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A pregnant 17 year old in state care in Ireland won the right last week to travel to the United Kingdom to abort the anencephalic fetus she is carrying.
The case at the High Court in Dublin has reopened a highly charged debate over abortion in Ireland, where the constitution protects the right to life of the unborn child and terminations are illegal unless there is a real and substantial risk to the life of the mother.
The Irish Health Service Executive (HSE), which has care of the teenager under an interim care order after an incident involving her mother, had written to the Passport Office pointing out that it had not consented to the issuing of a passport for her. Officials had also asked the police to stop her leaving the country, but the police wrote back saying they had no power to intervene.
After a fraught legal battle that continued in court through the May bank holiday weekend, a High Court judge ruled that the teenager, known only as Miss D, was free to travel outside the country for an abortion if she wished. Mr Justice Liam McKechnie criticised the HSE—which by the end of the hearings had done an about-face and supported Miss D's right to travel—for ignoring her welfare and personal autonomy.
“It was strikingly daring of the HSE to use the executive to restrain, if necessary through force or incarceration, the intended travel of the applicant,” he said.
Miss D, who was 19 weeks pregnant by the time of the judgment, was supported by her mother and boyfriend in deciding to seek a termination abroad after seeing on a scan that her fetus had no head. An estimated 7000 women from Ireland travel abroad every year to terminate unwanted pregnancies.
During the hearings, the HSE said it would allow her to travel only with a court order to that effect from the district court that had imposed the care order. On the Saturday before the bank holiday that court refused the order, citing the Irish constitution's protection of the right to life of the unborn child.
But on Wednesday last week Mr Justice Liam McKechnie ruled that there were no statutory or constitutional grounds for preventing Miss D from travelling to the UK for the abortion. The case was not about the right to an abortion but about the right to travel.
“I hold the view firmly and unequivocally that there is no statutory or constitutional impediment which would prevent Miss D from travelling to the UK for the purpose of a termination if she so wishes,” he said.
He praised the teenager for her courage, integrity, and maturity during the ordeal and for her refusal to pretend she was a suicide risk. Risk of suicide counts as a threat to the mother's life, which would justify an abortion in Ireland.
The judge stressed that Miss D had every intention of carrying the baby to term until the scan on her 17th birthday showed that the fetus had no head and could not survive.
The HSE said it accepted the judgment and regretted the distress caused to Miss D. “The HSE acted in accordance with what they believed to be the correct course of action in terms of the constraints imposed on us by law,” it said in a statement.