Ann O'Loughlin The Irish Independent Tuesday May 8th 2007
THE right to life of Miss D's unborn child continues until it is dead, the High Court heard yesterday.
The courts cannot engage in "a measuring exercise" about the capacity of the child prior to birth, a lawyer representing the unborn said.
"This is a live foetus, that is the beginning and end of it, and the fact it has no brain and cannot survive after birth is irrelevant," James Connolly, SC, said.
However, Mr Connolly said he agreed with lawyers for the Attorney General that there was no law under which Miss D could be prevented from travelling outside the jurisdiction for an abortion, which would not be permitted here.
While Miss D could not be stopped from travelling, the courts could not approve of that travel and a state agency such as the HSE could not fund it, he stressed.
Mr Connolly said that, in his view, the legal position following the enactment of the 'right to travel' amendment was that the courts cannot grant injunctions preventing women travelling abroad for abortions even where those abortions were not in accordance with the grounds for abortion permitted by the courts following the X case - where there was a real risk of suicide.
Because she was over 16, Miss D could make her own decisions about medical procedures and it was unclear that any State agency could stop a girl over 16 from travelling outside the State, Mr Connolly said.
Mr Connolly, who was appointed by the Attorney General last week to represent the rights of the unborn in the D case, said the right to life of Miss D's baby was entitled to protection under the Constitution. The Constitution, he submitted, did not permit the courts to measure the quality or duration of life of an unborn. Miss D's baby has the same rights between its birth and its death as any other child under the Constitution.
Mr Justice Liam McKechnie said he wished to stress the case was not about people with disabilities or about a child with profound neurological difficulties. "The undisputed evidence is that this baby will not live and that is what we are dealing with," he said.
The judge said that what was being protected in Article 40.3.3 of the Constitution - under which the State acknowledges the right to life of the unborn and guarantees to respect and vindicate that right - was the "right to life". Applying that provision to this case, there would be "no life".
Mr Connolly said he wanted to stress that this foetus "is active and has the right to life".
No foetus is capable of independent existence before 20 weeks but the fact that it wouldn't survive did not mean it was not an unborn, he added. The issue of when life began was not relevant, the issue was when it was dead. It was only then that the constitutional protections for the unborn did not apply. The Miss D case was not about the right to life of the unborn, it was about the right to travel and there was no law preventing 17-year-old Miss D travelling for an abortion, the State told the High Court.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," Donal O'Donnell, for the Attorney General, said. Only a totalitarian state required citizens to have permits to travel.
It was the State's case that only a court order could stop Miss D from travelling and such an order could only be made on the application of a parent.
Mr O'Donnell also said there was no dispute that Miss D was fully competent to make the decision to travel.
The fact she is under 18 years and in care does not limit her rights, he stressed. Children have constitutional rights from day one, "those rights are not delivered to them by courier on their 18th birthday", he stressed.