1983 Amendment left to courts


As the Taoiseach pointed out yesterday, no legislation followed the 1983 Amendment protecting the right to life of the unborn. In this situation it was left to lawyers and the courts to attempt to vindicate it and, where necessary, to reconcile its right to life with that of the mother. The issue has arisen three times, to public knowledge, since 1983.

The first of these, and the one that now defines the law in the area, was the X case. Here a 14-year-old girl, pregnant as a result of rape, was suicidal and wanted to travel to the UK for an abortion. The matter came to the attention of the then Attorney General, Mr Harry Whelehan, when the garda∅ were consulted about getting DNA samples in anticipation of criminal charges. He obtained an injunction to prevent her travelling. This was appealed to the Supreme Court.

By a majority of three to two, the court found that, if there was a real and substantial risk to the life, as distinct from the health, of the mother, and that this real and substantial risk could only be averted by the termination of her pregnancy, this would be lawful. It accepted that she had threatened to commit suicide if she had to carry the child to full term, and that this constituted a real and substantial risk to her life. The court lifted the injunction.

The judgment in this case was the basis for a High Court judgment in the C case in 1997, where another raped and pregnant teenager sought an abortion in the UK. A member of the Travelling community, she was in the care of the Eastern Health Board.

This differed from the X case in that her parents opposed her decision, and they had sought an injunction preventing the board from taking her to the UK. Using the X judgment, Mr Justice Geoghegan ruled that she could travel. However, he added: "The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose."

These remarks were highlighted as "problematic" in the Government Green Paper on Abortion. This implied, it said, that proceedings could be taken where, for example, parents disagreed with their teenage daughter going abroad for an abortion, where her life was not in danger. Such a case has never come publicly before the courts. If it did, the proceedings would be in camera.

A third case involving the right to life of the unborn was in preparation earlier this year when it became redundant because of the natural death of the foetus.

This did not concern abortion, but a pregnant woman who was brain-dead as a result of a brain haemorrhage. She was taken to Waterford Regional Hospital where, because of the pregnancy, she was placed on a life-support machine.

The hospital sought legal advice from Mr Gerard Hogan SC, and he advised that it was obliged to take these measures.

The hospital also informed the Attorney General, Mr Michael McDowell, that it intended, if necessary, to get a High Court order and make the woman and the foetus wards of the state, and that it proposed to join him in the action.

Mr McDowell refused to champion either side and the courts had no opportunity to rule on the issue because of the death of the foetus.