The Right To Have An Abortion And The European Convention

Sun, 28 Jul 2013

By Ramby De Mello

Most of the case law involving abortions under the European Convention of Human Rights (“ECHR”) is brought under Article 8 of the Convention.

In the case of (A, B and C v. Ireland [GC] [245] the Strasbourg Court held that Article 8 cannot be interpreted as conferring a right to abortion; however it has found that the prohibition of abortion when sought for reasons of health or well-being falls within the scope of the right to respect for one’s private life and accordingly of Article 8.

So what is the scope of Article 8 in relation to abortion?

In this context, the question of whether Article 8 (private life) is engaged has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a mother or a father in relation to one another or vis-à-vis the foetus (See the case of Vo v. France, [GC], no. 53924/00, § 76, ECHR 2004-VIII).  “Private life” is a broad term encompassing  aspects of an individual’s physical and social identity including the right to personal autonomy which also incorporates the right to respect for both the decisions to become and not to become a parent:(Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-IV). 

Termination of a pregnancy engages the sphere of the private life of the mother as well as the father of the foetus under Article 8 ECHR; but termination of the pregnancy may justify an interference of the rights under Article 8 if it is to protect the life of another.   In one case the Strasbourg Court decided that the respect for private life under Article 8 could not be interpreted in a broad way so as to confer a right on the father to be consulted prior to termination of the pregnancy.[1] The father’s right is secondary to that of the mother in this particular context.  In another case the Court took the view that the mother’s right to respect for her private life must be weighed against other competing rights and freedoms invoked including those of the unborn child.[2]

In the case of (Boso v. Italy Application No 50490/99), the Court held that Article 8 did not give a potential father any right to participate in the decision-making as to whether or not to carry out an abortion.

Member States are under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion: (Tysiac v. Poland Application no. 5410/03) and (R.R. v. Poland (Application no. 27617/04). The Strasbourg case law states that the legal framework governing lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention”: (See, A, B and C v Ireland (Application no. 25579/05).

Whilst Article 8 contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by Article 8 that the relevant decision-making process is fair, and such as to afford due respect for the interests safeguarded by it. What has to be determined is whether an individual has been involved in the decision-making process, seen as a whole, to a degree sufficient enough to provide her or him with the requisite protection of their interests. The Court has already held that in the context of access to abortion the relevant procedure should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body or person should also issue written grounds for its decision: (See, (P and S –v-Poland Application no 57375/08).

A pregnant minor and the requisite procedure

The situation of a minor pregnant girl raises different considerations. While parental authority is a necessary element of family life, the scope of parental authority changes as the child develops and as the functioning of the family is subordinated to the child’s interests.  The interests and life prospects of the mother of a pregnant minor are also involved in the decision whether to carry the pregnancy to term or not, as the emotional family bond make it natural for the mother to feel deeply concerned by issues arising out of choices to be made by the daughter. Accordingly there is a need for a procedure when deciding whether abortion is necessary to allow both mother and minor daughter to be heard, and for their views to be fully and objectively considered, including, if necessary, the provision for counselling and reconciling conflicting views in favour of the best interest of the minor: (P and S –v-Poland Application no 57375/08).

The rights of the foetus, at the present moment, do not have protection under Article 8.[3]  However a view has been expressed that the right to life protected under Article 2 may extend to protecting the life of the foetus.[4]

The view in the United Kingdom

In (Evans v. The United Kingdom (Application no. 6339/05) the Grand Chamber held that the decision to become a parent in the genetic sense also falls within the scope of Article 8.

The abortion law in the UK is more liberal than in the other EU Member States.  The Abortion act of 1967 permits termination of a pregnancy if two registered medical practitioners are of the same opinion formed in good faith that the pregnancy has not exceeded its twenty-fourth week. Moreover, that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family. Or that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

The Parliamentary Assembly of the Council of Europe (PACE) Resolution 1607 (2008) entitled “Access to safe and legal abortion in Europe” was adopted by a number of EU countries. The laws of most of the Council of Europe Member States permit abortion in order to save the expectant mother’s life. Abortion is permitted in the majority of European countries for a number of reasons, mainly to preserve the mother’s physical and mental health, but also in cases of rape or incest, of foetal impairment, or for economic and social reasons and, in some countries, on request.  The Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should also have the means of exercising this right in an effective way.

While there might be no European consensus on the scientific and legal definition of the beginning of life, there is a clear consensus on the minimum standards for abortion services necessary to preserve a woman’s health and well-being.  Most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion.  The Strasbourg Court has stressed that in the absence of such a common approach regarding the beginning of life, the examination of national legal remedies, as applied to the circumstances of individual cases, is of particular importance for the assessment of whether a fair balance between individual rights and the public interest has been maintained (See, A, B and C v. Ireland, cited above, § 229-241).

The situation in Ireland – what’s going to change?

The prohibition of abortion laws in Ireland has undergone limited change following the death of a pregnant Indian woman (Savita Halappanavar) and the ruling of the Strasbourg Court in A, B, C (see above).[5]  The Irish Parliament Members voted in favour of legalising abortion in cases of medical emergencies as well as the risk of suicide.  The Act allows for termination of pregnancies where there is risk of life from physical illness, risk of loss of life from physical illness in emergency, risk of loss of life from suicide.[6]   Medical staff may object to carrying out termination procedures on grounds of conscientious objection and arrange for transfer of the patient to other medical staff.  The Act specifically states that freedom of movement to receive medical treatment in another Member State is not prohibited.[7]  It is still an offence to intentionally destroy unborn human life.This legislation will not stop, however, the annual abortion journey from Ireland to Britain.

According to Irish department of health figures released just last week, about 4,000 Irish women travelled to British hospitals and clinics to terminate their pregnancies last year. They included 124 who were under 18.[8]

The new law does not apply to women who were raped.

The Strasbourg Court has held that persons travelling abroad from Ireland for an abortion, whilst psychologically and physically arduous for each of the applicants and also financially burdensome, it nevertheless did not engage Article 3 because the ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.[9]

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