A and others v Ireland
| Judge | JUDGES COSTA (PRESIDENT),ROZAKIS,BRATZA,TULKENS,CASADEVALL,BONELLO,BIRSAN,FURA,GYULUMYAN,HAJIYEV,MYJER,HIRVELA,MALINVERNI,NICOLAOU,LOPEZ GUERRA,POALELUNGI,FINLAY GEOGHEGAN (AD HOC) |
| Judgment Date | 16 December 2010 |
Privacy – Private life – Personal autonomy – Abortion – Abortion being prohibited in respondent state – Constitutional exception to prohibition where real and substantial risk to life of mother established – Constitutional exception not implemented by legislative or regulatory regime – Applicants becoming pregnant unintentionally – First and second applicants seeking abortions for reasons of health and well-being – Third applicant having undergone treatment for cancer and fearing her pregnancy constituting risk to her life – First and second applicants believing themselves not to be entitled to lawful abortion in respondent state – Third applicant unable to establish entitlement to lawful abortion in respondent state – Applicants travelling abroad for abortions – Whether prohibition of abortion for health and well-being reasons in respondent state violating right of first and second applicants to respect for their private lives – Whether respondent state’s failure to implement constitutional right to abortion where life of woman at risk violating third applicant’s right to respect for her private life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
Abortion was prohibited under the respondent state’s criminal law. That prohibition was subject to a constitutional qualification whereby an abortion was available in the respondent state if it was established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother, including a risk of self-harm, which could only be avoided by a termination of the pregnancy. No criteria or procedures had been laid down in law, however, by which the risk to the life of the mother was to be measured or determined. In the instant case, the first applicant became pregnant unintentionally at a time when she was unmarried, unemployed and living in poverty. Her four young children were in foster care as a result of problems she had experienced as an alcoholic. She had a history of depression during her first four pregnancies. During the year preceding her fifth pregnancy she had remained sober and had been in constant contact with social workers with a view to regaining custody of her children. She considered that a further child at that moment of her life (with its attendant risk of post-natal depression and to her sobriety) would jeopardise her health and the successful reunification of her family. She
believed that she was not entitled to an abortion in the respondent state. In February 2005, she travelled abroad alone and in secrecy for an abortion having borrowed the minimum amount of money for treatment and travel from a money lender at a high interest rate. She travelled back to the respondent state the day after the abortion. During the journey she began to bleed and was taken to hospital where she underwent a dilation and curettage. She claimed she experienced pain, nausea and bleeding for weeks thereafter but did not seek further medical advice. The second applicant became pregnant unintentionally. She had taken the ‘morning-after pill’ and was advised by two different doctors that there was a substantial risk of an ectopic pregnancy. She did not feel able to care for a child on her own at that time but believed that she was not entitled to an abortion in the respondent state. In January 2005, having used a friend’s credit card to book the flights, she travelled abroad alone for an abortion. On her return to the respondent state she started passing blood clots and two weeks later, being unsure of the legality of having travelled abroad for an abortion, sought follow-up care in a clinic affiliated to the foreign clinic. The third applicant had a rare form of cancer and had been treated for three years with chemotherapy. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester. The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of that fact when she underwent a series of tests for cancer, contraindicated during pregnancy. When she discovered she was pregnant she feared for her life as she believed that her pregnancy increased the risk of her cancer returning and that she would not obtain treatment for that cancer in the respondent state while pregnant. She alleged that, as a result of the chilling effect of the domestic legal framework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus. In March 2005, she travelled abroad for an abortion, believing that she could not establish her right to an abortion in the respondent state. She maintained that she wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage, but that she could not find a clinic which would provide that treatment (as she was a non-resident and because of the need for follow-up), with the result that she had to wait until a surgical abortion was possible. On returning to the respondent state, she suffered complications of an incomplete abortion, including prolonged bleeding and infection. She alleged that doctors provided inadequate medical care. The applicants complained to the European Court of Human Rights principally under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention). The first two applicants complained about, inter alia, the prohibition of abortion in the respondent state on health and well-being grounds. The third applicant’s complaint concerned
the failure by the respondent state to implement the constitutional exception to the prohibition and, notably, the failure to introduce a procedure by which she could have established whether she qualified for a lawful abortion in the respondent state on grounds of the risk to her life posed by her pregnancy.
Held – (1) The notion of ‘private life’ within the meaning of art 8 of the Convention was a broad concept which encompassed, inter alia, the right to personal autonomy and personal development. Legislation regulating the interruption of pregnancy touched upon the sphere of the private life of the woman. Article 8 could not be interpreted, however, as meaning that pregnancy and its termination pertained uniquely to the woman’s private life as, whenever a woman was pregnant, her private life became closely connected with the developing foetus. A woman’s right to respect for her private life had to be weighed against other competing rights and freedoms, including those of the unborn child. While art 8 could not be interpreted as conferring a right to abortion, the prohibition in the respondent state of abortion where sought for reasons of health and well-being, about which the first and second applicants complained, and the third applicant’s inability to establish her qualification for a lawful abortion, came within the scope of their right to respect for their private lives and accordingly within the scope of art 8. It followed that art 8 applied to the applicants’ complaints (see paras 212–214, below); Pretty v UK (2002) 12 BHRC 149, Vo v France (2004) 17 BHRC 1 and Tysiac v Poland (2007) 22 BHRC 155 considered.
(2) (By a majority) Having regard to the broad concept of private life within the meaning of art 8, including the right to personal autonomy and to physical and psychological integrity, the prohibition of the termination of the first and second applicants’ pregnancies sought for reasons of health and well-being amounted to an interference with their right to respect for their private lives. Determining whether that interference entailed a violation of art 8 required an examination as to whether it was justified. The prohibition of abortion in the respondent state for health and well-being reasons had to strike a fair balance between, on the one hand, the first and second applicants’ right to respect for their private lives under art 8 and, on the other, profound moral values of the people of the respondent state as to the nature of life and consequently as to the need to protect the life of the unborn. The breadth of the margin of appreciation to be accorded to the state was crucial to assessing whether the impugned prohibition struck that fair balance. Where a particularly important facet of an individual’s existence or identity was at stake, the margin allowed to the state would normally be restricted. Where, however, there was no consensus within the member states, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raised sensitive moral or ethical issues, the margin would be wider. By reason of their direct and continuous contact with the vital forces of their countries, the state authorities were, in principle, best placed to give an opinion, not
only on the exact content of the requirements of morals in their country, but also on the necessity of a restriction intended to meet them. There could be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation was, therefore, in principle to be accorded to the respondent state in determining whether a fair balance was struck between the protection of that public interest, notably the protection accorded under domestic law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under art 8. The question remained, however, whether that wide margin of appreciation was narrowed...
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