Dearbhail McDonald The Irish Independent Tuesday May 8th 2007
THE teenage girl at the centre of the Miss D case will have to wait until tomorrow at the earliest before she knows if she can travel to England for an abortion.
Despite pleas for an urgent decision on the case - five days after it began - High Court Judge Liam McKechnie said yesterday it was not possible for him to reach an informed view straight away.
The judge insisted he was extremely conscious of the crucial issue of time, but warned that his decision in the case could have wide-ranging implications.
His warning came two days after a district court judge refused permission for the 17-year-old girl, whose baby will not survive after it is born, to travel to England for an abortion.
In an extraordinary development, it has emerged that the Health Service Executive, which originally moved to stop the girl from leaving the country, has itself mounted a High Court challenge to the refusal of the lower court.
Last Saturday, a district court judge refused to grant an order permitting the girl, who is 18 weeks pregnant, to leave Ireland to terminate her pregnancy. He said that to do so was improper and unlawful.
The judge, following a private hearing unattended by the media, said that if he allowed her to travel to the UK it would amount to the failure of the court to vindicate the rights of the unborn.
Yesterday, on the final day of legal submissions in the case, the High Court heard that the right to life of Miss D's unborn child continues until it is dead.
James Connolly, a senior counsel who is representing the rights of the unborn, said that her foetus has the same right to life as any other unborn child, even though it will not survive long after birth.
Mr Connolly, who was appointed by the Attorney General last week, said that Miss D's baby was a live foetus and the fact that it has no brain and cannot survive after birth is "irrelevant".
"This foetus is active and has the right to life," said Mr Connolly, who warned that any debate around the cognitive functions of unborn babies could lead to an unwelcome debate surrounding eugenics, or elective abortions for babies with foetal abnormalities.
"No foetus is capable of independent existence before twenty weeks, but the fact that it won't survive does not mean that it is unborn," he said.
Mr Justice McKechnie said he wished to stress that 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.
Mr Connolly agreed with lawyers acting for the Attorney General that there was no law under which Miss D could be prevented travelling outside the country for an abortion.
While Miss D could not be stopped from travelling, Mr Connolly said the courts could not approve that travel and a State agency could not pay for it.
Lawyers acting on behalf of AG Rory Brady said that only a totalitarian State required citizens to have permits to travel.
"This is a free country where people have the liberty to do as they please unless there is a law restraining them," said Donal O'Donnell, counsel for the AG.
The HSE has denied that it has done a 'u-turn', insisting that at all times it required district court approval to release the girl from its care.