Landmark judgment on abortion

The European Court of Human Rights yesterday condemned Ireland for forcing a woman suffering from cancer who feared a pregnancy would worsen her health to have an abortion abroad.

The court awarded €15,000 in damages to the complainant, a Lithuanian living in Ireland, saying her rights to privacy and family life had been violated. ­But it dismissed the plea of two Irish women who also had to travel to Britain to end their pregnancies because Irish law makes abortion a criminal offence if there is no risk to the life of the mother.

The court found Irish procedures effectively made it impossible for the Lithuanian complainant to establish this risk and avoid prosecution under a 150-year-old law providing for life imprisonment for abortion.

Campaigners hailed the ruling, while Health Minister Mary Harney said the government would have to bring forward new proposals covering abortion.

The Lithuanian woman, in remission from cancer and unaware that she was pregnant, had undergone check-ups that were not advised during pregnancy.

“Once she discovered she was pregnant, she believed that there was a risk that her pregnancy would cause a relapse of the cancer and was thus concerned for her health and life,” the court said.

“She was also concerned about a risk to the foetus if she continued to term and claimed she could not obtain clear advice. She therefore decided to have an abortion in England.”

“Although she believed her pregnancy put her life at risk, there was no law or procedure through which she could have that, and – as a result – her right to an abortion in Ireland, established,” the court said.

The provisions of the 1861 law were a “significant chilling factor” for a woman and her doctor as both risked conviction and imprisonment if the doctor’s opinion in favour of abortion was found to be against the Irish constitution, it said.

Recourse to the Irish courts was also ineffective, as the constitutional courts were not appropriate for the primary determination of whether a woman qualified for a lawful abortion. In the case of the other two, the court ruled that while most Council of Europe member countries had fewer restrictions on abortion, the question of when life began came within an individual state’s margin of appreciation.

It concluded that the law in Ireland generally struck a fair balance, citing the right to seek an abortion abroad and the availability of pre- and post-abortion medical care at home, while stressing “the profound moral values of the Irish people in respect of the right to life of the unborn.”