silverharp wrote: » I dont know if Humphreys is doing a bit of trolling but fk mehttp://www.irishtimes.com/news/crime-and-law/courts/high-court/unborn-child-has-significant-legal-rights-judge-rules-1.2741697
smacl wrote: » So is the unborn child an Irish citizen once it is conceived in Ireland, or does the child have to be born here? All seems rather dubious to say the least, but an interesting possible loophole for would be migrants.
Hotblack Desiato wrote: » Every so often the High Court comes up with a ruling which can only be described as bizarre. It's the reason we have a Supreme Court.
Mr Justice Richard Humphreys said that article 42a of the Constitution, inserted as a result of the 2012 Children’s Referendum, provides the State must protect “all” children.
Because an “unborn” is “clearly a child”, article 42a means all children “both before and after birth”.
Article 42A wrote: 2.1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
recedite wrote: » Because if you did acknowledge that such a scenario could exist, it would undermine your argument here. And yet the legislation clearly legalises abortion even before such a scenario developed, because the mother's life would be put at risk.
recedite wrote: » Examples might be some sort of auto-immune response, similar to Rhesus+ or perhaps an abdominal ectopic pregnancy in the early stages. Its not for me or for the legislation to list every possible medical scenario. The point is, the legislation now authorises abortion where this risk to the mothers life exists. That was not the case when we only had the 8th combined with the 1861 Offences Against the Person Act.
recedite wrote: » The X-case did not create this new priority of the mother over the foetus either. It was a new departure in 2013. So effectively we have changed the constitution, not by referendum, but by changing the state's interpretation of the meaning of words such as "where practicable" so that it now means "unless the mothers life is at risk". Just like the Mad Hatter would.
Deleted User wrote: » Dragging the conversation back to this if possible. The contrasting precedent of this case 'Baby O' (importantly prior to the 2012 cited constitutional change) should provide for some very interesting conclusions upon appeal imo. What powers does this interpretation give to the state in the case of an irresponsibly pregnant (drinking / smoking) woman? Are these powers then totally invalidated by same woman suggesting that she does not wish to continue the pregnancy and will be leaving the country to end it, given that we have granted that right explicitly? Child benefit surely to be backdated to the coming into existence of the unborn. That poorly defined being. My atomic interpretation suggests that I can make multiple, if not infinite claims for such. Will we need to have all females take pregnancy tests at time of arrival into the state to ensure that valid visas or visa waivers are completed and paid for? Could be lucrative I guess, but the queues will be annoying. IVF clinics must be worried. Does this 2009 precedent become obsolete now too? -- Will this ruling force the SC to define some of the more ambiguous terms at appeal? Or can they just disagree with the interpretation and sweep it under the rug? Repeal the 31st?
Absolam wrote: » As I said, I think more is being read into this than needs to be. Justice Humphreys didn't rule on any of the above, so none of it is actually affected by his ruling; no new powers have been created, no one is going to start giving away piles of cash, no one acquired the right to life that didn't have it before. His ruling will be part of jurisprudence, and his opinion may indicate similar thinking amongst the judiciary (and equally may not). .
Absolam wrote: » Personally, I think the enactment of 42a and opinions such as Justice Humphreys are simply indicative of a move away from any notion that rights should be withheld from children as being the objects of parental rights and duties, and instead can be taken up as autonomous rights holders; as societies in general become more affluent and the facility to reduce infant and child mortality increases along with the degree of education we can provide, and social supports grow more sophisticated and prevalent, there is less need to withhold participation from people who have increasing facility to cope with it.
Absolam wrote: » Maybe in a few decades time we'll be discussing whether or not a five year old can make a truly informed and responsible decision in a referendum, and if they can why shouldn't they.
Deleted User wrote: » He has asserted that the unborn is legally included in the phrase 'All Children'. Therefore any legislation that uses that term should surely apply to the unborn. Given that we have no legal definition of the unborn, this is a terribly interesting development.
Deleted User wrote: » I agree, the more capable a being is the more rights we can afford them to the benefit of society.
Absolam wrote: » Well, to be fair he reportedly said Article 42a of the Constitution, provides the State must protect “all” children, and that because an “unborn” is “clearly a child”, article 42a means all children “both before and after birth”. It's not quite an assertion that any legislation using the term child must apply to the unborn, or even that it must apply to them before they are born. Your 'therefore' is probably more than a bit of a leap....
Deleted User wrote: » One parent turns up at a Garda station today and shows the Garda flight tickets booked to Switzerland and a booking at Dignitas, a single ticket home in their name only and announces their intention. The Garda immediately ........... A pregnant woman turns up at the same police station with a ticket to England,a booking at a Marie Stopes clinic and a return flight home and announces their intention. The Garda immediately ........... Líon na bearnaí under the interpretation above.
Absolam wrote: » You'll have to make your own arguments I'm afraid, sorry
Article 42 wrote: 2.1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Deleted User wrote: » I would suggest that the Garda might have slightly different reactions, would you not agree? Which seems unfair to the unborn in the context of the above if indeed the above does apply to the unborn as the latest case has suggested.
Absolam wrote: » The POLDPA didn't create a new priority of the mother over the foetus either There is no reason to imagine the words 'where practicable' do, or ever have, mean anything other than where able to be done or put into practice successfully given the circumstances. The risk to the mothers life is already specified in the legislation (i.e. It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where two medical practitioners, having examined the pregnant woman, have jointly certified in good faith that there is a real and substantial risk of loss of the woman’s life from a physical illness, and in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) that risk can only be averted by carrying out the medical procedure)
Deleted User wrote: » The judge said that this article applies to the unborn did he not? Which surely suggests that the if the State would intervene in the case of the woman heading to Dignitas with her born child, then that same intervention must be available to (and indeed exercised by) the State in the case heading to Marie Stopes with her unborn.
recedite wrote: » But if the the development of the foetus itself was posing a a threat to the mother (as per my example) then the abortion would go ahead. That effectively assigns a clear priority to the mother.
recedite wrote: » I'm surprised you keep denying this. A lot of women and their partners going into maternity hospitals would be quite angry to discover there was doubt in some peoples minds that the woman's life had priority over the foetus in the event of a conflict of interests, despite the 2013 legislation.
aloyisious wrote: » These two concepts [as the writer has said] are for the future decades.... The first would mean the state would have to accept that parental rights, duties and obligations must be reduced within law and the offsprings rights increased. It would probably also mean the state's duty or obligation to interfere in the offsprings affairs must be reduced. Somehow I see a lot of Important Irish adults poo-pooing that idea. The second sound's most enlightened given that citizens must be over 18 to vote and we've voted by referendum to keep the age of presidential candidate at 35 in the constitution. Personally I think the concepts are excellent japes and commend the writer for authoring them.
Absolam wrote: » I can't see any priority being assigned there, nor are you even attempting to show where there is a priority assigned in the legislation. You are however moving from " the legislation gives priority to the mother" to "that effectively assigns a clear priority to the mother".
seamus wrote: » Because there are no circumstances under which the state will forcibly end the life of a mother to save her unborn child. Therefore in any "one or the other" scenario, the state automatically chooses the life of mother, which is implicitly stating that the mother's right to life supersedes the unborn's. Automatically - i.e. not after a debate or a court order.
Absolam wrote: » He certainly was reported as saying that Article 42a means all children “both before and after birth”; how he thinks Article 42a 1 could would or should be applied to a child prior to their being born seems to have gone unremarked though. So, 'Surely suggests' seems like a bit of a stretch; at best the suggestion is that Justice Humphrey is of the opinion that the State may be held to obligations as yet unstated. That's not much of a basis for leaping to conclude the State is suddenly going to change how it behaves, or even would behave as you suggest absent the Judges statement. I think putting 'surely', 'suggests', 'if' and 'must' all together just gives you an extravagance of extrapolation over substance.All in all, if we consider the facts what we have is a statement reportedly made by a High Court Judge and nothing else, at the moment.
Deleted User wrote: » If what the Judge has said is indeed true, the State has been neglecting its duties and obligations for quite some time now.
Absolam wrote: » If the Judges opinion is found to be legally accurate, the State may well find it has some obligations it wasn't aware of previously, which would be interesting. Though what he has reportedly said doesn't really go any way towards setting out exactly what those obligations may be. Certainly, it hasn't given us any reason to think his opinion has given the State any new powers, or that ivf clinics are worried. Whether it may have any ramifications is interesting to ponder, but maybe not a basis for presenting infinite claims at the Dept of Social Protection.
seamus wrote: » Because there are no circumstances under which the state will forcibly end the life of a mother to save her unborn child. Therefore in any "one or the other" scenario, the state automatically chooses the life of mother, which is implicitly stating that the mother's right to life supersedes the unborn's.
smacl wrote: » But there's a difference between forcibly ending the mothers life, and not interceding in a timely fashion to save it because to do so might put the unborn at risk. This was shown by the Savita case and illustrates what a shambles we are currently in.
Absolam wrote: » How, exactly? If the mothers life is at risk, and the unborn cannot be saved, then the mothers life will be saved. If the mothers life is at risk, and the unborn can be saved, then both lives will be saved. I can't see any priority being assigned there..
recedite wrote: » You keep changing back to your preferred scenario, as above. In my hypothetical scenario, the unborn can be saved. But allowing the pregnancy to continue puts the mothers life at risk. The PLDP Act allows abortion in that scenario, but the 8th amendment does not.
recedite wrote: » The Savita case is not actually a good example because the foetus could not be saved anyway. Therefore abortion was allowed, as per Absolams argument above. Even though the hospital chose not to make that option available to her. In the end there was a finding of negligence and a cash award was made to the husband.
seamus wrote: » There is no mirrored provision in law anywhere that makes it legal to end a human life where there is a risk to the life of the unborn.* Therefore the POLDPA implicitly puts the right to life of the mother above that of the unborn. *Absolam is correct in that the number of scenarios in which forcibly killing the mother to save the unborn would be miniscule, but nevertheless it's not an option that's ever considered - the mother's right to life is considered superior by natural law - so there are basically no examples of it happening.
Absolam wrote: » I haven't actually changed the scenario; I did point out earlier that your original hypothetical appears to have no basis in reality, and offered more realisitic possibilities.
In this particular version you're presenting if the life of the unborn can be preserved as you say, it must be, the mother and infant can be separated averting the real and substantial risk to the mother and saving them both.
But rather than just going over the same ground, we could just cut to the quick;
Absolam wrote: » Mmm... I don't think the POLDPA was ever intended to address a theoretical situation where forcibly killing the mother to save the unborn would occur, so the fact that it doesn't address it can't really reasonably be construed as implying a perspective on it, any more than the Road Traffic Act not mentioning it implies a perspective.
Now, I haven't come across the notion that a mother's right to life is considered superior to her child's in natural law (though at first glance it might seem a handy suggestion if pressed for evidence of the State actually acting as you've said it does), but I suppose it's possible some philosopher may well have suggested it at some point. I very much doubt the State would accept it as a legal basis for anything other than establishing positive law (which it clearly has not done), never mind act 'automatically' on it.
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