ECHR - Irish Abortion Laws Breach Human Rights

OhNoYouDidn't

http://www.irishtimes.com/newspaper/breaking/2010/1216/breaking11.html

In short, Irish law allows women to terminate their pregnancy if there is a significant health risk to themselves, as voted in a referendum

However, the government never legislated to allow that, and three women won a case in Strasbourg that they had no "effective or accessible procedure" to allow them a legal abortion and had to go overseas.

The state's response: "The Government robustly defended the laws and said Ireland's abortion laws were based on “profound moral values deeply embedded in Irish society”. They appear to have missed the point - the constitution allows termination in the circumstances of the three women.

What do you think of this? Unwarrented EU interference or another example of the governement failing to uphold their constitutional duties?



I DO NOT WANT THIS TO TURN INTO A PRO-LIFE / PRO-CHOICE BATTLE.

[MOD]The Court that gave the ruling is not part of the EU - it is the European Court of Human Rights.[/MOD]

KindOfIrish

OhNoYouDidn't wrote: »

http://www.irishtimes.com/newspaper/breaking/2010/1216/breaking11.html

The state's response: "The Government robustly defended the laws and said Ireland's abortion laws were based on “profound moral values deeply embedded in Irish society”.

It sounds just right after the Murphy Report :mad:

OhNoYouDidn't

KindOfIrish wrote: »

It sounds just right after the Murphy Report :mad:

It struck me as a very poor choice of words on a number of levels.

One of those 'moral values' as voted for in a referendum was to allow exactly what the state argued they shouldn't have to in the ECJ.

Wolfe Tone

One of the few things I am proud about in the republic is the abortion law. OP, this will turn into a pro life/choice debate.

OhNoYouDidn't

MUSSOLINI wrote: »

One of the few things I am proud about in the republic is the abortion law. OP, this will turn into a pro life/choice debate.

Including the part of the law the state refused to enact?

Nodin

OhNoYouDidn't wrote: »

http://www.irishtimes.com/newspaper/breaking/2010/1216/breaking11.html

In short, Irish law allows women to terminate their pregnancy if there is a significant health risk to themselves, as voted in a referendum

However, the government never legislated to allow that, and three women won a case in Strasbourg that they had no "effective or accessible procedure" to allow them a legal abortion and had to go overseas.

The state's response: "The Government robustly defended the laws and said Ireland's abortion laws were based on “profound moral values deeply embedded in Irish society”. They appear to have missed the point - the constitution allows termination in the circumstances of the three women.

What do you think of this? Unwarrented EU interference or another example of the governement failing to uphold their constitutional duties?

The latter. Or 'EU forcing Ireland to uphold its own laws' as a third option.

Wolfe Tone

OhNoYouDidn't wrote: »

Including the part of the law the state refused to enact?

The court unanimously ruled this morning that the rights of one of three women who took a case challenging Irish abortion laws were breached because she had no “effective or accessible procedure” to establish her right to a lawful abortion.

The woman – known only as “C” – had a rare form of cancer and feared it would relapse when she became unintentionally pregnant.

However, the woman was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued to term.

So she thought she would get ill, the doctors did not agree?

The court ruled that there had been no violation of the rights of the two other women involved in the case - "A" and "B".

Cool Mo D

MUSSOLINI wrote: »

So she thought she would get ill, the doctors did not agree?

Where did the doctors not agree? It says they didn't give an opinion one way or another.

Anyway, this is like the X case all over again. The Irish Supreme court, and not the ECJ have both said that Ireland's abortion laws cannot stand, but the politicians won't touch it with a bargepole.

Scofflaw

OhNoYouDidn't wrote: »

What do you think of this? Unwarrented EU interference or another example of the governement failing to uphold their constitutional duties?

I think you've failed to distinguish between the ECJ (the EU court) and the ECHR (the European Court of Human Rights). The latter, which made the ruling, has nothing to do with the EU.

Thread title amended accordingly.

moderately,
Scofflaw

Cool Mo D

OhNoYouDidn't wrote: »

... Unwarrented EU interference ...

How so? The ECJ has nothing to do with the EU.

Wolfe Tone

Cool Mo D wrote: »

Where did the doctors not agree? It says they didn't give an opinion one way or another.

Anyway, this is like the X case all over again. The Irish Supreme court, and not the ECJ have both said that Ireland's abortion laws cannot stand, but the politicians won't touch it with a bargepole.

A bit of backbone being displayed by the politicians so.

Nozebleed

do fathers or potential fathers have any rights when it comes to abortion?

seamus

MUSSOLINI wrote: »

A bit of backbone being displayed by the politicians so.

How so? Surely having backbone would be introducing legislation one way or another? The problem has come about specifically because legislation is required, but a succession of Governments have ignored that there is a problem.

The only reason they don't want to legislate is to avoid upsetting the catholic pensioner vote.

Wolfe Tone

seamus wrote: »

How so? Surely having backbone would be introducing legislation one way or another? The problem has come about specifically because legislation is required, but a succession of Governments have ignored that there is a problem.

The only reason they don't want to legislate is to avoid upsetting the catholic pensioner vote.

I am hardly a catholic pensioner am I?

Look at the details of the case, 1 woman ad her rights infringed apparently, she could not find a doctor who agreed with her view.

Breezer

MUSSOLINI wrote: »

A bit of backbone being displayed by the politicians so.

A bit of backbone in refusing, for 27 years, to legislate for a decision that has already been made in a referendum by the Irish people, because it's a contentious decision and would be politically unpopular with a sizeable number of people (though not a majority, at least not when the vote was held)? That's not what I call backbone, it's what I call cowardice; that's got nothing to do with my views on abortion, it's to do with my views on democracy.

This judgement does nothing to change what the situation should, according to the Irish people, be. It should never have been necessary.

MUSSOLINI wrote: »

Look at the details of the case, 1 woman ad her rights infringed apparently, she could not find a doctor who agreed with her view.

She could not find a doctor who could offer her an opinion one way or the other, because there's so much legal uncertainty about abortion in this country that doctors are afraid to say anything half the time. If there was definite legislation one way or the other then a doctor could actually have informed her properly.

seamus

MUSSOLINI wrote: »

she could not find a doctor who agreed with her view.

She couldn't find a doctor who would tell her one way or another whether there were any health implications.

Are you intentionally ignoring the text or is your biase blinding you?

Full details:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=14&portal=hbkm&action=html&highlight=&sessionid=63604451&skin=hudoc-en

In this country, doctors are terrified of being sued.

She went to a number of doctors and asked their opinion and they declined or failed to provide her with sufficient information.

You can see the quandry from the doctor's point of view. It's either:
"Yes, this child is putting you at serious risk, I would recommend a termination"
or
"No, I don't think you're at risk here, there's no need for a termination".

The latter statement would be incorrect, and the doctors knew that if they said this, she could die and they're in serious trouble. On the other hand, if the doctor was to expressly recommend abortion, they could find themselves in legal hot water. So they simply danced around the issue and didn't give her a straight answer.

She likely asked the doctors, "Should I get an abortion?", and they got visions of solicitors marching up to their surgeries with all sorts of documents in hand.

And this is the problem with the Irish legal system.

Wolfe Tone

seamus wrote: »

She couldn't find a doctor who would tell her one way or another whether there were any health implications.

Are you intentionally ignoring the text or is your biase blinding you?

Full details:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=14&portal=hbkm&action=html&highlight=&sessionid=63604451&skin=hudoc-en

In this country, doctors are terrified of being sued.

She went to a number of doctors and asked their opinion and they declined or failed to provide her with sufficient information.

You can see the quandry from the doctor's point of view. It's either:
"Yes, this child is putting you at serious risk, I would recommend a termination"
or
"No, I don't think you're at risk here, there's no need for a termination".

The latter statement would be incorrect, and the doctors knew that if they said this, she could die and they're in serious trouble. On the other hand, if the doctor was to expressly recommend abortion, they could find themselves in legal hot water. So they simply danced around the issue and didn't give her a straight answer.

And this is the problem with the Irish legal system.

So what do you suggest should be done then?

Het-Field

This ruling simply give creedence to something which was agreed to be legislated on in 1992.

This is not an extension of rights or the granting of new rights. It gives flesh to something which was already in existence, but was not legislated for.

I believe this to be "mountain out of a mole-hill" territory, and it is not a victory for the "pro-choice" lobby, or a defeat for the "pro-life" lobby. This fight was fought years ago.

seamus

MUSSOLINI wrote: »

So what do you suggest should be done then?

Legislate

Make it perfectly clear through legislation that a doctor is entitled to recommend (and carry out) an abortion in this state where the pregnancy poses a serious risk to the mother's life, including in the case of suicide.

This is what was voted for in 1992 and what we re-affirmed in 2002.

Breezer

MUSSOLINI wrote: »

So what do you suggest should be done then?

Simple: implement, in legislation, that which has already been decided on in case law, in a referendum, and in principle by successive governments.

seamus wrote:

Make it perfectly clear through legislation that a doctor is entitled to recommend (and carry out) an abortion in this state where the pregnancy poses a serious risk to the mother's life, including in the case of suicide.

Actually, the case of suicide is more complicated. It's allowed for in case law but has been rejected in a referendum.

Wolfe Tone

seamus wrote: »

Legislate

Make it perfectly clear through legislation that a doctor is entitled to recommend (and carry out) an abortion in this state where the pregnancy poses a serious risk to the mother's life, including in the case of suicide.

This is what was voted for in 1992 and what we re-affirmed in 2002.

Define serious?

RDM_83 again

I'm very curious about how the court reached its decisions in relation to the woman at risk of ectopic pregnancy, what level of risk to the woman is required before an abortion must be given under Irish law, and how do they expect a doctor to decide that.
In my opinion though its terrible for the persons involved and extremely un-PC I do feel the government should continue fighting these cases, by this I'm not trying to be some mad Pro-lifer, but if they don't fight the cases what occurs is the situation in the UK where abortions are relatively easy to get which rightly or wrongly is not what the Irish people want.
What doctor can say that a woman is 100% not in need of anti-psychotic medication if she says she requires it.
Similarly there is no proper information of the affects of the Fetus of Anti-psychotic medication.

Ps in terms of the ECHR ruling on ethics, I would be curious about their definition of human, do they have one?

http://www.bmj.com/content/329/7472/933.extract
link to statement no randomized anti-psycotic drugs and pregancy trials

Breezer

RDM_83 again wrote: »

I'm very curious about how the court reached its decisions in relation to the woman at risk of ectopic pregnancy, what level of risk to the woman is required before an abortion must be given under Irish law, and how do they expect a doctor to decide that.

It was accepted by the court and the woman concerned that she did not in fact have an ectopic pregnancy. Ectopic pregnancy can be confirmed by ultrasound scan and by a blood test for a hormone called beta hCG. It's not a question of risk when deciding whether or not to end the pregnancy, it's a question of whether or not there is an ectopic pregnancy.

For the record, ectopic pregnancies are routinely terminated in this country, as they are never viable and inevitably lead to the death of both mother and fetus. It's not considered abortion, it's considered standard medical treatment to save the life of a woman, with the loss of an unviable fetus as a side effect.

What doctor can say that a woman is 100% not in need of anti-psychotic medication if she says she requires it.
Similarly there is no proper information of the affects of the Fetus of Anti-psychotic medication.

Psychosis usually works the other way in my experience: a patient who most definitely needs anti-psychotic medication denying they need it as they have no insight into their condition. Where does that question arise in this case though? I can't find anything about it in the judgment (admittedly I skimmed bits of it).

seamus

MUSSOLINI wrote: »

Define serious?

Any situation where a medical condition exacerbated by the pregnancy poses a threat to the mother's life which she finds unacceptable.

Actually, the case of suicide is more complicated. It's allowed for in case law but has been rejected in a referendum.

I thought it was the opposite way - case law and a number of rulings have deemed that suicide is included in the constitutional defintion, but referendums attempting to remove suicide as a "risk factor" have been continually rejected?

Wolfe Tone

seamus wrote: »

Any situation where a medical condition exacerbated by the pregnancy poses a threat to the mother's life which she finds unacceptable.

So if there is a 0.01% chance she may die, and she finds this unacceptable, its open season to shred the child?

Het-Field

MUSSOLINI wrote: »

Define serious?

Im sure it is a lot easier to define then you are making out. It doesnt need to be an all encompassing definition. Taken on a case by case basis, a female's circumstances, ailement etc can be assessed, and the likelyhood of mortality can be determined by the physician on the basis of what he has seen, and what other physicians have seen previously. Based on empirical evidence the physician could determined whether there is a serious risk of death, and could issue a written opinion based on this determination

28064212

MUSSOLINI wrote: »

So if there is a 0.01% chance she may die, and she finds this unacceptable, its open season to shred the child?

If there's a 99.9% chance she will die, she's left to her own devices?

seamus

MUSSOLINI wrote: »

So if there is a 0.01% chance she may die, and she finds this unacceptable, its open season to shred the child?

If it increases her chances of death (pregnancy carries its own base mortality rate) and she finds this unacceptable, then yes, of course. Why not? In reality, despite your straw man argument, 0.01% increase in risk would be statistically negligible (i.e. it would never be calculated as such) and a doctor wouldn't even mention such a risk to a patient.

Imagine that you're going in for a serious but not urgent surgery which carries a base mortality rate of 0.001% (which is about Ireland's rate of deaths in pregnancy), and you sign the paper. It's later revealed that an unrelated medical condition exists which has now increased your mortality possibility 1,000 times - to 1%.
You want to decline the surgery (you can live without it) but you're told, "Tough ****, you signed the documents"

Sounds fair, right?

Breezer

seamus wrote: »

I thought it was the opposite way - case law and a number of rulings have deemed that suicide is included in the constitutional defintion, but referendums attempting to remove suicide as a "risk factor" have been continually rejected?

Apologies, you're right.

RDM_83 again

That is ignoring the question though, would you define it as a statistically significant increase in mortality, a 0.2% increase in mortality can be significant if the sample size is big enough (which it wouldn't be but that is irrelevant to this argument).
Also in terms of mental health grounds it is not assessable because there is no certainty of condition, and if it was so desired it would not be difficult to "fake" symptoms

Wolfe Tone

seamus wrote: »

If it increases her chances of death (pregnancy carries its own base mortality rate) and she finds this unacceptable, then yes, of course. Why not?

Eh, the child.

Imagine that you're going in for a serious but not urgent surgery which carries a base mortality rate of 0.001% (which is about Ireland's rate of deaths in pregnancy), and you sign the paper. It's later revealed that an unrelated medical condition exists which has now increased your mortality possibility 1,000 times - to 1%.
You want to decline the surgery (you can live without it) but you're told, "Tough ****, you signed the documents"

Well if my refusal would result in a child being killed......

Breezer

RDM_83 again wrote: »

Also in terms of mental health grounds it is not assessable because there is no certainty of condition, and if it was so desired it would not be difficult to "fake" symptoms

That's why psychiatrists are frequently consulted on such matters.

Anyway, has this not gone completely off the point now? The ruling simply states that Ireland needs to implement legislation consistent with the position already established in the country through various means. It doesn't attempt to change Ireland's stance on abortion (in fact, in the case of the first two applicants, it affirms it), it merely calls on the Government to define that stance once and for all.

OhNoYouDidn't

MUSSOLINI wrote: »

So if there is a 0.01% chance she may die, and she finds this unacceptable, its open season to shred the child?

No, we are talking in the region of 70 and 80%

But the point being, the legislation to define what is a 'significant health risk' has been illegally swerved by the government.

OhNoYouDidn't

MUSSOLINI wrote: »

Eh, the child.


Well if my refusal would result in a child being killed......

You seem to be deliberatly missing the point. In most of these cases the foetus cannot survive anyway.

We are talking about women with cervical cancer and the likes.

As to my request in the OP, the idea of whether this is right or wrong is irrelevant. The Church and assorted other anti-abortion groups have no problem with this. Its been passed by referendum TWICE. Why didn't the government uphold the law?

seamus

MUSSOLINI wrote: »

Well if my refusal would result in a child being killed......

It won't. The unborn child is not a legal person in this country until 24 weeks. Even up to the point where such a risk would be identified (12-16 weeks), the unborn child is not recognisable as nor cannot function as, an individual.

OhNoYouDidn't

Scofflaw wrote: »

I think you've failed to distinguish between the ECJ (the EU court) and the ECHR (the European Court of Human Rights). The latter, which made the ruling, has nothing to do with the EU.

Thread title amended accordingly.

moderately,
Scofflaw

Mea Culpa. Thanks for the clarification.

Wolfe Tone

OhNoYouDidn't wrote: »

You seem to be deliberatly missing the point. In most of these cases the foetus cannot survive anyway.

We are talking about women with cervical cancer and the likes.

As to my request in the OP, the idea of whether this is right or wrong is irrelevant. The Church and assorted other anti-abortion groups have no problem with this. Its been passed by referendum TWICE. Why didn't the government uphold the law?

You and Seamus seem to be talking about different things tbh.


If the child will die anyway, and there is like a 80% chance the mother would die, then yeah I would agree that an abortion would be ok, however seamus is arguing that it should be open season if the mother finds the risk to her life unacceptable.

Wolfe Tone

seamus wrote: »

It won't. The unborn child is not a legal person in this country until 24 weeks. Even up to the point where such a risk would be identified (12-16 weeks), the unborn child is not recognisable as nor cannot function as, an individual.

Given time it would be though.

Breezer

seamus wrote: »

It won't. The unborn child is not a legal person in this country until 24 weeks. Even up to the point where such a risk would be identified (12-16 weeks), the unborn child is not recognisable as nor cannot function as, an individual.

Are you sure? I realise you knew better than me when I last challenged you 5 minutes ago But is an embryo not a legal person once implanted in the womb (as per MR v TR)? 24 weeks is the threshold of viability for a fetus, but it still has rights before that, no? Medicine's my area, not law, so I'm in a bit of uncharted territory for me here, but I thought that was the situation.

OhNoYouDidn't

MUSSOLINI wrote: »

You and Seamus seem to be talking about different things tbh.


If the child will die anyway, and there is like a 80% chance the mother would die, then yeah I would agree that an abortion would be ok, however seamus is arguing that it should be open season if the mother finds the risk to her life unacceptable.

But you have stumbled onto the whole point.

We need legislation to decide what is the risk level and who gets to make the final call. At the moment no doctor will touch this with a shítty stick.

Breezer

OhNoYouDidn't wrote: »

We are talking about women with cervical cancer and the likes.

Just seen this. It's actually possible for a fetus to survive and be born in cases of cervical cancer. Some women diagnosed in pregnancy choose to defer treatment until after childbirth for this reason.

OhNoYouDidn't

seamus wrote: »

It won't. The unborn child is not a legal person in this country until 24 weeks. Even up to the point where such a risk would be identified (12-16 weeks), the unborn child is not recognisable as nor cannot function as, an individual.

I don't think you are correct on that one...

Its implantation I think.

OhNoYouDidn't

Breezer wrote: »

Just seen this. It's actually possible for a fetus to survive and be born in cases of cervical cancer. Some women diagnosed in pregnancy choose to defer treatment until after childbirth for this reason.

But in some cases it will kill them both.

Thats why we need legislation to allow doctors to give advice.

Breezer

OhNoYouDidn't wrote: »

But in some cases it will kill them both.

Thats why we need legislation to allow doctors to give advice.

Agreed. Very much agreed.

seamus

Breezer wrote: »

But is an embryo not a legal person once implanted in the womb (as per MR v TR)?

OhNoYouDidn't wrote: »

Its implantation I think.

Law's not my area either.
However, a failed pregnancy which occurs before 24 weeks (and if the child is under 500g), is legally not recognised as a death in this state, just a miscarriage. You can only obtain a death certificate (and birth cert) for a failed pregnancy when the pregnancy has passed the above threshold.

Since you cannot get a birth or death cert for any birth which occurs before this threshold, the implication is that the foetus is not a legal entity before this point.
And you cannot confer rights on something which is not an entity.

This isn't something I've ever seen discussed; it would certainly be an interesting one.

It seems to me that if the state considers it to be a child, with rights thereof, then it should be legally possible to obtain a birth certificate regardless of when the "birth" occurs.

Wolfe Tone

OhNoYouDidn't wrote: »

But you have stumbled onto the whole point.

We need legislation to decide what is the risk level and who gets to make the final call. At the moment no doctor will touch this with a shítty stick.

Ok, I would just be wary of what risk levels should set at.

sceptre

MUSSOLINI wrote: »

A bit of backbone being displayed by the politicians so.

You've got to be kidding me.

Regardless of one's feelings on abortion availability in Ireland or anywhere else, the failure to legislate for the referendum decision is a clear-cut case of politicians having no backbone and hoping it won't become an issue until they retire. That option ran out this morning.

Het-Field

MUSSOLINI wrote: »

Ok, I would just be wary of what risk levels should set at.

Why not take it on a case by case basis, and utilise precedent and experience as the yardstick ?

Remember, Doctors are bound by ethical codes too.

Zynks

MUSSOLINI wrote: »

Ok, I would just be wary of what risk levels should set at.

Don't you worry, once/if legislation starts being drafted there will be plenty lobbying going on to keep the tolerance low.

Breezer

seamus wrote: »

Law's not my area either.
However, a failed pregnancy which occurs before 24 weeks (and if the child is under 500g), is legally not recognised as a death in this state, just a miscarriage. You can only obtain a death certificate (and birth cert) for a failed pregnancy when the pregnancy has passed the above threshold.

Yep.

Since you cannot get a birth or death cert for any birth which occurs before this threshold, the implication is that the foetus is not a legal entity before this point.
And you cannot confer rights on something which is not an entity.

This isn't something I've ever seen discussed; it would certainly be an interesting one.

It seems to me that if the state considers it to be a child, with rights thereof, then it should be legally possible to obtain a birth certificate regardless of when the "birth" occurs.

My understanding (and I'm open to correction) is that it isn't a legal "person" until birth. It reaches the threshold of viability at 24 weeks, meaning that if it born after this time doctors are obliged to provide the newborn with NICU care etc. to try to ensure survival, and, as you mention, it cannot be considered a miscarriage if the baby subsequently dies.

But at any stage from implantation to birth, it is an "unborn child," as opposed to a legal "person," and has a right to life as per article 40.3.3, with due regard also to the mother's right to life.

seamus

My understanding (and I'm open to correction) is that it isn't a legal "person" until birth. It reaches the threshold of viability at 24 weeks, meaning that if it born after this time doctors are obliged to provide the newborn with NICU care etc. to try to ensure survival, and, as you mention, it cannot be considered a miscarriage if the baby subsequently dies.

OK; genuine question here:
Complications can develop in the womb which put the child (but not the mother) in danger and does not trigger labour/miscarriage/natural abortion.
Are doctors required to intervene and save the foetus;
a. before 24 weeks
b. after 24 weeks

?
Or to put it another way - if a mother was told that her 30-week foetus was about to die and must be saved, can she refuse treatment without legal recourse?

Breezer wrote: »

But at any stage from implantation to birth, it is an "unborn child," as opposed to a legal "person," and has a right to life as per article 40.3.3, with due regard also to the mother's right to life.

But can rights be conferred on anything which is not a legal person?

(Note that companies, etc, are considered "legal persons")

I'm not actually arguing here that I'm correct, simply pointing out that there's an issue with the constitution where if you say it's possible to confer rights on the unborn child, then that extends all the way back to conception. On the other hand, if rights can only be assigned to legal entities, then at least we have a definite point in which a legal entity exists.