The courts here might permit abortions in a case of life-threatening foetal abnormality, according to the Government, writes Carol Coulter, Legal Affairs Correspondent
In the same week that the High Court was considering the fate of three frozen embryos created during an IVF procedure in a Dublin clinic and the subject of a dispute between an estranged husband and wife, the European Court of Human Rights in Strasbourg handed down a ruling concerning the right to an abortion in Ireland where the foetus suffered from a life-threatening abnormality.
It ruled that the applicant, known as D, had not exhausted every legal avenue in Ireland and was therefore not eligible to go to a full hearing before the European Court.
What has received little attention is that the court based its ruling in large part on the State's own argument before it, that D had a good prospect of succeeding had she brought an application to the Irish courts for a legal abortion in Ireland.
The case concerned a woman, already the mother of two children, who became pregnant with twins at the end of 2001, shortly before the most recent referendum on abortion, which was narrowly rejected following intense public debate.
In the 14th week of pregnancy, she had an amniocentesis test which showed that one foetus had stopped developing at eight weeks and the other suffered from a severe chromosomal abnormality, Trisomy 18, described as a lethal genetic condition.
The average life expectancy for babies suffering from it is six days. She was devastated by the news and did not want to carry a dead and a dying twin to term.
When she told her doctors of her intention to have an abortion, they were "very guarded" in their response and she was unable to obtain a referral from them to a hospital in Britain. She travelled to Britain for an abortion, but had to return quickly to her other children.
She later suffered mentally from the experience and she and her partner separated.
She claimed that her rights under the European Convention on Human Rights had been violated, specifically her right to respect for her private and family life and her right not to be subjected to inhuman and degrading treatment.
Arguing that domestic legal remedies had not been exhausted, the Government said the X case had demonstrated the potential for judicial development in this area.
According to the ECHR judgment, it said: "The foetus was viable in the X case, whereas in the present case there might be an issue as to the extent to which the State was required to guarantee the life of a foetus which suffered from a lethal genetic abnormality."
The Government also said that, while Article 40.3.3 had to be understood as excluding a liberal abortion regime, "the courts were nonetheless unlikely to interpret the provision with remorseless logic, particularly when the facts were exceptional . . .
"If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was 'at least a tenable' argument which would be seriously considered by the domestic courts, to the effect that the foetus was not an 'unborn' for the purposes of Article 40.3.3, or that even if it was an 'unborn', its right to life was not actually engaged as it had no prospect of life outside the womb."
The Government also maintained that D's interpretation of the 1995 Regulation of Information Act, which appears to prohibit doctors from making abortion referrals, was incorrect.
According to lawyers for the State, the Act allows non-directive counselling, advice and assistance. As D had made up her mind, the non-directive element did not arise. It also said that the Act did not prevent a formal referral from an Irish consultant to another hospital, provided the Irish doctor did not make the actual appointment.
D also raised issues concerning the length of time proceedings could take, when time was of the essence in her case, and her fear that her anonymity would be breached if she brought the case in Ireland.
The Strasbourg court accepted the assurances of the Government on both issues.
"This changes the expectations of women in such a situation," said Barbara Hewson, one of the barristers who represented D in Strasbourg.
"The court also took account of the fact that the three masters of the three main maternity hospitals had said [ during the 2002 abortion debate] that a termination for a lethal abnormality was something they would like to be able to do. So if a court ordered it, it could be done.
"I would now like to see the Department of Health send out clear guidelines to the maternity hospitals."
D also welcomed the court's ruling. "In essence, I am pleased with the outcome because Ireland should deal with the rights of its citizens and a sensitive case such as this should not have to be dragged through European Courts," she told The Irish Times.
"If the ECHR has decided that there was a remedy in this jurisdiction and if the Irish Government has guaranteed that there was, then it is now open to be regularised."