UN calls for reform of Irish abortion law

20 June 2016

The UN finds Irish abortion laws cruel, inhuman and degrading and calls for reform

The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1966 by the UN and commits its signatories, including Ireland, to respect the civil and political rights of individuals. The implementation of the ICCPR is monitored by the UN’s Human Rights Committee. Individuals can bring action against governments before the Committee to determine whether a state’s acts violate the ICCPR.

On 9 June 2016, the Human Rights Committee called upon the Irish Government to amend its abortion laws after ruling that they can lead to “cruel, inhuman” and “degrading” treatment. The landmark ruling is the first to recognize that, by criminalizing abortion, a state can violate women’s rights.

In November 2011, Amanda Mellet was told that her foetus had congenital defects and would either die in the womb or shortly after its birth. Mellet could either continue with the pregnancy or travel to another country for the procedure. Mellet chose the latter. She travelled to London, without the support of her family, for the abortion which cost €3,000 and returned 12 hours after, before she had fully recovered, to be denied post-abortion and bereavement care.

Mellet’s claims

Mellet submitted, and succeeded in her arguments, that the Irish regime breached the following provisions of the ICCPR: no one shall be subjected to cruel, inhuman or degrading treatment or punishment (article 7); no one shall be subjected to arbitrary or unlawful interference with his privacy or family (article 17); and everyone shall have the freedom to seek and receive information of all kinds (article 19).

The Irish Constitution grants unborns the right to life equal to that of its mother and which should be defended as far as practicable. The Irish Supreme Court has interpreted this to mean that it is only lawful to terminate a pregnancy if there is a real and substantial risk to the life (not the health) of a woman, which can only be avoided by the termination of the pregnancy.

The Committee found that this framework subjected Mellet to intense physical and mental suffering and that the balance that the state had chosen to strike between the protection of the foetus and mothers could not be justified and “amounted to cruel, inhuman or degrading treatment”.

The Committee also concluded that the interference in Mellet’s decision as to how best to cope with her pregnancy was “unreasonable” and “arbitrary”.

The Irish Abortion Information Act restricts the circumstances in which an individual may legally provide information about abortion services in Ireland and overseas and criminalises the promotion of abortions.

The Committee found that Mellet’s suffering was worsened by the difficulty she had in accessing information about abortions. It concluded that Ireland needed to take measures to ensure that health-care providers can supply full information on safe abortion services without being subjected to criminal sanctions.

The Committee’s findings

As noted by the Committee, by voluntarily acceding to the ICCPR, Ireland recognizes the rights it sets out and the competence of the Committee to determine when they have been breached and, in such cases, require effective remedies.

The Committee required the state to provide Mellet with adequate compensation, provide her with psychological treatment and take steps to prevent similar violations occurring by amending its abortion laws, including, if necessary, its constitution.

Possible Implications

The ruling is expected to set an international precedent.  Whilst not binding on other signatories, it is hoped that it will trigger reform and encourage other states to amend restrictive constitutions, laws, policy and practice.

Further, as suggested by Leah Hoctor of the Centre for Reproductive Rights in the Guardian, the ruling “will be used [by lawyers] to seek justice for their clients and legal change in countries where access to abortion services is criminalized”. The EHF hopes that domestic and international courts, including the European Court of Human Rights, will be inspired by the ruling.