The landmark case between Lynn Kelly, 21, and her estranged husband, James, may now be decided by the House of Lords. Mr Kelly is trying to prevent his wife from having the operation.
Judges at the Court of Appeal in Edinburgh granted Mrs Kelly's wish to have the abortion but ordered that the operation be stayed, pending Mr Kelly's appeal to the Lords.
An appeal to the Lords cannot be made until Monday at the earliest. Last night, friends of Mrs Kelly were concerned that she has only days left to have a simple termination. Once she is into the second trimester of her pregnancy, a more complicated medical procedure would be required. Mr Kelly, 28, from Inverkeithing, Fife, brought the case after learning that his estranged wife had made an appointment for an abortion 10 days ago. He wants custody of both the unborn child and the couple's 18-month- old daughter, Hazel. The couple have accused each other in court of being unfit parents and Mrs Kelly, a singer, has alleged that during the two- year marriage she had to flee to a women's refuge because of domestic violence.
An unprecedented Saturday sitting of the Court of Session in Edinburgh heard Lords Cullen, McCluskey and Wylie dismiss Mr Kelly's appeal against an earlier ruling that he had no legal right to challenge his wife's decision.
Lord Cullen told the court: "The question is: Does Scots law confer upon the unborn foetus a right to continue to exist in the mother's womb, given that she chooses to exercise her right to terminate the pregnancy under the Abortion Act 1967?
"The court has concluded that Scots law recognises no such right in the unborn foetus."
However, the judges agreed to allow Mr Kelly a further appeal to the House of Lords.
The case, unprecedented in Scottish law, is due to come before the court again on Tuesday, when the judges will learn whether the House of Lords will hear the case. They may then lift the abortion ban. A spokesman for the Lord Chancellor's Department confirmed the Lords could hear the case in the next two weeks if necessary.
Ian Murray, the general secretary of the Scottish Society for the Protection of the Unborn Child, said: "It is a stay of execution at least. We are just hoping that Mrs Kelly will change her mind."
Teresa Gorman, Conservative MP for Billericay, urged Mrs Kelly to go ahead with the abortion this weekend, regardless of the legal ruling. Meanwhile, Anne-Marie Keary, director of the National Abortion Campaign, said NAC would support Mrs Kelly if she did so. "This has gone on long enough and is extremely traumatic for Mrs Kelly, who is being coerced towards motherhood," she said. "What is at stake is a woman's right to self-determination and autonomy."
Mrs Kelly could have had the termination at Edinburgh Royal Infirmary last Friday as planned, if she had not informed her estranged husband.
Last night, however, legal experts said she faced prison if she terminated the pregnancy while the court order remained in place.Reuse content