THE High Court decision to grant a 17-year-old girl the right to travel to England for an abortion, was sensible and humane — and the right thing to do.
Given the tragic circumstances of the Miss D case, a girl who is 18 weeks pregnant with a baby expected to die soon after birth from anencephaly, which means a major part of the brain is missing, it would be a travesty if the courts stopped her from leaving the country.
In his compassionate, sympathetic and landmark ruling, Mr Justice Liam McKechnie said the right to travel abroad took precedence over the right of the unborn in the Constitution.
From the outset, the case has been overshadowed by the emotive and divisive question of abortion even though it was not at issue. This matter is fraught with difficulty because of the lack of legislation on abortion. By refusing to legislate, successive governments have shirked their responsibility. Instead, it has been left to the courts to deal with this nettlesome issue.
It was not surprising that a girl in Miss D’s predicament should want to follow in the footsteps of 6,000 other Irish women who annually go to the UK for abortions. But since she was in the care of the Health Service Executive (HSE) the agency insisted that a court order was necessary for her to travel.
Instead of going to the District Court, however, the HSE asked the gardaí to intervene and stop Miss D leaving the country. But they had no power to prevent her from travelling.
Essentially, the legal arguments revolved around whether or not she needed court permission to travel abroad. Lawyers for the State, her mother and the girl, argued that permission was not necessary.
While lawyers representing the unborn also said there was no law stopping her from travelling abroad, they claimed the foetus being carried by Miss D was entitled to constitutional protection and said it would not be legal for her to have an abortion under Irish law.
When the HSE sought a court order in the District Court to allow her to travel, the application was rejected on grounds that this would be a failure to vindicate the constitutional right to life of the unborn. That ruling has now been overturned by the High Court.
Under Irish law, abortion can only be performed if there is a real and substantial risk to the life of the mother, including suicide. Thus, in the C case, a suicidal teenager was given the right to travel abroad to terminate her pregnancy.
In the present case a person’s freedom to travel, and not abortion, was the issue. As well as ruling that there was no statutory or constitutional impediment against allowing Miss D to leave the country for an abortion, Judge McKechnie criticised the HSE, and rightly so.
Not surprisingly, public sympathy has been firmly on the side of the teenager. More than a fortnight has passed since she discovered her baby’s condition, leading to her traumatic decision to travel to England for termination of her pregnancy. Up to that point, she wanted to have her baby.
Throughout this case, her courage and maturity have been commendable. That another pregnant teenager has found herself embroiled in a complicated legal battle underlines the urgent need for government to grasp this nettle and legislate on the question of abortion.
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