Foetus may not always be an unborn, argues State


A foetus with a life-threatening abnormality may not be an "unborn" entitled to constitutional protection, the Government has told the European Court of Human Rights in Strasbourg, writes Carol Coulter, Legal Affairs Correspondent.

If it was established that there was no realistic prospect of the foetus being born alive, there was at least a tenable argument that the foetus was not an "unborn" for the purposes of Article 40.3.3, of the Constitution, lawyers for the State said. The courts were unlikely to interpret this Article "with remorseless logic", particularly when the facts were exceptional.

The Government was fighting a case where a woman, known as D, claimed the State had infringed her rights under the European Convention on Human Rights in a situation where she had no choice but to go to the UK for an abortion when the foetus she was carrying was diagnosed as suffering from a congenital abnormality that would have led to its death within days of birth.

The State argued successfully before the court that the woman had not exhausted all domestic legal remedies. She had at least a reasonable prospect of success had she asked the Irish courts to intervene, and interpret the Constitution to allow an abortion in her circumstances, lawyers for the State said.

The case was heard last September, and the Strasbourg court gave its ruling last week saying the case was inadmissible before the European Court of Human Rights as the woman had not exhausted the legal options in the Irish courts.

The ruling of the Strasbourg court said: "If the question of whether Article 40.3.3 excluded an abortion in the case of a fatal foetal abnormality was novel, it was, nevertheless, an arguable one with sufficient chances of success to allow the initial burden on the Government [to ensure a domestic remedy] to be considered satisfied.

"A legal constitutional remedy was in principle available to the applicant to obtain declaratory and mandatory orders with a view to obtaining a lawful abortion in Ireland."

D told The Irish Times she was in no emotional state at the time of the tragic news about the abnormality to consult lawyers. She was pleased with the outcome, she said. "I believe there is a clear directive now that the Government should examine appropriate procedures, along with the medical profession, in redressing the anomaly and supporting its defence in my case.

"If the ECHR has decided that there was a remedy in this jurisdiction and if the Irish Government has guaranteed there was, then it is now open to be regularised."

A lawyer for the woman, Barbara Hewson, a London-based barrister specialising in this area of law, said the Government's submissions to the court "changes the expectations of women in this situation".

She said that during the 2002 abortion referendum debate, where a constitutional amendment was narrowly defeated, the three masters of the main maternity hospitals said they would like to be able to carry out terminations where the foetus suffered from a lethal abnormality. "So if the court ordered it, it could be done," she said.