Recently both the Taoiseach, Leo Varadkar, and the Minister for Children, Katherine Zappone, said an unborn child should not be considered equal to its mother. The Taoiseach affirmed that the unborn child did, nonetheless, enjoy some rights, whereas Ms Zappone said that unless women have unrestricted access to abortion, meaning no rights for the unborn child, the equality of women with men is but a myth. Perhaps Mr Varadkar needs to tell his Minister for Children that unborn children are part of her remit as well.

A little background first though. In July 2016, Justice Humphreys in the High Court ruled that the unborn child does enjoy numerous rights, including the right to life, and those rights arise from a variety of juridical sources.  The State had argued against that, claiming the unborn child enjoyed only the right to life, stemming from the 1983 pro-life amendment. The State has since appealed the ruling to the Supreme Court. The upshot is that, if the appeal is successful, and if the 1983 amendment were to be repealed in a referendum, then the unborn child could be left with no juridical rights whatsoever.

So, what did Leo Varadkar mean by saying the unborn child enjoys some rights? First it is worth noting that he spoke specifically of “human rights”. Next, it would seem contradictory for a person to hold numerous rights, but not the right to life. The remaining possibility is that the unborn child enjoys a spectrum of rights, including the right to life, though not in a way that makes it “equal” to its mother.

The 1983 amendment, however, already recognises this difference in that it pledges the State to protect the right to life of the unborn only “as far as practicable”. That meant that medical interventions to save the life of the mother were always licit, even if they resulted in the unsought death of the unborn child. Moreover, the X-case in 1993 went much further and ruled the unborn child’s right to life is subordinate to its mother’s such that the child could even be intentionally killed via abortion if there was a “real and substantial risk” to the life of its mother.

Apart from the repeal debate, two other issues cry out for attention. If Mr Varadkar truly believes that the unborn child is the bearer of human rights, then he should instruct State’s counsel to drop the appeal of the High Court’s judgement on that and accept Justice Humphrey’s ruling. This is particularly so if the Taoiseach were to support a referendum on repealing the Eighth which risks leaving the unborn child with no rights at all.

Next, he should instruct Minister Zappone that her remit as the Minister for Children extends to unborn children. Minister Zappone specifically denied this in May this year in response to a question in the Dáil from Deputy Mattie McGrath where, bizarrely, she made zero mention of the ruling of Judge Humphreys in the High Court.

It is all well and good for the Taoiseach to say the unborn child has rights, but if he really believes that then he should see to it that they are respected in law.