Mary Carolan The Irish Times Tuesday May 8th 2007
The right to life of Miss D's unborn child continues until it is dead and the courts cannot engage in "a measuring exercise" about the capacity of the child prior to birth, lawyers for the unborn told the High Court.
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, he agreed with lawyers for the Attorney General that there is no law under which Miss D can be prevented from travelling outside the jurisdiction for an abortion, even for one that would not be permitted here.
While Miss D cannot be stopped from travelling, the courts cannot approve of that travel and a State agency such as the Health Service Executive cannot 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.
Before the right to travel amendment the courts were, because of the provisions of Article 40.3.3 of the Constitution (the right to life amendment), required to balance the right to life of the unborn with the right to travel, he said. He agreed with remarks by the High Court in the C case that, while the courts could not stop a woman travelling for an abortion outside the grounds permitted here, they should also not be made into some form of "licensing authority for abortions".
Because she is over 16, Miss D may 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, he 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. The court should not get into "the dangerous area of eugenics" or into defining life by the measure of cognitive function.
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 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", he said.