# Could someone legally prevent their girlfriend from leaving to have an abortion?



## HelloJed (11 Jun 2008)

A disclaimer first - this is not a real life situation! I'm writing a short story and I was hoping someone could help with the legal side, so that I don't make a complete fool of myself...

In the story a woman leaves her partner (they are not married) and plans to travel to England to have an abortion. The partner contacts a pro-life group for help to stop the woman from leaving the country.

I thought that the lawyer working for the pro-life group would petition a court to prevent the woman from travelling until it is heard by a judge.

So here are my questions:

1. Is this situation realistic, in other words could the boyfriend's lawyer file something to stop the woman from travelling? Even though they are no longer together?

2. What would be the correct terminology (filing? injunction?) and which court would it be heard by? (No need to go into great detail)

3. Has this ever happened before? I did search the web but I couldn't find anything.

Thank you very much in advance for any help you can offer. I don't need to know how far it would go really, just whether or not you think/know it could take place and what the lawyer would do. The law part is definitely in the background of the story but I would like to get it vaguely right...

Cheers!


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## rmelly (11 Jun 2008)

Read up on 'The X Case' and what it led to.


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## TreeTiger (11 Jun 2008)

Or about the more recent Miss D case, a sad situation involving a pregnant minor whose baby was not going to be able to survive.  This [broken link removed] gives the general idea of the story.


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## HelloJed (11 Jun 2008)

Hi Rmelly and TreeTiger thanks for your responses. I did read up on the X Case and Miss D, but I'm still a little confused, because these causes have been brought by the HSE and the Attorney General - and not by the would-be father.

Even though abortion is legal in England several partners have tried to prevent their girlfriends/wives from ending their pregnancies. They never got very far - but they were allowed to petition the courts to some extent.

So I suppose the question would be - what rights does the would-be father have? Could he perhaps be able to approach the courts to stop the abortion from happening? And how would he do this?

Again even opinion is welcomed!

Thanks again.


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## John Rambo (11 Jun 2008)

I'd imagine the practicalities might be an issue...given that you can travel to the UK without a passport how can someone be prevented from travelling? Fair enough they'd be in contempt of court but the abortion would have taken place.


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## rmelly (11 Jun 2008)

HelloJed said:


> Hi Rmelly and TreeTiger thanks for your responses. I did read up on the X Case and Miss D, but I'm still a little confused, because these causes have been brought by the HSE and the Attorney General - and not by the would-be father.


 
I think the X Case also involved her parents seeking an injunction - her legal guardians at the time given her age.

Without DNA tests/paternity test (can they be done prior to birth?), how could he prove he was the father? The woman could claim having a one night stand, or long term affair etc, burden would be on the ex-partner to prove he was the father then?

Her case would be taken up as quickly by pro choice groups...


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## HelloJed (11 Jun 2008)

John Rambo, good point, thank you.

rmelly, thanks for the clarification. I'm not sure if DNA tests could be done beforehand. I suppose if the woman said to her partner that he was the father it could be considered. 

Good point on the pro-choice groups - that's exactly what I had planned in the story! Really appreciate your responses.

I know the legal system is very different in England and Ireland, but a few partners in England have been able to go to the courts there - and managed to at least halt the abortion for a while. Some examples [broken link removed].


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## DavyJones (11 Jun 2008)

I always thought that unmarried fathers have no automatic right to even see their children, whatever about unborn children. Can't see any court stopping a adult women from travelling outside state to have a legal procedure proformed.


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## rmelly (11 Jun 2008)

good point


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## HelloJed (11 Jun 2008)

I suppose my question would extend to married fathers then - does anyone know if a would-be father, married or unmarried, would be able to file some sort of petition, injunction etc, even if it would be thrown out eventually, to stop an abortion from happening? 

I'm planning on the story finishing before it goes to court or is seen by a judge - I just need to know what a lawyer would do, what the court would be and the terminology used. I'm really clueless on the legal process so any guidance would be appreciated. Thanks all.


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## j26 (11 Jun 2008)

The courts would most likely take the view that the mothers constitutional rights outweigh the fathers legal rights - if the baby were born, the mother would have constitutional rights in relation to the child, and before the baby is born the mother has constitutional rights (travel etc), while the unmarried father has limited rights in relation to a child, and none before it's born.

That's not to say that someone may try, and the process would be; 
an interim injunction which is _ex parte_ (only the side making the application is there - it has on occasion been held in a judges house were it's been really urgent).  Because there's nobody to contradict you, it's essential that you give all information, including facts which hurt your cause.  Fail to do that and you can be penalised for costs.
Then there is a return a few days later where you would look for an interlocutory injunction which keeps things ticking over until the full hearing is held.  This is _inter partes_ - both sides are present.
Finally it goes to the perpetual injunction stage, which is the substantive hearing.

The type of injunction you'd be seeking is _quia timet_ (for he who fears).  Nothing has happened yet, but you are afraid it will happen.


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## HelloJed (11 Jun 2008)

J26, you're a star! That's exactly what I was looking for, thank you so much. The story is more about what the different groups would do to publicise their causes - even if it doesn't get them anywhere in the long run.


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## DavyJones (11 Jun 2008)

Don't think so, married or unmarried. your best bet is to make up a story, maybe something like this: husband/boyfriend trys to prove wife/girlfriend is depressed/mental issues and incapable of making important decision in current state. It would be a groundbreaking case. Stories don't have to be all true and accurate. Best of luck with it.


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## HelloJed (11 Jun 2008)

DavyJones that's a great idea. I agree that the story doesn't have to be all true and accurate, but the terminology that j26 will add much needed resonance. 

The point of the story is to show what happens when people's lives are 'highjacked' by highly emotional causes on both sides - the boyfriend is just desperately trying everything to get his girlfriend to stay, but it's mushroomed into a country-wide debate and controversy. The legal side is background but it's essential for me that it's not completely routed in fantasy, or it will not have weight. Thanks for your advice.


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## chum (12 Jun 2008)

Is the law different for a man trying to prevent ex wife form having an abortion?


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## j26 (12 Jun 2008)

HelloJed said:


> J26, you're a star! That's exactly what I was looking for, thank you so much. The story is more about what the different groups would do to publicise their causes - even if it doesn't get them anywhere in the long run.




No probs.  If you need some help on the terminology or prcedure, give me a shout.

All proceedings of this kind are started in the High Court btw.


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## HelloJed (12 Jun 2008)

Thanks again j26, your help already has been invaluable.


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## huskerdu (12 Jun 2008)

since the referendum in 1992, the constitution specifically states that someone has the right to travel to another country to avail of a service which is legal in that country.


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## HelloJed (12 Jun 2008)

Huskerdu, I think my confusion came about because abortion is legal in England but some would-be fathers have been able to halt these abortions with legal injunctions - they've been ultimately thrown out, but the courts did  hear their arguments. I know the legal system is different here, but I wanted to know if the same could happen in Ireland.


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## truthseeker (12 Jun 2008)

Just to look at it from another perspective, can a prospective father FORCE a woman to give birth to a child that he believes is his? I would imagine not.


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## bond-007 (12 Jun 2008)

huskerdu said:


> since the referendum in 1992, the constitution specifically states that someone has the right to travel to another country to avail of a service which is legal in that country.


Would that cover euthanasia, which is legal in Switzerland?


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## pc7 (12 Jun 2008)

I think I remember seeing something in the US where the mans wife was an alcoholic and he got an injunction to have her hospitalised while she was pregnant to protect the child from Fetal Alcohol Syndrome, think it was a pretend story on one of those law shows, but he won.  Found this article if its any good http://query.nytimes.com/gst/fullpage.html?res=940DE1DE133BF931A15757C0A96E948260 even though its us versions. Good luck with the story


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