Mary Carolan The Irish Times Tuesday May 8th 2007
The High Court will decide tomorrow whether a pregnant 17-year-old girl in care may travel to the UK for an abortion. Miss D is almost 18 weeks pregnant with a baby with a major brain defect.
Lawyers for the State, the unborn and the girl have all argued there is no law preventing Miss D travelling.
The HSE insists she requires a court order to do so but District Court Judge Flann Brennan refused its application last Saturday to make that order on grounds that this would be a failure to vindicate the constitutional right to life of the unborn.
Miss D wished to have her baby until she learned on April 23rd last that it has anencephaly, a condition where a major part of the brain is missing and where it has a prognosis of three days survival after birth.
Mr Justice Liam McKechnie now has to decide two sets of legal proceedings. In her proceedings, Miss D wants the court to rule the HSE cannot restrain her from travelling. The HSE got leave from the High Court on Sunday to bring the second set of proceedings challenging the District Court's refusal to make an order that it is in the best interests of her welfare to allow her travel.
Yesterday, Mr Justice McKechnie said he could not give an immediate decision, as requested by the HSE, on whether Miss D could travel or not as the case had implications but he would give his decision at 2pm tomorrow.
Gerard Durcan SC, for the HSE, said the constitutional provision protecting the right to life of the unborn had to be read together with the right to travel amendment to the Constitution approved by the people. The people had decided that, "whatever other way you vindicate the rights of the unborn, you do not do it by restricting the freedom to travel".
Lawyers for the State argued the case is not about the right to life of the unborn but about the right to travel. Children had constitutional rights from day one and "those rights are not delivered to them by courier on their 18th birthday", Donal O'Donnell SC said.
While agreeing there was no law under which Miss D could be restrained from travelling for an abortion, James Connolly SC, for the unborn, said no State agency should facilitate or fund such travel and the courts should not be "some form of licensing body for abortions".
Miss D's baby is a live foetus entitled to the constitutional protection for the unborn and the fact that it cannot survive after birth "is irrelevant", he said.