Three women are claiming Ireland's abortion laws breach their fundamental human rights. Will they convince the judges of the European Court of Human Rights?

Considered brave by supporters and selfish by detractors, the three women who filed a case against Ireland's blanket abortion law will be testing the European Court of Human Rights' interpretation of the right to life.

Opinion is divided as to whether their claims are stretching the point too far or are justified on the basis of their right to choose.

Human rights lawyer Therese Comodini Cachia believes their case is a long shot, although the third woman who feared going ahead with her pregnancy because it could have led to cancer reappearing could possibly convince the judges on the basis that an abortion was necessary to save her life.

"Case law has established that the right to life enshrined in Article 2 of the Convention talks of the protection of an individual's physical existence and not about the quality of life. One has to evaluate the individual circumstances, but I do not foresee a positive outcome for the women because it would be stretching the matter a bit too far," she said, insisting though that the court has at times surprised many with its judgments.

In such a circumstance, she adds, the right to life of the mother has to be viewed also within the context of the right of the unborn child to live.

"Abortion is not just a right related to a woman's sexual and reproductive health, but also impinges on the right to life of the unborn child," Dr Comodini Cachia said. She argues that abortion had also been dealt with in the 1980s in the Open Door and Dublin Well Woman vs Ireland case.

The two clinics provided information to Irish women who wanted to obtain an abortion in England.

Although the court held that the Irish state was free to regulate abortion as it deemed fit, the case was won by the clinics on the point of freedom of information.

"The court said the fact that women were not allowed to receive information on abortion procedures in Ireland violated their freedom of information. This was a test case in its own right but it had no bearing on the right to life being cited by the women now," she said.

Dr Comodini Cachia's reservations on a positive outcome are not shared by lawyer and pro-choice campaigner Emy Bezzina.

He does not consider the case to be a long shot and although the court would probably not award damages, he is confident it will pronounce itself in their favour.

"These women had the courage to challenge Ireland's abortion law because they believe it should be the individual's choice and right to determine whether to go ahead with a pregnancy or not," Dr Bezzina said.

The circumstances of the three women are different, he adds, but in each case there is an overriding justified reason why the pregnancy should have been terminated.

Dr Bezzina disputes the argument made by the Irish Attorney General that the Constitution protects the life of the unborn from conception.

"There is confusion where life starts. There are different moral, medical and legal definitions. In these circumstances it is the right to life of these women that should take priority and we should respect their wishes," he said, insisting the mere fact they had to travel for an abortion increased risks and put them through unnecessary hardship and stress.

The case will be of particular interest to Malta, where abortion is not only illegal but the law is so strict that it is unclear whether it could be legally performed to save the life of a pregnant woman.

Up to 1981 the law left it up to the discretion of the doctor, after consultation with the relevant medical authorities, whether to perform an abortion if it was necessary to save the life of a woman.

The law was then amended without any provisions that safeguarded women who risked dying if they continued with their pregnancy.

ECHR Judge Giovanni Bonello will be one of the people sitting in the Grand Chamber to determine the case of the three Irish women.

In many ways Ireland's situation mirrors that in Malta. Only this year, Ireland had sought guarantees from the European Union that ratification of the Lisbon Treaty would not impact on Ireland's abortion law, a situation that reflected Malta's EU membership treaty protocol that made it clear abortion legislation could only be changed by the Maltese parliament.

However, any decision by the European Court of Human Rights, although not directly enforceable in Malta, would serve as caselaw for anybody wishing to challenge the illegality of abortion.

Three women, three stories

The applicants are three women who live in Ireland: two are Irish nationals and one is a Lithuanian national.

The case concerns their complaints about restriction on obtaining an abortion in Ireland.

All three applicants travelled to the UK to have an abortion after becoming pregnant unintentionally.

The first applicant, a former alcoholic whose four children had been placed in foster care, decided to have an abortion to avoid jeopardising her chances of reuniting her family. She paid for the abortion at a private clinic in the UK by borrowing cash from a money lender.

The second applicant was not prepared to become a single parent. While initially she feared an ectopic pregnancy, she was aware this was not the case prior to travelling to the UK for an abortion.

The third applicant, in remission from cancer and unaware that she was pregnant, underwent a series of check-ups contraindicated during pregnancy. She also understood that there was a risk that her pregnancy would cause a relapse of the cancer.

She was unclear and concerned about the risks to her health and life and to the foetus if she continued to term and claimed she could not obtain clear advice. She therefore decided to have an abortion in the UK.

On their return to Ireland the applicants claim they experienced medical complications.

Source: European Court of Human Rights website

ksansone@timesofmalta.com