European court rejects plea to hear abortion law challenge

 

A challenge to the prohibition on abortion has been refused admission for hearing by the European Court of Human Rights (ECHR) on the grounds that the applicant had not exhausted domestic remedies by bringing the case to the Irish courts.

The case was brought by a woman known as D, now aged 45. She claimed that the unavailability of abortion in circumstances where the foetus suffered from a life-threatening abnormality was a denial of her rights.

The Irish Family Planning Association (IFPA) supported the case as an amicus curiae (friend of court).

In late 2001, D, who already had two children, became pregnant with twins. In early 2002 an amniocentesis test showed that one foetus had died in the womb and the second had a chromosomal abnormality known as Trisomy 18 or Edward's Syndrome. A second amniocentesis confirmed those findings.

The woman was told that this syndrome was fatal and that the expected survival age for children with the syndrome was six days. She therefore decided that she could not carry the pregnancy to term.

The abortion was performed in the United Kingdom. She was unable to remain in the UK and could not therefore take advantage of counselling on issues like the genetic implications for future pregnancies.

She needed some follow-up medical treatment in Ireland but she explained to the hospital and to her own family doctor that she had had a miscarriage. She brought her complaint to the ECHR, claiming that the Regulation of Information (Services outside the State for Termination of Pregnancies) Act of 1995 limits what a doctor can tell a pregnant woman with a lethal foetal abnormality, and prohibits the doctor from making proper arrangements for a therapeutic abortion abroad.

She also complained that she had been discriminated against as a pregnant woman, or as a pregnant woman with a lethal foetal abnormality.

She claimed her rights under the Convention on Human Rights have been infringed, including her right to protection from inhuman and degrading treatment, to respect for her family life, her right to receive information, her right to an effective remedy and her right not to be discriminated against.

In rejecting her application, the court said the X case had shown that the Irish courts could develop the protection of individual rights by way of interpretation. It suggested that there was a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and the foetus could have shifted in favour of the mother when the "unborn" suffered from an abnormality incompatible with life.

The IFPA has described the outcome as disappointing. It added that it had also supported three other women who were challenging Ireland's abortion regime before the ECHR on different grounds, and that their case was unlikely to be affected by this decision.