The UN’s Human Rights Committee has found that a woman faced discriminating, inhumane and degrading treatment as a result of Ireland’s legal prohibition on abortion under Article 40.3.3. of the Constitution.
The complaint was filed by the Center for Reproductive Rights on behalf of Amanda Mellet, who was informed in the 21st week of her pregnancy that her foetus had congenital defects and would die in utero or shortly after birth.
In 2011, the complainant became pregnant. She underwent examination and was informed that the foetus would die in utero or shortly after birth. Both the doctor and midwife, on separate occasions, mentioned she could ‘travel’, but neither explained what ‘travelling’ would entail and did not give her any further information. The midwife advised her to contact an Irish family planning organisation for information and counselling. The complainant later informed the hospital of her decision to travel abroad for a termination and made an appointment with a family planning organisation. The organisation provided her with information and faxed her medical records to the Liverpool hospital, which later contacted the complainant directly to arrange an appointment.
The complainant received a medical abortion to induce labour and delivered a stillborn girl. The state or private health insurers do not provide financial assistance for women who terminate pregnancies abroad. Consequently, due to financial restraints, the complainant had to travel, still bleeding, back to Dublin twelve hours after delivery. On her return, she did not receive any aftercare and was not provided bereavement counselling which was available to couples who suffer a spontaneous still birth.
The complainant claimed to have been subjected to cruel, inhuman and degrading treatment as a result of the prohibition of abortion, as she was denied the health care and bereavement support she needed in Ireland. She claimed the prohibition violated her rights to equality and non-discrimination. The State rejected these claims and contended that its legal regime regarding termination of pregnancy was not discriminatory. It argued the prohibition sought to achieve a balance of competing rights between the foetus and the woman; that her life was not in danger; and that there were no arbitrary decision-making processes or act of “infliction” by any person or state agent that caused or contributed to cruel, inhuman or degrading treatment. They also noted that the legislative framework guarantees an entitlement to information in relation to abortion services provided abroad.
The Committee found the prohibition constituted a violation of the complainant’s rights under Articles 7 (freedom from cruel, inhumane, or degrading treatment), 17 (right to privacy), and 26 (right to equality) under the International Covenant on Civil and Political Rights (ICCPR), of which Ireland is a signatory.
As a result of this, the Committee ruled that Ireland is obliged to compensate the complainant as well as provide any psychological treatment she needs. Ireland is also obliged to prevent similar rights violations from occurring, be it through amending “its law on voluntary termination of pregnancy, including if necessary its constitution, to ensure compliance with the covenant, including effective, timely and accessible procedures for pregnancy termination in Ireland”. It also recommended that measures be taken to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing being subjected to criminal sanctions. The Committee has given the Government 180 days to respond with measures to give effect to the Committee’s view.
The judgment marks the first time that an international human rights committee has recognised that by criminalising abortion, a state has violated a woman’s human rights. Although the ruling of the UN human rights committee is not directly legally binding, it is likely to place increased pressure on the Government to act to amend the Constitution and effect legislative reform. Minister for Justice Frances Fitzgerald has said that the findings should be taken “very seriously”, while Minister for Health Simon Harris has described the current situation as “utterly unacceptable”.
Click here for the judgment in full.