Abortion is illegal on Nauru and the woman - who has been accepted as a refugee by the island nation - is seeking an abortion on Australian soil, arguing it has a responsibility to provide her with the medical care she needs. The Federal Court is considering the case of a young woman, known only as S99, who was in the midst of a violent epilepsy seizure when she was raped on Nauru, where abortion is illegal. But instead of bringing her to Australia for the termination, Australian authorities last week transferred her to Papua New Guinea where, according to the country's criminal code, a woman who attempts to "procure her own miscarriage" faces a maximum seven years' imprisonment. Clouding the situation is a PNG policy that says abortion is lawful only if the mother's mental or physical health is at stake. On Wednesday last week, Australian authorities woke the woman and told her she would be immediately transferred to PNG. She was taken to a hotel in the PNG capital of Port Moresby, told she would be taken to a medical appointment the next day, and left alone. Then, she called her lawyer, George Newhouse.

"I want a termination, but not here," she told Mr Newhouse, according to a document filed with the Federal Court. "I am very concerned about having it in PNG, because I am scared about the level of care because of my epilepsy ...and because I could go to jail if it isn't legal; I want to have a termination in a safe place." According to S99's understanding of her Muslim faith, her abortion must be carried out before she is 16 weeks pregnant. It is a deadline she is desperate to meet. But not in PNG. The facts of her rape have not been disputed by the Australian government. What it disputes is her right to come here and the circumstances of her transfer to PNG. Two years ago, Australia sent the woman from Christmas Island to Nauru, where she has since been accepted as a refugee. She now lives an uncertain life in Nauru on a temporary settlement visa.

The Department of Immigration and Border Control and the Commonwealth of Australia argue this means she is not Australia's responsibility. The woman's lawyers filed an emergency injunction in the High Court last week preventing Australia from taking any action to have the woman's pregnancy terminated in PNG, or transferring her back to Nauru. On Thursday, that case moved to the Federal Court. Stephen Donaghue, QC, representing the Department of Immigration and Border Control and the Commonwealth of Australia, told the Federal Court that Australia could not be considered responsible for the woman's care. "This plaintiff was found to be a refugee in Nauru about 18 months ago; she hasn't been detained ever since then, she's been living in the Nauruan community [and] she's been getting some level of services by way of medical services," Mr Donaghue said.

"She's not in any way, in our submission, under the control of the Commonwealth in the way that an immigration detainee traditionally should be. "Having gone to PNG, she's not detained by the Commonwealth." Mr Donaghue said the woman had signed a form agreeing to go to PNG for a termination, although this is disputed by her lawyers. Barrister Ron Merkel, QC, told the court the woman had always made it clear she wanted to have her termination in Australia, as she would need specialist care and feared she might be prosecuted if she underwent an abortion in Port Moresby. He said, Australia had assumed responsibility for S99's care when it transferred her to PNG.

Last year, the case of Abyan - a Somali woman also allegedly raped on Nauru - caused national outrage after she begged Australia for an abortion and was flown here after weeks of prevaricating, before being deported without having undergone the procedure after she asked for more time. The High Court issued an emergency order last week that Australia not move S99 anywhere but to Australia, and not do anything that would cause her pregnancy to be terminated in PNG. Justice Mordecai Bromberg extended that order, and set a trial date of April 28.