Ehcr and the Legalization of Abortion in Europe
The European Tribunal on Human Rights (ECHR) is tasked with ensuring that member states withhold the European accord and protocols with regards to human rights and freedoms of its citizens. The court settles disputes concerning member nations which have breached one or more of the human rights provisions on civil and political rights. There are various articles used by the court to guide its ruling on cases presented before the court. One such article is article 8 which provides right to respect and preserve privacy.
This article has led to a lot of contention from member states which have restricted abortion. The European Tribunal on Human rights has found various member states to be in breach of their right to respect the right to privacy. The ruling of the European Tribunal on human rights on these countries has led to case laws on the issue of access to lawful abortion. This essay reviews the stance of the European Court of Human Rights on access to lawful abortion.
Introduction
Abortion is illegal in most countries. Human beings have the right to privacy. Abortion on the other hand is considered to take away this right as babies are killed before they are born. Article 8 of the European Accord on Human Rights preserves the right to privacy and family life subject to various restrictions as per the law. This is the article responsible for the contention between the European Union and its member nations which have completely prohibited abortion in their society.
According to the European Accord on Human Rights, protection of human rights together with vital freedoms is an international treaty. As per the article, all people have the right to respect human life. There should be no interference with this right only under the provision of law in a democratic nation. Even though there are no legal grounds for abortion, the European Tribunal on human rights has provided various lawful grounds which have instantiated legal abortion.
The court provides that abortion needs to be available on maternal health. As per the court, the right to privacy is a huge provision that must be restricted and regulated by member states to maintain public morality based on the country’s morals. This is known as the margin of appreciation which guides the member countries on the level of deference. This allows individuals who feel that their basic rights have been violated to bring the case forward to the court only after exhausting the domestic remedies.
The court has examined various instances of abortion under the rights of the accord. However, the court is yet to declare if the right to private life is inclusive of women abortion since it is unclear if the right to life extends to protect the fetus. The variation in interpretation can be seen in the different case laws regarding abortion as per the European Tribunal on Human Rights.
The first case law under review is the A, B & C vs. Ireland. Ireland is known for its strict abortion laws which have been in existence since 1861 . These laws criminalize abortion entirely and the punishment for this offense is a maximum of life imprisonment for the women. Ireland amended its laws which explicitly granted the fetus the right to equal life equal to the woman. However, in 2005 three women A, B & C procured abortion in the U.K due to Irelands ban on abortion. They brought the case to the European Tribunal to challenge Ireland’s ban on abortion. According to the women, the ban was a breach of the women’s right to mental and physical health as provided under article 8 of the European accord on human rights.
In the case, woman A was a recovering alcoholic who was unemployed, unmarried and lived in poverty. She had four kids who lived in foster care. According to her, she believed that having a fifth child would threaten her recovery from alcoholism which could prevent her ability to recover the other children. She travelled to England in secrecy to secure an abortion but delayed it to borrow $950 for abortion and travel costs. Woman B went to England looking for an abortion through her friend’s credit card for flight and abortion costs. She had been told she would have an ectopic pregnancy. Woman C was a cancer patient. She travelled to England looking for abortion since Ireland doctors restrained from telling her the effects of the cancer and chemotherapy on the pregnancy.
In the case, the Irish government argued that its restrictions on abortion are not a breach of article 8 as the law aims at protecting the fetus and public morality. Ireland also protected its wide margin of appreciation as it assists them in balancing the complex issue of public morals. On the other hand, the women opposition A, B & C claimed that Ireland had violated their right to privacyas the anti-abortion laws did not fall under the provisions of article 8. They argued that forcing them travel to England for abortion despite their health risks was disproportional to any protection provided by the law.
The European Court understood and acknowledged the financial and psychological burden caused to A and B due to the reason to travel abroad to secure an abortion. However, the court provided that the travel to England to seek an abortion satisfied Article 8 provisions. The court provided that Ireland laws preventing abortion touched on the private life of the women in terms of psychological and physical integrity. This means that these Irish laws on abortion interfere with the private lives of women. On the other hand, the failure by the Irish government to provide an exception to the abortion laws provided a fair balance for the applicants in terms of the right to privacy and moral values.
Another case which can be used to analyze the stance of the European Tribunal on Human Rights is the Tysiac vs. Poland case law. In 2007, a Polish woman by the name Tysiac was diagnosed with severe myopia. The condition was risky and pregnancy would make the condition worse. However, Poland has enacted laws which prohibit abortion. As such, the woman was denied therapeutic abortion. Since she could not secure an abortion, Tysiac was forced to carry the pregnancy to maturity.
Following the birth of her child, the myopic earlier diagnosed had worsened. Tysiac had developed retinal hemorrhage. This rendered her severely disabled. She took her case to the European Tribunal accusing Poland of infringing her privacy rights. The European Tribunal provided that Poland had breached article 8. Poland did not provide an affective mechanism to determine whether Tysiac met the conditions necessary for legal abortion. As such, Poland had breached the right to respect privacy and family life. The other Poland case is the R.R vs. Poland case law. In this case, the victim was a mother of two.
The woman went for check-up where the doctor informed her that she carried a severely genetic abnormal child. However, Poland has prohibited any form of abortion. The victim was deliberately denied access to genetic tests by the Polish doctors. The victim is entitled to these tests as opposed to abortion. After the first ultrasound, it was clear that the fetus was deformed. The results of the amniocentesis were too late to make informed decisions as the legal time limit for abortion had expired . The child was born with abnormal chromosomes a condition known as Turner syndrome. Her life changed completely as it was difficult to educate the severely-ill child. It was damaging her family due to the trauma caused to the other children. She also got divorced by her husband following the birth of the severely-ill child making their life tougher. The European Tribunal found that Poland had breached article 3 which prohibited inhuman and degrading treatment.
As per the court, the applicant who was extremely vulnerable had been humiliated and unfairly treated by the Polish doctors. Her decision to access genetic tests was marred by procrastination and lack of adequate counseling which is vital during the pregnancy stage. There was also a breach of article 8 with regards to respect to privacy. As per the court, the Polish law did not provide a mechanism that would have enabled the woman to have access to appropriate diagnostic tests and services that would have enabled her to make appropriate decision whether to retain the baby or seek an abortion given that the Polish law permits abortion in case of deformed fetus.
The court provided that there needs to be a clear and adequate legal basis which ensures access to available diagnostic tests to the fetus for the purpose of understanding the health of the fetus of pregnant women. However, the Tribunal did not agree with the Polish authority with regards to their stance that providing access to prenatal genetic tests was in effect providing access to abortion. These tests are necessary for pregnant women to understand the health of their fetus and prevent certain issues in the fetus that can be treated. Countries are required to provide accurate and effective health care services to its citizens. They need to exercise the freedom of health to ensure patients have access to vital treatment which they are legally entitled.
Another case law to review the stance of the European Tribunal in human rights on lawful abortion is the P & S. vs. Poland case. This case reviews the difficulties encountered during pregnancy. In this case, a teenage girl got pregnant as a result of rape ordeal. The woman faced all forms of harassment from members of the public to medical practitioners’. However, lack of a clear legal framework coupled with procrastination from the medical practitioners prevented her from accessing abortion.
On seeking aid from the European Tribunal, the court found a breach of article 8. The court found out that the victim received contradictory and misleading information. The victim failed to receive objective medical counseling. The medical practitioners failed to hold their part of the profession regarding medical secrecy. In this case, the victim ought to have received adequate counseling to assist her to overcome the rape ordeal. There is also the Parrillo vs. Italy case law. In this case, a woman was prohibited from donating her embryos which were conceived through medical assistance. Italy has enacted laws which prohibit abortion.
In the case, the woman was required to keep the embryos in cryopreservation until their death. The woman saw this as a breach of right to privacy as per article 8. In the European Tribunal, article 8 was found to be applicable. The woman was entitled to her right to privacy since the embryos contained her genetic composition which represents her identity. The court provided that Italy needs to widen its margin of appreciation.
As per the court, even though Italy preserved the interest of the public in protecting the embryo, the victim had to exercise her basic rights of self-determination. However, there was no breach of article 8 nor was article 1 as the human embryos cannot be reduced to property or possession. The complaint was dismissed. Even though the case was dismissed by the European Tribunal, the victim should have exercised her right as per article 2; respect for privacy and family life. Since the embryos were conceived through medical assistance, she had the right to make the decision with regards to the embryo.
