Court of human rights has done disservice to unborn
The Irish Times, 24th March 2007
The diversity of values across Europe on the question of abortion ought to be respected, writes William Binchy.
The recent decision of the Chamber Court of the European Court of Human Rights in Tysiac v Poland is a source of concern to those who would wish the court to give full protection to the human rights of human beings at all stages in their lives. A different, but important, concern that it raises is its failure to respect the diversity of values throughout Europe on this question.
The court is not in an easy political situation. If it holds that every human life is worthy of equal protection, regardless of the age or strength or physical or mental capacity of the human being involved, it will run into political conflict with very many European countries whose culture is at variance with this value.
If, on the other hand, it treats some lives as less worthy of protection than others and their right to life as being subject to the right to choose of others, it will force countries who regard all human lives as being of equal worth and dignity to contradict that value in their legal system under pain of being found in violation of the European convention.
In the face of this dilemma, the court until now has largely adopted a neutral stance, taking no definitive position on the right to life of unborn children under the convention and leaving it to the states to fashion their legal policy in accordance with their values rather than those of the court.
The Tysiac decision represents a radical shift in the court's approach. The court has entered the debate, in substance though not formally, in a way that reduces protection for unborn children. Under Polish law, abortion is an offence unless carried out in accordance with legislation of 1993, which authorises abortions carried out for a number of specified grounds, including endangerment of the mother's life or health. A certificate of a physician other than the one carrying out the abortion is required, save in cases involving a direct threat to the mother's life. The pregnant woman does not herself incur criminal liability for an abortion carried out in contravention of the 1993 Act.
Ms Tysiac's complaint, to which the court adhered, was that the failure by Polish law to provide a procedural framework to cover a situation where a woman disagreed with the views of medical experts that a condition warranting an abortion did not exist constituted a violation of her right to private life under Article 8 of the convention.
The court (by a six to one majority) stated that it noted that "the legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility under . . . the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case. The provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this effect. Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it."
The court preserved a strand of its formerly neutral approach when, having noted that abortion was lawful on grounds of endangerment of life or health in Poland, it commented: "Hence, it is not the court's task in the present case to examine whether the convention guarantees a right to have an abortion." This leaves to another day the task for the court in confronting whether unborn children have any right to life under Article 2 of the convention and, if they do, why it may be less valuable than the right to life of other human beings.
Yet the tenor of the decision in Tysiac v Poland is to maximise whatever right to abortion may exist in a state's law. In essence, the majority judgment appears to favour the view that, once abortion is part of the law of a state, the court should not engage in any process in which the rights of the unborn are taken into account, but rather that they should be completely discounted because of the court's failure to have clarified the entitlements of unborn children under the convention. Neutrality has thus given way to a calibration process in which only the rights of the mother are to be taken into account.
Let us test this interpretation by examining the implications of the decision on laws, such as in Britain, where there is a ground for abortion based on endangerment of the mother's health, backed by the certificates of two doctors. The reality is that these signatures are very easy to obtain.
If a true concern for the protection of the rights of unborn children were the basis of the court's decision, then there would have to be procedural rules which made it possible for unborn children to be protected from certificates provided by doctors which authorised abortion where in truth the mother's health was not endangered.
Yet we know that this is not what the court intended. What emerges is thus a one-sided concern for protection of rights, which will surely have a chilling effect on doctors who might be disposed to decline to authorise an abortion.
What are the implications for Ireland? At present, the position is that the Supreme Court interpreted the law in such a way as to present no procedural barriers to abortion, up to birth, on a substantive basis that extended to a threat of suicide. This leaves the unborn child inadequately protected under law, though thankfully not under medical ethics.
Our maternity hospitals deliver the highest international standards of care for mother and child, far better than a range of countries with more resources and a liberal abortion regime. Our doctors, in protecting the lives of both patients, demonstrate in the most important practical way that it is better not to ignore the unborn child.
The decision in Tysiac v Poland has made that mistake. Irish people should not be obliged to have forced on them a law that contradicts their values regarding human dignity and equal worth by a court which operates politically on a pan-European stage. We should be entitled to insist that our legal culture respect the unique value of every human life, with the practical implications that this involves for our social and economic policies, so that a genuinely caring society of solidarity and support is achieved.
William Binchy is Regius Professor of Laws at Trinity College Dublin and legal adviser to the Pro Life Campaign. (c) The Irish Times