his Leaving Certificate Examination.
3. Having regard to all the circumstances and submissions and having regard to all of the matters to which I am by law required to take into consideration, I am of the clear opinion that the reason stated in Mr. Dowling’s memo of the 10th March, 2006 at para. 4(iv) is correct and that I should make an order.
4. I would hold that I would have been of the same clear opinion even if O.E. had had no problems with the criminal law.”
There was no mention made of O.E.’s relationship with AH.
On the 15th March, 2006 O.E. instructed his solicitors to write to the respondent to disclose the impending birth of his child. In their letter of the 15th March 2006 O.E.’s solicitors advised the respondent that AH was due to have the birth of their child induced on the 20th March, 2006 and that if the birth was not induced on that date that the infant had an expected delivery date of the 4th April, 2006. The letter from Colgan and Company advised the respondent of the name of the applicant’s mother namely AH. However, no further detail was given regarding AH’s age, family or financial circumstances, employment details, address or telephone number. The Minister was asked as follows:-
“In the circumstances we would be obliged if you would confirm that you will reconsider the position in relation to O.E.’s status in the State and would confirm that you will refrain from executing the deportation order signed by you on the 14th March, 2006 until the matter has been reconsidered by you.
In the circumstances our client is most anxious to avoid the necessity of issuing any proceedings in this matter but to protect his interests we have advised him this may become necessary should we not hear from you by 1.00pm next Monday the 20th inst.”
The Minister in his decision incorrectly refers to the date of the letter received from Colgan and Company as being a letter dated the 14th March, 2006. It is agreed by all parties that the respondent’s subsequent decision was in response to the letter of the 15th March from Colgan and Company to which I have just referred. The decision of the Minister reads as follows: –
1. I have received a letter from Colgan & Co. addressed to Lorraine O’Brien of the repatriation section and a copy of the letter dated the 14th March 2006 from the same solicitors firm addressed to me.
2. Both letters were composed and sent after the indication of my decision to make a deportation order.
3. The letters indicated that O.E. is the natural father of an unborn baby which is expected to be born in or about the 4th April.
4. The letter to me indicates that the mother to be and O.E. are in a loving relationship, a matter that was briefly referred to in the representations.
5. I am of the opinion that the fact that O.E. entered into a relationship and has fathered an unborn child is not sufficient to cause me to rescind my decision or to vary it.
6. I would have made the decision already made even if I had been aware that the relationship had led to a pregnancy at the time I made it.
7. I am affirming the decision made by me.
8. I wish, in the context of this indication of possible Court proceedings being instituted, to reiterate that I have given this case every possible care and sympathetic consideration and I am of the clear view that the common good requires that I should not vary the order that I have made. To vary it or rescind it would, in my opinion, be gravely injurious to the common good.
Signed: Michael McDowell, 15th March, 2006.”
In the aftermath of the aforementioned decision, O.E., on the 24th March, 2006, being the date of the applicant’s birth, applied to the High Court on his own behalf and on behalf of the applicant for an interim injunction restraining his deportation. O.E. also sought leave to apply for judicial review. Accordingly, on the 7th July, 2007 Dunne J., made an order restraining O.E.’s deportation pending the outcome of these proceedings and by the same order the Court also granted leave to apply for judicial review but strictly confined such leave to the relief sought at para. D6, 8, 9 and 10 of the Statement of Grounds dated 24th March, 2006. Those reliefs reflect the fact that at that time the first named applicant was O.E. the second named applicant his son, (AHE). The leave granted was limited to the right to claim:-
“6. A declaration that the respondent in refusing on or about the 15th March, 2006 to vary and/or amend the deportation order as provided for by s. 3(11) of the Immigration Act, 1999 as amended did fail to have due regard to the first and second named applicant’s rights under the European Convention on Human Rights and the second named applicant’s constitutional rights and failed to have regard to the matters set at s. 3(6) of the Immigration Act, 1999.
8. An order setting aside the Minister’s decision of 15th March, 2006 not to revoke or amend the deportation order dated the 14th March, 2006.
9. Further and other reliefs.
10. Costs.”
The order granting leave to apply for judicial review was confined to the grounds set out above insofar as they related to the rights of the then second named applicant, who is the sole applicant in this application.
By further order dated the 22nd November, 2006 the order dated the 7th July, 2006 was amended to include a right on the part of the applicant to seek an order directing the respondent to reconsider O.E.’s application to revoke and/or amend the deportation order pursuant to s. 3(11) of the Immigration Act, 1999.
The amended Statement Required to Ground the Application for Judicial Review was delivered on the applicant’s behalf on the 29th November 2006 and the Statement of Grounds of Opposition delivered on the 20th July 2007.
The formal pleadings in this judicial review application concluded with the service by the applicant’s solicitors of a notice on the Attorney General pursuant
to O. 60, r. 2 of the Rules of the Superior Courts.
On the 29th November, 2006 a further affidavit was filed on behalf of the applicant. On that date, Gerard Byrne, Consultant Psychiatrist swore an affidavit referring to an interview which he had with O.E., his partner AH and their son and wherein he exhibited a report containing his opinion that the separation of the applicant from his father would have deleterious consequences upon him psychologically in future years. I do not believe it would be appropriate for me to take into account the contents of this affidavit when reaching my decision. Insofar as the Court must look at the inquiry that the respondent was obliged to carry out at the time he exercised his power under s. 3(11) I believe that this Court should confine itself to the facts known or ascertainable at the time when the respondent made the decision which it is now sought to impugn.
The application for judicial review was heard by this Court on the 13th and 14th November, 2007. Written submissions were filed by both parties and these have been a helpful guide to the areas of law relevant to the issues to be determined. However, the written submissions do not entirely reflect the argument made in the course of the hearing and hence may appear to be somewhat at variance to certain matters referred to in this judgment.

The Law
There is an elaborate statutory framework in this jurisdiction under which non nationals such as the applicant’s father are entitled to have their claims for asylum status given fair consideration. This framework embodies an appeals procedure to an independent tribunal. Further, in respect of each determination the applicant can have recourse to the High Court and can seek, subject to leave being granted, to have any such decision judicially reviewed. In this case the applicant availed of the totality of his statutory entitlements but has been unsuccessful in gaining asylum status. The applicant now invokes the judicial review process in respect of the decision of the Minister under s. 3(11) of the Act whereby he decided not to revoke or amend the deportation Order of the 14th March, 2006.
What is not an issue in this case are the respondent’s very wide-ranging powers, in the interest of the common good, to control aliens and their movements. Neither is there any doubt that the Court has no power or right to substitute its own views for those of the respondent in making any decision under s. 3(11) of the Act. As Costello J. in Pok Sun Shum & Others v. Ireland, The Attorney General and The Minister for Justice [1986] ILRM 593 said at p. 599: –
“The State through its Ministry for Justice must have very wide powers in the interest of the common good to control aliens, their entry into the state, their departure and their activities within the state. There must be given to the Minister wide discretion in this area.”
For these reasons the Court can only examine how and in what circumstances the respondent exercised his powers so as to ensure that he complied with his statutory and constitutional obligations and that he did so whilst according to those concerned natural justice and fair procedures.

The Immigration Act 1999
The Minister, prior to making a deportation order under the Immigration Act, 1999, as amended, must have regard to those factors set out at s. 3(6) thereof. Section 3(6) provides as follows:-
“In determining whether to make a deportation order in relation to a person, the Minister shall have regard to –
(a) the age of the person;
(b) the duration of residence in the State of the person;
(c) the family and domestic circumstances of the person;
(d) the nature of the person’s connection with the State, if any;
(e) the employment (including self-employment) record of the person;
(f) the employment (including self-employment) prospects of the person;
(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
(h) humanitarian considerations;
(i) any representations duly made on behalf of the person;
(j) the common good; and
(k) considerations of national security and public policy, so far as they appear or are known to the Minister.”
Section 3(11) of the Act, 1999 provides that the Minister shall also have the power to alter a decision made by him under s. 3(6). Section 3(11) of the Act provides as follows:-
“The Minister may by order amend or revoke an order made under this section including an order under this subsection.”
This latter provision may be utilised to notify the Minister of any new or changed circumstances which may occur after the making of a deportation order but prior to its execution.

The Pleadings
Simply put the applicant asserts that the respondent in making his decision on the 15th March 2006:-
(i) failed to have regard to the applicant’s rights under Articles 40.1, 40.3.1, 41 and 41.2.2 of the Constitution.
(ii) failed to have regard to the rights of the applicant under the European Convention on Human Rights and in particular Article 8 thereof.
(iii) did so at a speed which evidences pre-judgement on his part not to revoke the deportation order. Alternatively, it is asserted that the speed at which the respondent made his decision made it impossible for him to conduct a proper investigation into the applicant’s constitutional and/or human rights.
In terms of Domestic Law, leaving aside any inferences the Court is asked to draw from the speed of the respondent’s determination, the kernel of the applicant’s case is that the respondent simply failed to assess the extent to which his decision not to revoke the deportation order would effect the constitutional rights of the applicant. The applicant contends that the decision of the respondent was wanting in natural and constitutional justice, was disproportionate and made on foot of a procedure that was unfair.
The respondent’s statement of grounds of opposition can be summarised as follows:-
(i) that the applicant on the date of his decision enjoyed no constitutional rights save those derived from Art 40.3.3.
(ii) that if the applicant had rights beyond those conferred upon him by Article 40.3.3 that the proposed deportation of O.E. did not breach such rights.
(iii) that the respondent had full regard for the rights of the applicant from the facts made known to him at the time he made his decision.
(iv) that the applicant’s constitutional rights could be satisfied by the potential ability of O.E. to travel to Ireland to visit the applicant.
(v) that the applicant enjoyed no rights under Article 8 of the European Convention on Human Rights and that in any event the applicant’s deportation would be lawful having regard to Article 8(2) of the said Convention.
(vi) that the respondent did not pre-judge the application under s. 3(11) and the speed of his decision did not deprive the applicant of the opportunity to make effective representations in relation to the application under s. 3(11) of the Act.
(vii) in alternative, that the applicant’s next friend withheld relevant information from the respondent both prior to the making of the deportation order of the 14th March, 2006 and also prior to the decision of the respondent of the 15th March, 2006.
Section 3(6) of the Act, sets out eleven matters to which the Minister must have regard prior to making a deportation order. The Court must decide whether these are matters which must again be considered by the Minister if he is asked to vary or revoke the deportation order under s. 3(11). Further, the Court must consider whether the Minister, when making a decision under s. 3(6) or s. 3(11), must have regard to matters which are not specifically provided for in s. 3 such as the constitutional rights which may be enjoyed by an infant whose birth is imminent at the time of such decision.
Most recently in Bode (a minor) v. the Minister for Justice, Equality and Law Reform and Others (20th December, 2007 the Supreme Court), whilst principally engaged in considering the obligations of the Minister when dealing with applications for residency under what is described as the IBC/05 scheme, considered the role of the Minister when exercising his statutory remit under s. 3 of the Act.
The IBC/05 scheme had been introduced by the Minister against the backdrop of the 27th amendment to the Constitution in 2004. That amendment had the effect of excluding from automatic Irish nationality and citizenship a child born in Ireland to parents neither of whom was entitled to be an Irish citizen at the time of the child’s birth. The said scheme was designed to facilitate applications by foreign national parents of Irish born children who wished to remain in the State. The decision of the learned trial judge, which was the subject matter of the Supreme Court’s deliberations, had concerned itself, amongst other matters, with the obligations of the Minister when dealing with such applications.
In concluding that the learned High Court judge had erred in deciding that the Minister was obliged under the IBC/05 scheme to consider the constitutional and conventional rights of the applicants, who were the Nigerian parents of an Irish born child, Denham J. had cause to consider precisely when and in the course of what process such rights fell to be considered by the Minister. In concluding that the Minister was not obliged to conduct any inquiry into the constitutional rights of the applicants at the time of considering applications under the IBC/05 scheme, the Court advised that these were matters to be dealt with by the Minister at the time he would be asked to consider making a deportation order in any particular case.
Denham J. outlined the extent of the Minister’s role when exercising his statutory powers under s. 3 of the Act, in the following manner at para. 25 of her judgment:-
“Thus, bearing in mind the case law of this Court, the Minister is required to consider in this context the constitutional and convention rights of the applicants. This statutory process provides a forum for consideration of the relevant rights. The s. 3 process is sufficiently wide ranging for the Minister to exercise his duty to consider Constitutional or Convention rights of the applicants. This has yet to be done in this case as the pre existing deportation order has been quashed on consent.”
In Bode the learned Supreme Court judge at para. 27 of her judgment advised:-
“The appropriate process within which to consider constitutional or convention rights of applicants is on the process under s. 3 of the Act of 1999. This is the relevant statutory Scheme.”
The validity of the decision of the respondent in the present case on 14th March 2006 under s. 3(6) to proceed with the deportation order is not in dispute. At the core of the present proceedings is the decision made by the Minister under s. 3(11) following the receipt of the letter sent by Colgan and Company on the 15th March 2006 advising him of the impending birth of the applicant. In relation to the circumstances in which the Minister might have to consider the constitutional rights of an Irish citizen child at the time of an application under s. 3(11), Denham J., in the course of her judgment at para. 27 stated as follows:-
“Thus, a person such as the second named applicant could notify the Minister of any altered circumstances since the making of a deportation order, such as the birth of an Irish born child. On such notification the Minister would have a duty to consider the new information to determine whether to revoke a deportation order. As the statutory Scheme makes this provision for such an application, there is no need to seek a further process for a right to reply. The integrity of the system should be maintained, as long as it protects the rights of the applicants, which it does in this case.
Consequently, it is my view that there is no free standing right of the second named applicant to apply to the Minister. The appropriate procedure is under s. 3 of the Act of 1999, as amended, with the potential right to apply under s. 3(11) in the future, if the need to make such an application should arise.”
It seems to be implicit from the said judgment that the Minister was obliged to consider the constitutional rights of those affected by proposed deportation orders both at the time of the making of a deportation order under s. 3(6) or if the information regarding those rights only emerged subsequent to the making of the deportation order, at the time of being asked to amend or revoke an earlier decision under s. 3(11) of the Act.
In this particular case the respondent made his decision on the 14th March 2006 to deport O.E. and in doing so sought to balance the rights of O.E. against the implications of allowing him to stay for the integrity of the immigration and asylum system. Having regard to the Court’s decision in Bode I conclude that the respondent was obliged to carry out the same balancing exercise including the new information furnished to him by letter of the 15th March 2006 when exercising his power under
s. 3(11) and then come to a decision which was proportionate in all of the circumstances. In reaching his decision the respondent was obliged to take into account the factors set out in s. 3(6), the rights of O.E. against whom the deportation order had been made and also the constitutional rights, if any, of the infant whose impending birth was the very reason for the Minister being asked to invoke his powers under s. 3(11). It goes without saying that for the decision to be proportionate the respondent was obliged to take into account all of the relevant circumstances pertaining to the decision which in this case included all the facts and information relevant to any constitutional rights enjoyed by the infant whose birth was then imminent.

Issues for the Court
Assuming that I am correct in concluding that the respondent was obliged, at the time of entertaining O.E.’s application to revoke the deportation order under s. 3(11), to consider the constitutional rights of an infant likely to be affected by the deportation order, it appears to me that the Court should consider the following issues namely:-
1. Did the unborn applicant at the time of the respondent’s decision on the 15th March 2006 have constitutional rights which the respondent was obliged to consider?
2. If the unborn child had constitutional rights which had to be considered by the respondent, what were those rights having regard to the fact that the parents of that child were unmarried?
3. In the light of the existence of any such rights what was the nature and extent of the inquiry that the respondent was obliged to carry out when exercising his statutory powers under s. 3(11)?
4. Was the Inquiry carried out in this case by the respondent one which complied with his statutory and constitutional obligations?
5. Did the unborn applicant, at the time of the respondent’s decision, enjoy rights by reasons of Article 8 of the European Convention on Human Rights and if so whether the same were adequately considered by the respondent at the time?

1. Constitutional rights: Did the applicant enjoy any constitutional rights as of the 15th March, 2006?
Article 40.1 provides as follows:-
“All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regards to differences of capacity, physical and moral, and of social function.”
Article 40.3.1:-
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
Article 40.3.2:-
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of very citizen.”
Article 40.3.3:-
“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as made be laid down by law, information relating to services lawfully available in another state.”
The respondent in his amended Statement of Grounds of Opposition at para. 2 pleaded as follows:-
“The applicant was unborn on the date of the decision impugned in the within proceedings. By reason of that fact, the applicant did not, as of the date of the said decision enjoy any constitutional rights other than those specified in Article 40.3.3 of the Constitution, nor does the applicant have any rights pursuant to Article 8 of the European Convention on Human Rights and or the European Convention on Human Rights Act, 2003.”
Whilst this formal plea was delivered on behalf of the respondent this argument was not purposefully pursued in the course of the hearing. The respondent did not ask the Court to consider the constitutional rights of the unborn child in this case, having regard to its impending birth, as being any different from the rights which he would have enjoyed had he been born at the time the respondent was asked to exercise his power under s. 3(11).
Notwithstanding this apparent concession it is worthwhile noting that Article 40.3.3 arises by virtue of the 8th Amendment of the Constitution Act, 1983 which significantly post dated the decision of the Court in G. v. An Bord Uchtála [1980] I.R. wherein Walsh J. at page 69, stated as follows:-
“Not only has a child born out of wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practise of religion and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.”
I cannot accept that the only constitutional rights enjoyed by the applicant at the time the respondent was making his decision under s. 3(11) was the right to be born by virtue of Article 40.3.3 which right the Courts had already concluded existed prior to this amendment to the Constitution in October 1983 and which rights are described by Walsh J. in G. v. An Bord Uchtála and also by Barrington J in Finn v. Attorney General [1983] I.R. 154.
In the aforementioned circumstances it seems only appropriate that Counsel for the respondent, as she did, dealt with the present proceedings on the basis that the constitutional rights enjoyed by the applicant at the time of the respondent’s decision, particularly having regard to his impending birth, were the same as those he would have enjoyed had he been born at that time. To have argued successfully otherwise would have placed the applicant in a position where the happenchance of a premature delivery would have afforded him rights which the respondent would have had to consider at the time he made his decision but in the event of his having been born on his expected delivery date, he would have enjoyed no rights which required the respondent’s consideration. It seems to me that little would be achieved by enshrining the right of the unborn to be born if such a right did not ensure that when ultimately born that infant would enjoy the constitutional rights and protections so carefully enshrined in the Constitution for the benefit of Irish citizen children.
The plea at para. 2 of the Statement of Grounds of Opposition is also one which, if correct, would place the rights of the unborn child from a constitutional perspective at a much lower level than the rights afforded to the unborn child at common law. At common law, an unborn child has very significant rights. As was stated by Dillon L.J. in B. v. Islington Health Authority, DeMartell and Merton and Sutton Health Authority, The Times Law Reports, 25th March, 1992 there is a maxim of civil law that an unborn child should be deemed to be born whenever its interests require it. By way of example, the common law recognises the duty of care which is owed to the unborn child and its consequential right to sue should it sustain injury or disability by reason of any negligence perpetrated against it prior to its birth.
In these circumstances I find no difficulty in concluding that the applicant, although not born at the time of the respondent’s decision under s. 3(11) should have been treated by him as enjoying precisely the same rights as he would have enjoyed had he been born prior to the making of the decision.

2. What constitutional rights were enjoyed by the applicant at the time of the Minister’s decision under s. 3(11)?
Assuming that the unborn child in this case was possessed of the same constitutional rights as he would have enjoyed had he been born at the time of the respondent’s decision, the question then arises as to the nature of such constitutional rights.
The parents of the applicant are not married to each other and this is a factor which affects the constitutional rights of the applicant in this case. The non marital family is not recognised as a legal unit in Irish law and does not possess the same rights and obligations as the family based on marriage. In a series of cases the Supreme Court has determined that the mother and father of a child born outside of marriage and their children are not a family for the purposes of Article 41 or Article 42. In the State (Nicolaou) v. An Bord Uchtála and the Attorney General [1966] I.R. 567, the Supreme Court rejected the contention that Articles 41 and 42 applied to the family outside of marriage. This fact has the effect of denying to the child born outside marriage the specific rights and protections provided for by Articles 41 and 42. In this respect it seems to me that any arguments put forward which directly rely upon rights deriving from the provisions of Articles 41 or 42 must be rejected. However, that is not to deny the child of parents who are not married very considerable constitutional rights by virtue of the provisions of Article 40.1 and 40.3 of the Constitution.
There are a number of decisions of the Supreme Court which support the view that the personal rights of a child born outside marriage are the same as those of a child whose parents are married. Henchy J., in G. v. An Bord Uchtála [1980] I.R. 32 stated at p. 86:-
“While the moral capacity and social function of parents are, in constitutional terms, not alone distinguishable but necessarily distinguishable, depending upon whether the children are legitimate or illegitimate, all children, whether legitimate or illegitimate, share the common characteristic that they enter life without any responsibility for their status and with an equal claim to what the Constitution expressly or impliedly postulates as the fundamental rights of children. Since Article 42 recognises the children of a marriage as having a natural and imprescriptible right (as the correlative of their parents’ duty) to the provision for them of moral, intellectual, physical and social education, a like personal right should be held to be impliedly accorded to illegitimate children by s. 3 of Article 40.”
Walsh J., in addition to outlining the rights of children born outside marriage in the course of his judgment stated as follows:-
“There is no difference between the obligations of the unmarried parent to the child and those of the married parent. These obligations of the parent or parents amount to natural rights of the child and they exist for the benefit of the child.”
The decision of the Court in G. v. An Bord Uchtála is authority for the proposition that all children, irrespective of the marital relationship existing between the parents, enjoy a constitutional right to bodily integrity, the right to be reared with due regard to religious, moral, intellectual, physical and social welfare, to be fed, to be educated, to work and to enjoy personal dignity. In addition, these children also enjoy the constitutional right to the society and support of their parents.
It is undoubtedly the case that Murphy J. in T.D. v. Minister for Education [2001] 4 IR 259 queried the existence of such rights or the precedent supporting the conclusions of the majority of the Court in G. v. An Bord Uchtála. Murphy J. suggested that whilst such rights could be described as “natural” in nature that this did not necessarily mean that they had their origins in the Constitution.
Notwithstanding the decision of Murphy J. in T.D. and the two dissenting opinions of the Court in G. v. An Bord Uchtála I believe I must accept that the aforementioned rights of the child born outside marriage have their origins in Article 40.3 of the Constitution. I believe that this Court is bound by the majority view of the Supreme Court in G. v. An Bord Uchtála in which judgment of Henchy J. at p. 86 stated as follows:-
“While the moral capacity and social function of parents are in constitutional terms, not alone distinguishable but necessarily distinguishable, depending on whether the children are legitimate or illegitimate, all children, whether legitimate or illegitimate, share the common characteristic that they enter life without any responsibility for their status and with an equal to what the Constitution expressly or impliedly postulates as the fundamental rights of children. Since Article 42 recognises the children of a marriage as having a natural and imprescriptible right (as the co-relative of their parents duty) to the provision for them of religious and moral, intellectual, physical and social education, a like personal right should be held to be impliedly accorded to illegitimate children by s. 3 of the Article 40.”
The Court in advising on the constitutional obligations of unmarried parents to their children makes it clear that these obligations confer on their children reciprocal constitutional rights to the security and other benefits that should arise from such constitutional obligations.
At the present time, the applicant cannot be considered as enjoying rights under Articles 41 or 42 of the Constitution. However, the position of children born outside of marriage and their rights under Articles 41 and 42 of the Constitution may well be augmented and/or clarified in the event of the proposed 28th Amendment of the Constitution being passed later this year. In the event of the constitutional amendment being passed the rights of those children which Murphy J. stated to be “natural” but without any constitutional origin will be given constitutional support in the proposed Article 42(a) which will read as follows:-

“Article 42(a)
1. The State acknowledges and affirms the natural and imprescriptible rights of all children.”
Of significant importance in the present case is the right of the child to the society and support of its parents albeit that such a right is clearly not absolute. In this respect the Court has considered the decision in Osheku v. Ireland [1986] I.R. 733. In that case proceedings were instituted by the Nigerian husband of an Irish wife and child. The husband sought an Order prohibiting the Minister from deporting him. He contended unsuccessfully that the constitutional guarantees pertaining to marriage and the family afforded him immunity from the legal sanction of deportation in respect of his unlawful presence as an alien within the State. The learned trial judge held that the Minister could, notwithstanding the constitutional protection afforded to marriage and the family, in appropriate circumstances deport the husband and that the Constitution did not impose any such restriction on him. Hence this Court is not concerned with the undoubted right of the Minister in the present case to deport O.E. and must confine itself to an assessment of the validity of the process engaged upon by the respondent prior to the making of his decision on the 15th March 2006.
For the reasons set out above I conclude that the applicant in this case enjoyed personal rights under Article 40.3 of the Constitution at the time the Minister made his decision under s. 3(11). These rights, as already advised earlier in this judgment, include the infant’s right to expect that once born he would enjoy the care, society and support of his parents.

3. What was the Extent of the Minister’s Obligation to Consider the Constitutional Rights of the applicant?
Having regard to the decision of the Supreme Court in Bode I believe that the respondent, when exercising his statutory power under s. 3(11) was mandated to consider the constitutional rights of the applicant. The respondent was obliged to investigate how the deportation order would affect those rights which included, but were not by any means limited to, the applicant’s right to the potential society and support of his parents. However, as was advised by Denham J. in Bode such rights are not absolute and the weight to be attached to them is a matter for the respondent. It was clearly open to the respondent in the present case to balance the applicant’s constitutional rights against matters such as the integrity of the asylum process and the common good so that he could reach a decision which was proportionate and fair.
As Denham J. stated in A.O. and D.L. v. Minister for Justice [2003] 1 I.R. at
p. 58:-
“Personal rights guaranteed under the Constitution are not absolute; social order and the common good may require restriction of such rights.”
In a number of relatively recent decisions the Supreme Court has expressed its considered opinion on the type and the extent of the inquiry that must be conducted by the Minister where a decision is to be made which will impact upon the constitutional rights of Irish citizens, who will be affected by the making of a deportation order.
In Fajujoni v. Minister for Justice [1990] 2 IR 151 the Supreme Court upheld the finding of the High Court that the provisions of the Aliens Act of 1935 was not unconstitutional because it permitted the Minister to deport three Irish Citizen children of a couple who were both non nationals. In that case, the father of the children was Nigerian and the mother Moroccan. The couple had arrived in Ireland eight years prior to the Minister making his deportation order. Finlay C.J. at p. 3 of his judgment concluded:-
“ … parents who are not citizens and who are aliens cannot, by reason of their having as members of their family children born in Ireland who are citizens, claim any constitutional right of a particular kind to remain in Ireland.”
In holding that the Minister had a discretion to consider whether to permit or prevent the entire family continuing to reside in the State he went on to state at p. 4 of his judgment that such discretion: –
“… is a discretion that can only be carried out after and in the light of a full recognition of the fundamental nature of the constitutional rights of the family.”
In the High Court the case had been confined to a net issue which was the assertion that the third named plaintiff, the Irish born child of the first and second named plaintiffs, was entitled to certain rights by reason of Articles 40, 41 and 42 of the Constitution, and in particular that she had a right to remain resident within the State with the family of which she was a member as a unit of society and to be parented there, by her parents. Barrington J. determined that the constitutional rights provided to the family and those rights of the third named infant plaintiff were not absolute and could be restricted by the proper exercise by the Minister for Justice of the powers conferred upon him in the Act of 1935.
In the Supreme Court the plaintiff was permitted to advance a different case to that made in the High Court. On appeal the plaintiffs contended that the constitutional rights of the third named plaintiff could only be restricted or infringed for very compelling reasons.
Whilst Finlay C.J. in Fajujoni advised that the Minister required “grave and substantial reasons associated with the common good” to make a deportation order it is clear from his judgment that those words “grave and substantial reasons” were specific to the circumstances of that particular case in which the couple concerned had been resident in Ireland for eight years and had three Irish citizen children at the time of the Court’s decision.
The challenge in Fajujoni clearly relied heavily upon the rights of the constitutional family which rights are not available to support the applicant’s claim in these proceedings. Nonetheless, the decision in Fajujoni is good authority for the proposition that the Minister must, prior to the making of a deportation order, consider the effect that such an order is likely to have on all of the constitutional rights of those who will be affected by the order and in particular in the present case the applicant’s right to enjoy the care, company and support of his father.
Once again the type of Inquiry to be carried out prior to the making of a deportation order where a child’s constitutional rights were likely to be affected was considered in A.O. and D. L. v. Minister for Justice [2003] 1 I.R. 1. In those proceedings the Court was asked to decide whether two non national married couples who had children born to them whilst in Ireland had an entitlement to remain in Ireland by reason of the citizenship of their Irish born children and their rights to the care and company of their parents.
In A.O. and D.L. the first named applicant in the first case was a Nigerian national who arrived with his pregnant non national wife in Ireland in May 2001 having been refused refugee status in the United Kingdom. The second named applicant in the first case was the Irish citizen child of the first named applicant. The first and second applicants in the second set of proceedings were Czech nationals and the parents of two children when they arrived in Ireland in 2001. At the time of such arrival the mother was pregnant with her third child. The parents in both cases applied for refugee status and their applications were rejected by the commissioner and also by the refugee appeals tribunal subsequent to which the respondent signed a deportation order in each case. The mother in each case gave birth to a child after the making of the deportation order and thereafter the applicants sought judicial review of the decisions of the respondent.
One of the major issues in the case was the weight to be attached to the rights of the Irish citizen children who would be affected by the deportation orders. It was likely that unless the order was revoked that the Irish Citizen children would have to leave the State albeit with their parents and siblings. This led Denham J. to consider the extent of the Minister’s obligations in terms of an inquiry prior to making such an order. Denham J. concluded that the rights of children to the care and company of their parents could be protected by residence elsewhere and at p. 54 of her judgment she stated:-
“There must be an appropriate inquiry as to the facts and factors affecting the family in a fair and proper manner. To deport the applicants, the respondent should be satisfied that, for good and sufficient reason, the common good requires that the residence of the parents within the State should be terminated, even though it has the necessary consequence that in order to remain a family unit the children must also leave the State.”
This decision is good authority for the proposition that the Minister must, at the time of making a deportation order or considering an application to revoke the same, seek out all of the facts relevant to establishing what constitutional rights exist for the benefit of any child likely to affected by his decision. The Minister must then weigh up the effect of making or confirming a deportation order on that child’s right to be supported emotionally, physically and financially whilst enjoying the care of its parent who is the subject matter of the deportation order.
Having considered all of the learned judgments in A.O. and D.L. it appears to me that one of the matters that the Minister must have regard to when he is considering the constitutional rights of a child only one of whose parents is to be deported is whether that child can exercise its constitutional rights to the society of that parent by travelling with both of its parents back to the country to which that parent is to be repatriated. This of necessity must involve a consideration of whether it would be possible for the Irish citizen mother and the Irish citizen child to reside in such country should that be the decision of the parents in the face of a deportation order affecting only one of them. I believe the Minister must also give consideration to the type of society, care and support that the child can ever hope to enjoy from his father should it be the decision of its parents that the mother and infant should continue to reside in this jurisdiction. Indeed, one might expect the Minister, in certain circumstances, to consider how the constitutional rights of an infant child might be met, if it seemed likely that the child might travel with its parents back to reside in the country to which one of its parents had been deported. Matters such as these were given consideration by the Court, albeit in respect of the adopted child, by MacMenamin J. in The Attorney General v. Dowse (Unreported, 31st January, 2006).
There is much discussion in the learned judgments of the Supreme Court in A.O. and D.L. emphasising the fact that constitutional rights are not absolute and that the State may make appropriate laws which may infringe those rights.
In relation to the unenviable task faced by the Minister in seeking to balance the rights of the child or the family against the overall interests of the State and the common good I believe it is relevant to refer to a number of extracts from the decisions of the court in A.O. and D.L. Denham J. at p. 60 stated as follows:-
“In these cases the two minor children are citizens of Ireland. I am satisfied that as a consequence they are entitled to reside in Ireland. They also have the right to the society, the care and the company of their parents. However, the rights of the children are not absolute. They are protected in a proportionate fashion. It does not follow from the rights of citizenship and residency of a minor child that he has a right to the society, the care and the company of his parents in Ireland. Neither does it follow that the family of such a child as a unit has, or the parents or siblings have, a right to reside in Ireland.”
In relation to competing rights Murray J., at p. 71 of his judgment stated as follows:-
“It seems to me that the facts and circumstances in which the balance could be struck between these competing considerations or rights may vary greatly. In principle, the constitutional rights of citizens must be taken into account in every case but the degree to which a deportation order may constitute an injury to those rights may, in a qualitative sense, vary according to the circumstances of the case.”
The role of the Minister was further clarified by Murray J. at p. 91 of his judgment where he stated as follows:-
“A child or infant of non-national parents has, prima facie, a right to remain in the State. While in the State such a child has the right to the company and parentage of its parents, these rights are not absolute but are qualified. The rights do not confer on the non-national parents any constitutional or other right to remain in the State. The rights referred to are qualified in the sense that the respondent, having had due regard to those rights and taking account of all relevant factual circumstances, may decide for good and sufficient reason, associated with the common good, that the non-national parents be deported, even if this necessarily has the effect that the child who is a citizen leaves the State with its parents. In deciding whether there is such good and sufficient reason in the interests of the common good for deporting the non-national parents, the respondent should ensure that his decision to deport, in the circumstances of the case, is not disproportionate to the end sought to be achieved.”
I refer to the aforementioned judgments in A.O. and D.L. for the purposes of reflecting upon the graveness of the decision made by any Minister which may result in what are prima facie constitutional rights being rejected in favour of the common good. The importance to be attached to such a decision resonates strongly from the decision of Finlay C.J. in Fajujoni and leads me to conclude that in order for the decision to favour the common good over the constitutional rights of a child that the inquiry to be conducted by the Minister in advance of such decision must be both real and weighty.
The importance of the child’s constitutional rights are perhaps most starkly apparent in a case such as the present one where one parent is an Irish national and the other a non national who is the subject matter of a deportation order. In these circumstances there must be a real risk that the Irish citizen child will, following deportation, become permanently separated from his non-national parent. In such circumstances the Inquiry mandated must be at least as fulsome as that which the respondent is required to carry out where both parents are aliens of the same nationality who have an Irish citizen child. In such circumstances the likelihood of the parental unit being spilt as a result of the deportation order is probably significantly less likely. It is only by conducting such an inquiry that the Minister, can, as advised by Murray J., strike a balance between the respective competing rights of the child and the common good.
What procedure or steps the Minister might have to employ to vindicate the constitutional rights of a child to be affected by a deportation order or an application to revoke a deportation order is likely to vary from case to case depending upon the information known or made known to the Minister. He might in a case where he is asked to exercise his power under s. 3(11) advise an applicant that he required additional information and set out what information is required. Alternatively, an applicant such as O.E. might be asked to attend for interview with or without his partner. In either case the Minister might consider it proper to briefly suspend the execution of the deportation order pending the outcome of those inquiries. But in every case where a child’s constitutional rights are likely to be adversely affected by a deportation order the Minister is mandated to conduct an inquiry so that all of the relevant facts can be ascertained. It is only against such a backdrop that a decision which is both fair and proportionate can take place.

4. Was the inquiry carried out by the respondent one which complied with his statutory and constitutional obligations?
Counsel on behalf of the respondent submitted that the Minister in the present case complied with his statutory and constitutional obligations, when reaching his decision on O.E.’s application under s. 3(11) on the 15th March, 2006. It was submitted on his behalf that the decision, on its face, makes it clear that the respondent considered the rights of the unborn child when deciding not to revoke the deportation order.
Regrettably, I must conclude that I am not satisfied that the respondent gave any real consideration to the constitutional rights of the then unborn child at the time of making his decision.
In considering the respondent’s argument that he did consider the applicant’s potential constitutional rights at the time of making his decision I think it is important to note that this is a case where the Court appears to be privy to all of the information which was available to the respondent at the time he made his decision not to revoke the deportation order. The Court is of the opinion that whilst the respondent, on the face of his decision dated 15th March, 2006 refers to the existence of a relationship between O.E. and A.H. and the fact that O.E. had fathered an unborn child, there is nothing in his report or in the underlying documentation from which this Court could conclude that the Minister had sufficient facts to allow him conduct a considered inquiry into the rights of the child. Even if the Minister had scrutinised every line of all of the reports and memorandum making up O.E.’s file his attention would never have been drawn to the issue of the constitutional rights of the applicant who is simply not mentioned anywhere in such documentation albeit because the information was withheld by O.E.. Further, insofar as the Minister was required to make a decision which was proportionate in all of the circumstances taking into account the child’s rights, I believe the Minister simply did not have adequate information to make a decision which was fair in the circumstances. All the Minister knew was the name of AH and the potential delivery date of the applicant as per the letter from Colgan and Company on the day he made his decision. Nothing more was known about the applicant or his mother. In this respect it is worth contrasting the circumstances of the present case with what was known to the Minister at the time he made the deportation orders in the case of A.O. and D.L.

The Lohan Memorandum
In A.O. and D.L. the Court had access to what is described as the Lohan Memorandum in each case. Mr. John Lohan was the Principal Officer in the Immigration Division of the respondent’s Department and it was on foot of his report in each case that the Minister confirmed the original deportation orders notwithstanding the births of the Irish citizen children thereafter.
Details regarding the content of the Lohan Memorandum are set out in the judgment of Murray J., commencing at p. 65. From the synopsis of the report referred to in the course of his judgment it is clear that Mr. Lohan in each case specifically had regard to the constitutional rights of the Irish citizen child and the countervailing case in favour of deportation to preserve the integrity of and the respect for the State’s asylum and immigration laws. Consideration was given, for example, in the second case, to the fact that the deportation of the parents would result in the removal of K., their son, an Irish citizen, from the State. Mr. Lohan advised that “the respondent should weigh up the rights of that Irish citizen against the needs of the common good”. At para. 9 of his report he stated:-
“It is accepted that KL is an Irish citizen and may have rights to reside in the State. It would also appear that he has the protection of the Constitution in terms of guaranteeing him the right to the company, care and parentage of his family/parents. However, against those factors is the need for the respondent to preserve the integrity of and the respect for the State’s asylum and immigration laws.”
In a further paragraph Mr. Lohan advised as follows:-
“On the basis of the family protection claimed by the applicants, it should be presumed that the applicants would preserve the family unit on enforcement of the orders by taking K. with them, thereby preserving his right to the care and protection of his family as per Article 41 of the Constitution.”
Unlike in A.O. and D.L., the memorandum prepared by Mr. Dowling in the present case makes no mention of the constitutional rights of the applicant because he was not appraised of his impending birth at the time he prepared his memorandum on 14th March, 2006. The same point applies to all of the previous reports made by various officials in the Repatriation Unit.
The Court simply cannot assume that the Minister’s mind was directed to the constitutional rights of the child whose birth was imminent and it seems that the impending birth of the infant was considered by the respondent solely as a factor which might have enhanced O.E.’s rights to stay in Ireland. A separate and distinct inquiry by the respondent was mandated to consider how his failure to revoke the deportation order would affect the child’s personal constitutional rights including his right to the potential support and care of his father. Neither are there any facts within the documents exhibited which demonstrate that even had the respondent turned his mind to the constitutional rights of the said child that he had the information necessary to weigh those rights against the benefit to the integrity of the asylum process or the common good of deporting the infant’s father.
Having reviewed the documents exhibited in the affidavit delivered on behalf of the respondent, I am not surprised that there is no specific averment in Mr. Kelleher’s affidavit to the effect that the Minister did consider the constitutional rights of the child whose birth was imminent, at the time he made his decision under s. 3(11). If the respondent had done so, one would have expected a memorandum somewhat like the one that was prepared by Mr. Lohan in the case of A.O. and D.L. to have been on O.E.’s file as to the 15th March, 2006 and wherein reference might have been made to the possibility of the child’s constitutional rights being affected by the Minister’s decision. There is nothing in the decision of the Minister or any of the supporting documentation to show that the Minister weighed the loss to the infant of any of his constitutional rights, including his potential loss to the care and support of his father, against the State’s need to deport him.
Whilst Mr. Kelleher in his replying affidavit on behalf of the Minister contends that the applicant will not be precluded from a meaningful relationship with his father should the respondent be regularly granted permission to visit the country there is no averment that such matters were considered at the time when the respondent made his decision.
It is to be inferred from the documentation and the affidavits delivered in these judicial review proceedings that the Minister made his decision confined to the information which is in the file. This is particularly so in circumstances where no replying affidavit had been delivered to contend that the Minister took account of any other matters beyond what was in the file.
Whilst the onus is on the applicant to prove that there was a departure by the respondent from his obligations in his failure to conduct a proper inquiry I believe that the applicant has discharged this burden of proof.
As Finlay C.J. stated in Fajujoni, the Minister is entitled to interfere with constitutional rights but can only do so after he has conducted a due and proper inquiry into of all of the facts relevant to those rights and is thereafter satisfied that the interests of the common good and the protection of the State justify an interference with those rights. Further, like Finlay C.J. in Fajujoni, I can find no evidence to support a careful consideration of the applicant’s rights by the Minister or any evidence to suggest that he attached any importance to those rights by reason of their constitutional origin.
Finally, the respondent has contended that the applicant was not entitled to be given reasons by the Minister for his decision under s. 3(11) and has also contended that the Court should assume as per the decision in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 and P.F. v. Minister for Justice (Unreported, High Court, Ryan J., January 26th 2005) that the Minister acted in accordance with natural justice and fair procedures.
In Pok Sun Shun the first named plaintiff was a native of China. After he came to live in Ireland in 1978, he married the second named plaintiff in this country and went on to have three children whilst residing in Ireland. In 1981 the first named plaintiff made a formal application for a certificate of naturalisation and the right to carry on business as a self employed person. To this end he had meetings with the Department of Justice and also engaged in correspondence with that Department. His application was refused and he was given three months to leave the country.
One of the grounds upon which the plaintiff sought to impugn the decision of the Minister was that his decision was in breach of natural justice and fair procedures. The plaintiff contended that he was not given a formal hearing, and that the Minister failed to state the reasons for his ultimate decision. The plaintiff further alleged that there was no evidence that the Minister took into account the particular needs of the family which are protected by the Constitution. Costello J. determined that there was no particular rule of law requiring the Minister to give reasons for decisions of an administrative nature and in the course of his judgment he stated as follows:-
“It is true, as has been submitted by counsel for the plaintiffs, that no official of the Department, and perhaps I can properly assume the Minister himself, did not take down the Constitution and considered the constitutional provisions relating to the family before reaching a decision or making a recommendation, but I do not think that that vitiates the decision that was reached. The Minister was well aware of the marital status of the applicant. As I pointed out, in the course of discussion with counsel, it would seem to me to be unnecessary to send out an officer to inquire as to the effect of (a) the refusal of a certificate of naturalisation and (b) a refusal to permit residence in the country because it seems to me that the Minister was entitled to assume that these would be very serious indeed. Notwithstanding this, he took the decision. I am not a Court of appeal and I am not to be asked whether or not he was correct in taking these decisions. All I am required to do is say whether it was carried out in accordance with law and in accordance with the provisions of natural justice. The evidence clearly suggests that the Minister was aware of the applicant’s marital status, and that is sufficient, to my mind that there was no failure to carry out fair procedures in the plaintiff’s case.”
I believe that facts of the present case are entirely distinguishable from those in Pok Sun Shun as there is evidence from which I can infer the basis for the Minister’s decision. The fact that a Minister may not be obliged to give reasons does not mean that an applicant may not seek to establish, from the available evidence, the basis upon which the Minister made his decision. In this case the Court has all of the memorandum and information that was available to the Minister from which it is clear that the only thing he knew about the applicant, at the time of his decision under
s. 3(11) was that he was about to be born and the name of his mother. He knew nothing regarding the age of AH, her financial or employment position, whether the child would be supported financially if the father was deported, whether AH had any personal or family support, whether the couple could, if they wished, maintain their family unit by moving to Nigeria together or whether the applicant’s father would ever be in a position because of his financial means to visit his son in the event of his deportation being affirmed. Further, this is a case where the Minister did given his reasons and nowhere in his decision does he mention the fact that he considered the applicant’s constitutional rights. Most importantly, in his replying affidavit, Mr. Kelleher, on behalf of the Minister makes no averment that the Minister considered the constitutional rights of the applicant and neither does he state that the Minister knew of other matters which he considered other than those contained in the reports which were placed before him at the time he made his decision.
The decision in P.F. v. Minister for Justice does nothing to convince me that I should assume that the Minister considered the applicant’s constitutional rights at the time he made his decision under s. 3(11). In that case the first named applicant was an Irish citizen and the second named applicant a Romanian citizen. The couple lived together from March 2002 and a deportation order was made in respect of the second named applicant in April 2002. The couple married on the 11th November, 2002 and thereafter the second named applicant applied for residency in November 2002 on the basis of her marriage to the first named applicant. The second named applicant was subsequently deported on the 14th March, 2003 and thereafter the first named applicant made an application in April 2003 pursuant to s. 3(11) to have the Minister revoke the deportation order based upon the second named applicant’s marriage to him. The full text of the letter is set out in that judgment. The letter specifically sets out the applicant’s contention that the deportation order violated his rights under Article 41 of the Constitution. The letter requesting the Minister to invoke his powers under s. 3(11) contained no other material other than reference to the marriage and the applicant’s constitutional rights.
The decision made by the Minister made no specific mention of the constitutional rights of the first named applicant and the decision was challenged on this basis. Ryan J. concluded that the absence of any reference in the decision to the Minister’s consideration of marriage could not be taken to suggest that the issue was not in the Minister’s mind at the time he considered the revocation of the order as it was the only matter referred to by the applicant in his letter. Accordingly, the facts of that case are entirely distinguishable from the facts in the present case where not only was there no mention of the applicant’s constitutional rights but there was no mention of any of the facts which would have been relevant to the Minister’s consideration of those rights.
Finally, prior to setting out my conclusions in this case, I note the role of the Court in a dispute such as the present one is as per the decision of Keane C.J. in A.O. and D.L. v. The Minister for Justice where at p. 26 he stated as follows:-
“The resolution of these complex political, social and economic issues which, it need hardly be said, are not in any sense unique to Ireland, is entirely a matter for the Oireachtas and the executive. The function of the Courts is to ensure that the constitutional and legal rights of all the persons affected by the legislation in question are protected and vindicated.”
Having regard to the obligation on the Court to ensure that the constitutional and legal rights of the applicant are protected and vindicated I have come to the conclusions set out hereunder.

Evidential Conclusions and Legal Summary
For the reasons stated above I am driven to the conclusion from the evidence that the respondent failed to conduct a proper inquiry into the applicant’s personal constitutional rights at the time he refused to revoke or vary the deportation order referable to O.E. when requested to do so under s. 3(11) of the Act, on the 15th March, 2006. It is regrettable that the Minister must be criticised in respect of his decision dated the 15th March, 2006 as it is apparent from the documentation exhibited in this case that the respondent and the Repatriation Unit under his charge afforded extraordinary latitude to O.E. to make a case on his own behalf to remain in this country. Further, O.E. on any one of a number of occasions could well have brought to the respondent’s attention all of the matters relevant to seeking to engage the Minister in a meaningful and deep consideration of the applicant’s constitutional rights and the likely effects of deportation on those rights.
It is undoubtedly the case that the Minister gave of a significant amount to his time to consider all of the material placed before him. Ultimately, after the aforementioned protracted process, the Minister was faced with an ultimatum attached to which there was a wholly unreasonable deadline in the light of the prior withholding by O.E. of critical information, to make a decision under
s. 3(11). Regrettably, the respondent did not have available to him sufficient facts which would have allowed him to consider in a meaningful way the effect of the deportation order on the applicant’s constitutional rights, so as to be in a position to balance those rights and their potential loss against the need to maintain the integrity of the asylum process or the common good. I conclude that the Minister was driven into error in the aforementioned circumstances. Accordingly, the decision made by the respondent on the 15th March, 2006 did not afford to the applicant natural justice or fair procedures. Further, the decision cannot be deemed to be proportionate insofar as all of the relevant facts were not known to the Minister at the time he made his decision.
In the aforementioned circumstances the Minister should now conduct an inquiry and reconsider O.E.’s application pursuant to s. 3(11) having due regard to all of the facts relevant to the applicant’s constitutional rights.
In reaching the aforementioned conclusion I would summarise the legal rights of the applicant as follows:-
1. The applicant in this case, whilst unborn and at the time of the respondent’s decision enjoyed constitutional rights which required protection and vindication by reason of Articles 40.1 and 40.3 of the Constitution.
2. The personal rights enjoyed by the applicant at the time of the respondent’s decision included, amongst many others, a constitutional right to the support, company and care of both of his parents following upon his birth.
3. The fact that the parents of the applicant were not married at the time of the respondent’s decision is only relevant to the origin of the infant’s constitutional rights which do not derive from Articles 41 and 42 of the Constitution but rather from the unspecified rights which originate in Article 40.
4. The respondent was obliged not only to consider what the applicant’s constitutional rights were but how those rights would be affected in the event of O.E., the infant’s father being deported at the time he made his decision under s. 3(11) of the Act.
5. The respondent was obliged, in order to reach a proportionate and fair decision under s. 3(11) of the Act, to weigh all of the factors in favour of deportation as specified in s. 3(6), including the infant’s constitutional rights and then consider, having attached the appropriate weight to such rights, whether the common good and the integrity of the asylum process still required the deportation of O.E..
6. The applicant has discharged the onus of proof upon him to establish that the respondent did not conduct the type of inquiry that was mandated of him having regard to the impending birth of the applicant at the time he exercised his statutory powers under s. 3(11) of the Act. The Court further concludes that the respondent did not have the factual information which would have been necessary for him to reach a decision which was proportionate and fair in all of the circumstances. Further, the Court concludes that there is no evidence of the respondent having had regard to the applicant’s personal constitutional rights as opposed to any rights which may have been enjoyed by O.E. himself.
The Court will accordingly direct the respondent to reconsider the deportation order made on the 14th March, 2006 pursuant to s. 3(11) of the Act. It is clearly a matter for the respondent to decide the nature of the inquiry which he should conduct in the circumstances of the case and the weight to be attached to all of the relevant evidence.
Having regard to the Court’s findings above, the Court does not feel it necessary to determine whether or not the applicant enjoyed any rights pursuant to Article 8 of the European Convention on Human Rights and whether or not the Minister, in affirming the deportation order, contravened any such rights.
I will also consider making an order, should I be asked to so, restraining the respondent from deporting O.E. pending the reconsideration by him of his application under s. 3(11) of the Act.
In this respect I have considered the decision of McCracken J. in Cosma v. The Minister for Justice (Unreported, Supreme Court, 10th July, 2006). In that case the applicant appealed to the Supreme Court against the decision of the High Court in respect of the refusal of the Minister under s. 3(11) of the Act to revoke a deportation order. The Court also was engaged in deciding whether it was appropriate to grant an injunction to restrain the execution of the deportation order pending the appeal.
McCracken J. concluded that the Court clearly had an inherent power to grant an injunction. However, given that there was in being a valid deportation order and that what was under appeal was the Minister’s refusal to revoke the same, it had to be accepted that the injunction would have the effect of thwarting a valid deportation order in that case. McCracken J. went on to advise that in some circumstances such an injunction might be appropriate, although it was difficult to envisage the circumstances that might demand the making of such an order. McCracken J. stated:-
“It might conceivably be exercised when a previously unknown fact comes to light, being a fact which was unknown at the time of making of the deportation order.”
I am satisfied that this is precisely the type of case that merits the granting of an injunction given that the purpose of the within proceedings is to seek to vindicate and protect the applicant’s constitutional rights to the care and support of his natural father. In these special circumstances I believe the Court should, if so asked, seek to maintain the status quo in the light of the applicant’s constitutional rights to the care and support of his natural father until the respondent has revisited the application of O.E. under s. 3(11) of the Act.

Roche v Roche [2009] IESC 82
JUDGMENT of Murray C.J. delivered on the 15th day of December 2009
The primary issue in this case is whether the constitutional protection afforded to the life of the unborn as provided in Article 40.3. of the Constitution extends to three fertilised embryos which have been frozen and stored in a clinic.

The embryos came into being in the following circumstances. The appellant, who is the plaintiff in the proceedings, and her husband, the first named respondent, were married on the 5th March 1992. In 1994 they sought fertility advice from their general practitioner and were referred to the National Maternity Hospital, Holles Street, Dublin. Investigations in that hospital did not indicate any particular fertility problem. After care and treatment in the hospital the appellant became pregnant in January 1997 and a son was born in October 1997. The course of events which then led to the creation of the three frozen embryos the subject of these proceedings were summarised in the judgment of the learned High Court Judge on this issue as follows:

“Shortly after the birth of her son the plaintiff underwent surgery for an ovarian cyst and she lost two thirds of her right ovary. She was referred back to the National Maternity Hospital in Holles Street in 1999. On the 5th May, 2000 she underwent another laparoscopy. She had fertility treatment in 2001 at Holles Street which proved to be unsuccessful. In July 2001 the plaintiff and the first named defendant were referred for IVF treatment. They elected to have the treatment at the Sims Clinic (the fourth named defendant). Their first appointment at the fourth named defendant’s clinic was in October 2001. They returned to the clinic in January 2002. On the 29th January, 2002 the plaintiff signed a document entitled “Consent to Treatment Involving Egg Retrieval”. In this document the plaintiff agreed to the removal of eggs from her ovaries and a mixing of the eggs with the sperm of the first named defendant. On the same date the plaintiff and the first named defendant signed a document entitled “Consent to Embryo Freezing”. In that document it was stated, inter alia, “we consent to the cryo preservation (freezing) of our embryos and take full responsibility on an ongoing basis for these cryo preserved embryos.” The first named defendant signed a document entitled “Husband’s Consent” in which he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiff’s eggs and the implantation of three embryos. He also acknowledged in that document that he would become the legal father of any resulting child. On the same date the first named defendant signed a “Semen Collection Form” confirming that the sample produced was his. On the 1st of February, 2002 the plaintiff signed a form entitled “Consent to Embryo Transfer”. In this she agreed to the placing in her uterus of three embryos and the administration of any drugs or anaesthetics that might be found necessary in the course of the procedure.
As a result of the IVF treatment six viable embryos were created. Three were inserted in the plaintiff’s uterus and the remaining three were frozen. The plaintiff became pregnant as a result of the transfer of the three embryos and gave birth to a daughter on the 26th of October, 2002.

Towards the end of the plaintiff’s pregnancy following IVF treatment, marital difficulties arose between the plaintiff and the first named defendant which resulted in the first named defendant leaving the family home. He had entered into a second relationship. An attempt at reconciliation failed and the parties eventually entered into a judicial separation although they still remain legally husband and wife. The plaintiff wishes to have the three frozen embryos implanted in her uterus and the first defendant does not wish this to happen and does not wish to become the father of any child that might be born as a result of the implantation of the frozen embryos. ”

It is in these circumstances that the issues have arisen as to whether the appellant, as she claims, is entitled to have the frozen embryos implanted in her womb against the wishes of her estranged husband who does not wish to become the father of another child.
As indicated above the appellant has asserted that since the embryos enjoy the protection of Article 40.3.3., that provision requires that their right to life be vindicated by permitting her to have them implanted in her womb.
Article 40.3.3.
This article states:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The Irish language version states:
“3°Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.”
The language of that provision mirrors to a significant extent the general protection afforded by Article 40.3.1. to the personal rights of the citizen.
That provides (in the English language version, nothing arising from a comparison of the two language versions):

“The State guarantees in its laws to respect, and , as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
Subsection 3 must be interpreted in the context of Article 40 as a whole and in particular of 40.3.1.
Article 40, under the heading ‘Fundamental Rights’ and the subheading ‘Personal Rights’, commences in its first subsection by stating that:

“All citizens shall, as human persons, be held equal before the law.”
Thus Article 40, as adopted in 1937, addresses constitutional guarantees for the personal rights of human persons.
That is not to say that Article 40.3, before it was amended following a referendum, in 1983 did not necessarily afford constitutional protection to life before birth, and there were views expressed in public debate, particularly that related to the referendum, that it did, reference often being made to the obiter dictum of Walsh J. in McGee v. Attorney General [1974] 1 I.R. 284 at 312 where he stated:

“On the other hand, any action on the part of either the husband or the wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”
Indeed that passage was at the time referred to by some as a reason for advocating that the then proposed constitutional amendment was unnecessary.
Whatever the merits of that view the Eighth Amendment to the Constitution inserted subsection 3 of Article 40.3. and effectively extended in express terms to the “life of the unborn” or “mbeo gan breith chun a mbeatha” the constitutional protection for the personal rights of citizens referred to in Article 40.3.1. It does contain a specific reference to the equal right to life of the mother and I will address that proviso in due course.

In my view the subsection 3 of Article 40.3. is clear in its intent. It is intended to protect human life before birth. The key words in the English version are “life of the unborn” and in particular, in my view the much more apt expression, “mbeo gan breith chun a mbeatha (beo in its genitive case). I think “ceart na mbeo gan breith chun a mbeatha” can be fairly interpreted as meaning the right of life not yet born to live, or to its life.

The provision does not refer to the right to life of the unborn ‘child’ or ‘foetus’. No doubt because that could have compromised the meaning of life by raising questions as to when human life, after it had commenced, whether on conception or on implantation, could be characterised or defined as that of the child or the foetus.

Thus, Article 40.3.3. focuses on human life before birth without exception. It did not purport to confer a right but to protect a right acknowledged to exist. It commences with the words “The State acknowledges the right to life …” and sought, in a positive rather than prohibitive form, to protect that life while at the same time it made clear that the provision should not be interpreted as in any way undermining the right to life of the mother. As I said, I will address that particular proviso in due course, but for the moment, suffice it to say, in my view the provision seeks to acknowledge that human life before birth and after birth, with the specific reference to the life of the mother, are worthy of equal value and respect.

So far as the wording in the English version is concerned it refers to “right to life of the unborn” and if the English language permitted it, it might have fitted more readily with the Irish language version if it referred to “The right to life of the unborn life” but that would have been, in English, both an inelegant and tautologous form of wording for insertion in the Constitution.

In the course of the appeal it was argued that this provision of the Constitution should be interpreted in the light of the mischief it was intended to address including the statutory history of the law on abortion.

It is undoubtedly the case that the prohibition on abortion or any weakening of the existing statutory provisions on the prohibition of abortion was a central part of the debate leading up to the amendment. At that time the law of abortion was governed only by sections 58 and 59 of the Offences Against the Person Act 1861 under which the procuring of a miscarriage was a crime. In that context, it is notorious that in public debate the strength or efficacy of that prohibition, as argued by some involved in the debate, had been weakened by a decision in a case before the English courts in 1939 namely R v. Bourne [1939] 1 KB 687. The dictum in that case was never followed in this country but nonetheless was apparently used to raise concerns as to how the statutory law might be interpreted in this country.

If the objective at the time had been to just address some perceived statutory frailties that could have been achieved more readily and easily by the adoption of legislation. But the public debate transcended that and the object obviously was, as the result demonstrates, to place in the Constitution a protection for human life before birth. Of course it is also notorious that another important part of the public debate was provoked by the decision of the Supreme Court in the United States in the case of Roe v. Wade 410 US 113 (1973) which found that in certain circumstances a pregnant woman had the right to have an abortion. The fear, on one side of the debate, was that the courts in this country, and specifically this Court, might at some point in the future decide that such a right resided in our Constitution.

In any event the response to the wide ranging debate which took place at the time transcended legislative considerations and the issues were addressed at constitutional level.

Having regard to the terms of Article 40.3.3. I do not consider that the Act of 1861 or any possible interpretation of it is particularly important for the interpretation of that Article.

What is important in this context is not so much the mischief that was being addressed as the manner in which it has been addressed in the terms of the constitutional provision in issue.

Article 40.3.3. is not prescriptive or prohibitive in its terms.

A prescriptive and prohibitive form of amendment could have been opted for. There was already a parallel for that in the Constitution concerning the prohibition (since deleted) on divorce which provided: “No law shall be enacted providing for the grant of dissolution of marriage”. Instead of addressing abortion as such by a prohibitive amendment such as ‘no law shall be enacted permitting an abortion to be performed’ or the like, reference to the specific mischief, so to speak, was omitted and the provision turned to focus on the positive protection of human life before birth.

In my view the provision of the Constitution was intended to embrace human life before birth without exception and to extend to it, in express positive terms, the constitutional protections available to life after birth already provided for in Article 40.3.1 (cited above).

Of course the issue of abortion is a very controversial subject in Ireland and in many countries not only on whether it should be permitted at all, but if permitted, the circumstances and time when that may be allowed. Article 40.3.3, as adopted by the people in a referendum, is what applies in this country.

The really important question remains, namely, as to whether the frozen embryos in this case must be considered by this Court as constituting human life within the meaning of the provision.

In the course of the appeal it was suggested that Article 40.3.3. was not intended, and it should not be interpreted, as applying to the frozen embryos in this case by reason of the fact that the Article only contemplated life in the womb. Accordingly, before going on to address the fundamental question as to whether the frozen embryos can be determined by this Court to have the qualities of human life within the meaning of Article 40.3.3, I propose to address this discrete point.

In support of that argument reference was made to the proviso in the article, namely, “… with due regard to the right to life of the mother, ….”

Of course the gestation and birth of a child is inextricably and humanly linked to the mother and its development in the womb.

In vitro fertilisation and the creation of embryos, fertilised ova, outside the womb was probably not contemplated at the time. It is another notorious fact that part of the public debate on these matters, as indeed it had often been in the past, included concern as to whether the right to life of the unborn might, in certain circumstances, take precedence over the right to life of the mother. The kind of question posed was whether a doctor faced with a specific constitutional protection for the life of the unborn would be entitled to give appropriate treatment for a life-threatening condition of the mother when that would result in the death of the foetus. Obviously, having regard to the terms of the provision, all human life is considered of equal value. Absent any specific reference in the Constitution to the right to life of the mother, even though her right to life as well as all other persons are covered by the general provisions of Article 40.3.1. and 2, the proviso in subsection 3 serves to make a clear statement that the right to life of the mother cannot be treated as having a lesser value than that of the foetus. It had, in my view, no other purpose.

It is still of course the case, even with in vitro fertilisation, that if that statement concerning the right to life of the mother was desirable or necessary then it is equally so now. Even with in vitro fertilisation, and the associated processes, the evolution post-implantation of the embryo to the birth of a child remains inextricably linked with the mother as indeed it is in the normal process of conception, implantation and birth.

As Hederman J., stated, in Attorney General v. X [1992] 1 I.R. at 72, when considering Article 40.3.3:

“The State’s duty to protect life also extends to the mother. The natural connection between the unborn child and the mother’s life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal organism.”
In short, that statement or proviso concerning the equal right to life of the mother is there to ensure respect and protection for her rights in certain circumstances and cannot logically, in my view, be interpreted as intending to remove protection from human life because it is outside the womb or to devalue the equal right to life of the unborn because it is outside the womb. Therefore, I cannot accept the argument that simply because the embryo exists outside the womb that it is excluded from the protection of Article 40.3.
If, and I accept it is a very important if, the frozen embryos fell to be considered as having the qualities of human life then, inevitably in my view, they would fall under the rubric of the constitutional provision. Outside the womb, they have the same qualities as they would have in the womb. That is why they are viable embryos for implantation with a view to the birth of a child. It would appear that the present state of medico-biological science is such that for the frozen embryos to advance towards birth, implantation in the womb is required. Whether that science will develop further so as to permit embryos evolve further outside the womb may be a matter for speculation.
Human Life and Article 40.3.3.
We know that human life begins in the womb. That is not in issue. I speak in the context of a normal pregnancy following what is referred to as the act of procreation, of sexual intercourse between a man and a woman. The question is: at what point does human life begin; fertilisation or implantation? Again I suppose it could be said that there was a broad consensus among all disciplines that human life begins at least at implantation of the embryo in the womb or not long thereafter.

Of course courts take judicial notice, without having to expressly say so, of obvious and accepted truths concerning the nature of the world we live in. Thus a party, in appropriate proceedings, would not have to prove that a foetus of three months constituted human life no more than a party would be required to prove the existence of the law of gravity. The issue here has an altogether different dimension. There is no generally accepted truth or scientific dogma as to precisely when human life begins.

Debate and discourse as to when human life begins has for very many decades, and indeed long before that, focused, though not always exclusively, on whether human life begins at conception or at implantation.

Inevitably, this featured as part of the public debate on the constitutional amendment but the provision is resoundingly silent as to when human life should be deemed to begin for the purposes of enjoying its protection.

I think it is safe to assume that at the time when the proposed amendment to the Constitution was being debated and its form being decided by the Oireachtas that there was no clear view or consensus on the question of when human life begins, or perhaps more important, when it can be deemed or treated as having begun.

The status of the embryo, that is to say its moral status, and specifically the issue as to when human life begins, continues to be debated and discussed as part of a virtually world wide discourse in diverse fora including the most prestigious universities and halls of learning. The many facets of the various sides to that debate, and there are cogent arguments from every perspective, is manifest from the evidence given by the expert witnesses in the High Court. The range of views expressed or referred to in that evidence underscores the absence of any broad multidisciplinary consensus as to precisely when life begins and in particular as to whether it should be considered as beginning at conception or implantation, which are the two reference points with which we are concerned for present purposes.

However, I think it can be said that the human embryo is generally accepted as having moral qualities and a moral status. However else it may be characterised, the fertilisation of the ovum is the first step in procreation and contains within it the potential, at least, for life. It has present in it all the genetic material for the formation of life. Its creation and use cannot be divorced from our concepts of human dignity.

The Council of Europe Convention on Human Rights and Biomedicine with a view to, inter alia, preventing the misuse of biology in medicine which may lead to acts endangering human dignity prohibits, in Article 18, the creation of human embryos for research purposes. Article 3 of the Charter of Fundamental Rights of the European Union prohibits the use of embryos for the cloning of human beings as does the United Nations Declaration on Human Cloning. Such provisions and the fact that many countries regulate and protect the manner and circumstances in which in vitro embryos may be created and dealt with reflect the recognised moral status of embryos as being inextricably associated with human dignity. There is inevitably within the ambit of that moral appreciation of the embryo much debate particularly concerning the parameters of regulatory measures and what should be permitted and what should be prohibited.

The moral status of embryos and the respect or protection which society may feel they are owed is a different issue to the question posed, as to when life begins, and I do not propose to comment on it further for the purposes of this judgment.

One comes back to that fundamental issue in this case; namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal, counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, philosophical, theological and scientific. It is an issue which also engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when precisely human life begins.

Absent a broad consensus or understanding on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

The learned trial Judge aptly quoted from the report of the Constitution Review Group of the Oireachtas published in July 1996 to the following effect:

“Definition is needed as to when the ‘unborn’ acquires the protection of the law. Philosophers and scientists may continue to debate when human life begins but the law must define what it intends to protect.”
In my view that sums up the role of the Oireachtas in relation to this matter as the organ of State with at least initial responsibility for the protection and regulation of constitutional rights.
Therefore, in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas having due regard to the provisions of the Constitution. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The courts do not, in my view, have at their disposal objective criteria to decide this as a justiciable issue. Issues are not justiciable before the courts where there is, as Brennan J., put it in his opinion in Baker v. Carr 369 U.S. 186 (1962), “ a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; …” That is the position in which the Court in this case is placed regarding the question of when life begins. The onus rests on the Oireachtas to make the initial policy determination so as to define by law the precise point at which “the life of the unborn” begins to enjoy constitutional protection. The other alternative is an amendment to the Constitution.
Conclusion on this Issue
Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos constitute “life of the unborn” within the meaning of Article 40.3.3.
Contract and Implied Consent
I now turn to make a brief reference to some other issues which were raised by the appellant in the appeal. In the appeal counsel for the appellant relied on three documents as supporting her contention that the first named respondent had expressly or impliedly consented to the implantation of the three embryos. The first document is one signed by the appellant and relates to a consent to treatment involving egg retrieval. Then, on the reverse side of that document there is a consent form to the treatment which is headed the ‘Husband’s Consent’ and is signed by the first named respondent. Subsequently the appellant and the respondent signed a third document which was a consent to embryo freezing. I agree with the conclusions of Denham J., Geoghegan J., and Hardiman J., that the appellant has not established that there was any contractual engagement between these parties obliging the husband to consent to the implantation of the frozen embryos nor was there otherwise an implied consent to do so.
Estoppel
In the particular circumstances thus of this case and for the reasons set out in her judgment I agree with Denham J., that the plaintiff is not entitled to succeed in her claim that the first named responded is estopped from refusing his consent to implantation. I also agree with Denham J., that there may be circumstances, such as where a woman has no children (although not necessarily just in such cases) and her only reasonable prospect of bearing a child is the implantation of embryos, could be entitled to such implantation notwithstanding the absence of the consent of the man concerned to implantation, although he had consented to the embryos being frozen.
Conclusion
As the appellant has not succeeded on any of the grounds of appeal the appeal should be dismissed.

Judgment delivered the 15th day of December, 2009 by Denham J.

1. The central issue in this case is whether three embryos, which have been frozen and stored in a clinic, are the “unborn” and as such protected by Article 40.3.3° of the Constitution of Ireland.

2. This is an appeal brought by Mary Roche, the plaintiff/appellant, referred to in this judgment as “the plaintiff”, from the decision of the High Court refusing her claim for the release to her of three frozen embryos for implantation.

3. The plaintiff was married to Thomas Roche, the first named defendant/respondent, referred to in this judgment as her husband, in 1992.

4. The plaintiff and her husband had fertility difficulties, but, after some treatment, in 1997 the plaintiff and her husband had their first child, a son, born to them.

5. Subsequently, further fertility issues arose and in 2002 the plaintiff had in vitro fertilisation treatment, “I.V.F.”, at the Sims Clinic Ltd., the fourth named defendant/respondent, “the Clinic”. Six embryos resulted. Three of the embryos were implanted in the plaintiff’s uterus and she became pregnant. The remaining three embryos were frozen and placed in storage with the Clinic, and are the three embryos in issue in this case.

6. A number of documents were signed in 2002 by the plaintiff and her husband. These documents will be considered later in the judgment.

7. As a result of the implantation of the embryos in 2002, the plaintiff gave birth to a second child, a daughter, in October, 2002.

8. Shortly after the birth of their daughter, the plaintiff and her husband separated. Years later the plaintiff requested that the three frozen embryos be released to her, as she wishes to have them implanted in her uterus. The Clinic refused to release them in the absence of consent from her husband, which was refused. Thus the plaintiff has brought these proceedings.

9. In January, 2006 the second, third and fourth named defendants/respondents, the doctors and the Clinic, were released from any further participation in the proceedings, unless required, on their undertaking to make all reasonable efforts to preserve the three embryos pending the final determination of these proceedings. The Attorney General was joined as a notice party.

10. This case raises both private and public law issues. (a) The private law issue was described as a contractual matter. (b) The public law issue is a constitutional issue, as it is the plaintiff’s case that the frozen embryos constitute the “unborn” within the meaning of Article 40.3.3˚ of the Constitution of Ireland, and that the State is obliged to facilitate their implantation.
High Court
11. On the 18th July, 2006, the High Court held: (i) that there was no agreement between the plaintiff and her husband as to what was to be done with the frozen embryos in the circumstances that have arisen; and (ii) that her husband had not entered into an agreement which required him to give his consent to the implantation of the three frozen embryos.

12. On the 15th November, 2006, the High Court declared that the frozen embryos were not the “unborn” within the meaning of Article 40.3.3˚ of the Constitution. The learned High Court judge held that it was a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro.
Appeal
13. The plaintiff has brought this appeal against both judgments and orders of the High Court. In essence, the plaintiff’s grounds of appeal are that the High Court erred, inter alia:-

(i) in finding that there was no agreement as to what would happen to the frozen embryos in circumstances where the marriage had broken down;
(ii) in finding that there was no evidence that the husband gave his express consent to the implantation of the embryos;

(iii) in finding that it was not the presumed intention of the parties that the embryos would be implanted in circumstances in which the first implantation procedure had been successful and their marriage had broken down;

(iv) in finding that a term of the contract requiring that the frozen embryos be implanted could not be derived from the nature of the agreement between the parties;

(v) in finding that the husband was not estopped from denying he had consented to the transfer of the embryos;

(vi) in his findings regarding the purpose of the Eighth Amendment to the Constitution;

(vii) in finding that there was no evidence to establish that it was ever in the mind of the People voting on the Eights Amendment that “unborn” meant anything other than foetus or child in the womb;

(viii) in finding (at least by implication) that “unborn” in Article 40.3.3° meant foetus or child in the womb exclusively;

(ix) in finding that the clear purpose of the Eighth Amendment was to deal with the issue of termination of pregnancy and with that issue alone, whereas it was intended to confer positive rights and protection to the unborn above and beyond the issue of abortion per se;

(x) in finding that the Court was not concerned with the question of when life begins;

(xi) in finding that no evidence was adduced to enable the Court to hold that the word “unborn” in Article 40.3.3° includes embryos outside the womb;

(xii) in finding that the word “unborn” in Article 40.3.3° does not include embryos in vitro and therefore does not include the three frozen embryos in this case;

(xiii) in finding that the plaintiff was not entitled to the return of the embryos to her uterus by virtue of Article 41 of the Constitution;

(xiv) in holding that that learned High Court judge could not determine when life began for the purpose of the word “unborn” while (a) disregarding the weight of the scientific evidence on that question advanced before the court, and (b) holding (at least by necessary implication) that life began at implantation for the purpose of Article 40.3.3˚.

14. The Attorney General has cross-appealed from so much of the order as awarded to the plaintiff and her husband their costs, on the grounds that the general rule should be applied, that costs should follow the event, and that there were no exceptional circumstances arising in the case so as to exclude the general rule on costs.
Submissions
15. Oral and written submissions were made on behalf of the plaintiff by Ms. Inge Clissman S.C. and Mr. Gerard Hogan S.C..

15.1 On the private law issue, in essence, it was submitted that the husband consented to the I.V.F. procedure in 2002 when he executed the necessary consent form and his consent is irrevocable as against the plaintiff. It was submitted that this is underscored by the fact that the embryo transfer forms required only the wife’s consent and did not require his consent, and that his consent was not formally sought although he was present at the implantation. It was submitted that in any event he was precluded and estopped by his conduct from denying or revoking his consent in circumstances where he allowed his wife to go through the I.V.F. procedure, and that he is also precluded from asserting a right to revoke that consent or to veto the future use of the embryos. It was submitted that the learned trial judge erred in law in holding that the husband’s consent was either required or (in the alternative) that he was entitled, in the circumstances, to refuse to give such consent.

15.2 On the constitutional issue it was submitted that:- (a) The evidence overwhelmingly supported the view that the embryos constitute unborn human life. That there are powerful arguments in favour of that view, and that it has been endorsed by a significant segment of the medical and scientific community, even if that community is divided on the question. (b) Given this state of affairs, it was submitted that the embryos should be regarded as embryonic human life and, hence, the “unborn” for the purpose of Article 40.3.3˚. It was submitted as unlikely that the People intended to protect only that unborn life that was conclusively established as such or an alternative (and equally) arbitrary date, e.g. implantation. (c) So far as the argument advanced by the husband to the effect that he should not have paternity imposed on him is concerned, this turns on whether the embryos constitute unborn human life. If they do, then he is already the father of these unborn human lives. (d) If this Court concludes, as submitted it must in light of the evidence adduced, that the embryos constitute the “unborn” for the purposes of Article 40.3.3˚, then this Court must vindicate that right by taking all practicable steps to protect that right. It was submitted that the Court should direct the Clinic to facilitate the plaintiff in having the embryos inserted in her uterus.

Paragraph 49 of the plaintiff’s submissions stated pithily the essence of her argument on this issue. In answer to the question as to whether a frozen embryo constitutes the unborn it was submitted:-

“49. The word “unborn” (“beo gan breith”) is, unfortunately, not defined. The literal translation of the Irish text may be rendered as “life not born”. It is submitted that the phrase refers to all human life which is capable of being born. For this purpose the Court does not have to pronounce on questions as to when human life begins. It is sufficient for present purposes to say that where (at least) a large body of medical and scientific opinion consider that embryos do constitute such unborn human life, that is sufficient for this purpose. The People must be taken to have wished to defend and protect such life, even the medical community is divided on the question as to when such life actually starts. Had the People wished such protection to commence from a later (and, it is submitted, an essentially arbitrary) date such as implantation, Article 40.3.3 would surely have said so.”
16. The submissions on behalf of the husband were advanced by Mr. John Rogers, S.C. and they included the following.
16.1 As regards the private law issue, what was termed the contractual issue, it was submitted that it was the husband’s position that there was no express or implied consent on his part to the transfer of the three frozen embryos to the plaintiff’s uterus. Should this Court hold otherwise, it was submitted that the withdrawal of consent is entirely admissible.

16.2 On the constitutional issue, on the meaning and status of the term “unborn” for the purposes of Article 40.3.3˚, it was submitted on behalf of the husband that the concept of the unborn must involve the capacity or potential to be born and this capacity arises only upon the occurrence of implantation. Article 40.3.3˚, it was submitted, does not support the plaintiff’s case so as to confer on a pre-implantation embryo a constitutional right to life.

17. Submissions, written and oral, were made on behalf of the Attorney General by the Mr. Donal O’Donnell, S.C. and Mr. Brian Murray, S.C..

17.1 On the private law issue, counsel on behalf of the Attorney General brought the Court’s attention to authorities in other jurisdictions which stressed the primacy of contractual agreements in this area.

17.2 On the constitutional issue, it was submitted that the frozen embryos in this case do not constitute the “unborn” within the meaning of Article 40.3.3˚ of the Constitution, with the consequences that the State is not obliged to facilitate their implantation. Defining the unborn so as to include pre-implantation embryos, as submitted on behalf of the plaintiff, would contravene the text, purpose, and spirit of Article 40.3.3˚. It was submitted that this article was inserted into the Constitution for the purpose of prohibiting the termination of pregnancies. A consideration of the intention of the People in enacting the Eighth Amendment suggests that it did not confer constitutional rights on the pre-implantation embryo. It was submitted that the plaintiff’s appeal ought to be dismissed; that dismissal of the appeal would leave to the People and their representatives the capacity to resolve the question of the appropriate treatment of such embryos in the light of modern conditions.
Current situation of the embryos
18. On the 24th June, 2005, the Clinic wrote to the plaintiff and her husband pointing out that they had received no payment for the storage of their embryos since June, 2003. The Clinic wrote that the failure of payment, despite a request for payment, “is a breach of unit policy which renders our implied storage contract null and void.” The Clinic stated that as an act of altruism it would maintain the integrity of the embryos for another year but pointed out that neither the Clinic nor its agents had any further responsibility for the embryos. The stored embryos may be removed from the storage area and transferred only with the consent of the plaintiff and her husband. The current situation is that the second and third named defendants and the Clinic have indicated that they will abide by the court order.
The Private law issue: Contract?
19. The first issue on this appeal is the private law matter, referred to as having a contractual aspect. Mr. Gerard Hogan S.C., for the plaintiff, argued that there was express consent by the husband to the implantation of the three embryos, or that there was implied consent, and/or that the husband is estopped from refusing to give his consent in the circumstances of the case.

20. There are three documents upon which this submission is grounded. I shall consider each of the documents in turn.

20.1 There is a document as follows:-

“Medical Programmes directed by:
Anthony Walsh, MD, MRCOG, MRCPI

David Walsh, MD, MRCOG

CONSENT TO TREATMENT INVOLVING EGG RETRIEVAL

Full name of Woman ..…[Mary Roche]…..

Address …………………….. [address given]

1. I consent to (delete/complete as applicable):

(a) Being prepared for egg retrieval.

[this is ticked]
(b) The removal of eggs from my ovaries with the aid of:

• laparoscopy

• ultrasound

[the term “ultrasound” is circled]

[this is ticked]

(d) the mixing of the following (tick each column as required):

( ) of my eggs ( ) with sperm of my husband/partner

[both of the above are ticked]
( ) 3 eggs only ( ) all of my eggs

( ) anonymous donor’s eggs ( ) an anonymous donor’s sperm;

(e) the use of micromanipulation techniques

2. I have discussed with … [Dr Walsh] … the procedures outlined above.

I have been given information both orally and in writing about them.

3. I have been given a suitable opportunity to take part in counselling about the implications of the proposed treatment.

Patient’s signature …………… Date …………
[The plaintiff has signed the document and it is dated 29.01.02]

Doctor’s signature …………… Date …….……

[There is a signature and it is also dated 29.01.02]”

20.2 I have considered this document carefully. It is a type of form. It addresses the relationship between the two doctors, named at the top of the sheet, and the plaintiff. It is a consent form for the plaintiff in relation to the medical treatment being offered by the doctors. The husband is not a party to this form. The form addresses issues related to information for the plaintiff, and consent by the plaintiff to the medical procedures referred to. It is not a contract between the plaintiff and the husband. There is no question of an offer or acceptance or consideration, or an intention to create a legal contract, leading to an agreement between the plaintiff and her husband.
20.3 On the reverse side of that consent form is another consent form. The document is as follows:

“Medical Programmes directed by:
Anthony Walsh, MD, MRCOG, MRCPI

David Walsh, MD, MRCOG

HUSBAND’S CONSENT

1. I am the husband of …. [Mary Roche] …. and I consent to the course of treatment outlined above. I understand that I will become the legal father of any resulting child.

2. Any other remarks ……………..

Signature of husband ………… Date …………

[The document is signed by the husband and it is dated 29.01.02]

Full name in block capitals ……………………..

[Blank]

Address …………………………………………

[Blank]

______________________________________________________ ”

20.4 The above document is a consent form signed by the husband, consenting to the course of treatment to the plaintiff. It addresses issues relevant to the medical treatment of the plaintiff and relates to the relationship, in this context, between the doctors and the husband. It also states that he understands that he will become the legal father of any resulting child. There is no question of a contractual relationship being established by this document between the plaintiff and her husband. There is no offer or acceptance, nor consideration, nor intention to create legal relations. It is a medical consent form signed by the husband and it is relevant to his relationship with the medical programmes and personnel.
20.5 Also, on the 29th January, 2002, the plaintiff and her husband signed a third document. This was a consent to embryo freezing. The document states as follows:-

“Medical Programmes directed by:
ANTHONY WALSH, MD, MRCOG, MRCPI

DAVID WALSH, MD, MRCOG

CONSENT TO EMBRYO FREEZING

Full names of couple …. Mary & Thomas Roche….

Address ……………………..

[short address is given]

We consent to the cryopreservation (freezing) of our embryos and take full responsibility on an on-going basis for these cryopreserved embryos.

Patients Signatures ………………. Date …………..

……………… Date ………….

[The plaintiff and the husband signed the document and dated it 29.01.02]

Doctor’s signature ………………. Date ………….

[There is a signature which is indecipherable and it is dated 29.01.02]”

21. This is another consent form. Neither this form nor the two previous forms are documents drawn up and establishing a legal agreement between the plaintiff and her husband. They are consent forms presented by the Clinic to the plaintiff and to her husband and they relate to consent to actions taken by the Clinic. They are signed by the plaintiff and her husband, as medical consent forms. They were formulated to protect and assist the Clinic and the second and third named defendants, in the treatment programme.
22. The plaintiff and the husband underwent the treatment with the hope that they might have a child. The process resulted in six embryos. Three of the six embryos were implanted in the plaintiff’s uterus and subsequently a child was born to them. The remaining three embryos were frozen. It is the three surplus embryos which have given rise to these proceedings. The position of these three embryos was not addressed in the documents, except in the consent to embryo freezing form.

23. When the treatment commenced it would not have been known how many eggs would be fertilised, and the consent to embryo freezing related to any surplus embryos. The document is simply that – a consent to embryo freezing. It provided for the situation where, as in fact happened in this case, surplus embryos were produced. None of the documents are contracts creating or evidencing an agreement between the plaintiff and her husband expressing consent to the implantation of these three surplus embryos in the plaintiff’s uterus. I am satisfied that the fact that the husband consented to the treatment and to the freezing does not establish a consent so as to enable the plaintiff to avail of the surplus frozen embryos for implantation.

24. The consent given by the husband was to the treatment then planned for the I.V.F., and to the freezing of any surplus embryos.

25. The documents are forms which were provided by the Clinic to the plaintiff and her husband to obtain their consent to the procedures. They are in line with the guidelines of the Medical Council.

26. In “A Guide to Ethical Conduct and Behaviour”, “the Guide”, approved and published by the Medical Council in 2004, on the issue of informed consent, it was stated, in paragraph 17.1:-

“It is accepted that consent is implied in many circumstances by the very fact that the patient has come to the doctor for medical care. There are however situations where verbal and if appropriate written consent is necessary for investigation and treatment. Informed consent can only be obtained by a doctor who has sufficient training and experience to be able to explain the intervention, the risks and benefits and the alternatives.”
27. In the section of the Guide relating to reproductive medicine, paragraph 24.5 was headed “In-Vitro Fertilisation (I.V.F.)” and stated:-
“Techniques such as I.V.F. should only be used after thorough investigation has failed to reveal a treatable cause for the infertility. Prior to fertilisation of an ovum, extensive discussion and counselling is essential. Any fertilised ovum must be used for normal implantation and must not be deliberately destroyed.
If couples have validly decided they do not wish to make use of their own fertilised ova, the potential for voluntary donation to other recipients may be considered.”

The documents in this case are consistent with those guidelines, which envisaged that there should not be intentional destruction of embryos.
In the 7th Edition 2009 Guide to Professional Conduct and Ethics for Registered Medical Practitioners, published recently by the Medical Council, on the matter of assisted human reproduction the guidelines state:-

“20.1 Assisted human reproduction treatments, such as In Vitro Fertilisation (IVF), should only be used after thorough investigation has shown that no other treatment is likely to be effective. You should ensure that appropriate counselling has been offered to the patient and that the patient has given informed consent before receiving any treatment.
20.2 Assisted reproduction services should only be provided by suitably qualified professionals, in appropriate facilities, and according to international best practice. Regular clinical audit and follow-up of outcomes should be the norm.

20.3 If you offer donor programmes to patients, you must consider the biological difficulties involved and pay particular attention to the source of the donated material. Such donations should be altruistic and non-commercial. You should keep accurate records for future reference.”

Thus there is a change in these new guidelines in relation to the fertilised ovum. This illustrates the lack of regulation in the area. The situation in this case has arisen because of the creation of the three surplus embryos. These circumstances arise in other jurisdictions also. Some states have taken steps to prohibit the keeping of surplus embryos. Other states make specific provision in legislation for surplus embryos. There is no legislation in Ireland on the issue, nor any other form of regulation on assisted human reproduction.
28. The Report of the Commission on Assisted Human Reproduction, 2005, at p.XI, stated that:-

“The surplus embryos not used for immediate transfer may be preserved in a frozen state (cryopreservation) for further use by the couple who produced them, thereby avoiding the necessity of repeating the risky and uncomfortable procedure of ovarian stimulation. (Sperm may also be reserved in a frozen state. At present ova are not routinely frozen). If frozen embryos still remain after the couple has completed their treatment, the available options include: donation to another couple, donation for research and being allowed to perish.”
The Commission recommended that a regulatory body should be established by an Act of the Oireachtas to regulate assisted human reproduction and that appropriate guidelines should be put in place. Clearly it is a matter for the Oireachtas to regulate the sensitive and important area of reproductive medicine.
29. I am satisfied that the consent of the husband to the I.V.F. treatment and to the freezing of embryos was not an agreement to the implantation, years later, of the surplus frozen embryos. There was no agreement, between the plaintiff and the husband, as to the surplus embryos.

30. The absence of an express agreement, and the absence of regulation in the circumstances of the case, lead to the issue of an implied agreement being raised by counsel for the plaintiff.
Implied Agreement
31. I am satisfied that the facts of the case do not establish that there was an implied consent by the husband to the use, the implantation, of the surplus frozen embryos. Without going into the evidence in detail in this judgment, two extracts illustrate the situation. On Day 2 the plaintiff gave the following evidence:-

“Q. Can you tell the Court when do you recall the first discussion taking place about the embryos between yourself and your husband?
A. It was before he left the second time. I asked him: ‘What are we going to do with our frozen embryos?’ and his initial reaction was at the time: ‘We will destroy them’ and I said ‘We can’t do that, the clinic don’t allow that’. We didn’t speak of it again.”

Later it transpired from the plaintiff’s evidence that they had a further discussion on the frozen embryos in 2005. In her evidence on Day 2 the plaintiff was asked and answered as follows:
“Q. Did you have any discussion with your husband about seeking to recover the embryos yourself with a view to having them transferred and for the purposes of implantation?
A. I did bring up the question again, I think it was in 2005. We were at a mediation session regarding an issue and I brought it up again. I asked him what are we going to do with our three frozen embryos and his reply was that we would donate them and the money that we would get from the donation, we would give it to a children’s charity. My reply to him was ‘You want to sell our children?’ He said ‘You don’t get any money when you donate frozen embryos’, and that was the last discussion I had with him.”

It is clear that there was at no time an implied agreement, or consent by the husband, to the implantation of the surplus frozen embryos.
Estoppel
32. Counsel submitted that once one had regard to the sequence of events, the consent forms, the implantation of three embryos, the freezing of the three surplus embryos, in a situation where the husband knew that there may be surplus embryos, that the husband is precluded by his conduct from refusing to give consent to the implantation of the three surplus embryos in the plaintiff’s uterus.

33. This submission is made in relation to a situation where, I am satisfied, there was neither an express nor an implied consent or intent to have the three surplus embryos implanted. There was no intent, or advance decision, in relation to any surplus embryos. There is no question, therefore, of enforcing any earlier expressions of choice. As there was no decision on the matter there is no issue of withdrawal of consent arising for consideration.

34. The facts of a case are critical to any analysis of estoppel. In this case there was the I.V.F. treatment, the implantation of three embryos and the successful birth of a daughter. This was the plaintiff and her husband’s second child, a son having been born to them earlier. There was consent to freezing surplus embryos but there was no agreement or choice made as to what was to be done with any surplus embryos. There was no agreement between the plaintiff and her husband. The plaintiff and her husband are now separated. The plaintiff wishes to have the surplus embryos implanted, while her husband does not wish them to be implanted. In the circumstances of this case, on the facts and the law, no issue of estoppel arises.

35. The finding, set out later in this judgment, on the meaning of the term the “unborn” in Article 40.3.3, with reference to the three frozen embryos, is relevant to this analysis. I have been mindful of that finding in my decision.

36. There being no agreement between the parties, another approach advocated was that of the contemporaneous mutual consent test. The Court’s attention was drawn to In Re the Marriage of Witten III 672 N.W. 2M 768 (Iowa 2003), a decision of the Iowa Supreme Court where frozen embryos had been created by the parties with consent. However, the marriage broke down and then the wife wished to use the embryos but the husband did not. The Court held:-

“That brings us, then to the dilemma presented when one or both partners change their minds and the parties cannot reach a mutual decision on disposition. We have already explained the grave public policy concerns we have with the balancing test, which simply substitutes the court as decision maker.”
However, this approach is not relevant to, nor should it be applied in, this case as there was no initial agreement as to what should happen to the surplus embryos other than that they be frozen. Consequently no issue of change of mind arises. However, it is of interest to note the test applied by that Court. It held:-
“A better principle to apply, we think, is the requirement of contemporaneous mutual consent. Under that model, no transfer, release, disposition or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilised eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction. … Turning to the present case, we find a situation in which one party no longer concurs in the parties’ prior agreement with respect to the disposition of their frozen embryos, but the parties have been unable to reach a new agreement that is mutually satisfactory. Based on this fact, under the principles we have set forth today, we hold that there can be no use or disposition of the Wittens’ embryos unless Trip, (the husband) and Tamera (the appellant) reach an agreement. …”
That test does not arise in the circumstances of this case as the parties did not make an agreement as to the surplus frozen embryos. However, the mutuality required in the test is noteworthy.
37. A different test was applied in Davis v. Davis 842 S.W. 2d 588, 597 (Tenn. 1992), where the Tennessee Supreme Court addressed the issue of disputes as to frozen embryos between divorcing couples. It stated, at paragraph 112:-

“In summary, we hold that disputes involving the Disposition of preembryos produced by in vitro fertilization should be resolved, first, by looking to the preferences of the progenitors. If their wishes cannot be ascertained, or if there is dispute, then their prior agreement concerning Disposition should be carried out. If no prior agreement exists, then the relative interests of the parties in using or not using the preembryos must be weighed. Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in question. If no other reasonable alternatives exist, then the argument in favour of using the preembryos to achieve pregnancy should be considered. However, if the party seeking control of the preembryos intends merely to donate them to another couple, the objecting party obviously has the greater interest and should prevail.”
38. As indicated earlier, I am satisfied that there was no prior agreement in this case to the implantation of the surplus frozen embryos. However, even if the husband had made such agreement, which he did not, I would not regard it as irrevocable. All the circumstances would have to be considered carefully. If a party had no children, and had no other opportunity of having a child, that would be a relevant factor for consideration. In this case the plaintiff and her husband already have two children. It is also relevant that they are now separated. Another important factor is that the husband does not wish to have further children with the plaintiff. If the embryos were implanted he would be the father of any subsequent children, with constitutional rights and duties.
39. The right to procreate was recognised in Murray v. Ireland [1991] 1 I.L.R.M. 465. There is an equal and opposite right not to procreate. In the circumstances of this case, while the plaintiff and her husband have family rights, the exercise of a right not to procreate by the husband is a proportionate interference in all the circumstances of the case to the right of the plaintiff to procreate.
Conclusion on civil issue
40. Each case requires to be considered on its own facts. I conclude on the civil issue that there was no agreement, express or implied, as to the use of the three surplus frozen embryos. Even if there was an agreement, which I am satisfied there was not, I consider that it would not be irrevocable. Further, in the circumstances, the principle of estoppel does not apply to estopp the husband from refusing to give his consent to the implantation of the frozen embryos.

41. I would dismiss the plaintiff’s appeal on all the grounds raised in relation to the private law issue.
Constitutional Issue: the “unborn”
42. For the purpose of analysing the constitutional issue I shall recap, shortly, the basic facts. The plaintiff and her husband experienced fertility difficulties. With treatment the plaintiff became pregnant and the couple had a son born to them in 1997. The plaintiff wished to have further children and she attended the Clinic for I.V.F. treatment in 2001. In January 2002 the plaintiff and her husband signed the documents set out earlier in this judgment. Six viable embryos were created in the Clinic following the mixing of the plaintiff’s eggs with the husband’s sperm. Three of the embryos were implanted in the plaintiff’s uterus, she became pregnant, and a daughter was born in 2002. The plaintiff and her husband have had marital difficulties and are now separated. At issue in this case are the three surplus embryos which were frozen and stored at the Clinic.

43. The plaintiff submits that the three surplus embryos constitute the “unborn” for the purposes of Article 40.3.3˚ of the Constitution and that the State, (which includes the Court), is obliged to facilitate the implantation of the embryos into the plaintiff’s uterus having regard to the constitutional duty to protect unborn life. On behalf of the husband it was submitted that the concept of the “unborn” must involve the capacity or potential to be born and that this capacity arises only upon the occurrence of implantation; that Article 40.3.3˚ does not support the plaintiff’s case so as to confer on an embryo pre-implantation a constitutional right to life. On behalf of the Attorney General it was submitted that the frozen embryos do not constitute the “unborn” within the meaning of Article 40.3.3˚, and that consequently the State is not obliged to facilitate their implantation.

44. The term “unborn” is to be found in Article 40.3.3˚ of the Constitution. The Article states:-

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The word “unborn” is not defined in the Constitution.
45. This case is not about the wonder and mystery of human life. This is a court of law which has been requested to make a legal decision on the construction of an article of the Constitution of Ireland. The question raised is whether the term “unborn” in the Constitution includes the three frozen embryos in issue in this case. It is a matter of construing the word in the Constitution to determine its constitutional meaning.

46. This is not an arena for attempting to define “life”, “the beginning of life”, “the timing of ensoulment”, “potential life”, “the unique human life”, when life begins, or other imponderables relating to the concept of life. This is not a forum for deciding principles of science, theology or ethics. This is a court of law which has been requested to interpret the Constitution and to make a legal decision of interpretation on an article in the Constitution.

47. Article 40.3.3˚ was inserted into the Constitution of Ireland, 1937, by the Eighth Amendment to the Constitution in 1983.

48. The context in which this amendment was passed is important and relevant.
Context – statutory
49. Before Article 40.3.3° was introduced into the Constitution the law on abortion was governed by s.58 and s.59 of the Offences against the Person Act, 1861, by which the procuring of a miscarriage was a crime. These provisions were confirmed by s.10 of the Health (Family Planning) Act, 1979.

50. The meaning of s.58 of the Offences Against the Person Act, 1861 was considered in England and Wales in R. v. Bourne [1939] I KB 687. MacNaghten J. held that an abortion to preserve the life of a pregnant woman was not unlawful. It was held that where a doctor was of the opinion that the probable consequence of a pregnancy was to render a woman a mental and physical wreck he could be said to be operating for the purpose of preserving the life of the mother.

51. R. v. Bourne was followed in many common law jurisdictions. However, it was never applied to or relied upon in this State. It was no part or our law.

52. The term “miscarriage” was not defined in the Act of 1861. It was referred to in R. (Smeaton) v. Secretary of State for Health [2002] 2 F.L.R. 146. Munby J., at p.210 stated:-

“Professor J K Mason takes the same view as both Professor Kennedy and Professor Grubb, and for much the same reasons: see his Medico-Legal Aspects of Reproduction and Parenthood (1990) pp 54-56 and Mason, McCall Smith and Laurie Law and Medical Ethics (5th edn, 1999) pp 111-112, 129-130.
He adds (Medico-Legal Aspects at p 54) an interesting argument as to why preventing implantation is not procuring a miscarriage:
‘Medically speaking . . . there is wealth of difference, the most particular being that the contents of the body’s passages which are open to the exterior are, themselves, “external” to the body. A simple example is to be seen in the ingestion of a toxic substance; an analysis of the stomach or bowel contents may indicate the fact of ingestion but cannot demonstrate poisoning-the substance has not been absorbed and is, accordingly, still “external” in nature. Something which is external is carried only in the loosest sense-it can be dropped either intentionally, accidentally or naturally. There can be little or no doubt that bodily “carriage” implies some kind of integration with the body or, as Kennedy has said: “there can be no miscarriage without carriage'”.
I agree with this analysis and apply it in my consideration of the issue before the Court.
53. Therefore, I am satisfied that, in the context of the statutory law prior to the introduction of Article 40.3.3° of the Constitution, the State protection of an embryo arose after implantation. The Amendment introduced in the Constitution was to copper fasten the protection provided in the statutory regime, to render unconstitutional the procuring of a miscarriage. It meant that any expansive interpretation of the Act of 1861 was precluded.
Context – right to privacy
54. Prior to the Eighth Amendment the context also included some controversial cases in other jurisdictions on, and the development of, the right to privacy. The right of privacy was interpreted by the Supreme Court of the United States of America to prohibit state interference with a couple’s use of contraceptives: Griswold v. Connecticut [1965] 381 U.S. 479. It was also the basis for the decision of that Court on the right of a woman to decide to have an abortion: Roe v. Wade [1973] 410 U.S. 113.

55. The right to privacy was also considered by this Court. In McGee v. Attorney General [1974] 1 I.R. 284 it was held that the provisions of s.17(3) of the Criminal Law Amendment Act, 1935, which prohibited the sale or import of contraceptives, were no longer in force. The provisions were held to be an unjustified invasion of the woman’s personal right to privacy in her marital affairs, and inconsistent with Article 40.3.1° of the Constitution. That article provides that the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. In his judgment Walsh J. pointed out that the sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. He stated, at p.313:-

“In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible.”
In the debate before the Court in McGee the case Griswold v. Connecticut [1965] 381 U.S. 479 was opened and relied upon by the plaintiff. Walsh J. referred to that case (and two other cases of the U.S.A. which had been opened) and stated that his reason for not referring to them was not because he did not find them helpful or relevant, which he stated they were, but because he found it unnecessary to rely upon any of the dicta in those cases to support the views which he expressed.
Context – Mischief addressed
56. I am satisfied that the mischief to which Article 40.3.3° was addressed was that of the termination of pregnancy, the procuring of a miscarriage, an abortion.

57. McCarthy J. stated in Attorney General v. X [1992] 1 IR 1 at p.81:-

“[The Amendment’s] purpose can be readily identified – it was to enshrine in the Constitution the protection of the right to life of the unborn thus precluding the legislature from an unqualified repeal of s.58 of the Act of 1861 [which prohibited abortion] or otherwise, in general, legalising abortion.”
The Amendment would have a significant consequence for the legislature, it would preclude an unqualified repeal of s.58 of the Act of 1861. It would have a significant consequence in the Courts also.
Words
58. It is necessary to consider the words of Article 40.3.3º carefully. Article 40.3.3° acknowledges the right to life of the unborn. However, due regard is given to the equal right to life of the mother. This establishes a specific constitutional and legal relationship between the unborn and the mother.

59. The unborn is considered in Article 40.3.3° in relation to the mother. The special relationship is acknowledged. Of course there is a relationship between the frozen embryos in the clinic and the mother and the father – but not the link and relationship envisaged in Article 40.3.3°. Article 40.3.3° was drafted in light of the special relationship that exists uniquely between a mother and the child she carries. It is when this relationship exists that Article 40.3.3° applies.

60. Further, the relationship is viewed through the prism of the right to life. It applies to a relationship where one life may be balanced against another. This relationship only exists, this balance only applies, where there is a physical connection between the mother and the unborn. This occurs only subsequent to implantation of the embryo. Thus the balancing of the right to life described in Article 40.3.3° may only take place after implantation. Therefore an unborn under Article 40.3.3° is established after an embryo is implanted.

61. The concept of unborn envisages a state of being born, the potential to be born, the capacity to be born, which occurs only after the embryo has been implanted in the uterus of a mother.

62. This analysis may be put in a slightly different form. The right to life of the unborn is not stated as an absolute right in Article 40.3.3°. Rather, it is subject to the due regard to the right to life of the mother. The right to life of the mother is not stated as an absolute right either. Article 40.3.3° refers to a situation where these two lives are connected and a balance may have to be sought between the two lives. Thus the physical situation must exist to require such a balancing act. No such connection exists between the plaintiff and the three surplus embryos now frozen and stored at the Clinic. There is no such connection between the lives of the mother and the embryos at the moment. The relationship which might require the consideration of the right to life of the unborn and the equal right of the mother does not arise in the circumstances.

63. This connection, relationship, between the embryos and the mother does not arise until after implantation has occurred. After the implantation of an embryo the relationship between the embryo and the mother changes. The mother has carriage of the embryos, becomes pregnant, and the embryo enters a state of “unborn”. At that time an attachment begins between the two lives. It is that attachment which gives rise to the relationship addressed in Article 40.3.3°.

64. The words of Article 40.3.3° refers to a situation where the rights of the mother and the unborn are engaged. This occurs after implantation. Thus Article 40.3.3° does not apply to pre-implantation embryos.

65. There were submissions stressing the word “beo” in the Irish version of the Article. However, both language versions refer to birth or being born. Thus the fact of being born or birth is a factor in both versions. The beginning of “life” is not the protected term, it is the unborn, the life capable of being born, which is protected. The capacity to be born, or birth, defines the right protected. This situation, the capacity to be born, arises after implantation.
Harmonious Interpretation
66. The interpretation of the “unborn” as arising after implantation is also a harmonious interpretation of the Constitution. Article 41.1.2 states:-

“The State … guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
This establishes a strong family unit under the Constitution. In McGee v. Attorney General [1974] 1 I.R. 284 it was pointed out that this prevents the State from interfering in a married couple’s decision as to the make up of their family unit. Walsh J. stated at p.311:-
“It is a matter exclusively for the husband and wife to decide how many children they wish to have, it would be quite outside the competence of the State to dictate or prescribe the number of children which they might have or should have. In my view, the husband and wife have a correlative right to agree to have no children.”
67. If the frozen embryos were the “unborn” protected by Article 40.3.3° the State would have to intervene to facilitate their implantation. This would be a duty of the State irrespective of the parents’ wishes. Clearly this would be inconsistent with the rights of the family under the Constitution. It would also give to the State a duty to protect all embryos in the State in all the clinics, hospitals, etc., no matter what were the wishes of the parents.
68. In constructing the Constitution it is appropriate to seek a harmonious construction of Article 40.3.3° in the context of the Constitution. I agree with the approach of Henchy J., who spoke of achieving “the smooth and harmonious operation of the Constitution”: Tormey v. Ireland [1985] 1 I.R. 289 at p.296. The interpretation and construction should not lead to conflict with other articles, as O’Higgins C.J. enunciated in: State (D.P.P.) v. Walsh [1981] I.R. 412 at p.425. I believe that the construction which I have found of the term “unborn” is harmonious with other articles in the Constitution.
Conclusion on constitutional issue
69. For the reasons given I am satisfied that the term “unborn” does not refer to an unimplanted embryo. Consequently, it does not apply to the three surplus frozen embryos stored in the Clinic.
Overall Conclusion
70. On the first issue, which was referred to as having a contractual aspect, I am satisfied that the documents signed by the plaintiff and her husband in January, 2002 were forms provided by the Clinic to the plaintiff and her husband to obtain their consents to the medical procedures. They did not establish any contractual relationship between the plaintiff and her husband. There was no express agreement to the implantation of these surplus embryos at a later date. Nor was there any implied consent by the husband to the implantation of the surplus frozen embryos. As there was no initial agreement taken as to the implantation of the surplus embryos by the plaintiff and her husband there is no question of enforcing an earlier choice. There was no issue of a withdrawal of a consent. On the facts no issue of estoppel arises. For the reasons set out in this judgment I would dismiss this ground of appeal.

On the second issue, the constitutional issue, the plaintiff submitted that the three surplus embryos from the I.V.F. treatment constitute the unborn for the purpose of Article 40.3.3º of the Constitution and that the State is obliged to facilitate the implantation of the embryos in the plaintiff’s uterus as a consequence of the constitutional duty to protect the unborn. For the reasons set out in this judgment I would dismiss this appeal. In the context of the statutory law prior to the introduction of Article 40.3.3º of the Constitution, the State protection of an embryo arose after implantation. The context also includes cases at home and abroad which referred to the right to privacy and marital privacy. In that context Article 40.3.3º was addressed to the issue of miscarriage and abortion. I have considered the words of Article 40.3.3º carefully. Article 40.3.3º was drafted in light of the special relationship which exists uniquely between a mother and a child which she carries. It is when this relationship exists that Article 40.3.3º applies. The balancing of the right to life described in Article 40.3.3º may occur only after implantation. Thus an “unborn” described in Article 40.3.3º is established after an embryo is implanted. After the implantation of an embryo the relationship between the mother and the embryo changes. After the implantation the mother has carriage of the embryo and the embryo enters a state of “unborn”, there is an attachment between the mother and an unborn. It is that attachment which gives rise to the relationship addressed in Article 40.3.3º where the state acknowledges the right to life of the unborn and the due regard to the equal right to life of the mother. The interpretation of the “unborn” arising after implantation is a harmonious interpretation of the Constitution consistent with other rights under the Constitution.

For the reasons given I would dismiss the appeal on all grounds.

JUDGMENT delivered the 15th day of December, 2009, by Mr. Justice Hardiman.
The applicant and the first-named respondent, Mary and Thomas Roche, are husband and wife. They were married on the 5th March, 1992, but are now separated. In the mid 1990s, after some advice and treatment for apparent fertility difficulties, the applicant became pregnant and gave birth to a son in October, 1997. Subsequently she had surgery for an ovarian cyst and it was necessary to remove two thirds of her right ovary. She had further fertility difficulties which led to her referral to the Sims Clinic, where the second and third-named respondents carry on a well-reputed infertility practice. She first attended there in October, 2001. After investigation and advice the plaintiff consented to treatment involving the retrieval of eggs (ova) from her and the mixing of these eggs with sperm donated by her husband. She further agreed, as did her husband, to the cryopreservation of the embryos. On the 29th January, 2002, the husband signed a document entitled “Husband’s Consent” stating that he understood that he would be the father of any child resulting from the implantation of the embryos in the applicant. On the 1st February, 2002, the applicant signed a “Consent to embryo transfer” consenting to the placing in her uterus of three embryos. It appears that egg retrieval is difficult and somewhat painful and the practice which is widely followed, and was followed in the Sims Clinic, was to collect a sufficient number of eggs for implantation to minimise the risk of the patients having to undergo another session of egg retrieval if the first attempt at implantation was unsuccessful. In the case of the Roches, a total of six viable fertilised embryos were produced after the mixing process. Three were implanted and the other three were frozen or “cryogenically preserved”. This implantation of the first three embryos was the procedure to which the “Husband’s Consent”, described above, related.

This implantation process was successful, a pregnancy was achieved, and the plaintiff was delivered of a daughter on the 26th October, 2002. By that time, however, unhappy differences had arisen between husband and wife and they separated and continue to live apart.

The case concerns what is to happen to the three unimplanted frozen embryos. Some years after the birth of their daughter, and their separation, the applicant decided that she wanted to have the three frozen embryos implanted in her uterus in the hope of having a further child or children. She made it perfectly clear that she envisaged this, and maintenance of any resulting child or children, as taking place exclusively at the expense of the first-named respondent. The husband does not want the frozen embryos implanted, and says that he never agreed to this and it would be unreasonable and a breach of his human rights and an invasion of his autonomy to compel him to become the father of a child he does not want in the present circumstances. Nor would it be in the child’s interest to be raised in the circumstances now prevailing, in the husband’s view.
The proceedings.
This is an appeal from two judgments and the associated orders of the High Court (McGovern J.) of July and November, 2006, respectively, whereby the learned trial judge dismissed two separate claims brought by the applicant; the first was a claim that she was entitled to have the embryos implanted in her by reason of an agreement between herself and her husband that this would happen, or alternatively, that the husband was now estopped from denying that such an agreement existed. This has been referred to at various stages of the proceedings as “the civil claim”. The other claim was of a constitutional nature: the plaintiff claims that she is entitled to have the embryos implanted in her because they are within the meaning of the phrase “the unborn” as that phrase is used in Article 40.3.3 of the Constitution. The implantation of the embryos is said to be necessary to preserve the right of the unborn to life. This is referred to as “the constitutional claim”.

In relation to the civil claim, I have read the judgment of the learned trial judge, Mr. Justice McGovern, delivered the 18th of July, 2006. I have also read the transcript of the evidence upon which his judgment is based. I agree with his findings of fact, most of which were not indeed the subject of serious dispute and in particular his finding (p.9 of the judgment) that the question of what would happen to the frozen embryos if one of the parties died or if the parties became separated or divorced was simply never discussed between husband and wife at the time they agreed to seek IVF treatment. There was accordingly no express agreement on this topic. I agree with the legal conclusions of the learned trial judge in relation to implied or presumed intention of the parties and with his application of this law to the facts of the present case. In the result, I would uphold the judgment of the learned trial judge on this aspect of the case for precisely the reasons he gives in his judgment of the 18th July, 2006 and I consider that it would be otiose if I were to traverse the same ground.
The constitutional issue.
It is recorded in the judgment of the learned trial judge delivered the 15th November, 2006 that, apart from the civil issue, the parties identified two other issues which are:

“(a) Whether the frozen embryos are ‘unborn’ for the purpose of Article 40.3.3 of the Constitution of Ireland and
(b) Irrespective of the answer to the first question, is the applicant entitled to the return of the embryos to her uterus whether by virtue of Article 40.3.3 and/or Article 41 of the Constitution, or otherwise?”

These are novel issues in our jurisprudence. But experience has shown that, given a sufficient period of time, almost every conceivable set of facts will occur and may give rise to litigation. This is graphically illustrated by the remarkable factual matrix underlying the case of Attorney General v. X [1992] 1 IR 1. This fact gives point and urgency to certain observations at the end of this judgment. Science will not stand still waiting for us to update our laws.
Article 40.3.3
It will be seen that the first constitutional issue, and to a large extent the second one as well, turns on this provision of the Constitution. It has already been judicially observed (in the ‘X’ case cited below, per McCarthy J.) that this sub-Article, inserted into the Constitution by referendum in 1983, was controversial at the time and was, as McCarthy J. put it, “historically divisive of our people”. These aspects of the sub-Article are now, however, entirely irrelevant for the purposes of this case. Article 40.3.3 is a part of our Constitution and must be upheld by the Courts like any constitutional provision.

What is in question here is whether, on the true construction of the phrase “the unborn” (in the English language version of the sub-Article: the primary or Irish language version will be discussed below), the phrase “the unborn” includes, or does not include, the three embryos created by the mixture of the eggs retrieved from the applicant in this case with her husband’s sperm, and now cryogenically preserved in the Sims Clinic.

I propose now to set out the text of Article 40.3.3, first in the Irish language because that language has primacy in the event of conflict with the version in the other official language. It is as follows:

“Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomhcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lean dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é”.

The English language text is as follows:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.”

I wish also to set out a literal translation of the Irish version of the sub-Article. This is the work of Professor Micheál Ó Cearúil, the author of Bunreacht Na hÉireann: a study of the Irish text. This book, which is a truly impressive and extremely useful work of scholarship of the highest order, was written for the all party Oireachtas Committee on the Constitution and published by that Committee in 1999. The “literal English translation”, given at p.548 of the book, is as follows:

“The State acknowledges the right of the unborn to their life and, having due regard to the equal right of the mother to her life, it guarantees not to interfere through its laws with that right and it guarantees further to protect and assert that right with its laws in so far as it is possible.”

The phrase “the unborn” represents an unusual usage in English and it may be that the primary or Irish version clarifies it. Professor Ó Cearúil observes (I am omitting purely technical detail and some citations of Irish language sources):

“ ‘Beo” is translated principally as ‘living being’ with the secondary sense of ‘life’.”

He quotes from Irish literary sources, as where the phrase “ag guí ar son na mbeo agus na mairbh”, is translated as “praying for the living and the dead”, which illustrates this meaning.
It appears from the same discussion, at p.549, that “gan bhreith” means “without birth”. The word “gan/without” is used in several senses in Irish to mean being deprived of, or not having, something. Thus, “gan phingin”, literally without a penny i.e. penniless: similarly “bheith gan chlann”, “to be without children”, thus childless. Thus the phrase “na mbeo gan breith” translates easily enough as “the living without birth”. This is an unusual phrase, either in English or in Irish and indeed Professor Ó Cearúil comments, for reasons too technical to go into here but fully expounded in his text, that one would expect further explanatory material and not the sudden finality of “gan breith” which one actually finds. That, indeed, is the sense which in my view an English speaker has in reading the phrase “the unborn”: one is inclined, however briefly, to wonder “the unborn what?” But there is no further elucidation, in the language itself, though some may be gleaned from the context: see below.

It is next necessary to note what it is that the State acknowledges in Article 40.3.3. Here, the Irish and English language versions seem in perfect accord: it is the right of the “living without birth to their life”, which is not to be interfered with by law and is, as far as practicable to be asserted and protected by law. Most importantly, these things are to be done “ag féachaint go cuí do cómhcheart na Máthar chun a beatha…” which I would translate as “looking narrowly to the equal right of the mother to her life” or, using constitutional language, “having due regard to the equal right of the mother to her life”.

Accordingly, in a strictly linguistic sense and perhaps more generally, the right of the “living without birth” to their lives is placed in apposition, perhaps in juxtaposition to the right of the mother to her life. But that linkage makes no sense, either as a matter of law, logic, language or ordinary human experience unless the life of the “living without birth” is so connected with the right of the mother to her life that the former is capable of impinging negatively on the latter. If this were not so it would be quite pointless to condition or qualify the undertaking of the State in relation to the life of the unborn with a need to consider the mother’s right to her life.

This aspect of Article 40.3.3. is well illustrated in the judgment of Hederman J. in The Attorney General v. X [1992] 1 IR 1, at p.75. Hederman J., who dissented in the result and would have substantially upheld the order of the High Court (Costello J.), referred in his judgment to Article 40.3.3 as “The Eight Amendment” and had the following to say:

“The Eighth Amendment does contemplate a situation arising where the protection of the mother’s right to live has to be taken into the balance between the competing rights of both lives, namely the mothers and the unborn child’s”. (Emphasis added)

Earlier, at p.72 Hederman J. had said:

“The creation of a new life, involving as it does pregnancy, birth and raising the child, necessarily involves some restriction of another’s freedom but the alternative is the destruction of the unborn life. The termination of pregnancy is not like a visit to the doctor to cure an illness. The State must, in principle, act in accordance with the mother’s duty to carry out the pregnancy and, in principle, must also outlaw termination of pregnancy”. (Emphasis added)

These extracts, of course, confirm what seems clear on a purely linguistic analysis of the sub-Article in both the national languages: that it refers to a situation in which the unborn life and the equally valuable life of the mother are essentially integrated or at least linked, so that one may affect the other adversely. Moreover, since the right in each case is a right to life and not to any less readily apprehensible concept such as welfare, best interest or good health, it is clear that the linkage must be a direct physical one. This leads me to believe that the temporal scope of the sub-Article is, and was intended to be, the period of a pregnancy when the unborn life has been implanted in the mother’s womb and is developing there.
Moreover, the person whose right to her life is required to be considered in vindicating the right to life of the unborn is “the mother”. Since, (as we have seen above), the relationship of the two rights to life must be such that that of the unborn is capable of impinging on that of the mother, it follows that the mother is the mother of the unborn life. In the context of the constitutional Article there is nothing else of which she can be the mother.

It thus follows that the mother is the mother of the “unborn” and that their physical relationship is such that the right to life of the unborn is capable of impinging on the right to life of the mother. This, it appears to me, requires a physical relationship. The only relevant physical relationship is that of pregnancy.
The Attorney General’s position.
On the hearing of this appeal, as in the High Court, the plaintiff Mary Roche contended that the fertilised but unimplanted embryo was within the meaning of the phrase “the unborn”. The first respondent, Thomas Roche, contended for the contrary proposition. While one does not doubt the sincerity of each contention, it is of course the case that the contentions of each of these primary parties reflect their respective views as to the result which should be arrived at in this action. In those circumstances a particular significance attaches to the views of the Attorney General who has of course no personal interest but who has been joined in the proceedings because of the constitutional issues raised.

The Attorney General expressed no view as to whether or not there was an agreement between husband and wife as to what should happen to the unimplanted embryos. But he submitted that, if there was an agreement on that issue, the agreement could be enforced by the court. On the constitutional issue however the Attorney General expressed a strong and unambiguous view. The “surplus embryos”, he submitted, had no status arising from the Constitution and specifically they were not within the meaning of the phrase “the unborn”. The Attorney said that it would be open to the people by constitutional amendment to protect embryos from fertilisation, but they did not do this in passing the Eight Amendment of the Constitution in 1983.

I propose now to leave to one side briefly the purely linguistic analysis of the sub-Article, and to consider its legal nature.
Article 40.3.3 as interpreted in the cases.
This exercise is an easier one than the linguistic analysis of the Articles because there exists a number of authoritative decisions on the question. In the case of Attorney General v. X [1992] 1 IR 1 McCarthy J. said:

“[The amendment’s] purpose can be readily identified – it was to enshrine in the Constitution the protection of the right to life of the unborn, thus precluding the legislature from an unqualified repeal of s.58 of the Act of 1861 [The Offences against the Person Act of that year: the section prohibits abortions] or [from] otherwise, in general, legalising abortion.”

More recently, in the case of Baby O v. the Minister for Justice [2002] 2 IR 169 Keane C.J., giving the unanimous judgment of the Court, said at pp. 181 and 182 that:

“The passage from Article 40.3.3 on which counsel relied, as explained by the judgments of the majority in this court in Attorney General v. X. [1992] 1 IR 1, was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy.”

It is not necessary here to set out in any detail the reasons why those who promoted the amendment thought it necessary to take active steps to prevent the legalisation of abortion whether by legislation or by judicial decision. It related, in some degree, to the perception of the proponents of the Amendment to the Constitution which became Article 40.3.3 of the possibly baneful effects of such cases as McGee v. The Attorney General [1974] 1 IR 284, Griswold v. Connecticut [1965] 381 U.S. 479 and, most of all, Roe v. Wade [1973] 410 U.S. 113. These cases led certain proponents of a constitutional amendment in Ireland to embark upon a sometimes very learned analysis of them and to conclude that the emphasis, not least in the Irish case of McGee, on the authority of the family and the rights of its members to privacy, might contain the seeds of the judicial development of a right, however limited, to abortion.
Abortion was and is of course illegal in Ireland by virtue of s.58 of an Act of 1861, the Offences against the Person Act. This reads as follows:

“Every woman being with child who, within intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with a like intent, and whosoever with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her a poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony.”

I wish to express my agreement with the analysis of this Section, and of its statutory and Common Law precursors, contained in the judgment of Geoghegan J. in this case.
Accordingly, two quite different analyses of Article 40.3.3 – a linguistic one and one based on the authorities – lead harmoniously to the same conclusion. The subsequent decisions of the courts, two of which are cited above, describe the purpose of the sub-Article as being to prevent the introduction of abortion either by legislation by the Oireachtas or by judicial decision. The legal position thus sought to be protected was that created in Ireland by s.58 of the Offences against the Person Act, 1861, which described abortion as the procuring of a miscarriage. It seems obvious that, as the medical authority cited by Denham J. in this case puts it with startling clarity, “There can be no miscarriage without carriage” and “Bodily carriage implies some kind of integration with the body [of the carrier].”

Precisely the same conclusion follows from a linguistic analysis of the text of the sub-Article, either in Irish or in English. A capacity of the life of the unborn to impinge on the right to life of the mother, which is an essential postulate of the sub-Article, equally depends on some form of integration of the life of the unborn with the bodily structures of the other life in question, that of the mother.

In my view each of these approaches leads harmoniously and inevitably to the conclusion that the “unborn”, “na mbeo gan breith”, is the foetus en ventre sa mere, the embryo implanted in the womb of the mother. It is manifest that the embryo undergoing cryogenic preservation is not so implanted and is incapable of impinging in any way on the right to life of the mother or of having any physical effect whatsoever on her body or its structures.
Article 40.3.1.
I do not consider that the applicant can rely, in the alternative, on Article 40.3.1. I remain to be convinced that this provision, with its express reference to the rights of “citizens” and to such specific rights as “good name” and “property rights”, extends or was ever intended to extend to a fertilised but unimplanted ovum.

Be that as it may, if the earlier provision (i.e. Article.40.3.1) did extend to a fertilised ovum, and to a foetus, that fact would appear to make Article 40.3.3 redundant. Without necessarily relying on canons of construction such as inclusio unius exclusio alterius, I would point out that, apart from the redundancy of the Article 40.3.3 that would follow from the plaintiff’s contention, Article 40.3.1 contains no express reference at all to the right to life of the mother. This seems a remarkable omission (for the reasons given by Hederman J. and quoted above), if the earlier sub-Article applied to a fertilised ovum so as to confer a right to implantation in the mother’s uterus, there would be no explicit protection of the position of the mother. But the mother, who is a life in being, and a citizen, is undoubtedly herself within the protection of Article 40.3.1. The failure explicitly to acknowledge her position in that sub-Article strongly suggests to me that, for the reasons set out below, the position of a fertilised embryo is not within the meaning or the intent of Article 40.3.1.

Article 40.3.1., as interpreted by the plaintiff, applies to a situation which was unimagined and unimaginable in 1937. The felt need for what became Article 40.3.3 was suggested to its proponents by legal and medical developments in the 1970s. It is a grave anachronism to seek for reference to such things forty years earlier. The language, the law and the science of the debate alike have changed out of recognition over that period.

The foregoing conclusions are sufficient to allow me to decide that I would dismiss the appeal on the constitutional grounds as well, for the reason that the embryos now being cryogenically preserved are not “the unborn” within the meaning of Article 40.3.3. I wish however to add a number of observations.

Firstly, the fact that the embryos in question in the present case are not within the relevant sub-Article of the Constitution, while it is fatal to litigation founded on the theory which has informed this action, does not of course mean that such embryos should not be treated with respect as entities having the potential to become a life in being. In the course of the argument on this appeal, the court heard of various legal provisions in other countries based precisely on such respect for the embryo: it appears that a number of European countries severely limit the number of fertilised embryos that can be produced in the course of IVF treatment. The disadvantage to this, of course, is that it increases the likelihood that, in the event of a failure to produce a pregnancy with the implanted embryo(s), that the patient will have to undergo the uncomfortable and apparently sometimes painful process of retrieval of ova again. It is also necessary to bear in mind that a very large number, in fact the great majority, of fertilised embryos are lost in the ordinary course of nature and that that event is not generally regarded, medically, clinically, socially, legally or privately, as equivalent to the death of a life in being. It is also necessary to bear in mind, as Mr. Hogan S.C. for the applicant did not conceal, that if respect for the fertilised embryo were carried to the point of equating it to a life in being, that view would lead to the outlawing of one of the most widely used methods of contraception which operates by the prevention of implantation.

The above are all serious considerations which, fortunately, the court is not called upon to resolve here. They are, primarily, matters for the Legislature. Indeed, it was a notable feature of the appeal that while the Notice of Appeal criticised the learned trial judge as having erred “in finding that the court was not concerned with the question of when life begins”, the appellant’s written submissions, at paragraph 49 positively says that for the purpose of the case “the court does not have to pronounce on questions as to when human life begins”.

But the fact that difficulties are raised does not absolve the legislature from the obligation to consider the degree of respect due to fertilised embryos and to act upon such consideration “by its laws”. There has been a marked reluctance on the part of the legislature actually to legislate on these issues: the court simply draws attention to this. That is all it can do. That is what McCarthy J. did, apparently in vain, in the X case eighteen years ago. But the Court does so as seriously and as urgently as it can.

The issue is all the more urgent because, of course, scientific developments in the area of embryology and the culturing of stem cells will not stand still. It has been very recently suggested that it may shortly be possible to develop human sperm from such cells.

If the legislature does not address such issues, Ireland may become by default an unregulated environment for practices which may prove controversial or, at least, to give rise to a need for regulation. This may be particularly urgent having regard to the views expressed on behalf of the Attorney General on the hearing of this appeal.

I would dismiss the appeal.

JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of December 2009
While this appeal raises very important issues, the resolution of those issues does not involve this court in attempting to answer the question of when life begins. It is not a legal issue in this case. The expert evidence on both sides make it clear that there is as yet no definite scientific or medical answer to that question. It is, of course, a question which interests also theologians and philosophers but on the particular view of this case which I have taken, none of the approaches to this question have relevance to the issue on the appeal.

At this early stage, I think I should also make clear that because of the view I have taken on the issues in dispute (which is more or less the same view as that taken by the learned High Court judge) I will not be expressing any opinion as to how the State should regulate unused embryos created in IVF treatment. It emerged at the hearing of the appeal that many countries have put in place regulatory regimes relating to spare embryos. Germany, Italy and the U.K. were cited as examples but there is no regulation whatsoever in Ireland as yet. The only constitutional question which this case raises is whether the spare embryo is one of the “unborn” with the constitutional right to life under Article 40.3.3 of the Constitution. For reasons upon which I will be elaborating, I take the view that “the unborn” protected by that Article are confined to the unborn within the womb. I will be basing this opinion both on the words of the constitutional provision itself and on the history of the crime of abortion in this jurisdiction which was the context in which that provision was inserted into the Constitution by referendum of the people. In addition to the judgment of the learned High Court judge (McGovern J.) to which I have already referred, I gained particular assistance in arriving at my opinion from the written submissions of the Attorney General.

I will proceed now to explain the nature and scope of this appeal. A married couple had a child in the normal way. Some time later they wanted to have a second child. However, in the meantime, the appellant who was the wife had undergone surgery for an ovarian cyst and had lost two thirds of her right ovary. As a consequence of medical advice, it became clear that in order to have another child she would have to undergo IVF treatment. She procured this treatment at the Sims Clinic in Rathgar, Dublin. That treatment involved (inter alia) the removal of eggs from her ovaries and the mixing of the eggs with the sperm of her husband. Because egg retrieval is difficult and painful, the practice in fertility clinics has been to ensure that there would be enough eggs to be fertilised so as to avoid a second retrieval operation. What in practice happened was that the appellant’s ova were mixed with the respondent’s sperm creating six viable embryos. Three of these were immediately implanted into the appellant’s uterus and the others were frozen.

This implantation was successful and the appellant gave birth to a daughter. Around the same time, the marriage broke up, as the respondent had entered into another relationship.

The appellant, being aware of the existence of the three frozen embryos which were the spares, wanted them implanted in her uterus so that she could undergo a further pregnancy and produce a third child. The respondent objects because it would put him into the position that he was forcibly becoming a father, something which he does not want to happen. There is a further context to his objection. It is clear from the evidence given by the appellant that she would have regarded any child born as a consequence of the spare embryo being implanted, as a child of the respondent just as much as a child of the appellant with all the financial and other responsibilities that fatherhood involves. At all material times, the appellant and the respondent were medically advised that the IVF treatment could result in multiple births. If, therefore, the three spare embryos were duly implanted the possibility that triplets would be born could not be ruled out. I am merely recounting the perspective of the appellant as it emerged in evidence without placing any value judgment on it.

The first issue in the case was whether there was an enforceable contract as between the parties entitling the appellant to make use of the spare embryos. The learned trial judge held that there was not. I am in agreement with that finding for much the same reasons as influenced the trial judge but I will elaborate on them more fully in due course. Because of that view which I have taken, I do not find it necessary to consider the legal issue of whether there can be such an enforceable contract and, if so, how determinative it is. The court has been referred to considerable case law emanating from the United States of America, the majority thrust of which is that the fate of spare embryos should be determined by agreement of the parties. Since I am satisfied there was no contract here, I do not find it necessary to review those authorities nor am I to be taken as necessarily agreeing with their conclusions. I would prefer to leave these difficult questions to a case where they genuinely arise. In this particular case, the argument for a contract is outlined and explained in the judgment of the learned trial judge. I should, of course, mention at this stage that McGovern J. delivered himself of two distinct judgments. The first judgment of the 18th July, 2006 dealt with the contract issue. The second judgment, that of the 15th November, 2006 treated of the constitutional issue. It is the contract issue which I now intend to address.

It is not suggested that there was any clear written or oral agreement between the appellant and the respondent as to what was to happen spare embryos. Nevertheless in arguing for a contract, some written documents were relied on by the appellant. These documents were Consents which the clinic required to be signed as a routine part of their procedures. There were four Consent documents in all. The first was entitled “Consent to Treatment Involving Egg Retrieval”. That Consent was signed by the appellant only and by the form she gave her consent to the removal of eggs from her ovaries and the mixing of those eggs with the respondent’s sperm. The second document was a Consent form signed by both parties and entitled “Consent to Embryo Freezing”. By this form both the appellant and respondent agreed to the cryopreservation of the embryo and to take full responsibility on an on-going basis for frozen embryos. The third Consent form was entitled “Husband’s Consent” in which he consented to the treatment and expressed his understanding that he would become the legal father of any resulting child. The fourth and final document was entitled “Consent to Embryo Transfer” which involved the appellant consenting to the placing in her uterus of three embryos.

Like the learned High Court judge, I will elaborate slightly on this. It was clear from the medical evidence that the egg retrieval which is obviously an essential element of the IVF treatment can be awkward and painful. As a consequence, in most countries including Ireland, fertility clinics try to ensure that there be a sufficient number of eggs for fertilisation so that egg retrieval would not have to be undergone a second time. In this particular case nine or ten eggs were retrieved and were mixed with the respondent’s sperm. Of the resulting embryos, six were considered viable. The remainder were not frozen and they were presumably disposed of. Three of the six viable embryos were implanted into the appellant’s uterus and the remaining three were frozen.

The implantation of those three embryos resulted in a pregnancy and a successful birth of a daughter on the 26th October, 2002.

It is clear from the evidence of Dr. Wingfield, the consultant obstetrician and gynaecologist at the National Maternity Hospital, Holles Street that the reason why the standard IVF practice in most countries with the notable exception of Italy and Germany is to try and ensure that there are some spare suitable embryos which can be frozen, is to avoid putting the woman through the repeat painful procedure of egg removal. Indeed I think it useful to quote what she actually said in her witness statement:

“To achieve optimal success rates (still only 20/30% per cycle started) it is necessary to use superovulation. This results in multiple oocytes. The best pregnancy rates occur in cycles where six to ten oocytes are retrieved.
In an ideal world, these oocytes would be fertilised only as required i.e. one or two would be incubated with sperm and if these fertilise they would be placed in the uterus. If fertilisation did not occur, another two eggs could be tried etc. Unfortunately, oocytes do not survive outside the body and must be used within hours of retrieval. It is not yet possible to be able to choose the best quality eggs or the ones which are most likely to be successfully fertilised and the safety of the technology has not been sufficiently validated to routinely freeze oocytes. It is therefore necessary to try to fertilise all of the eggs once retrieved (i.e. they must all be used immediately or they are wasted).

On average, only 50/70% of oocytes will be successfully fertilised if exposed to sperm and a further large proportion of fertilised oocytes will be abnormal and unusable (at least 40%). In older women particularly, the chance of successful blastocyst formation, implantation and healthy pregnancy is low (10% and less if over 40 years. Most doctors and others working in IVF therefore consider it unethical to subject the woman to the risks of superovulation treatment if all oocytes are not then going to be used.

It is only safe to transfer two embryos to the uterus (three in rare cases); otherwise there is an unacceptable risk of multiple pregnancies. It is well proven that multiple pregnancies lead to greatly increased rates of miscarriage, premature birth, neo-natal morbidity and cerebral palsy. Therefore, one or two of the best embryos are transferred and the remainder are frozen, if deemed to be of sufficiently viable.

The purpose of all embryo freezing programmes is to give a couple the best chance to achieve a pregnancy with a maximum of safety. If the woman does not conceive following her first embryo transfer, one or two frozen embryos may be thawed and transferred to her uterus, without the need for further superovulation an oocyte retrieval. For couples who conceive with their first embryo transfer, they may achieve a second pregnancy a few years later using previously frozen embryos. Frozen embryo transfer is medically safer and less expensive than a second fresh IVF cycle.”

Dr. Wingfield goes on to explain that the above practice of IVF which is the norm in Ireland is accepted as best practice in the vast majority of countries. She stated that the majority of couples will quickly use any frozen embryos in order to achieve one or more pregnancies. But she accepts that some couples will end up with unwanted frozen embryos. Interestingly, she makes the point that this could occur for different reasons “e.g. they have had one or more children and their family is now complete or they may separate, one partner dies etc.” Whilst there are no regulations in Ireland she points out that in other jurisdictions the options to deal with unwanted embryos may include donation to another couple, donation for research or simply allowing them to perish.

I do not think that Dr. Wingfield’s expert evidence was in controversy at the trial and I have found her summary of the position very useful. She mentions that there are seven clinics providing IVF services in Ireland with approximately 2,500 fresh IVF and 700 frozen embryo cycles being performed every year. Although there is no statutory regulation, she refers to the Medical Council Guidelines and to the report of the Commission on Assisted Human Reproduction (2004). The Guidelines of the Medical Council and that report are both before the court. The guidelines do not ban embryo freezing and recommend donation of surplus embryos to another couple. The guidelines are not altogether satisfactory and are left somewhat vague. What is satisfactory is the excellent report of the Commission on Assisted Human Reproduction. That report lists and deals with all aspects of the problem. There were forty recommendations. The fourth and ninth of these inter alia are relevant to this case: The fourth reads:

“Appropriate guidelines should be put in place to govern the freezing and storage of gametes and the use of frozen gametes. The regulatory body should, in accordance with statutory guidelines, have power to address cases where gametes are abandoned, where the commissioning couple cannot agree on a course of action, where couples separate or where one or both partner dies or becomes incapacitated.”

The ninth recommendation reads as follows:

“Appropriate guidelines should be put in place by the regulatory body to govern the freezing of excess healthy embryos.”

Unfortunately, unlike most other countries no statutory regulations have been put in place. Running right through most of the documentation produced is the concept of the respect to be shown to the spare embryos but nowhere is there a suggestion that either party can be compelled by the other to become a parent in the absence of agreement. Referring to the document “Consent to Embryo Transfer” the judge went on to say that it was clear from the evidence that the three embryos referred to in that particular form were the embryos which were not frozen and that the purpose of freezing the other embryos was to use them if the first implantation failed. That finding was supported by evidence from both the appellant and the respondent and indeed precise references are given in the judgment. The first implantation having been successful, the judge pointed out that that left the question as to what was to happen to the remaining frozen embryos. He refers to the evidence of both parties and I have also read their evidence. On the basis of the consent form signed and on the oral evidence which he heard, the learned trial judge held that there was no evidence that the respondent gave his express consent to the implantation of the three frozen embryos in the plaintiff’s uterus and he went on to consider whether that consent could be implied. Not only was the finding open to him to make, I do not think that any other finding would have been open having regard to the evidence.
As I have already mentioned, at more or less the time of the birth of the IVF child, the marriage unfortunately broke up. There seems little doubt that there was no prior agreement relating to any of these contingencies whether foreseen or unforeseen. At most, there would have been an understanding that the question of using the frozen embryos in the event of a failure following the first implantation would be considered or indeed that it might be considered for the purpose of producing a second child. Even that is doubtful. I do not consider that any such understanding or agreement would ever have been intended to be a legally binding contract. Before ever one considers the other essential ingredients of a legally enforceable contract such as consideration and “offer and acceptance”, the first essential requirement is that there was an intention to create legal relations. There is nothing in the evidence of either party which supports any such intention. The forms signed were Consent forms required within the clinic system and they cannot be construed as contracts.

I have diverted somewhat, because of course I already mentioned that the judge went on to consider whether, even if there was no express contract, there might have been an implied contract. My first observation on that proposition is that in a domestic agreement between husband and wife of this kind, it would be rare that even express terms would be held to constitute a legally binding contract. It would be extremely rare that an understanding between husband and wife would be held to have ripened into a legally enforceable contract not even containing all the express terms but containing implied terms. The learned trial judge has correctly reviewed the authorities on implied terms and I do not intend to cover that territory. I agree with everything that he says.

I now turn to what is really the more serious issue on the appeal, the question of whether each of the frozen embryos is an “unborn” within the meaning of Article 40.3.3 of the Constitution. That subsection reads as follows:

Without necessarily accepting that in interpreting this subsection, I am not entitled to have regard to the context in which it was inserted into the Constitution (a point to which I will return), I believe, that applying the ordinary rules of interpretation applicable to a statute which at any rate to some extent, permit of context to be taken into account, this constitutional provision is dealing exclusively with the baby in the mother’s womb. Probably, the strongest indicator of this is the reference to “the equal right to life of the mother”. I interpret the subsection as envisaging what I might loosely call “a mother and baby situation”. The State is not conferring a right but rather acknowledging the majority view in the community that the baby in the womb has the right to be born alive but that this is not an absolute right in as much as there could be situations where the continued pregnancy endangered the life of the mother. In this context the expression “equal right” is somewhat strange because, in a sense, what the provision is stating is that in a clash of rights to life between the baby and the mother, the mother’s life is to have priority. I would also attach some significance to the expression “the unborn”. It has been said that this expression was unusual in its nakedness. I do not think that that is altogether correct but its meaning and context may be somewhat unusual. The expression “the unborn” is not by any means unique but normally, far from meaning an actual baby or foetus, it would tend to mean what I might describe as “the as yet unborn” or in other words future existences. The expression in this sense finds its way into two quotations in the Oxford Book of Quotations. I do not believe that the expression “the unborn” would ever be used to describe a stand alone embryo whether fertilised or unfertilised or whether frozen or unfrozen. It has ultimately been accepted on all sides in this appeal that the case does not involve any determination of when life begins. Furthermore, the experts on both sides were in agreement that there is no scientific proof of when life begins. The IVF treatment itself highlights the complexity of the succession of steps in the process leading up to a successful birth. It seems clear on the evidence before the court that pregnancy in any meaningful sense commences with implantation. I think I am entitled to take judicial notice of the fact that the referendum which led to the insertion of this provision in the Constitution was generally known as “The Abortion Referendum”.
This brings me to the question already briefly adverted to, as to the extent to which I can take context into account in interpreting the Article. I have already expressed my view as to what the Article means applying only the ordinary rules of statutory interpretation as distinct from constitutional interpretation. I am not in fact convinced that the rules are identical. Judges play no part in the drafting of a statute, still less in the voting of it into law. Judges, however, are ordinary citizens and do participate in referenda. It would seem to me to be highly artificial if a judge could not also take judicial notice of and to some extent at least, use as an aid to interpretation, the ordinary common understanding of what in context was involved in the referendum. Nobody could dispute that the primary purpose of the referendum was to prevent decriminalisation of abortion without the approval of the people as a whole. Abortion in this jurisdiction was criminalised by the Offences against the Person Act, 1861, an Act carried into the laws of the Irish Free State and in turn carried over under the 1937 Constitution. In theory, there could have been a referendum as to the possible insertion of a provision in the Constitution that the relevant sections in the Offences against the Person Act, 1861 would not be repealed. Those very provisions however had been interpreted in the English courts in a manner which would not have been acceptable to the perceived majority of the Irish people who favoured an absolute ban on abortion. This was the famous case of Rex v. Bourne [1939] 1 K.B. 687. The positive assertion in the Constitution of the right to life would have been perceived as preventing any watering down of the criminal law on abortion.

It is appropriate, at this stage, to explain the relevant provisions in the 1861 Act and the aids to their interpretation deriving from their antecedents. This is important because if, as I believe, the insertion of Article 40.3.3 into the Constitution was with a view to preventing repeal or amendment of the existing abortion law, it is essential to understand what exactly that law prohibits.

The two relevant provisions of the Offences against the Person Act, 1861 are sections 58 and 59. Section 58 reads as follows:

“Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent shall be guilty of felony.”

Section 59 then reads:

“Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or not be with child, shall be guilty of a misdemeanour.”

On the interpretation of these two sections, I find the judgment of Munby J., the English High Court, Queen’s Bench case of R (Smeaton on behalf of the Society for the Protection of Unborn Children) v. The Secretary of State for Health particularly persuasive. In that case Munby J. was dealing with the lawfulness or otherwise of “the morning after pill”. But what he had to say is equally relevant to this case. He takes note first of all of the expression “being with child” in section 58 and he relates it to wording of earlier Acts to which I will be referring. He further points out that sections 58 and 59 create three offences but that common to all three offences is the need to prove either an “intent to procure.. miscarriage” or in the case of an offence under section 59 knowledge of another’s “intent to procure .. miscarriage”. He goes on to point out that this intent to procure a miscarriage was what was required when the offence was a common law offence prior to 1803 (case law to support that is cited) and under every version of the offences created before the 1861 Act i.e., the Acts of 1803, 1828 and 1837. Munby J. sums up the position as follows:

“Given the issue in the present case the last point requires emphasis. The essence of the offence, both at common law and in every version of the statutory regime since 1803 has always been the procuring of ‘miscarriage’. Putting the same point rather differently, ‘miscarriage’ is not a term of art introduced into the law in 1861. It is the word which Parliament and the lawyers have been using in this context for some two hundred years.”

The judge goes on to explain that common to all the three offences was the need to prove that the relevant act was “unlawful”. This requirement gave rise to the English decision of R v. Bourne cited above. As a consequence of Bourne’s case and quite apart from the possibility of a statutory repeal or amendment, there was no guarantee prior to the constitutional amendment, that abortions of the kind not considered “unlawful” in Bourne’s case, might some day be regarded with impunity by Irish courts.
I do not intend to survey in detail the pre-1861 law relating to abortion in a manner analogous to that done by Munby J.

At common law, however, commission of the offence required that the woman was carrying the child and that there had to be quickening of that child. Both at common law and right through the various statutes leading up to the 1861 Act, there was no offence without a miscarriage and “miscarriage” obviously implied previous “carriage”. The 1803 Act used the expression “quick with child”. Likewise the 1828 Act. The 1837 Act required “intent to procure the miscarriage of any woman”.

Both on a simple reading but even more so given its historical context, I would take the view that “the unborn” refers to a child in the womb not yet born. As Hardiman J. points out in his judgment, the Irish language version which of course is the authentic version bears this out.

If it was intended by the Article that if a fertilised embryo was created outside the body of the woman, that embryo would have the constitutional right to life, I cannot imagine that the Article would be worded in that way. There would be no logic, for instance, in conferring the constitutional right to life on a suitable spare embryo duly frozen on the one hand and not to confer it on an unsuitable embryo. I do not believe that the constitutional provision was drafted or indeed voted upon with IVF treatment in mind. There may well be some who would take the view that IVF treatment necessarily destroys “life” but if the intention was that that view would prevail or indeed if the topic was under consideration at all, the Article would have been worded quite differently. Statutory regulation relating to spare embryos is one matter but constitutional protection of their lives is quite another. It is not easy to see how, in practice, the latter could be achieved but at any rate that is a matter for the Oireachtas and for the people and not for the courts. The function of the court is to interpret the Article as it stands and for the reasons which I have indicated, I am satisfied that there is no constitutional provision which has the effect of overriding the express objections of the father.

I want however to make it clear at this stage that I am in agreement with the often expressed view that spare embryos, being lives or at least potential lives, ought to be treated with respect. The absence of a statute or statutory regulations indicating how that respect should be given is undesirable and arguably contrary to the spirit of the Constitution.

It is, however, up to the Oireachtas to provide such regulation. Even if it were possible, it would not be appropriate for the courts to attempt any guidance in this respect. I would be the first to acknowledge that it is not an easy task. One practical issue neatly illustrates the difficulty. It is common knowledge that some will argue against all use of spare embryos for medical purposes and indeed within that group there will be those who would object to even the creation, never mind the retention, of spare embryos. On the other hand, there are many who would bona fide hold the view that some regulated availability of an unimplanted embryo for medical purposes is a use which can enhance life. Hardly a week passes now when some new alleged medical use of an embryo is signposted in the media, one of the latest being a cure for total blindness. The moral and ethical problems in this area are legion. There is no common agreement on their resolution. Since most of these problems are of an ultra modern nature, I rather doubt that there is a constitutional solution to them, but that does not mean that there cannot and indeed should not be regulation by the Oireachtas. If there are constitutional aspects, they do not arise pursuant to the particular provision in the Constitution relied on in this case.

There are two other points which I think it important to make. First of all, even with the traditional methods of conception and pregnancy there is a very high attrition rate.

Dr. Wingfield, among others, gave some detailed evidence on this matter. Developing a view, she expressed in evidence “that a fertilised egg is a long, long way from being a human”. She went on immediately to say the following:

“There are various studies in the literature showing that the attrition rate both in natural conceptions and in in vitrio conception is quite substantial and that the chances of a fertilised egg actually becoming a human being are quite slim. We know from IVF that if you start off with a hundred eggs only 3/4 % of those will actually form a human being.”

It was then put to her did she mean by that that there would be a “successful pregnancy and birth of that child”. She replied in the affirmative but added:

“There are many pitfalls along the way where the processes can go wrong and where development can progress abnormally and where the whole process is aborted because something has gone wrong.”

This part of her evidence arose to some extent from questioning in relation to a statement she had made that although there is a natural tendency to regard the fertilised egg as a “baby” then to use her own words “science indicates that a fertilised egg is unfortunately a long, long way from being a human.” Dr. Wingfield developed that opinion further by saying:

“It is unfortunate that we use the same term to apply to a 1-cell embryo and also to an eight week old embryo or foetus, which you can see on an ultrasound scan, you can hear its heart beat, you can see it moving and certainly that eight week embryo, I think the vast majority of people would regard as a baby and a person, but as a 1-cell entity, which is also called an embryo is a very, very different entity from that… There is a very big difference between an early pre-implantation embryo and an eight week old embryo.”

Interestingly, the very next question put to her by Mr. O’Donnell, counsel for the Attorney General was prefaced by the remark “I think this is not significantly in dispute, and indeed I don’t think there is any serious dispute about the biological facts of the development of embryogenesis and the development of the embryo.” There are mountains of evidence of a similar vein but those extracts, in my view, which are not controversial, illustrate the unlikelihood that the constitutional provision with its relatively short and simple wording could have been intended to cover pre-implantation embryos.
The second additional observation I would make is that the kind of situation which arose in this case, i.e. the marriage breaking up while the frozen embryos were in existence is likely rarely to occur. As already referred to in the judgment, there are sound medical reasons in ease of the mother who wants to have a baby by the IVF method, to provide for spare embryos. Even in the case of a stable marriage, it does not at all follow that following on a successful birth by the IVF method it would be intended or agreed by the couple that the spare embryos would be then used to produce a second child by the same method. The creation of the spare embryos may in many instances be intended merely for the purposes of their use if the first attempt fails, but not for their use if the first attempt succeeds. Again, with some people this may be controversial but with others it may seem perfectly reasonable. In a system of regulation which there should be, these matters can be teased out. But to my mind the complexity of them is itself a further indication that the simple right to life amendment, as drawn up, was not intended to resolve any of these issues. It had the single purpose of protecting the child (and by that expression I include the foetus) in the woman’s womb and nothing more.

I would reject both the contractual and constitutional grounds of appeal and would, therefore, dismiss the appeal.

Judgment delivered the 15th day of December, 2009 by Mr. Justice Fennelly
1. I agree that the appeal should be dismissed. I am satisfied that the first-named respondent is not bound by any contract or agreement or by the application of equitable principles to permit the frozen embryos to be implanted. In this respect, I agree with the judgment of Geoghegan J. and with the reasons he gives.

2. I am also satisfied that the frozen embryos do not enjoy the protection of the guarantees provided to the right to life of the unborn by Article 40.3.3 of the Constitution. I agree, for the reasons given in the judgments of Hardiman J. and Geoghegan J. that Article 40.3.3 does not extend to or include frozen embryos which have not been implanted. I do not think that the constitutional provision should be considered only as being intended to reinforce the effect of section 58 of the Offences against the Person Act, 1861. The people, in adopting the Eighth Amendment to the Constitution employed distinct, new and independent language.

3. Finally, I join Hardiman J. in expressing concern at the total absence of any form of statutory regulation of in vitro fertilisation in Ireland. It is disturbing, to use no stronger word, that some four years after publication of the Report of the Commission on Assisted Human Reproduction, no legislative proposal has even been formulated. Counsel for the Attorney General argued before us that there is no law or public policy regarding the protection of frozen embryos, in short that they have no legal status. As I interpret these submissions, the organs of the State have no present intention to propose any legislation. It is obvious that this is extremely difficult and sensitive subject-matter. It is controversial for all of the reasons mentioned by Hardiman J. and Geoghegan J. Nonetheless, it cannot be denied that the fertilisation of the ovum brings into existence, outside the womb, the essential unique components of a potential new individual human person. I agree with the judgments of Hardiman J. and Geoghegan J. that the frozen embryo is entitled to respect. This is the least that can be said. Arguably there may be a constitutional obligation on the State to give concrete form to that respect. In default of any action by the executive and legislative organs of the State, it may be open to the courts in a future case to consider whether an embryo enjoys constitutional protection under other provisions of the Constitution.

P.P. v Health Service Executive

[2014] IEHC 622

JUDGMENT of the Court delivered on the 26th December, 2014
The facts of this tragic case may be simply stated. The plaintiff resides outside Dublin and is the father of N.P. who was born on the 10th July, 1988 and who died on 3 December, 2014 aged 26 years of age. She was pregnant and her pregnancy was at the gestational age of 15 weeks at the time of her death. N.P. had two children who are now aged six and four years respectively. Both resided with her outside Dublin. She was not married but at the time of her death was engaged to M.J., the father of her unborn child.

On the 27th November, 2014, N.P. was admitted to a hospital outside Dublin complaining of persistent headaches and nausea. On the night of the 29th November, 2014, N.P. sustained a fall while in hospital and was later found to be unresponsive and was urgently incubated. Later that day, N.P. was transferred into the care of a Dublin hospital where, on the 2nd December, 2014, at a meeting with medical clinicians in that hospital, the plaintiff was advised that his daughter’s medical condition was such that there should not be an attempt at resuscitation in the event of her suffering cardiac arrest. The condition of N.P. was the subject of ongoing review by clinicians in the Dublin hospital in the course of the period from her admission up to the 8th December, 2014 when she was discharged back into the care of the hospital outside Dublin. On the 3rd December, 2014 in Dublin, a medical clinical determination had been made that N.P. had suffered brain stem death. The plaintiff was advised of this fact on the 3rd December, 2014.

Since the 8th December, 2014 the said N.P. has been under the medical care of the clinical staff at the hospital outside Dublin. She is in the intensive care unit of the hospital where she is being supported by mechanical ventilation and being fed by a nasogastric tube. She has been maintained on very heavy doses of medication for a number of conditions including pneumonia, fungal infections, high blood pressure, fluid build-up and fluctuations in the production of urine. She has been receiving physiotherapy twice daily for secretions from her chest and her joints and muscles are being cared for. The plaintiff was advised by the medical staff at the hospital that it was intended to maintain this regime of treatment for the duration of the pregnancy of N.P. On the 17th December, 2014 a tracheostomy operation was carried out on N.P. to facilitate the continuation of maternal organ supportive measures in an attempt to attain foetal viability.

The plaintiff believes that these measures are unreasonable and should be discontinued. The endorsement of claim in the plenary summons states the plaintiff’s belief that prolonged somatic support measures are experimental in nature and that they have no proper basis in medical science or ethical principle. He thus believes that prolonged somatic support of N.P. is unlawful and/or should be discontinued.

The matter first came before the High Court on Monday, 15th December, 2014 when a discussion as to the appropriate method of progressing the court application was discussed between me, as President of the High Court, and Mr. John Rogers, senior counsel for N.P.’s father. At that stage the proposal was that N.P. be taken into wardship and that P.P., as father of N.P., be appointed committee of the person and estate of the said N.P. The Court agreed to “fast track” a wardship application, making same returnable for Tuesday, 23rd December, 2014. The Court made an order on the 15th December, 2014 restricting publication of any information about the case which would identify the parties, including the names of any of the hospitals involved in the care of N.P. That order continues in effect.

On giving the matter further consideration, the plaintiff’s legal advisors took the view that a preferable procedure in the circumstances of this case was to bring plenary proceedings in which the Court could be asked to exercise its inherent jurisdiction. The present proceedings accordingly issued on the 19th day of December, 2014.

A “case directions” hearing took place on Monday, 22nd December, 2014 where the following matters were agreed:-

(i) That a full hearing of the case would take place on Tuesday, 23rd December, 2014 as an exercise by the High Court of its inherent jurisdiction;
(ii) That any issue as to wardship would remain to be considered after the plaintiff’s application had been determined;

(iii) That the plaintiff, P.P. and the defendants in the plenary proceedings would be entitled to advance such evidence and submissions as they considered appropriate.

(iv) That the Court would allow and hear representations on behalf of the unborn child of N.P.;

(v) That the Court would receive and hear representations on behalf of N.P.;

At the conclusion of the directions hearing, the President indicated that, in view of the importance of the issue raised in the case, the High Court would sit as a divisional court to hear the plaintiff’s application, the additional members of the court for that purpose being Baker J. and Costello J.

EVIDENCE HEARD BY THE COURT ON THE 23rd DECEMBER
Mr. P.P. gave evidence that he was the father of N.P. and that she was living with him for the previous two years. She had two children, a girl aged six and a boy aged four. P.P. had been married but his wife died in June, 2007. He described how, following the commencement of his daughter’s pregnancy, she started to suffer from headaches and vomiting and attended a local hospital on the 27th November, 2014. When he telephoned the hospital to find out how she was getting on she seemed to be doing fine but was then transferred to a Dublin hospital. When he arrived to the Dublin hospital on the 29th he was told that his daughter had died. He was taken to see her remains in the ICU Unit and noted she was on a life support system. He was told by the medical staff that, for legal reasons, they felt constrained to put his daughter on life-support because her unborn child still had a heart beat. He found this very stressful. On each occasion since then when he has seen her, her appearance appears to be deteriorating and her body has become very swollen. He was aware that an operation on his daughter’s head had been carried out in the Dublin hospital to reduce the pressure but had been informed by the treating neurosurgeon that his daughter was dead and there was nothing he could do for her. He had discussed the situation with his sister-in-law who lived next door, who was virtually a mother to his daughter, and also with M.J., the father of the unborn child. All had agreed that the life-support machine should be turned off, both because his daughter was dead and the chances of the unborn child surviving were minimal. He wanted her to have a dignified death and be put to rest. His daughter’s two children are aware that their mother is sick and believe she is being looked after by the nurses “until the angels appear”. His granddaughter was very distressed by the appearance of her mother when she last saw her.

In cross-examination Mr. P. agreed that his daughter had never executed any living will or advance direction as to what might happen if she were to sustain serious illness or become incapable of communicating her wishes. He was aware she kept a Facebook page and was aware she had posted on that page a picture of herself and her partner, and also a photograph of her two children. He had also heard that she had a Facebook page showing an image of the scan of the unborn. He agreed that this latter fact suggested she was proud of this new pregnancy. She had no prior illness and would have been intent, had she not become ill, to carry her baby to full term.

M.J. then gave evidence to say his relationship with N.P. had been going on for four or five years. He confirmed he was the father of the unborn and that he supported the plaintiff’s application that the ongoing somatic support for N.P. be withdrawn. In cross-examination he confirmed that he and N.P. had discussed different names for the new child. His views on what should be done for his partner were influenced by the information he had received to the effect that even if the current measures were continued there was no reasonable prospect that the unborn child would survive.

Dr Brian Marsh is a consultant in intensive care medicine in the Mater Hospital. This form of specialised medicine deals primarily with the care of patients who require a higher level of intensive care management. He had extensive experience in this area having qualified in Ireland and having later trained in Australia prior to his return to Ireland. He explained the phenomenon of brain death and the tests deployed for brain stem testing. This particular patient had a cyst in her brain which was producing symptoms and which caused her to sustain a fall on the 29th November. Thereafter at 17.20 hours on the 3rd December an angiogram confirmed that there was no brain stem activity or blood flow through the brain at that point. He said this test confirmed she was brain dead. He believed the mechanism by which brain death had taken place had evolved over the preceding number of days. Thereafter breathing activity was achieved by means of a ventilator, but there was and is no intracranial circulation of blood. He told the Court that brain tissue has a very short period of ability to survive without oxygen. That organ itself ultimately undergoes a process of liquefaction. Having seen her the previous evening, he told the Court that the mother’s condition currently is one of requiring considerable input from the medical and nursing team. She has problems with her blood pressure management and has ongoing infection. She is also in need of ongoing hormonal therapies. Her appearance is puffy and swollen.

In terms of the welfare of the unborn child, the most important consideration for its survival is the stage of gestation at which brain death occurs in the mother. In this instance it was fifteen weeks.

A study had been carried out in Germany (the “Heidelberg Study”) which, while not consisting of scientific research, reported various outcomes of cases that have happened in individual hospitals internationally. That report indicated a very small subset with this particular gestational age. The study took in a 30 year period and involved about 30 cases in all. Only 7 fitted into the category of 17 weeks or less gestation at the death of the mother. Of those there were two survivors, one of whom died at 30 days post delivery. The paper itself made the point that the number of reported cases was too small to determine the rate at which intensive care support for the mother could result in a healthy infant. There were in addition, he believed, many cases where reports had not been submitted, probably because they had not had successful outcomes.

In his view the situation concerning N.P. will quite quickly become unsustainable. Over time her blood pressure will be difficult to sustain. There is an exponential decrease in function over a period of time. This particular patient has background infections and is no longer managing to retain normal body tone. He did not believe it practical to sustain the mother for up to 32 weeks – at which point the child would be viable. The child is in a very abnormal environment and it can become non-viable for a variety of reasons. In the present case there were fluctuations in blood pressure, infection, the latter comprising deep infection related to the ventricular drain which had been removed from the right frontal area of the skull. There is a wound on the top right hand side of N.P.’s head which has become infected and which has grown organisms. She has also had a urinary tract infection and indications of pneumonia. The presence of these infections is a complication additional to and above all the other problems inherent in the medical situation. In his opinion those infections shorten the potential ability to sustain the mother. He did not believe that this unborn child could survive. The situation will quickly become totally unsustainable. In the circumstances he did not believe it appropriate to continue the present level of somatic support.

Cross-examined by counsel for the HSE he confirmed that he had co-authored a paper on “Maternal Brain Death” in which he noted that successful delivery of a live foetus had never been reported where pregnancies were less than sixteen weeks gestational age at the time of maternal brain death.

Cross-examined by counsel for theunborn child, Dr. Marsh agreed there had been, in fact, three survivors from the seven infants fitting into the relevant gestational category, but that the third had passed away after 30 days. A later report published in 2013 was of little value as it referred to one event only.

Cross-examined by counsel for N.P., Dr. Marsh also confirmed that any outcome would be heavily influenced by whether the infections worsen or improve.

Dr. Peter Boylan is a consultant obstetrician. He provided a detailed report to the Court dated the 22nd December. He had seen the medical records and traced the chronology of N.P.’s various hospital admissions and treatment. He was aware her Glasgow coma score was only 3/15 on admission to the Dublin hospital and that the CT scan result indicated a 6 x 4 cm cystic lesion in the left posterior fossa with mass effect and compression of the left hemisphere of the brain representing a catastrophic event. He believed a cyst had developed in N.P.’s brain over some period of time which had caused the headaches and dizziness and probably explained her fall. He noted that her pupils were bilaterally non-reactive and fixed, indicative that she was unconscious and had experienced very severe damage to her brain. He was aware that brain stem testing measures were put in place by the neurologist in the Dublin hospital. A study of the notes brought home that the doctors in the Dublin hospital were clearly concerned, having regard to the mother’s pregnancy, not to do anything that would “get them into trouble from a legal point of view and were awaiting legal advice”. He was aware a cerebral angiogram had been carried out on the 3rd December which showed no evidence of intracranial flow and the appearance was consistent with brain death. Further confirmatory tests on the 4th December were to the same effect.

Dr. Boylan believed that the state of gestation on the 3rd December was more likely to have been thirteen weeks, rather than fourteen or fifteen. He adverted to the discussions which had taken place between the members of the multi-disciplinary medical team within the Dublin hospital, all of which emphasised and were focussed on the difficulties for medical practitioners as a consequence of the absence of medico-legal guidelines and because of difficulties arising from the 8th Amendment to the Constitution.

In describing somatic support, Dr. Boylan described how the unborn in the uterus is effectively in an intensive care unit. Ventilation is provided by the placenta which acts to provide oxygen and remove gases, carbon dioxide, just as the ventilator does for somebody after birth. The placenta also acts as the kidneys in the case of the unborn and therefore the unborn is effectively undergoing continual dialysis to remove waste products and various other things. The unborn receives intravenous nutrition by way of the placenta through the umbilical cord in the same way that the mother is herself receiving nutrition through a tube. Both are in effect in intra-dependent intensive care units. He believed it was a reasonable proposition to withdraw care having regard to the facts of this case. This would result in the mother’s death which would inevitably be followed by the death of the unborn because its intensive care support would be withdrawn. However, this was entirely different to an abortion because it is the withdrawal of ongoing support rather than the direct termination of life.

The present treatment regime was an extraordinarily rare situation. He could find no case where somatic support began at fourteen weeks or even thirteen weeks with a successful outcome. This form of somatic maintenance is still relatively experimental.

Of particular concern in the present instance is the open wound in the skull of N.P. where there is a large mass of dead tissue which will act as a focus for sepsis and infection of her blood stream, inevitably resulting in infection of the unborn resulting in a rupture of the membranes and a very pre-term delivery. A newborn, if it survived, would be likely to be significantly damaged. Dr. Boylan confirmed he supported the HSE position in this case that there was no reasonable prospect that the unborn child would be born alive if somatic measures in relation to the mother were maintained. Apart from all of the metabolic and endocrine cardiovascular difficulties, there was a major risk in the instant case of overwhelming infection.

In an ordinary case viability was generally accepted as being at approximately 24 weeks gestation, but the survival rate for a child at that stage is only 25% and of the survivors only 15% survive without handicap. He believed it should keep going until 32 weeks when the chances of intact survival are much greater. However this unborn child was being maintained in a regional hospital outside Dublin without facilities for neonatal intensive care of the extremes of prematurity. He believed the likelihood of a successful outcome for the unborn child in this case was very low. Maintaining somatic support for N.P.’s body over a number of months has a high likelihood of proving to be futile.

In cross-examination he accepted there were some discrepancies between the different records as to the gestational age of the unborn at the time of its mother’s brain death. However, whether it was thirteen, fourteen or fifteen was not really of any great consequence in terms of the concerns he had raised. The most successful outcomes were those where the mother dies at 32/35 weeks from a brain haemorrhage and has immediately effectively post-mortem caesarean section. She can then be delivered without somatic support having to go on for a long time. The further back one goes into the earlier stages of pregnancy, then obviously the longer somatic support is going to have to continue and the greater potential therefore for complications to follow. He was further cross-examined by counsel for the mother in terms of what response should follow a request or instruction by the mother that somatic treatment continue in the best interests of her baby in the event of brain haemorrhage or a similar event. While no such request or instruction had been made in this case, Dr. Boylan stated this would make matters “an awful lot more complicated”.

Dr. Timothy Lynch is a consultant neurologist at the Mater Hospital. He gave evidence that N.P. met the criteria for brain death based upon the clinical history (a large cerebellar cystic lesion causing acute hydrocephalus and compression of brain stem). The neurological examination of the 22nd December and the absence of blood flow on the four vessel cerebral angiography confirmed that assessment. The latter demonstrated a complete lack of blood flow in the intracranial vessels to brain stem or to either or both cerebral hemispheres.

Testimony which the Court can only describe as devastating was then given by Dr. Frances Colreavy, who is a consultant in intensive care medicine. She had trained in Ireland and Australia but said she had never experienced a case of this nature before where somatic treatment had been applied for 20 days to a person who is brain dead. She examined N.P. on the evening of the 22nd December and noticed the presence of eye and face make up which were used as the above mentioned two children visited their deceased mother for the first time that day. However, the whites of the eyes were so swollen that the eyelids could not close properly. There was evidence of ongoing infection with high fever, high white cell count, fast heart rate and evidence of a high output circulation. There was evidence of pus which required evacuation from a drain site on the right side of the head. This site has not closed and on examination there is a hole in the skull with brain tissue extruding. There was also evidence of a fungal infection at this site. There were huge amounts of fluid in the lungs with additional evidence of a urinary tract infection and the lower abdominal wall was noted to be inflamed. Serious infection is inevitable in this case due, in the opinion of Dr. Colreavy, to the presence of a rotting brain which is leaking to the outside, together with the drips, catheters and tubes required to extend somatic support, the administration of steroid therapy, liver dysfunction and prolonged stay in the ICU environment which is colonised with resistant bacteria. There is also evidence of cardiovascular instability requiring high doses of medication. There is evidence of hypertension relating to fluid overload with an attendant risk to placental perfusion. There is total body oedema (puffiness) abnormal function and a build up of fluid in the body. There were six syringe pumps beside the woman’s bed for her various treatments. N.P. needed nutrition, bowel support, drugs for infections, a head wound needed to be dressed and she had to be turned to avoid pressure sores. Dr. Colreavy said that the pregnant abdomen looks unlike any other she had seen and she was worried that indicated an infection underneath. All the sources of infection had not been identified. In her view, continuing the somatic support was not appropriate and amounted to “experimental medicine”. She had found the mother’s temperature to be 38.5 and previously even higher at 39°. She would expect the temperature in the uterus to be even higher, perhaps about 40. The striae, the stretch marks of pregnancy, are very abnormally discoloured in this case and the abdomen itself looks very boggy and filled with fluid indicating that there could be inflammation or infection in the abdomen itself. There is also evidence of urinary infections and evidence of fungus at the tip of one of the tubes that are inserted into a vein to support the blood pressure and the circulation. She also has high blood pressure and is receiving very high doses of drugs to address this worrisome feature. Some of the infections are very resistant to antibiotics and some of the drugs being administered are not licensed for use in pregnancy situations. She did not believe it was realistic to consider that somatic support for the mother could continue to be provided until the foetus reached viability.

Dr. Peter McKenna is a consultant obstetrician attached to the Rotunda Hospital. He stated that N.P.’s last period was the 16th August and he thus calculated she was about fifteen weeks pregnant when declared brain dead on the 3rd December. He said that the woman’s high temperature at 38.5 degrees and going up to 39 degrees was worrying. Babies are not designed to be incubated in anything other than the normal temperature. The higher the baby’s temperature, the quicker the enzymes will work and the quicker you will get through the available oxygen. He was also concerned about poor control of the patient’s blood pressure. If not properly controlled, placental function will be bad. He believed the vividly coloured stretch marks on the mother’s abdomen could be caused by retained fluid. Very few drugs are licensed for use in pregnant women and it is not possible to say with any certainty what the effect of those drugs might be on the unborn child. He was aware of the study conducted in Heidelberg confirming in his view that there was only one live birth from a period of gestation which was as early as that of the instant case. The few reported cases indicate that most approaches to managing brain dead mothers remain experimental. In terms of viability for delivery, he agreed with Dr. Boylan that the absolute minimum is 24 weeks at which point the outlook was poor. At 28 weeks the chances of survival are considerably greater. However that is a further ten weeks on from the present time. If this were a case where the brain injury had occurred at 24 weeks he would regard it as the logical thing to try and sustain the intrauterine environment for another couple of weeks.

He believed the chances of the foetus being born alive are small and the chances of intact survival if born alive were even smaller. Having heard the evidence of Dr. Colreavy, his view in that regard had hardened so that he now believed that further progress was becoming increasingly unlikely. He saw no justification for continuing it further. The level of care that would be demanded was extraordinary and the chances of a successful outcome were so poor that he would be reluctant to continue the therapy without the full and whole hearted support of the entire family.

Cross-examined about the Heidelberg report, he accepted that of the 30 cases addressed in that paper some eight cases fell into the approximate gestation period arising in the instant case. He was referred to a paragraph in the report which suggested that prolonged somatic support can lead to the delivery of a viable child with satisfactory Apgar score and birth rate, and that such children can develop normally without any problems resulting from intrauterine conditions. Dr. McKenna said that the percentage of successful cases could not be determined because there are no reports in existence describing failure of intensive maternal support from all medical centres. He believed that unsuccessful outcomes were not often reported.

In re-examination by counsel for the plaintiff, Dr. McKenna agreed that the instant case was not merely a rare case but an absolutely extraordinary one. Asked if he could conceive of any circumstances, having regard to the evidence given, where it would be justifiable on any medical basis to continue the somatic support being rendered, Dr. McKenna replied that on the basis of the evidence he had heard in Court, any continuance of the treatment would “be going from the extraordinary to the grotesque”.

In reply to the Court, Dr. McKenna further confirmed that to the extent that a mother is suffering from various problems during a pregnancy, the baby also suffers and will react with distress to adverse developments and will not be unaware or unaffected by them.

Dr. David Mortell is the obstetrician who dealt with N.P. and her unborn child. While he had provided a report, it was simply intended to address what he was doing at any particular moment in time and what might happen perhaps in the future. Having heard the evidence of Dr. Colreavy, he was now aware of the “dreadful state that the patient is in”. The mother’s temperature is going up, there is infection and her blood pressure is difficult to control. He now had great concern about her somatic care and about her chances of survival. Since he wrote his original report there had been an ongoing evolving situation which was getting worse day by day. Asked if he believed in the light of Dr. Colreavy’s evidence of deterioration in the mother’s condition that somatic support remained a viable option, he replied that he did not. He honestly did not think there was any hope of the baby surviving with the “storm” that is going on around it and would give up all hope for the baby. The mother in the instant case has an open wound in her head, she has four or five tubes out of her body and is deteriorating rapidly. He and his team would be prepared now to withdraw somatic treatment in consultation and in liaison with the family members.

He was cross-examined as to why he had changed his view as to the prospects for the unborn child from the more optimistic tone of his earlier report. He answered that the infection which has become evident over the past few days “seems to be taking over”. He stated that if you have a dead brain that is infected it will be a constant seat of infection. He said that the brain itself is “liquefying” and thus pouring toxins into the blood stream. As this goes on, the deterioration of the mother’s condition will undoubtedly affect the baby and he did not believe that its viability would continue. He believed that “we have all the signs of the perfect storm and it does not seem to be improving”.

Finally, evidence was given by Dr. Stephen McNally, consultant neurosurgeon and national lead in neuro-oncology in the hospital to which N.P. had been transferred in Dublin in which he set out how on arrival she was incubated and ventilated. Her Glasgow coma score was 3/15 and her pupils were bilaterally fixed and dilated. She was taken directly to theatre from the A & E department at which time a right frontal bactiseal external ventricular drain was inserted. Intra operatively the cerebro spinal fluid was noted to be under high pressure.

On the 3rd December, 2014 a cerebral angiogram was performed which confirmed no intracranial flow to the anterior circulation and the basilar artery was narrow and displaced without any flow into the posterior cerebral arteries. These changes were consistent with brain death.

Having had to deal with the family of N.P., he found their frustrations and their humanity both touching and humbling. While he had seen some dreadful things in neurosurgery he had never seen this. It was very difficult not to be able to follow the wishes of the family because of uncertainty as to the legal standing with regard to the unborn child. Legal advice had been sought but no opinion in writing had been received prior to the time for a transfer back to the hospital outside Dublin. He believed that, having regard to N.P.’s condition when admitted to hospital in Dublin, that she was “probably gone” by the time she arrived in their door.
ASSESSMENT OF THE EVIDENCE AND FINDINGS OF FACT
At the outset the Court would wish to pay tribute to the plaintiff and to the partner of N.P. for what can only be described as their immense courage and fortitude in dealing with the catastrophe which has befallen them and which has been compounded by the necessity of coming to Court to give evidence in this matter. It has been an enormous family tragedy, involving as it does a young 26 year old woman in the prime of life, who was undoubtedly looking forward to the successful outcome of her pregnancy.

This is not a case where at any time whatsoever N.P. indicated that she was desirous of obtaining an abortion. On the contrary, she had apparently posted on Facebook an image of an early scan of her baby to share her pleasure and excitement about the pregnancy with her friends. She had no reason to think her pregnancy was progressing other than completely normally. From such evidence as was available, the Court believes that N.P. would have fought long and hard to bring her unborn child to term. However, that intention, if such it was, falls well short of any expression by her that her present predicament and that of her unborn child should continue in the direction in which it is presently heading.

The entire medical evidence in this case goes one way only, and that is to establish that the prospects for a successful delivery of a live baby in this case are virtually non-existent. The medical evidence clearly establishes that early gestation cases have a much poorer prognosis for the unborn child than those cases where brain death of the mother occurs at a later stage, usually improving after 24 weeks.

Based on the evidence it has heard, the Court feels able to make the finding of fact that N.P. suffered brain stem death on the 3rd December, 2014. This followed a fall which N.P. sustained on the 29th November, 2014 during a time when she was experiencing dizziness and severe headaches which were triggered by a cyst which had been developing in her brain for some time previously. Different views have been offered as to the precise stage of gestation of the unborn child at time of death, ranging from thirteen weeks to fifteen weeks. The Court believes, based on the evidence it has heard, that fifteeen weeks gestation is the appropriate finding in that regard.

At the outset of the hearing, counsel for the HSE supported the contention advanced by counsel for the plaintiff that the medical evidence to be called by both parties to the proceedings would indicate that there is no reasonable prospect that the unborn child will be born alive if somatic measures in relation to the mother are continued. The Court is satisfied that this contention has been borne out and substantiated by the evidence adduced by both the plaintiff and defendant. There is un-contradicted evidence from all of the medical experts that brain death at such an early stage of pregnancy precludes any realistic hope that the baby in this case might be born alive. The Court finds as a fact that there is no realistic prospect of continuing somatic support leading to the delivery of a live baby. While there have been instances where lengthy somatic treatment has led to the birth of a live baby, the evidence in this case, and, in particular, that of Dr. Colreavy, is persuasive to a conclusive degree that the ongoing somatic support for the mother is causing her body increasingly to break down and that overwhelming infection from various sources will, as a matter of near certainty, bring the life of the unborn to an end well before any opportunity for a viable delivery of a live child could take place.

The Court emphasises that, having regard to its finding that the unborn child will not be born alive, this is not a case where the Court’s view is to any degree influenced by any consideration that if the unborn child were to be born alive, it might nonetheless be impaired to a greater or lesser degree. This is not a case where the Court on the evidence is required to consider that possibility. This case turns on its own particular facts which are centred entirely on whether the unborn child can survive at all.

The Court is further satisfied on the evidence that, in addition to the ongoing trauma and suffering experienced by the family and partner of N.P. through the continuance of somatic support, such continuing support will cause distress to the unborn child in circumstances where it has no genuine prospect of being born alive. It would be a distressing exercise in futility for the unborn child. That consideration is important when it comes to considering what in this case is in the best interest of the unborn child.
LEGAL PRINCIPLES
Article 40.3 of the Constitution provides as follows:-

“1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

On behalf of the plaintiff it is submitted that Article 40.3.3 is irrelevant in the instant case in that the right to life of the unborn is not engaged in the particular circumstances of this case. Counsel argued that the objective of Article 40.3.3 was mainly – if not entirely – to copper fasten the protection provided in the statutory regime which outlaws the procuring of a miscarriage. In the instant case, there would be no deliberate interference with the unborn so as to procure a miscarriage. What had arisen in respect of this unborn is the death of its mother from brain injury – an “Act of God” which no one could have foreseen. It was submitted that in such circumstances the right to life of the unborn is not engaged within the meaning of the Article.
A different submission is made on behalf of the Health Service Executive. It submits that Article 40.3.3 must be taken as meaning that both the born and the unborn enjoy a right to life and that the State therefore must respect the unborn’s right to life and as far as practicable defend and vindicate that right. However, this obligation is not absolute. This is clear from the very wording of Article 40.3 and in particular the use of the expressions “as best it may” and “as far as practicable”.

Counsel for the unborn submitted that Article 40.3.3 was engaged even though this was not a case concerned with abortion. Having regard to the wording of Article 40.3.3, this must mean that, given N.P. had died, the rights of the unborn child must take precedence over the understandable grief of the family of N.P. and her entitlement to a death with dignity. There were no “equal rights” to be placed in the balance in this case and therefore the overriding obligation was to vindicate the right to life of the unborn as far as practicable. It was accepted, however, that in attempting to vindicate the unborn child’s right to life in this case, the Court must consider what is in the best interests of the unborn.

It was urged on the court that there was a difference between the English and the Irish versions of article 40.3.3. In English the wording is “as far as practicable” whilst the Irish is “sa mhéid gur féidir é”. It was argued that the Irish version means “as far as is possible” and that where there is a conflict between the two versions, the Irish version prevails, but if it is possible to reconcile the two versions this should be done. Counsel accepted that, even if this contention was correct, it could not mean that extreme or remote possibilities in medical treatment should dictate what should be done.

Counsel for N.P. argued that the court should infer what N.P.’s wishes were in relation to this pregnancy and strive to have the unborn delivered as a testament to her and as a sibling to her other children. In so far as reliance was placed by the plaintiff on the fact that the treatment was experimental, it was pointed out that it had been accepted that it could be described as pioneering rather than experimental treatment. He submitted that while she had an interest in dying with dignity and minimal suffering, but that given what had occurred, a death without indignity was not possible and thus greater weight should be given to the continuance of the pregnancy than striving to achieve the lost opportunity of a dignified death. He also pointed out that in article 40.3.1 the obligation to respect the personal rights of the citizen is not qualified.

In reply to the argument as to the meaning of “as far as is practicable”, counsel for the HSE referred to the judgment of Finlay C.J. in The Attorney General v. X [1992] 1 IR 1 as follows:-

“Furthermore,the duty which is imposed upon the State under the terms of Article 40.3.3 of the Costitution which is being discharged by the courts in granting injunctions in the context with which I am now concerned, is a duty to vindicate and defend the right of the unborn to life ‘as far as is practicable’. This duty, with that qualification, must it seems to me necessarily apply in any event to the discretions vested in the Court the principle that it cannot and should not make orders which are futile, impractical or ineffective.”
It was argued that the Supreme Court had construed the phrase to mean not futile, impractical or ineffective. In reply on behalf of the Plaintiff, the court was referred to the case relied upon by counsel for N.P., O’Donovan v The Attorney General [1961 IR 114 at page 130 of the judgment of Budd J as follows:-
“I have come to the conclusion that the word “féidir”, used in one combination or another, has shades of meaning according to the combination in which it is used or the context ranging from connoting what is possible in the widest sense to what is feasible or practicable.”
It was also pointed out that same phrase in both Irish and English is used in Article 40.3.1 and that the phrase should be given the same meaning in subparagraph 3 as in subparagraph 1. Article 40.3. 1 was considered by the Supreme Court in Re a Ward of Court (withholding medical treatment) (No.2) [1996]2 IR 79 and it was clear that the phrase was interpreted as meaning what was practicable rather than what was possible; the ward had been fed for 23 years, it was therefore possible to continue to treat her but the court held that discontinuing this treatment was nonetheless defending her right to life as far as practicable.
This Court accepts on this latter point the submissions of counsel for the Plaintiff and HSE. The phrase has been considered by the Supreme Court on two occasions and it has never been given the interpretation urged by counsel for the unborn. It should be construed in harmony with Article 40.3.1 and this accords with the decision of Finlay CJ in Attorney General v X

It is the view of the Court that, while the ordinary common understanding of what in context was involved in the referendum which led to the present wording of Article 40.3.3, particularly insofar as it mandates due regard to the equal right to life of the mother, was to protect the legal position created in Ireland by s. 58 of the Offences Against the Person Act 1861, the provision, in its plain and ordinary meaning may also be seen as acknowledging in simple terms the right to life of the unborn which the State, as far as practicable, shall by its laws defend and vindicate. This does not mean that the Court discounts or disregards the mother’s right to retain in death her dignity with proper respect for her autonomy with due regard to the grief and sorrow of her loved ones and their wishes. Such an approach has been the hallmark of civilised societies from the dawn of time. It is a deeply ingrained part of our humanity and may be seen as necessary both for those who have died and also for the sake of those who remain living and who must go on. The Court therefore is unimpressed with any suggestion that considerations of the dignity of the mother are not engaged once she has passed away.

However, when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.

The question then becomes one of how far the Court should go in terms of trying to vindicate that right in the particular circumstances which arise here. Some very considerable guidance in that regard can be derived from some well-known wardship cases. In In re a Ward of Court (witholding medical treatment) (No. 2) [1996] 2 I.R. 79, the High Court held that the right to life ranked first in the hierarchy of personal rights, though it might nevertheless be subject to certain qualifications. Thus although the State has an interest in preserving life, this interest is not absolute in the sense that life must be preserved and prolonged at all costs no matter what the circumstances. In the course of her judgment in this case in the Supreme Court Denham J. stated (at p. 58):-

“In respecting a person’s death, we are also respecting their life – giving to it sanctity. That concept of sanctity is an inclusive view which recognises that in our society persons, whether members of a religion or not, all under the Constitution are protected by respect for human life. A view that life must be preserved at all costs does not sanctify life. A person, and/or her family, who have a view as to the intrinsic sanctity of the life in question are, in fact, encompassed in the constitutional mandate to protect life for the common good; what is being protected (and not denied or ignored or overruled) is the sanctity of the person’s life. To care for the dying, to love and cherish them, and to free them from suffering rather than to simply postpone death, is to have fundamental respect for the sanctity of life and its end.”
In Airedale NHS Trust v. Bland [1993] AC 789, Lord Browne Wilkinson set out the general principle in regard to withdrawing life support as follows:-
“In my judgment it must follow from this that if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion) that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person.”
In Re A (A Minor) [1993] 1 Med L Rev 98, the High Court granted a declaration that it would be lawful to disconnect from a ventilator a child who had been found to be brain dead. In this regard Johnson J. said:-
“It would be wholly contrary to the interests of A., as they may now be, for his body to be subjected to the continuing indignity to which it was currently subject. Moreover it would be quite unfair to the nursing and medical staff of the hospital, who are finding it increasingly distressing to be caring for a dead child.”
At present the artificial measures which maintain the bodily functions of the mother in this case also maintain the unborn child. However, the question which must be addressed is whether even if such measures are continued there is a realistic prospect that the child will be born alive. In Maternal Brain Death, Pregnancy and the Foetus: The Medico-Legal Implications (2001 Medico Legal Journal) the authors Asim Sheikh and Denis Cusack put the matter as follows:-
“If maternal death occurs and all the reasonable, responsible and carefully considered evidence clearly suggests that the foetus cannot be maintained, then on the rationale of Bland and Re A there no longer exists a best interest to protect and the futile continuation of further treatment should no longer be permitted.”
To like effect are the comments of the authors of “Maternal Brain Death – An Irish Perspective” (Farragher, Marsh and Laffey – Irish Journal of Medical Science, Vol. 174 – No. 4, p. 55) where they say:-
“In contrast, if the available medical evidence suggested that there is no realistic prospect of delivery of a live baby then maternal somatic support would be considered futile, and not be permitted.”
They conclude:-
“The right to life conferred on the foetus from the earliest stages of gestation in this State may only be usefully be exercised if there exists some expectation of successful delivery of a live baby. If no realistic prospect of success exists, then maternal somatic support would be considered futile, and should not be permitted. It seems reasonable to consider prolongation of maternal somatic function to be futile if the pregnancy is of less than sixteen weeks gestation at the time of maternal brain death, given the absence of reports of successful delivery of a live foetus in these pregnancies. This might be an appropriate cut-off point in this context. However, the fact that this is an arbitrary cut-off point must be emphasised.”
In a number of cases where the High Court was exercising its wardship functions, it approached the issue of whether or not to permit withdrawal of life support by reference to the best interest of the child or ward. This is the parens patriae jurisdiction exercised formerly by Lord Chancellors of Ireland prior to 1922 which is now vested in the President of the High Court by virtue of the Courts (Supplemental Provisions Act) 1961. It arose in the case of S.R. (A Ward of Court) [2012] 1 I.R. 305 and this Court finds the exposition of the “best interests principle” appropriate for application in this case also in terms of what was stated (at p. 323):-
“In determining whether life-saving treatment should be withheld, the paramount and principal consideration must be the best interests of the child. This gives rise to a balancing exercise in which account should be taken of all circumstances, including but not limited to: the pain, suffering that the child could expect if he survives; the longevity and quality of life that the child could expect if he survives; the inherent pain and suffering involved in the proposed treatment and the views of the child’s parents and doctors. I agree with the views expressed by Lord Donaldson M.R. in Re J. (Wardship: Medical Treatment) [1991] Fam 33 that the proper test in such a case is to ask what the ward would choose if he were in a position to make a sound judgment. It follows that the decision maker should not impose his own views on whether the quality of life which the child would enjoy would be intolerable, but should determine the best interests of the child subjectively.
It is accepted that, given the importance of the sanctity of human life, there exists in circumstances such as in the present case a strong presumption in favour of authorising life-saving treatment.

This presumption is not irrebuttable, and can be deviated from in exceptional circumstances. It should also be stated that the courts could never sanction positive steps to terminate life. The court will, in exceptional circumstances, authorise steps not being taken to prolong life, but could never authorise a course of action which would accelerate death or terminate life.

The medical evidence in the instant case is that incubating and ventilating SR invasively is not in his best interests. It would involve unnecessary pain and discomfort and would be futile. Ultimately it would appear that such treatment would prolong SR’s suffering without any long-term benefit to him.”

In those circumstances the Court acceded to the application brought by the applicant hospital to refrain from further incubating or ventilating a six year old child who had suffered catastrophic brain damage from a near drowning incident when just under two years of age.
Given that the unborn in this jurisdiction enjoys and has the constitutional guarantee of a right to life, the Court is satisfied that a necessary part of vindicating that right is to enquire as to the practicality and utility of continuing life support measures. Seen in this way, the facts of this case are even stronger than those in the S.R case. This unfortunate unborn has suffered the dreadful fate of being present in the womb of a mother who has died, and in which the environment is neither safe nor stable, and which is failing at an alarming rate. We accept the evidence of the medical witnesses that – from a medical viewpoint – normal bodily parameters are maintained within extraordinarily fine limits, and that in this case there is no real prospect of maintaining stability in the uterine environment, having regard to the degree of infection, the fluctuating temperatures in the body of the mother, the difficulty in maintaining a safe blood pressure and the amount of toxic medication being administered to the mother which is not licenced for pregnancy. The somatic support being provided to the mother is being maintained at hugely destructive cost to both her remains and to the feelings and sensitivities of her family and loved ones. The condition of the mother is failing at such a rate and to such a degree that it will not be possible for the pregnancy to progress much further or to a point where any form of live birth will be possible. As Dr. Mortell put it, while the unborn child is not yet in distress, it is facing into a “perfect storm” from which it has no realistic prospect of emerging alive. It has nothing but distress and death in prospect.

To maintain and continue the present somatic support for the mother would deprive her of dignity in death and subject her father, her partner and her young children to unimaginable distress in a futile exercise which commenced only because of fears held by treating medical specialists of potential legal consequences. Highly experienced medical practitioners with the best interests of both mother and unborn child in mind do not believe there is any medical or ethically based reason for continuing with a process which Dr McKenna described as verging on the grotesque on the particular facts in this case.

The Court is therefore satisfied, in the circumstances of this case, that, in the best interest of the unborn child, it should authorise at the discretion of the medical team the withdrawal of ongoing somatic support being provided for N.P. in this tragic and unfortunate case. It will accordingly make a declaration and order to that effect.

This case raised issues of great public importance. The Court will therefore grant to the plaintiff the costs of the proceedings and will also make simlar orders for the costs of the representatives of both N.P. and of the unborn child.

R. (M.) v R. (T.) & Ors

[2006] IEHC 359 (15 November 2006)

JUDGMENT of Mr. Justice McGovern delivered on the 15th day of November 2006.
1. The Facts
The plaintiff and the first named defendant were married on the 5th March, 1992. In 1994 they sought fertility advice from their General Practitioner and were referred to Holles Street Hospital. In July 1995 the Plaintiff underwent a laparoscopy which did not indicate any particular fertility problem. In March 1996 the plaintiff was checked for a possible cyst on her ovary due to the fact that she was experiencing some pain in her abdomen. In December 1996 she underwent a medical procedure at the National Maternity Hospital Holles Street, Dublin. This involved a HCG injection in mid cycle. She became pregnant in January 1997 and a son was born in October 1997.
Shortly after the birth of her son the plaintiff underwent surgery for an ovarian cyst and she lost two thirds of her right ovary. She was referred back to the National Maternity Hospital in Holles Street in 1999. On the 5th May, 2000 she underwent another laparoscopy. She had fertility treatment in 2001 at Holles Street which proved to be unsuccessful. In July 2001 the plaintiff and the first named defendant were referred for IVF treatment. They elected to have the treatment at the Sims Clinic (the fourth named defendant). Their first appointment at the fourth named defendant’s clinic was in October 2001. They returned to the clinic in January 2002. On the 29th January, 2002 the plaintiff signed a document entitled “Consent to Treatment Involving Egg Retrieval”. In this document the plaintiff agreed to the removal of eggs from her ovaries and a mixing of the eggs with the sperm of the first named defendant. On the same date the plaintiff and the first named defendant signed a document entitled “Consent to Embryo Freezing”. In that document it was stated, inter alia, “we consent to the cryo preservation (freezing) of our embryos and take full responsibility on an ongoing basis for these cryo preserved embryos.” The first named defendant signed a document entitled “Husband’s Consent” in which he acknowledged that he was the husband of the plaintiff and consented to the fertilisation of the plaintiff’s eggs and the implantation of three embryos. He also acknowledged in that document that he would become the legal father of any resulting child. On the same date the first named defendant signed a “Semen Collection Form” confirming that the sample produced was his. On the 1st of February, 2002 the plaintiff signed a form entitled “Consent to Embryo Transfer”. In this she agreed to the placing in her uterus of three embryos and the administration of any drugs or anaesthetics that might be found necessary in the course of the procedure.
As a result of the IVF treatment six viable embryos were created. Three were inserted in the plaintiff’s uterus and the remaining three were frozen. The plaintiff became pregnant as a result of the transfer of the three embryos and gave birth to a daughter on the 26th of October, 2002.
Towards the end of the plaintiff’s pregnancy following IVF treatment, marital difficulties arose between the plaintiff and the first named defendant which resulted in the first named defendant leaving the family home. He had entered into a second relationship. An attempt at reconciliation failed and the parties eventually entered into a judicial separation although they still remain legally husband and wife. The plaintiff wishes to have the three frozen embryos implanted in her uterus and the first defendant does not wish this to happen and does not wish to become the father of any child that might be born as a result of the implantation of the frozen embryos.
I have already held, after the hearing of a preliminary issue, there was no agreement between the plaintiff and the first named defendant as to what would happen the frozen embryos if the implantation of the initial three embryos resulted in a successful pregnancy. I also held that the first named defendant did not give his consent either express or implied to the implantation of the frozen embryos and it is clear that the fourth named defendant is unwilling to release the embryos into the care and custody of the plaintiff without the consent of the first named defendant. There is an issue concerning the storage of the embryos. The second, third or fourth named defendant have indicated they will abide by any order of the court. They pointed out that the stored embryos could only be removed from their storage unit and transferred elsewhere if the plaintiff and the first named defendant agreed. On the 24th June, 2005 the fourth named defendant wrote to the plaintiff and the first named defendant stating “we have not received any payment for storage of your embryos since June 2003. This failure of payment despite a request for same is a breach of unit policy which renders our implied storage contract null and void.” They did state that they were prepared “as an act of altruism” to maintain the integrity of the embryos for an additional year and pointed out that the clinic and its agents had no further ongoing responsibility for the embryos. It is against this background that the proceedings have been commenced.
2. The Issues
While the issues are set out in the pleadings, I was informed by Counsel for the Plaintiff that the issues had been resolved into more specific topics set out in a draft list of issues agreed between the parties and furnished with the book of pleadings. The issues are stated to be as follows:
“1. Whether the frozen embryos are ‘unborn’ for the purposes of Article 40.3.3 of the Constitution of Ireland.
2. Whether the plaintiff and the first named defendant had agreed that the said embryos would be returned to the plaintiff’s uterus and, if so, whether the said agreement still binds the parties irrespective of the subsequent marital separation.
3. Irrespective of the answer to 2, is the plaintiff entitled to the return of the said embryos to her uterus whether by virtue of Article 40.3.3 and/or Article 41 of the Constitution or otherwise?
4. Is the first named defendant entitled to withdraw his consent to the said return of the embryos by virtue of the subsequent breakdown of the marriage and/or by virtue of any constitutional right to determine how the said embryos might be used, stored, maintained or kept.”
After hearing legal argument it was agreed that issue No. 2 should be dealt with first by the Court, this being a private law issue. Evidence was heard on the issue and judgment was delivered by this Court on the 18th July, 2006. In that judgment I held that the first named defendant did not give his express or implied consent to the implantation of the three frozen embryos in the plaintiff’s uterus. That preliminary hearing disposed of item 2 on the list of issues. Of the remaining issues the principle one is issue number 1 namely, whether the frozen embryos are “unborn” for the purposes of Article 40.3.3 of the Constitution of Ireland. The other issues are subsidiary to that question and depend on the answer to that question although there is also the question of Article 41 which arises in the third issue which I will come to later in this judgment. A number of witnesses were called on behalf of the plaintiff who gave evidence as to when, in their view, life begins. Some of these witnesses argued that from the moment of fertilisation of the ovum by the sperm a new human life begins. Other witnesses called to give evidence in this case postulated that it was only when the embryo became implanted in the uterus that the potential to be born existed and that human life began at that point. Yet other witnesses indicated that human life began at the formation of the primitive streak and some witnesses offered the view that it was impossible to say when human life begins. What is clear is that a debate which has existed over centuries continues to this day even with the major advances which have been made in medicine and science. In opening the case Mr. Hogan for the plaintiff stated that the court “… in the context of this case, is confronted with the most difficult decision of all, a decision which probably or at least to date, eluded the most gifted and brilliant of medical scientists, scientists… and those in the medical community and indeed in other communities who have reflected on this; at what point does human life begin?” It is possible for Scientists and Embryologists to describe in detail the process of development from the ovum to the embryo and on to the stage when it becomes a foetus after implantation of the embryo in the wall of the uterus, but in my opinion, it is not possible for this Court to state when human life begins. The point at which people use the term “human being” or ascribe human characteristics to such genetic material depends on issues other than science and medicine. For example, it is a matter which may be determined by one’s religious or moral beliefs and, even within different religions, there can be disagreements as to when genetic material becomes a “human being”. But it is not the function of the courts to choose between competing religious and moral beliefs. This issue was considered by Munby J. in The Queen on the application of Smeaton v. Secretary of State for Health [2002] 2 FLR 146. This was a judicial review proceeding brought by the society for the protection of unborn children (SPUC) challenging the making of a statutory instrument which permitted the sale of the “morning-after pill” to women of 16 years and over. It was alleged by the applicant that such a pill was an abortifacient substance used with intent to procure miscarriage and, therefore, a substance whose supply, administration and use was a criminal offence under the Offence Against the Person Act 1861 ss. 58 and/or 59. Munby J. said at p. 157:
“I have said that this case raises moral and ethical questions of great importance. It would be idle to suggest otherwise. For those who view such matters in religious terms it raises religious and theological questions of great – and to some, transcending importance. But I must emphasis that so far as the Court is concerned, this case has nothing to do with either morality or religious belief. The issue which I have to decide is not whether the sale and use of the morning after pill is morally or religiously right or wrong, nor whether it is socially desirable or undesirable. What I have to determine is whether it may constitute an offence under the 1861 Act.
Cases such as this, and others in the field of medicine…raise moral, religious and ethical issues on which, as Lord Browne – Wilkinson pointed out in Airedale NHS Trust v. Bland [1993] AC 789, [1993] 1 FLR 1026, at 879 E, 880 A and 1050 F, 1051 B respectively, ‘society is not all of one mind’ and on which indeed ‘society as a whole is substantially divided’. Our society including the most thoughtful and concerned sections of our society, are deeply troubled by and indeed deeply divided over, such issues. These are topics on which men and women of different faiths, or indeed of no faith at all, may and do hold passionately and with the utmost sincerity, starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them.”
I adopt those words as being relevant and applicable to the facts and issues in this case.
Having heard the evidence in this matter and submissions of counsel I take the view that what I have to decide is whether the three frozen embryos at issue in this case constitute the “unborn” for the purposes of Article 40.3.3 of the Constitution. In carrying out that task I must, of course, have regard to principles of constitutional interpretation.
Principles of Constitutional Interpretation
Article 40.3.3 of the Constitution provides:
“3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”
The Irish text reads:
“3° Admhaíonn an Stát ceart na mbeo gan breith chun a mbeatha agus, ag féachaint go cuí do chomhcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.
Ní theorannóidh an fo-alt seo saoirse chun taisteal idir an Stát agus stát eile.
Ní theorannóidh an fo-alt seo seoirse chun faisnéis a fháil nó a chur ar fáil sa Stát maidir le seibhísí atá ar fáil go dleathach i stát eile ach sin faoi chuimsiú cibé coinníollacha a fhéadfar a leagan síos le dlí.”
The Article does not define what is meant by “unborn” in the English version and “beo gan breith” in the Irish version.
I have been referred to the Constitution Review Group’s report published in July, 1996. The review group pointed out that:
“Definition is needed as to when the ‘unborn’ acquires the protection of the law. Philosophers and scientists may continue to debate when human life begins but the law must define what it intends to protect”.
In considering the meaning of the words in Article 40.3.3 the Court can have regard to the legislative history of the amendment to Article 40.3 but not to debates in the Oireachtas. See Maher v. Minister for Agriculture [2001] 2 IR 139 at 145. See also Campaign to Separate Church and State v. Minister for Education [1998] 3 I.R. 321 at 360. In Curtain v. Dail Eireann [2006] 2 ILRM 99 at 128 Murray C.J. stated that Article 34.4.1 contained no guidance on the power of the houses of the Oireachtas to appoint investigating committees or the powers that they may delegate to such committees. “In these circumstances, it is reasonable to consider whether there is any history or background to the enactment of the Constitution capable of elucidating what was in the contemplation of the framers”. So in the circumstances of this case one can look at the history or background to the amendment of the Constitution which resulted in Article 40.3.3 being adopted by the people. In The State (Healy) v. Donoghue [1976] I.R. 325 O’Higgins C.J. stated at p. 347 that the preamble to the Constitution:
“…makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a constitution which can absorb or be adapted to such change in other words the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment”.
He went on to quote Walsh J. in McGee v. The Attorney General [1994] I.R. 284 at 319 when he said:
“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best as they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
These views expressed by O’Higgins C.J. and Walsh J. acknowledge that changing values in society may mean that rights which were not acknowledged in the past may now be accepted as firmly established under the Constitution. They are not, in my view, authority for the proposition that the word “unborn” in Article 40.3.3 should be given a different meaning to that which was understood by the people at the time when they approved the amendment, if it can be ascertained, from the historical context, what the word was understood to mean.
Are the Frozen Embryos “Unborn” Within the Meaning of Article 40.3.3 of the Constitution of Ireland?
The word “unborn” appears in Article 40.3.3 and also appears in s. 58 of the Civil Liability Act 1961. It is not defined in either case. Section 58 of the Civil Liability Act, 1961 provides as follows:
“For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.”
The rights given in s. 58 can only be invoked if:
“…the child is subsequently born alive”
Thus, to take a simple example, if a pregnant woman is involved in a car accident and the child in her womb sustains injuries due to someone’s negligence, that child, on birth, would be entitled to have proceedings brought on his behalf to recover damages for such injuries. It would seem, on the face of it, that “unborn” in s. 58 of the Civil Liability Act 1961 refers to a child in the womb. But it could be argued that if a child, created as a result of IVF treatment, was born with injuries resulting from a negligent act done to the embryo in vitro that the child subsequently born might come within the section. One could think of a number of arguments which might be made if this issue ever came before the Courts but it is not necessary for me to decide such issues here. Suffice it to say that the word “unborn” as set out in the Civil Liability Act does not offer much assistance to my determination of the issues in this case.
What is the meaning of “unborn” in Article 40.3.3? Is it the fertilised ovum or, life from the moment of conception, or does it mean something else? The plaintiff argues that where there is uncertainty the Courts must favour life in interpreting the word “unborn”. The plaintiff urges that there is at least significant and weighty evidence that the frozen embryos at issue in this case could be human life and that if this is an issue which cannot be determined one way or the other the Court should err in favour of life and hold that such embryos are constitutionally protected.
In making this argument the plaintiffs refer to the evidence of Dr. Clinch where he stated:-
“The commission on assisted reproduction actually made a statement about life starting, but it produced no biological or scientific evidence to prove that implantation was the start of life. So, while there is any doubt whatsoever, you come down on the side of life and since the embryo has all the genetic material it needs to turn into a human being, you would instinctively come down on the side of life.” (Transcript day 6, answer 31).
It seems to me that it is precisely because of this uncertainty and lack of agreement among the scientific and medical community as to when life begins that most people agree that embryos in vitro are deserving of special respect and that their very creation raises serious moral and ethical issues which in themselves impose restraints on what may or may not be done with them. There are also formal ethical restraints imposed on the medical profession by their governing body. I have been referred to the Medical Council’s Guide to Ethical Conduct and Behaviour (Sixth Edition 2004). In that guide section F deals with “Genetic Testing and Reproductive Medicine.” Clause 24.1 states inter alia; “the creation of new form of life for experimental purposes or the deliberate and intentional destruction of in-vitro human life already formed is professional misconduct.” Clause 24.5 deals with in vitro fertilisation (I.V.F.) and states, inter alia, “any fertilised ovum must be used for normal implantation and must not be deliberately destroyed”.
In The Attorney General (S.P.U.C.) v. Open Door Counselling Limited [1988] 593 at 598 Hamilton P. stated:
“…the right to life of a foetus, the unborn, is afforded statutory protection from the date of its conception.”
He stated that prior to the enactment of the Eight Amendment to the Constitution the right to life of the unborn had been referred to and acknowledged by Walsh J. in the course of his judgment in G. v. An Bord Uchtála [1980] I.R 32 where he stated at p. 69:-
“Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth… the right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended that life… the child’s natural right to life and all that flows from that right are independent of any right of the parent as such.”
The statement of Hamilton P. that:
“…the right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception”
was criticised by Munby J. in the Smeaton case at p. 202 when he said:
“It may be observed that the point with which I am concerned did not arise for decision in that case. Moreover unless he was using the word ‘conception’ in the sense of the medical definitions given by Reiss’s Reproductive Medicine: from A – Z (1998) and Stedman’s Medical Dictionary (27th Edn. 1999) … the judge’s comments would seem to display some internal inconsistency since he refers to the statutory protection as being both to ‘the foetus in the womb’ and as existing from ‘the date of … conception'”.
Munby J. goes on to say that there is nothing in the subsequent proceedings in the Irish Supreme Court which throws any light on the point. The complete paragraph in which the observation of Hamilton P. is contained reads as follows:-
“Sections 58 and 59 of the Offences Against the Person Act, 1861, protected and protect the foetus in the womb and having regard to the omission of the words ‘Quick with child’ which were contained in the statute of 1803 hereinbefore referred to, the protection dates from conception. Consequently, the right to life of the foetus, the unborn, is afforded statutory protection of the date of its conception.”
Sections 58 and 59 of the 1861 Act made it a criminal offence to administer any poison or other noxious thing or use any instrument or other means with intent to procure the miscarriage of any woman. In plain language it made it a criminal offence to procure or carry out an abortion. Since Hamilton P. was talking about the unborn in the context of the statutory protection afforded by the 1861 Act it seems to me that he was talking about the ‘unborn’ in the womb. I am reinforced in that view because at p. 614 he stated:
“As late as 1983, the people enacted the Eight Amendment to the Constitution. Consequently, there can be no doubt but that abortion, which is an interference with and destruction of the right to life of the unborn, is contrary to national policy, public morality, contrary to law, both common law and statute law, to the fundamental right of the unborn and contrary to that right to life as acknowledged by the Eight Amendment to the Constitution.”
Here he was clearly talking in the context of “abortion” or the termination of a pregnancy.
In The Attorney General v. X [1992] 1 IR 1 at p. 72 Hederman J. stated:-
“The Eight Amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that life must be one which has achieved an independent existence after birth. The right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of the unborn life before birth or between unborn and born life.”
The plaintiff argues that from the moment of conception there is a continuum and that one cannot or should not make distinctions between the various stages of development of the embryo and the foetus. When one looks further at the judgment of Hederman J. in the X case it seems clear that he is talking about “unborn” life in the context of pregnancy. He says at p. 72:
“The State’s duty to protect life also extends to the mother. The natural connection between the unborn child and the mother’s life constitutes a special relationship. But one cannot consider the unborn life only as part of the maternal organism. The extinction of unborn life is not confined to the sphere or private life of the mother or family because the unborn life is an autonomous human being protected by the Constitution. Therefore the termination of pregnancy other than a natural one has a legal and social dimension and requires a special responsibility on the part of the State. There cannot be a freedom to extinguish life side by side with guarantee and protection of that life because the termination of pregnancy always means the destruction of an unborn life. Therefore no recognition of a mother’s right of self determination can be given priority over the protection of the unborn life. The creation of a new life, involving as it does pregnancy, birth and raising the child, necessarily involves some restriction of a mother’s freedom but the alternative is the destruction of the unborn life. The termination of pregnancy is not like a visit to the doctor to cure an illness. The State must, in principle, act in accordance with the mother’s duty to carry out the pregnancy and, in principle must also outlaw termination of pregnancy.”
There can be no doubt that Hederman J. was speaking in the context of the termination of a pregnancy and that the “unborn” that he referred to in his judgment was to be construed in that context. The same can be said of the judgment of McCarthy J. in this case where he stated at pg.79:-
“The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery. It is not a question of setting one above the other but rather of vindicating, as far as practicable, the right to life of the girl/mother (Article 40, s.3, sub-s. 2) whilst with due regard to the equal right to life of the girl/mother indicating as far as practicable the right to life of the unborn. (Article 40, s.3, sub-s.3).”
At pg.81 of the judgment McCarthy J. stated:-
“Before the enactment of the Amendment, the provisions of s.58 of the Offences Against the Person Act, 1861, made it a criminal offence to procure a miscarriage. The terms were wide enough to make the act of the prospective mother or anyone taking part in the procedure guilty of an offence. Abortion, for any purpose, was unlawful. The Eight, like any Amendment to the Constitution, originated in the legislature and, in this instance, was initiated by the executive. The relevant bill was passed by both houses of the Oireachtas and in accordance with the Constitution, it was then voted on by the people in a referendum. Its purpose can be readily identified – it was to enshrine in the Constitution the protection of the right to life of the unborn thus precluding the legislature from an unqualified repeal of s.58 of the Act of 1861 or otherwise, in general, legalising abortion.”
This view was confirmed by the Supreme Court Baby O. v. The Minister for Justice [2002] 2 IR 169. In the judgment of the Court, Keane C.J. said at p.183 that Article 40.3.3:-
“…as explained by the judgments of the majority in this Court in Attorney General v. X. [1992] 1 IR 1, was intended to prevent the legalisation of abortion either by legislation or judicial decision within the State, except where there was a real and substantial risk to the life of the mother which could only be avoided by the termination of the pregnancy.”
It is interesting to note that O’Flaherty J. at p.86 states:-
“The enactment of Article 40, s.3, sub-s.3, in 1983 did not I believe bring about any fundamental change in our law. Already, s.58 of the Offences Against the Person Act, 1861, made it an offence unlawfully to bring about the miscarriage of a woman.”
These remarks seem to further confirm the linking of Article 40.3.3 with the abortion issue. If this is correct then it equates “unborn” with an embryo which has implanted in the womb, or a foetus.
In the Smeaton case Munby J. looked that the history of the 1861 Act and in his judgement stated at p.185:-
“The fact is that some of the leading and most authoritative medical works of the time available to parliament in 1861 – I have in mind John Ramsbotham, Burns and, in particular, Francis Ramsbotham are strongly supportive of the idea that miscarriage becomes possible only after implantation.”
What clearly emerges from the authorities I have referred to is that the Courts have declared that the Eight Amendment to the Constitution giving rise to the wording in Article 40.3.3 was for the purpose of making secure the prohibition on abortion expressed in s.57 and 58 of the Offences Against the Person Act, 1861 and not to permit abortion or termination of pregnancy except where it is established as a matter of probability that there is a real and substantial risk to the life of the mother if such termination were not effected. The Courts have never, thus far, considered whether the word “unborn” in Article 40.3.3 includes embryos in vitro. In the Smeaton case Munby J. referred to a number of commentaries on the issue of law and medical ethics and medical legal aspects of reproduction. He cited a publication called Post-Coital Anti Pregnancy Techniques and the Law by K. Norrie who, he said puts the argument very clearly:-
“…The question of when human life begins as a matter of morality, or indeed biology, is not the same as the question of when pregnancy begins for the purpose of the law. Human life may – or may not – begin in a test-tube, but the mere existence of a fertilised egg in a test-tube does not make the woman who produced the egg pregnant…” See p.211.
If Article 40.3.3 and the 1861 Act are concerned with the termination of pregnancy this does not mean that they are concerned with embryos in vitro. There has been no evidence adduced to establish that it was ever in the mind of the people voting on the Eight Amendment to the Constitution that “unborn” meant anything other than a foetus or child within the womb. To infer that it was in the mind of the people that “unborn” included embryos outside the womb or embryos in vitro would be to completely ignore the circumstances in which the amendment giving rise to Article 40.3.3 arose. While I accept that Article 40.3.3 is not to be taken in isolation from its historical background and should be considered as but one provision of the whole Constitution, this does not mean that the word “unborn” can be given a meaning which was not contemplated by the people at the time of the passing of the Eight Amendment and which takes it outside the scope and purpose of the amendment. In P.J. Carroll & Co. v. Minister for Health [2005] 2 I.L.R.M., 481 at 486, Geoghegan J. stated at 486:-
“Although Courts in this jurisdiction interpret statutes by reference to the words used, they do not do so in a vacuum. There is always a contextual background of which the Courts are perfectly well aware. There can be no question of course in a constitutional challenge, of the State adducing evidence as to what were the intentions as such of the Oireachtas or particular members thereof. But that is quite different from suggesting that there cannot be evidence of objective external facts existing at the time that the legislation was enacted.”
The Courts have already pronounced on the purpose of the Eight Amendment to the Constitution. The plaintiff in this case assumes the burden of proving that the word “unborn” meant something more than the foetus or child in the womb since the clear purpose of the amendment was to deal with the issue of termination of pregnancy. Evidence has been adduced by the plaintiff as to when human life begins, but there is much disagreement on this question among the medical and scientific community and, indeed, among the witnesses in this case. The question of when human life begins is not what the Court is concerned with in the interpretation of Article 40.3.3. No evidence has been adduced by the plaintiff which would enable the Court to hold that the word “unborn” in Article 40.3.3 includes embryos outside the womb or in vitro. I have therefore come to the conclusion that the word “unborn” within Article 40.3.3 does not include embryos in vitro and therefore does not include the three frozen embryos which are at the heart of the dispute between the plaintiff and the first named defendant.
It is not for the Courts to decide whether the word “unborn” should include embryos in vitro. This is a matter for the Oireachtas, or for the people, in the event that a Constitutional Amendment is put before them. In 2000 the Government established a Commission on Assisted Human Reproduction to make recommendations in the area of in vitro fertilisation practices. The members of the Commission included a wide range of experts in the fields of reproductive medicine embryology genetics law and other relevant areas which can be ascertained from the description of the members of the Commission published at the commencement of their report. The Commission also invited a number of additional experts with complementary expertise in specific areas including Philosophers, Sociologists, a Director of Ecumenical Studies and a Roman Catholic Theologian. In March, 2005 the Commission published its report in which it made forty recommendations, most of which were unanimous. The first recommendation (unanimous) was that “a regularity body should be established by an Act of the Oireachtas to regulate A.H.R. services in Ireland”. (By A.H.R. they meant Assisted Human Reproduction). A majority of the Commission recommended that “the embryo formed by IVF should not attract legal protection until placed in the human body, at which stage it should attract the same level of protection as the embryo formed in vivo”. It is a matter for the Oireachtas as to whether they implement the recommendations of the Commission. In the meantime the Courts are being ask to deal with a complex dispute involving social issues which should be governed by a regulatory regime established by an Act of the Oireachtas.
If the frozen embryos which are the subject matter of this case are not “unborn” within the meaning of Article 40.3.3 of the Constitution and are not given protection by the Constitution they do not have “personal rights” under the Constitution.
Since the three frozen embryos are not “unborn” within the meaning of article 40.3.3, this raises the issue as to what protection (if any) is currently afforded these embryos. While there is considerable disagreement as to whether embryos, before implantation in the womb, constitute viable human life, there seems to be almost complete agreement on the fact that, because of their nature, embryos are deserving of respect. I have already referred to the ethical guidelines of the Medical Council. These ethical guidelines do not have the force of law and offer only such limited protection as derives from the fear on the part of a doctor that he might be found guilty of professional misconduct with all the professional consequences that might follow.
The fact that something is not prohibited by the law does not of itself mean that it is morally acceptable to carry out that act. There may be many people who, because of their moral or religious outlook regard the process of IVF as unacceptable even though it is permitted by the law. There are others who see this a great advance in medical science giving the opportunity to infertile couples to have children. In issues such as this there may well be a divide between Church and State, and between one religion and another. It is not for the Courts to weigh the views of one religion against another, or to choose between one moral view point and another. All are entitled to equal respect provided they are not subversive of the law, and provided there are no public policy reasons requiring the Courts to intervene. Moral responsibility exists even in the absence of law and arises out of the freedom of choice of the individual. People have many different ideas of morality. Society is made up of people of various religious traditions and none. If the law is to enforce morality then whose morality is it to enforce? The function of the Courts is to apply the law, which are the rules and regulations that govern society. Where these rules and regulations are to be found in articles of the Constitution they are approved of by the people, and where they are to be found in legislation they are passed by the Houses of the Oireachtas. Laws should, and generally do, reflect society’s values and will be influenced by them. But at the end of the day it is the duty of the Courts to implement and apply the law, not morality.
In many countries I.V.F. treatment is governed by strict rules and regulations. It seems to me that in the absence of any rules or regulations in this jurisdiction embryos outside the womb have a very precarious existence. In the present case I have held that the first named defendant did not give his consent to the transfer of the three frozen embryos into the uterus of the plaintiff. The second named defendant has indicated that it will not release the frozen embryos without the consent of both parties. It is clear that there is no agreement between the plaintiff and the first defendant as to what is to happen to the frozen embryos. It is most unlikely that agreement can be reached on this matter. That being so the likely fate of the embryos is to remain in a state of cryo-preservation for an indefinite period. Eventually there will come a time when these embryos cannot be implanted in the plaintiff’s uterus with any hope of success as she is getting older. But that doesn’t appear to be any basis on which the Court can intervene in this matter.
I have considered the arguments made by the first defendant that it would be abhorrent to force him to become a parent against his will. For the plaintiff it is argued that he cannot simply change his mind once he has agreed to his sperm being mixed with the plaintiff’s ova. Since I have already concluded that these embryos are not “unborn” within the meaning of Article 40.3.3 the issue of whether or not the first defendant, as a matter of law, can be forced to become a parent by the implantation of the embryos in the plaintiff’s uterus does not arise. Until the law or the Constitution is changed this issue remains within the sphere of ethics and morality. In closing submissions counsel for the plaintiff accepted that the first defendant could not have paternity imposed on him if the un-implanted embryos are not “unborn” for the purposes of Article 40.3.3.
Other Issues
One of the issues raised by the plaintiff in this case is whether or not she is entitled to the return of the embryos to her uterus by virtue of Article 41 of the Constitution. In McGee v- the Attorney General [1974] IR 284 the Supreme Court decided that a married couple enjoy a right of privacy and a right of autonomy in making decisions with regard to their family and issues such as family planning. Neither the Courts nor the Oireachtas can interfere with such decisions except in limited circumstances. For example the Courts could intervene if a decision was made to carry out an abortion other than where there was a real and substantial risk to the life of the mother. Since the issue of when human life begins is so uncertain and not capable of resolution by this Court and since I have held that the frozen embryos are not “unborn” within the meaning of Article 40.3.3. it seems to me that the question of rights arising under Article 41 of the Constitution does not arise in this case.
In the course of submissions made on behalf of the Attorney General the Court was invited to consider, whether, in adopting Article 40.3.3. the People intended that the use of widely available forms of contraception would in fact be rendered unconstitutional. In this context reference is made, inter alia, to “the morning-after pill”. In view of the conclusions I have reached I do not think it is necessary for me to consider this issue.
Another issue which arose in the course of the evidence was the question of the attrition rate of embryos in the in vivo situation. There was general agreement that in the in vitro situation there is a significant attrition rate insofar as embryos are concerned. Professor Clynes and Professor Rager disagreed that the attrition rate to be found in in vitro embryos could properly be applied to the situation of in vivo embryos. Counsel for the Attorney General argued that if it were necessary to resolve the matter that it is appropriate to extrapolate from known attrition rates in in vitro fertilisation to the in vivo situation. He argued that while one cannot be certain about the attrition rates in the in vivo situation all the circumstantial evidence suggests that as a matter of probability there is a very high attrition rate and that nature is quite wasteful. Insofar as this is an argument to be considered in determining when human life begins I do not feel it necessary to form a view on this. Furthermore, whether or not there is a significant attrition rate of embryos in the in vitro situation does not appear to be relevant to determining whether they are “unborn” for the purposes of Article 40.3.3.
I have also considered the arguments of the first named defendant indicating that the Court should take into account what he describes as:-
“…The two key stages of the biological process following sexual intercourse.”
These are fertilisation and implantation. These matters may be of relevance in seeking to determine when human life begins or at what stage embryos should be given legal protection. But they are not matters the Court can decide.
All I can do as a judge is to decide whether or not the three frozen embryos have the protection of the Constitution or the law. I cannot amend the law, that is the function of the Oireachtas. In Norris v. The Attorney General [1984] IR 36 at p.33, O’Higgins C.J said:-
“The sole function of this Court…is to interpret the Constitution and the law and to declare with objectivity and impartiality the result of that interpretation on the claim being considered. Judges may, and do, share with other citizens a concern and interest in desirable changes in reform in our laws; but, under the Constitution, they have no function in achieving such by judicial decision. It may be regarded as emphasising the obvious, but, nevertheless, I think it proper to remind the plaintiff and others interested in these proceedings that the sole and exclusive power of altering the laws of Ireland is, by the Constitution, vested in the Oireachtas. The Courts declare what the law is – it is for the Oireachtas to make changes if it so thinks proper.”
In my opinion those words eloquently express the different functions of the Courts and the Oireachtas, and the extent to which it is permissible for the Courts to review or interpret legislation.
Having considered the evidence and the submissions in this case and reviewed the law I have come to the conclusion that the three frozen embryos are not “unborn” with the meaning of Article 40.3.3. and it is a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro.
Approved: McGovern J.

Unborn Rights Background

Cases

A.G. (S.P.U.C.) v. Open Door Counselling Ltd.

SPUC v Grogan

Dublin Wellwoman Centre Ltd and Ors v Ireland and Ors

Attorney General (SPUC) v Open Door Counselling Ltd

The Attorney General v. X

Attorney General, ex rel. The Society for the Protection of Unborn Children (Ireland) Ltd v Open Door Counselling Ltd

Re Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995

Society for the Protection of the Unborn Child v Grogan and Others

A. and B. v. Eastern Health Board

E v Minister for Justice, Equality and Law Reform

P.P. v Health Service Executive

R. (M.) v R. (T.) & Ors

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