A flurry of discussion has been caused by the decision of the European Court of Human Rights which found Ireland guilty of a violation of Article 8 (Right to private and family life) in the case of a woman who felt obliged to go to the UK in 2005 for an abortion. Different accounts were given of the significance of this decision and about whether it was relevant or not to Malta. What do you think?

I fully understand the slight difference of nuance between the views expressed by former ECHR judge, Giovanni Bonello, and human rights lawyer Therese Comodini Cachia. Bonello, who seems to have played a key role in the formulation of the decision, categorically denied that the decision had any direct implications for Malta.

Comodini Cachia underlined the court’s assertion that when a pregnancy risked the mother’s life then the matter “clearly concerned a fundamental human right”. Hence it would be relevant if some day in the future a similar case were presented against Malta, whatever Malta’s Constitution states.

However, I completely fail to understand the media reports which presented the decision as having a diametrically contrary drift to what it clearly states.

In fact the decision can be said to have three basic conclusions:

First, that Article 8 cannot be interpreted as conferring the right to abortion. Later on, the court held that the prohibition in Ireland of abortion for health or well-being reasons, “based on the profound moral values of the Irish people in respect of the right to life of the unborn… struck a fair balance between the right of” mothers “to respect of their private lives and the rights invoked on behalf of the unborn”.

Second, that the prohibition of abortion certainly interfered with a pregnant woman’s “right to respect for her physical and psychological integrity as envisaged in Article 8”, but that such interference could be admissible if done with the legitimate aim of protecting some moral principle recognised in a particular country, (such as the rights of the unborn as recognised in Ireland).

Third, that a “broad margin of appreciation” was to be accorded to each state “as regards the balancing of the conflicting interests of the foetus and the mother. So although the vast majority of European countries allowed abortion more liberally than Ireland, the provisions in Ireland fell within “the broad margin of appreciation” allowed by the court to each individual state in this as in other matters.

To me it is clear that these three main decisions reached by the court should not displease reasonable pro-lifers, but rather the contrary.

Why then did the court find Ireland guilty of violating Article 8?

The case involved a woman with a rare form of cancer that was in remission. For this reason she underwent a series of check-ups – unaware she had become pregnant and that the check-ups should not to be carried out during pregnancy. In fact, there was a risk that her pregnancy would cause a resurgence of the cancer and also be “a risk to the foetus”.

The Constitution of Ireland allows abortion only “if there is a real and substantial risk to the life, as distinct from the health or well-being, of the mother as a result of her pregnancy” (this risk could also be that of suicide resulting from depression).

The woman complained that Ireland had not enacted laws or procedures for the implementation of this Constitutional provision. There was no certain way in which to establish that a pregnancy was endangering the mother’s life as specified by the Constitution.

Moreover, an 1861 Act still in force laid down life imprisonment for complicity in abortion. Consequently, doctors and hospitals were generally unwilling to risk acting upon whatever belief they might have about the risk to the mother’s life deriving from her pregnancy. This situation is precisely what the court found Ireland guilty of.

Malta does not have the Constitutional provision that Ireland has, but our laws forbid abortion under any circumstance. Nevertheless, how realistic are the fears expressed by the legal expert on human rights that there might still be a decision against Malta if we had a case of a mother who could not have an abortion even though her life was endangered by pregnancy?

In such a case it would not be Article 8 but rather Article 2 (the right to life) of the Declaration of Human Rights that would be invoked. To me, it seems quite conceivable that the court would not deem it to fall within “the broad margin of appreciation” of individual states to decide upon such an absolute preference for the foetus over the mother in terms of the “balance” between them that the court said was to be observed.

However, on my part, I do not realistically see a case of the sort arising. When a pregnancy is seen to be endangering a mother’s life, it is immoral in terms of natural law to kill the foetus in order to save the mother’s life, but very often it is possible from a moral point of view to take therapeutic action the inbuilt intention of which is to preserve the mother’s life and only the secondary, incidental result of which would be the death of the foetus.

It is not possible from the account of the woman’s case as given in the press release issued by the Registry of the Strasbourg Court to see whether this approach could have been adopted in her case. Indeed, the very essence of her complaint was that she found it impossible to get clear medical advice. It is that unavailability that the court pungently condemned, and what we in Malta should religiously seek to avoid.

Fr Peter Serracino Inglott was talking to Miriam Vincenti.