The grief of a woman who travelled to England to have an abortion after learning her baby had a fatal defect shows that precious human life was present, Nothern Ireland's attorney general has said.
John Larkin QC made the claim as he challenged a judge’s finding that it was wrong to prohibit the termination of a foetus “doomed to die” because it cannot exist outside the womb.
Mr Larkin and the Department of Justice are both appealing a landmark verdict that abortion law in Northern Ireland is incompatible with human rights legislation.
The North's Human Rights Commission, which issued the original proceedings, is also mounting a cross-appeal in an attempt to have the regime declared inhumane, degrading and discriminatory.
Unlike other parts of the UK, abortions are currently only legal in Northern Ireland in cases where they are deemed to protect the pregnant's woman's life or if there is a risk of serious damage to her well-being.
The High Court last year ruled that the failure to provide exceptions to the near-blanket ban for cases of fatal foetal abnormalities and victims of rape or incest breaches entitlements to respect for private and family life.
Mr Justice Horner also made a formal declaration that the legislation is incompatible with the UK's obligations under the Human Rights Act.
The commission took legal action after the department launched a public consultation on amending the criminal law. That process concluded with a recommendation for new legislation dealing with cases of fatal foetal abnormality.
With no proposed changes covering pregnancies resulting from sexual crime, the commission insisted the consultation does not go far enough. It was also seeking to have terminations legalised in cases of rape or serious foetal malformation.
During the original legal battle arguments were also made on behalf of the Catholic Bishops in Northern Ireland, and Sarah Ewart — a woman from Northern Ireland who went to England for an abortion after learning her unborn baby had no chance of survival.
In his ruling, Mr Justice Horner held that it was “illegitimate and disproportionate to place a prohibition on the abortion of both a foetus doomed to die because it is incapable of an existence independent of the mother’s womb and the viable foetus conceived as a result of sexual crime”.
Challenging the verdict at the Court of Appeal on Monday, Mr Larkin referred to written submissions from both Ms Ewart and another unidentified woman who gave a name to the baby she was carrying with a fatal foetal abnormality.
"Each were expressing grief for the loss of a baby," he told a panel of three senior judges chaired by Lord Chief Justice Sir Declan Morgan.
Mr Larkin contended that, paradoxically, the High Court ruling had erroneously failed to weigh the two women’s experiences in the balance.
“One is dealing with human life that may be of short duration but is nonetheless precious,” he said. “When the trial judge says there’s no human life to protect that’s plainly wrong.”
Mr Larkin went on to claim the commission lacked the necessary victim status to bring judicial review proceedings.
Further arguing that no unlawful act had been identified in the case, he said: “This is an issue that goes right to the core of the Commission’s jurisdiction to bring these proceedings.”
The appeal continues.