The State does not have any power to stop a teenage girl travelling to the UK for an abortion, the High Court was told yesterday by counsel for the Attorney General.
The 17-year-old, who is four months pregnant, is challenging the Health Service Executive's (HSE) decision to prevent her from terminating her pregnancy abroad.
The teenager, who can only be identified as "Miss D" and is from the Leinster region, has been in the care of the HSE since February of this year. She was told last week that her baby was suffering from anencephaly, a condition where a major part of the brain is missing. The newborn baby will not survive outside the womb for more than a few days.
Mr Justice Liam McKechnie yesterday granted the girl leave to bring a legal action to prevent the HSE restraining her leaving the country for an abortion. The case is being rushed through the courts and it will be heard in full tomorrow.
The girl says she was told by the HSE that it contacted gardaí to request that she should not be permitted to leave the State unless she was suicidal.
However, Donal O'Donnell SC, for the State, said the Attorney General's position was that the HSE had no legal power to direct the Garda to restrain a person who was the subject of an interim care order.
Furthermore, the Garda did not have legal power to restrain the girl simply because she was the subject of a care order, while the HSE order did not restrain a person from travelling anywhere.
Gerry Durcan SC, for the HSE, said it was anxious to take whatever course of action best secured the girl's welfare, having regard to legal restraints where a child is subject to a care order.
The HSE also wished to have the teenager assessed by a psychiatrist, counsel added.
Gerard Hogan SC, for Miss D, said his client was deeply distressed and could not live through the pregnancy knowing her baby would die, but he stressed she was not suicidal.
Abortion is illegal in Ireland, except where there is a real and substantial risk to the life, as distinct from the health, of the mother. This includes a risk arising from the threat of suicide.
In her affidavit, the girl said her family circumstances had been strained because her mother was an alcoholic. Her father had never sought any involvement with her. Her boyfriend had agreed to bring the proceedings on her behalf as she is a minor.
Meanwhile, The Irish Times has learned that the HSE has funded the cost of an abortion in the UK for a woman whose baby had serious congenital abnormalities that were incompatible with life outside the womb.
It is understood approximately six other abortions for women in similar circumstances have been funded by the HSE in the last year.
The woman, who was four months pregnant, was referred by a gynaecologist here to a colleague in Britain using an E112 form. This is an EU procedure whereby a patient's consultant states that the person has a particular diagnosis and needs a specific procedure or treatment not available in the person's own country. The HSE then assesses the application and decides whether to fund the treatment or not.
It is understood that the woman, who is in her mid- to late 20s, travelled to Liverpool and had her pregnancy terminated. She has returned home and is said to be well.
A GP who was involved in the woman's care said: "Having immediate first-hand experience of the patient . . . I think there is a contradiction between the current case, where the HSE is attempting to prevent a 17-year-old travelling, and its approach in the case I was involved with, where the HSE funded a patient to have an abortion."
A spokesman for the HSE said it did not comment in individual cases.
