Parental rights in legal abortion: The Human Rights Act

Contents

Introduction

Paternal Rights in Legal Abortion

Foetal Rights under Article 2

Women’s Rights under Article 10

Woman’s Rights under Article 8

Interpretations and Conclusions

References

It is not under question if the Human Rights Act of 1998 guarantees a woman to be free from torture and forced labour (such as in human trafficking). Article 3 states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment,” and Article 4, 1 states “No one shall be held in slavery or servitude.” Furthermore, Article 2 guarantees the right to life. Thus it begins with the consideration that all persons should be free from torture and slavery. For nations in the majority of Central and Eastern Europe, as well as Ireland, Poland, and Portugal, the rights of a woman to choose how her body should be utilized have strong restrictions. Portugal retains the right to prosecute women for having abortions, and in some regions women are forcibly sterilized, particularly Romani women. In the majority of European nations, even the availability of birth control methods and sexual education is lacking, thereby removing the options of women to control their bodies. The removal of rights of women to control their reproductive organs is especially a concern for immigrant women as well as adolescent girls. This brief explores the background of European Court of Human Rights (hereby known as The Court’s) as well as those of the European Commission of Human Rights, and the examinations and rulings regarding the rights of a woman to control her body. The brief seeks to understand the rights of a pregnant woman and the rights of a foetus, with an exploration in regards to these rights under situations of rape or otherwise noted sexual violence that leads to the pregnancy, in regards to abortion/termination of the pregnancy.

Article 2 is the primary article within the Human Rights Act that can be directly (and indirectly) applied to the question of abortion rights. Article 2 guarantees the right to life. While an earlier case in international courts, it is under this article that in 1980, Paton v. United Kingdom, a husband held that the foetus his wife carried at the time had the right to life, where termination of the pregnancy would go against the Human Rights Act. However, the Commission found that because the foetus:

The life of the foetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Article 2 were to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where 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 would be regarded as being of a higher value than the life of the pregnant woman.^[1]

The Commission examined that because the foetus is intimately connected to the mother, then if Article 2 included the foetus and its viable protections with the absence of limitations and as an absolute guarantee, then the Court would have to consider that no foetus could be aborted even when carrying the foetus to term would cause serious medical risk to the pregnant woman. The Commission thus state that the unborn life can not be regarded as having higher value of the life of the pregnant woman. In this context, it can be shown that the foetus’s right to life does not, based on the findings, supersede the pregnant woman’s right to life and right to control her body.

This Court therefore considers that the rights of a pregnant woman includes the right to seek out lawful abortions without consideration due to the paternal party, which does not violate the right of the paternal party to seek out a family under Article 12: Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. The Commission stated that:

In so far as the abortion interfered with the applicant’s right to respect for family life, it was justified under Article 8 (2) as being necessary for the protection of the rights of the mother. The right to respect for family life cannot be interpreted so widely as to confer on the father a right to be consulted or to make applications about an abortion his wife intends to have performed.^[2]

Thus the Commission established that while Article 12 protects the right to begin a family, it does not establish that an entity has the right to force another into the establishment and subsequent care of that family. Importantly, this establishes that under legal abortions of a specific state, no party has the right to force a woman into maintaining the pregnancy for family life. In another case where the paternal body sought to prevent the pregnant woman from having an abortion, R.H. v. Norway (1992)^[3], the applicant claimed that Norway allowed for an abortion which was directly against Article 2. Since Norwegian legislation permits abortions within the first 12 weeks of conception, up to the 18^th week with authorization, the Commission agreed that legal abortion was within the discretionary powers of the state. The Commission again denied the request of an applicant. When the applicant cited Article 12 (the right to marry and have a family) the Commission replied with the finding that:

The Commission found that, when considering what rights a father had under Article 8, one should take into account the rights of the woman being the person concerned with the pregnancy and whose interests should be protected first of all. The Commission furthermore concluded that the father’s right to respect for his family life did not go as far as giving him such procedural rights.

In Evans v. UK ^[4], the applicant had her ovaries removed prior to cancer related surgery that would have left her unable to carry children. The applicant’s partner had inseminated the eggs creating six viable embryos. The embryos were then stored, and were noted as the applicant’s only opportunity to carry a child which was her genetic offspring. Prior to the embryos creation, the applicant and her partner had signed consent forms which stated that permission to utilize the embryo could be withdrawn at any time. After the relationship between the applicant and her partner deteriorated, the partner withdrew permission for the embryo carrying his genetic material to be implanted and thus create a pregnancy. Pursuant to the Human Fertilization and Embryology Act of 1990 which states:

“(i) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling; (ii) they must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn; (iii) consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent, or to that person together with another, or to persons not including the person giving consent; (iv) an embryo may only be stored while there is effective consent to its storage from both gamete providers, and in accordance with the terms of the consent; (v) an embryo may only be used while there is an effective consent to its use from both gamete providers, and in accordance with the terms of that consent; (vi) consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time; (vii) consent to the use of an embryo cannot be varied or withdrawn once the embryo has been used in providing treatment services.”^[5]

The Court therefore examined that the Schedule creates a legal obligation of a clinic to thoroughly explain consent and the provisions for withdrawal of consent, which show that consent can be withdrawn anytime prior to the use of the embryo within the limits of the law. However, the applicant presents that by withdrawing consent for the embryo to be utilized; her partner and the clinic under the UK law were able to deny her the right to create a family under Article 12 of the Human Rights Act, as these particular eggs would be the last opportunity for the applicant to maintain her genetic lineage. The Courts found that:

While the applicant criticised the national rules on consent for the fact that they could not be disapplied in any circumstances, the Court does not find that the absolute nature of the law is, in itself, necessarily inconsistent with Article 8 (see also the Pretty and Odièvre cases cited in paragraph 60 above). Respect for human dignity and free will, as well as a desire to ensure a fair balance between the parties to IVF treatment, underlay the legislature’s decision to enact provisions permitting of no exception to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent.^[6]

Thus the Court has established that genetic material can not be used without both paternal and maternal consent, which further allows for the statement that the right to a family under Article 12 must be a consensual right, where neither party has the ability to excerpt its personal will onto the other in regards to the creation of a pregnancy.

Vo v. France (2003)^[7] was a similar and yet special case that raised new concerns with the Courts. In this case, a woman who had the intent to deliver a viable pregnancy found her pregnancy terminated due to an error caused by an attending physician. Medical negligence caused an abortion to be necessary, and thus raised the question that if a pregnant woman expects to carry to term and the foetus is harmed, and then can the Courts consider this a criminal act against Article 2? While the applicant was delivered a monetary compensation under French courts, the European Human Rights Courts did not find that the negligent act of the physician as the applicant was allowed remedy from damages resulting in medical negligence. Article 2 was not violated, according to the Courts, because the life of the foetus was intimately connected to that of the mother and thus medical negligent damages could have been awarded under the state. Most interesting in this case is the separate statements of Judge Rozakis Joined By Judges Caflisch, Fischbach, Lorenzen And Thomassen^[8]:

Even if one accepts that life begins before birth, that does not automatically and unconditionally confer on this form of human life a right to life equivalent to the corresponding right of a child after its birth. This does not mean that the unborn child does not enjoy any protection by human society, since – as the relevant legislation of European States, and European agreements and relevant documents show – the unborn life is already considered to be worthy of protection.

This establishes that while the Courts examine that a foetus has the right to life; this right is reliant on the pregnant woman’s viability, rather than the potential of becoming a child. Thus while the Court’s found against the applicant citing no criminal negligence on the part of the attending physician because the foetus’s rights were reliant on the mother’s rights, the Court also establishes that in such cases the foetus’s right to life are not the same as individual rights to life. In this manner the Court has shown that abortion is not a criminal offence (as prescribed by law) even when the pregnancy is requested to stay to term, as the Court surmises that the opposite is true. The foetus does have a right to protection, but it is a protection that must keep the pregnant woman safe from harm, due to the intimate nature of pregnancy and the foetus’s reliance on the mother’s medical stability. Thus when the mother’s medical stability comes into question or is otherwise molested, the foetus’s right to life is equally contested, which establishes that medical negligence in such an instance is not criminal, but compensation is due under state law.

Article 10 of the Human Rights Act protects the rights of every person to freedom of expression, which maintains a provision towards the rights of persons to receive and deliver information or expressions and ideas to others. In the case of Open Door Counseling and Dublin Well Woman v. Ireland (1992)^[9], the applicants complained that the Ireland courts violated Article 10 by refusing to allow medical facilities to deliver information regarding the manners in which abortions could be obtained in England. Since Ireland has strict definitions of legal abortions and only allows abortions under these restrictions, women not falling within the state laws regarding abortions who desire to terminate a pregnancy must travel outside of the country to obtain medical assistance, most commonly in England. The applicants submitted that Ireland was in violation of Article 10 under the complaint that the state’s laws restrained women’s clinics from providing information to pregnant women that explained or indirectly counselled on the manner and locations in England that would assist in terminating an abortion. The complaint on this restriction examined that it prevented freedom of expression and freedom of receipt of information. The Court examined that the Government [of Ireland] interfered with the applicant’s right to impart information. The first reason is that it is not a criminal offence in Ireland to receive an abortion, regardless of cause, outside of Ireland. Furthermore, the Court examined that:

Accordingly, information that the injunction sought to restrict was already available elsewhere although in a manner which was not supervised by qualified personnel and thus less protective of women’s health. Furthermore, the injunction appears to have been largely ineffective in protecting the right to life of the unborn since it did not prevent large numbers of Irish women from continuing to obtain abortions in Great Britain (see paragraph 26 above).^[10]

In addition, the available evidence, which has not been disputed by the Government, suggests that the injunction has created a risk to the health of those women who are now seeking abortions at a later stage in their pregnancy, due to lack of proper counselling, and who are not availing themselves of customary medical supervision after the abortion has taken place (see paragraph 26 above). Moreover, the injunction may have had more adverse effects on women who were not sufficiently resourceful or had not the necessary level of education to have access to alternative sources of information (see paragraph 76 above). These are certainly legitimate factors to take into consideration in assessing the proportionality of the restriction.^[11]

Thus, when considering the rights to abortion under the Human Rights act, one must also consider the availability of counselling and education regarding women’s rights. This includes the right to receive information regarding viable options of medically related issues, not limited to abortion, for pregnant women. It can be stated that the women across the EU that this statement is directly concerned with are those who have insufficient resources, and commonly this includes immigrant women who may not speak the native tongue, as well as the impoverished. Furthermore, this statement examines that the lack of proper counselling and allowance of customary medical supervision constitutes an unsafe situation for the pregnant woman and may (although not stated) become a precursor towards violations of Article 2.

In Tysiac v. Poland^[12], the applicant stated that she was refused legal abortion under Polish law. The history of this case in particularly is imperative to understand how the applicant was refused an abortion stated legal by Polish law in Poland and also refused compensation by Polish courts. The applicant had suffered from severe myopia since early childhood. She had been assessed by the State medical panel and allowed social insurance based on a disability of medium severity. The applicant had two caesarean section births prior to her third pregnancy, which occurred in February 2000. Three ophthalmologists examined her during the third pregnancy, establishing that recommendations for frequent health checks and consideration of sterilization after birth were important to sustaining her health. Furthermore, three ophthalmologists concluded that pregnancy and delivery would constitute a severe risk to the applicant’s eyesight. Yet no ophthalmologist would issue a certificate for pregnancy on the grounds that it was not a certainty that the retina would detach itself during the pregnancy. In April of 2000, the applicant sought further medical advice where a general practitioner issued a certificate stating that the pregnancy was in fact a significant risk to the applicants health, in part due to her previous caesarean sections causing rupture of the uterus during this pregnancy and that the applicant would suffer pathological changes in her retina due to the pregnancy. Furthermore, the applicant had her eyes examined which established a current deterioration of her eyesight. At the end of April, the applicant contacted the state hospital to obtain the termination of the pregnancy. The facts regarding this last examination are as follows, stated in the court case:

13. Dr R.D. examined the applicant visually and for a period of less than five minutes, but did not examine her ophthalmological records. […] The endocrinologist co-signed the note written by Dr R.D., but did not talk to the applicant.^[13]

14.The applicant’s examination was carried out in a room with the door open to the corridor, which, in the applicant’s submission, did not provide a comfortable environment for a medical examination. At the end of the appointment Dr R.D. told the applicant that she could even have eight children if they were delivered by caesarean section^[14].

15.As a result, the applicant’s pregnancy was not terminated. The applicant delivered the child by caesarean section in November2000.^[15]

After November 2000, the applicant’s eyesight deteriorated to the point that she was admitted to the Emergency Unit at the Ophthalmological Clinic in Warsaw, where she was only able to see from three to five meters—prior to the third caesarean section, the applicant had been able to see distances of up to six meters. However, due to further degeneration of her retinas caused by recent haemorrhages in the retina, the applicant is now facing a risk of total blindness, where the changes in her retina due to the stress of the pregnancy had advanced beyond possibility of surgical correction.

In the Court case, evidence was presented that the Polish Government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated

It follows from the Government’s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations that the Law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians’ refusals to perform an abortion. (…) In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the (…) performance of abortions.”^[16]

The Courts found it evident that the applicant was denied a legal abortion under Polish law and that Poland was in breach of Article 8. The Court based this decision due to the fact that the application of Polish law in the case of the applicant was unable to demonstrate a methodology for determination of conditions for obtaining lawful abortion that could be met by the applicant, thus increasing the applicant’s time of uncertainty and, “As a result, the applicant suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health.”^[17]

The Court further stated that the Polish court’s provisions of civil law on tort was unable to allow “the applicant a procedural instrument by which she could have vindicated her right to respect for her private life. The civil law remedy was solely of a retroactive and compensatory character. It could only, and if the applicant had been successful, have resulted in the courts granting damages to cover the irreparable damage to her health which had come to light after the delivery.”^[18]

The Court showed that the applicant had made requests that criminal proceedings against the attending physician were to be instigated because the physician had exposed her to harm by refusing to terminate her pregnancy, thus the Court stated that the in criminal responsibility, there must have been a direct casual link between the act and the deterioration of the applicant’s health. The Court stated that “Crucially, the examination of the circumstances of the case in the context of criminal investigations could not have prevented the damage to the applicant’s health from arising.The same applies to disciplinary proceedings before the organs of the Chamber of Physicians.”^[19]

Thus the Court found that a retrospective measure of a criminal proceeding would not sufficiently protect the physical safety of individuals who were at the mercy of the physician’s decisions due to their vulnerable positions. Lastly, the Court stated that the Polish government’s objections were dismissed because the authorities failed to provide respect for the applicant’s private life:

Having regard to the circumstances of the case as a whole, it cannot therefore be said that, by putting in place legal remedies which make it possible to establish liability on the part of medical staff, the Polish State complied with the positive obligations to safeguard the applicant’s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion.^[20]

The rights of the foetus are held to be intimately connected to, and subjugated under, those of the pregnant woman. The Court has established that neither a paternal nor maternal entity has the right to force the creation of a family unit. Under this idea, the Court has also established that because another entity can not force the creation of a family unit under Article 12, then the rights of the foetus are not subjected to the same rights of the pregnant woman, but are emphatically reliant on the rights of the pregnant woman. While there have not been cases of rape and following denial of abortions in the Human Rights Court on an individual scale, history has shown that rape has also been used as a genetic cleansing method, particularly in areas such as Bosnia and Yugoslavia. In these sad histories, it has been shown that the rape of Muslim women by non-Muslims was directly related to the desire of the aggressors to cleanse the race and thus force their genetic material into a woman and create a pregnancy. Furthermore, many studies and historic news reports, as well as sociological and psychological reports, examine that a woman carrying a foetus of rape feels invaded by the foetus, tortured by the continuous reminder, and the trauma of the rape can not be overcome while carrying the foetus, nor can it be psychologically lessened by carrying the pregnancy to term and raising the child. It can be considered that many woman, as stated by the Court, who are beneath a certain level of income, with low resources or education, and especially immigrant women with low language skills, who are forced to carry a pregnancy to term due to these economic and nationality restrictions, would be continuously tortured and traumatized by the rape as they are forced to carry the pregnancy to term. Thus, forcing a woman who has suffered rape to carry a pregnancy to term against her wishes would be in violation of Article 3, protection from torture, as well as Article 12, the right to raise a family. Article 12 can be included here because the Court has already established that one entity can not force another entity into parenthood without consent to engage in a family. Therefore the Court not only protects the right to marry and have a family under Article 12, but also the right NOT to marry and have a family.

Beneath Article 2, it can be stated that the rights of the woman are greater than the rights of the foetus. In this, the Courts have shown that the rights of the foetus are not inclusive to the right to life as the foetus is not yet a viable life, it can not exist without the mother, and thus a special and uniquely intimate connection of life is established between the mother and the foetus. Thus when the mother no longer wishes to carry the foetus and would make the option, with appropriate medical counselling, to terminate the pregnancy she should be advised as to how such a termination can occur. In Ireland, for example, the denial of advisory has created the concern of illegal and dangerous abortions, but more so it has created the concern that women already low on resources who do not have outside access to information may be forced into a type of family-initiated forced labour. This interpretation is based on the idea that women who need the information resources from clinics are low resources, low education, and relatively unable to seek out educational information that allows them the legal and guaranteed ability to express their concern for their personal well being. Thus, in cases where the woman has been raped, which is an unfortunate but increasingly common fact for the young, poor and/or immigrant female, the restrictions of the law create more problems for women seeking sound medical assistance and advisory. This constitutes a possibility of strong negligence and may place the pregnant woman in harm’s way, as noted in the Polish case, particularly when the access to medical advice and procedures is severely limited by legislation. Thus, the Court has also established that the foetus’s right to life is limited to the pregnant woman’s right to information and safety, where the woman’s rights are superseding, rather than submissive, to the rights of the foetus.

Evans V. The United Kingdom App. No. 6339/05 Eur. Court H.R. (2007) Http://Www.Echr.Coe.Int

Open Door And Dublin Well Woman V. Ireland, 246 Eur. Ct. H.R. (Ser. A) ¶¶ 66, 70, 73–74 (1992). Http://Www.Echr.Coe.Int

Paton V. United Kingdom, App. No. 8416/78, 3 Eur. H.R. Rep. 408 (1980) (Eur. Comm’n H.R.) Http://Www.Echr.Coe.Int

R.H. V. Norway, Decision On Admissibility, App. No. 17004/90, Eur. Comm’n H.R. (1992). Http://Www.Echr.Coe.Int

Tysiac V. Poland, App. No. 5410/03, Eur. Ct. H.R. (2003). Http://Www.Echr.Coe.Int

Vo V. France, App. No. 53924/00, Eur. Ct. H.R.(2004). Http://Www.Echr.Coe.Int

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^[1] Paton v. United Kingdom, App. No. 8416/78, 3 Eur. H.R. Rep. 408 (1980) (Eur. Comm’n H.R.) http://www.echr.coe.int

^[2] R.H. v. Norway, decision on admissibility, App. No. 17004/90, Eur. Comm’n H.R. (1992). http://www.echr.coe.int

^[3] R.H. v. Norway, decision on admissibility, App. No. 17004/90, Eur. Comm’n H.R. (1992). http://www.echr.coe.int

^[4] Evans V. The United Kingdom App. No. 6339/05 Eur. Court H.R. (2007) Http://Www.Echr.Coe.Int

^[5] Evans V. The United Kingdom App. No. 6339/05 Eur. Court H.R. (2007) http://www.echr.coe.int

^[6] Evans V. The United Kingdom App. No. 6339/05 Eur. Court H.R. (2007) http://www.echr.coe.int

^[7] Vo v. France, App. No. 53924/00, Eur. Ct. H.R.(2004). http://www.echr.coe.int

^[8] Vo v. France, App. No. 53924/00, Eur. Ct. H.R.(2004). http://www.echr.coe.int

^[9] Open Door and Dublin Well Woman v. Ireland, 246 Eur. Ct. H.R. (ser. A) ¶¶ 66, 70, 73–74 (1992). http://www.echr.coe.int

^[10] Open Door and Dublin Well Woman v. Ireland, 246 Eur. Ct. H.R. (ser. A) ¶¶ 66, 70, 73–74 (1992). http://www.echr.coe.int

^[11] Open Door and Dublin Well Woman v. Ireland, 246 Eur. Ct. H.R. (ser. A) ¶¶ 66, 70, 73–74 (1992). http://www.echr.coe.int

^[12] TYSIAC v. Poland, App. No. 5410/03, Eur. Ct. H.R. (2003).