Euroopa Inimõiguste Kohus
16.12.2010

Facts

The applicants were three women living in Ireland. They all were pregnant and, as the law of Ireland did not allow them to have an abortion, traveled to England to do it there. The first applicant wanted to have the abortion because of the lack of the funds to rise the child, the second applicant was afraid of the health condition of the child as she had used the morning-after pill, but the third applicant could not evaluate how the rare form of cancer she was suffering from would affect the health of herself and the child.

Complaint

The applicants complained under Article 8 of the Convention about the prohibition of abortion in Ireland on health and well-being grounds.

Court's ruling

The Court noted that the notion of “private life” encompasses also decisions both to have and not to have a child or to become genetic parents. Nonetheless, the woman’s right to respect for her private life must be weighed against other competing rights and freedoms including those of the unborn child. Not every regulation of the termination of pregnancy interferes with the right to respect for the private life of the mother. However, the prohibition with regard to the first and second applicant for reasons of health and well-being interfered with their right to respect for their private life.

The Court found that the interference had a legitimate aim - protection of morals of which the protection of the right to life of the unborn was one aspect. When evaluating the interference’s proportionality, the Court took into account several factors:

  • Most of the European states allow abortions, especially for health and well-being reasons.
  • However, there is no European consensus on the scientific and legal definition of the beginning of life, so that it is impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2.
  • The issue itself is very sensitive and closely tied to moral values, therefore the national government is in better position to decide whether a fair balance was struck between the conflicting interests.

As the first two applicants were able to receive information about abortions, as well as they were able to travel to another country to have it, the Court found that the prohibition in Ireland ensured a fair balance between the right to private life of the first and second applicants and the rights invoked on behalf of the unborn.

When deciding the case of the third applicant, the Court noted that an abortion is available in Ireland if there is a probability of a real and substantial risk to the life, as distinct from the health, of the mother. However, the Court also found that in case of the third applicant, the possibility was rather theoretical than real. The state had not established a procedure to determine whether the applicant is eligible to have a legal abortion or not. There were no laws or rules setting the procedure and no guidelines for the doctors. Therefore, the authorities had failed to comply with their positive obligation to secure effective respect for the third applicant’s private life in violation of Article 8 of the Convention.