Previous D Case May Prove Relevant To Current Abortion Case

Irish Times Thursday May 3rd Tom O'Malley


The kernel of the D case, which is before the High Court today, is not abortion but the powers the HSE may exercise over a minor in its care, writes Tom O'Malley

Irish law on abortion remains essentially governed by the Supreme Court ruling in the X case. This means that an abortion may legally be performed within the State when it is established as a matter of probability that there is a real and substantial risk to the life, as opposed to the health, of the mother.

It must be a risk that cannot be avoided by any means other than the termination of pregnancy. A real and substantial risk that the mother will commit suicide unless she is allowed to have an abortion is treated as a risk to life for this purpose.

Whether deliberately or otherwise, the Supreme Court did not place any time limit on the legal availability of abortion, though the performance of an abortion in circumstances where the unborn child could have a viable existence outside of the womb must be questionable.
At first sight, the current case is complicated by the absence of any obvious risk to the life of the mother. She has specifically averred that she is not suicidal. To that extent, she would not appear to be entitled to an abortion in Ireland.

However, a more complex and potentially controversial question could arise in light of concessions apparently made by Government lawyers before the European Court of Human Rights last year. The applicant in that case, known also as the D case, was pregnant with twins.
However, a scan conducted after 12 weeks showed that one of them had died and, a few weeks later, another scan showed that the second twin was suffering from a lethal chromosomal anomaly.

Having had a termination in England, she complained to the European court about the unavailability of the necessary facilities in Ireland. The court deemed her complaint inadmissible, but for rather ironic reasons. It said that the termination of a pregnancy in Ireland in these circumstances might have been compatible with the Constitution, and therefore she could have pursued a remedy in the Irish courts. (It is a fundamental principle of human rights law that an applicant must exhaust domestic remedies before taking a case to an international tribunal, such as the European Court of Human Rights.)

More specifically, in the 2006 D case, the European court said that a feasible argument could be made that the balance between the right to life of the mother and the life of the foetus could have shifted in favour of the mother when the foetus suffered from "an abnormality incompatible with life".

This appears to have been the stance adopted by Government lawyers. Needless to say, the European court cannot purport to give an authoritative interpretation of the Irish Constitution; that is solely a matter for the Supreme Court in this country. Secondly, it is unclear if the principle apparently accepted by the State's lawyers would apply if the unborn child was predicted to survive for some length of time after birth.

This may become an issue in the current D case. However, it is more likely that the current case will centre on the precise powers of the Health Service Executive (HSE) in respect of persons taken into care under the terms of the Child Care Act 1991.

The applicant was subject to a care order and was therefore legally within the care of the HSE. However, it appears that she was for all practical purposes living independently.
It is said, for instance, that she was living in a supportive environment with her boyfriend and his family. Only when she happened to mention to a social worker that she was contemplating having an abortion did the present course of events begin to unfold.

While it would be inappropriate at this point to comment on the manner in which the HSE reacted, and no doubt the relevant personnel acted in good faith, it would seem that this case provides a good opportunity for the courts to clarify the powers and duties of public bodies towards young persons committed to their care.

Here after all is a 17-year-old girl, approaching the age of majority (18) at which point a child care order is no longer possible. She now has the support of one parent, of her boyfriend and other friends. Furthermore, the Constitution provides that the expressed right to life of the unborn "shall not limit freedom to travel between the State and another state".

Two points should be noted about this.
First, the freedom to travel is not confined to any age group. On the face of it, the freedom is conferred on everybody, irrespective of age. In fact, as we know, the two leading Irish cases on abortion to date - the X case of 1991 and the C case of 1997 - involved teenagers, so it is highly unlikely that either the Oireachtas or the People, in enacting the travel amendment in 1992 with the X case fresh in everyone's mind, intended that it should apply to adults only.
Secondly, the significance attaching to the word "freedom" as opposed to "right" in the travel provision is not entirely clear. However, it suggests that while the State is not obliged to take positive steps to assist persons to travel abroad to have an abortion (as might be the case if they had a "right"), it may not at the same time restrict or injunct persons from travelling for that purpose if they wish to do so.

If a person such as the applicant in the current D case has, for all practical purposes, a right to travel abroad to avail herself of a service that is legally available elsewhere, the next question is whether the HSE can stop her from doing so, despite the fact that she is formally in its care.
As late as 2001, in Western Health Board v KM, the Supreme Court said that the protection of constitutional rights of children in care rests ultimately with the courts and not with health authorities. An application can always be made to the District Court for directions on any matter relating to the welfare of a child in care.

However, there can scarcely be any power vested in the HSE to "direct" the Garda to take any particular step such as stopping a person from leaving the country, as was reportedly done in this case. Needless to say, the HSE can always consult the Garda or other relevant authorities on any matter concerning the welfare of a child, and that may have been what really happened in this case.

But giving a direction would be an entirely different matter.

Tom O'Malley is senior lecturer in law at NUI Galway