Abortion [ECHR]

Uncertain Law

A., B. and C. v. Ireland (application no. 25579/05) 2010 (Grand Chamber) The Court found that Ireland had failed to implement the constitutional right to a legal abortion. There had therefore been a violation of Article 8 (right to respect for private and family life) of the Convention concerning the applicant in remission from cancer (the Court held there had been no violation of Article 8 concerning the other two applicants), because she was unable to establish her right to a legal abortion either through the courts or the medical services available in Ireland.

In AB & C v Ireland, the uncertainty about the scope of Irish abortion law and the balancing of the right to life of the mother and the child particularly after the Supreme Court decision in the X case and the passing of referenda on travel and information was heard to breach Article 8. The State had failed to pass legislation to delineate the rights.

It was recognised that pregnancy goes beyond the purely private sphere of life because of the relationship with the developing foetus. Although there was a growing consensus on the availability of abortion in Europe, the majority recognised that abortion raised profound moral views and that was no consensus on when life begins. Therefore, the state had a considerable margin of appreciation. Where a person was refused an abortion, she could travel to the UK or elsewhere, where an abortion was permissible.

The absence of an effective procedure to establish entitlement to lawful abortion, in particular, due to the absence of legislation implementing the principles breached Article 8. There was no effective and accessible procedure available to determine whether the balance between the interests of the foetus in the interests of the mother.

The Court noted in particular the uncertainty surrounding the process of establishing whether a woman’s pregnancy posed a risk to her life and that the threat of criminal prosecution had a “significant chilling” effect both on doctors and the women concerned.

Tysiac v Poland involved a challenge to restrictive abortion laws in Poland in circumstances where pregnancy constitutes a risk to eyesight. Because there was no mechanism to timely resolve differences of opinion on medical matters it was found that there had been a violation of Article 8.

RR v Poland, the applicant challenged the failure to afford access to genetic tests to determine whether the foetus was affected with genetic disorders (in which circumstances, abortion was lawful) and the absence of procedures to determine the scope of lawful abortion. As in A, B & C, the absence of effective mechanisms to determine the circumstances of a lawful abortion infringed the Convention.

Similarly in P & S v Poland where rape was a basis for abortion the absence of a timely legal framework providing for determining access to legal abortion breached the obligations under Article 8 of the Convention.

Status of Foetus

X v UK was a complaint by a man that his wife was allowed to have an abortion on health-related grounds. The Commission acknowledged that there was a divergence on the question of where life begins. It indicated that the life of the foetus is immediately connected with and cannot be regarded in isolation from the life of the pregnant woman.

If Article 2 were held to cover the foetus and its protection under Article 2 were in the absence of any express limitations seen as absolute, an abortion would have to be considered as prohibited even when the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the “unborn life” of the foetus will be regarded as being of a higher value than the life of the pregnant woman.

IN Vo v France a woman lost her child due to the hospital mistaking her for somebody with a similar name coming for another procedure. The unborn foetus had not been recognised in French law. It was held that there was no breach of Article 2 in not advancing rights of the foetus.

Evans v UK involved frozen embryos for later use, due to medical issues. When the couple’s relationship later broke down the male partner did not wish the embryos to be used. The European court held there was no breach of Article 8 where the law required the embryos to be destroyed.

Juvenile Raped

P. and S. v. Poland  2012 The applicants were a daughter and her mother. In 2008, at the age of fourteen, the first applicant became pregnant after being raped. The applicants complained in particular about the absence of a comprehensive legal framework guaranteeing the first applicant’s timely and unhindered access to abortion under the conditions set out by the applicable laws, and about the disclosure of information about the case to the public. They further complained that the first applicant’s removal from the custody of her mother and placement in a juvenile shelter and later in a hospital had been unlawful, and submitted that the circumstances of the case had amounted to an inhuman or degrading treatment.

The Court held that there been a violation of Article 8 (right to respect for private and family life) of the Convention, as regards the determination of access to lawful abortion, in respect of both applicants, and as regards the disclosure of the applicants’ personal data. It further held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, finding in particular that the essential purpose of the first applicant’s placement in the juvenile shelter had been to separate her from her parents and to prevent the abortion. Lastly, the first applicant had been treated by the authorities in a deplorable manner and her suffering had reached the minimum threshold of severity under Article 3 (prohibition of inhuman treatment) of the Convention, in violation of that provision.

Incapacitated Person

G.M. and Others v. the Republic of Moldova case concerned the imposition of abortions and birth-control measures on three intellectually disabled women, residents in a neuropsychiatric asylum, after they had been repeatedly raped by one of the head doctors there, and the investigation into their complaints.

The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in both its substantive and its procedural aspects. Moreover, the inquiry had not factored in their vulnerability as intellectually disabled women exposed to sexual abuse in an institutional context. The Court also found that the domestic criminal law had not provided effective remedy.

Forced  Procedure

S.F.K. v. Russia This case concerned the applicant’s complaint that in 2010 she was forced to have an abortion by her parents, even though she had made it clear to them and at the public hospital where the intervention took place that she wanted to continue with the five- week pregnancy.

The Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention, under its substantive aspect, noting in particular that the applicant’s abortion had been carried out against her will and in breach of all the applicable medical rules, and that such a forced abortion undergone in those circumstances had been contrary to her human dignity.

In VC v Slovakia the applicant was sterilised after giving birth because doctors consider this necessary to prevent future life-threatening pregnancies. This breached Article 3 of the convention.

Abortion Information

Open Door and Dublin Well Woman v. Ireland The applicants were two Irish companies which complained about being prevented, by means of a court injunction, from providing to pregnant women information about abortion abroad. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found that the restriction imposed on the applicant companies had created a risk to the health of women who did not have the resources or education to seek and use alternative means of obtaining information about abortion. In addition, given that such information was available elsewhere, and that women in Ireland could, in principle, travel to Great Britain to have abortions, the restriction had been largely ineffective.

Women on Waves and Others v. Portugal This case concerned the Portuguese authorities’ decision to prohibit the ship Borndiep, which had been chartered with a view to staging activities promoting the decriminalisation of abortion, from entering Portuguese territorial waters. The applicant associations complained that this ban on their activities had breached their right to impart their ideas without interference.

The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the interference by the Portuguese authorities had been disproportionate to the aims pursued. It observed in particular that, in seeking to prevent disorder and protect health, the Portuguese authorities could have resorted to other means that were less restrictive of the applicant associations’ rights, such as seizing the medicines on board. It also highlighted the deterrent effect for freedom of expression in general of such a radical act as dispatching a warship.