All countries in Europe apart from Ireland, San Marino, Malta and Andorra allow abortion in cases of rape, incest and fatal foetal abnormality, Belfast High Court was told today.
Natalie Lieven QC said that all other European countries permit abortion in such circumstances.
Ms Lieven made her comments in front of Mr Justice Mark Horner who is hearing a case where the North’s Human Rights Commission is seeking to make abortion legal in Northern Ireland in instances of rape, incest and “serious malformation of the foetus”.
Ms Lieven, who is representing the commission, also said the issue of abortion in relation to these categories could not be left to the Executive on the basis that it might act to legislate at some undefined date in the future.
The Human Rights Commission successfully applied for a review of the existing abortion law last February leading to the opening of the case in Belfast on Monday. The case, which is expected to last three or four days, is hearing submissions from campaigners representing both sides of the abortion argument.
Abortion is currently legal in Northern Ireland where there is a threat to the life of the woman or where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent.
Following a consultation, the North’s Department of Justice has recommended that abortion be permitted in Northern Ireland in cases of fatal foetal abnormality, but this proposed change in the law does not apply to cases of rape and incest.
Ms Lieven argued that the matter could not be left to the Northern Executive because it was only dealing with one of the three issues. She said the court could not “avoid the issue because it is too sensitive, politically controversial or too difficult”. It would be “completely misconceived” to leave the matter to the Executive.
Among those making submissions to the judicial review is Sarah Ewart who brought the issue of fatal foetal abnormality to public prominence in 2013 when she was denied an abortion in Northern Ireland even though her unborn baby was diagnosed with anencephaly, a severe brain condition which meant the baby would die in the womb or was only likely to live for a very short time. She had a termination in England at 20 weeks.
Shortly before the case began today Ms Ewart, who is attending the hearing, said she and many women like her had been failed by politicians. “After they left me with no option but to go to England for medical care, now by their refusal to change the law, they leave me with no option but to go to the courts on my and other women’s behalf.”
In court Ms Lieven said that “beyond a shadow of a doubt” Ms Ewart was a “victim” of current abortion law in Northern Ireland.
She added that she would demonstrate for the court that in cases of rape, incest and fatal foetal abnormality “extreme psychological trauma” could be suffered by women and girls.
Ms Lieven said that in 2013 five girls aged under 16 from Northern Ireland travelled to England or Wales for abortions while in 2010-2011 19 girls under 16 travelled for abortions. She added that in 2013 there were four case of incest against girls aged under 16 and 4 cases of “sexual activity without consent” against girls aged under 16.
Ms Lieven said that in 2013 there were 515 sexual assault cases against girls and women aged 13 and over. There were 263 cases of sexual assault against girls aged under 13 and 217 sexual crimes against girls aged under 16.
Ms Lieven said that in all international treaties the right of the foetus did not outweigh the rights of girls and women to have abortions in cases of rape, incest and fatal foetal abnormality.
A final decision on the case is not expected until after the summer.
Before the case began Les Allamby, head of the Human Rights Commission, said it was appropriate for the commission to seek change in the legislation. “We recognise the particular sensitivities of the issue,” he said today.
“It is a matter of significant public interest to ensure that the rights of vulnerable women and girls in these situations are protected. It is in everyone’s interest that the law is clarified in this area,” he added.
Bernadette Smyth of the Precious Life group is among those making submissions opposing any change in legislation. She accused the commission of acting in an “undemocratic” way because it was “ignoring the views of the people and the politicians” in Northern Ireland.
