In the Matter of the Law on Termination of Pregnancy in Northern Ireland

The Northern Ireland Human Rights Commission (“Commission”) brought an application alleging that the rights of women in Northern Ireland who are or become pregnant with a serious malformation of the fetus (SMF), fatal fetal abnormality (FFA) or who are pregnant as a result of sexual crimes were being breached by Section 58 and Section 59 of the Offences against the Person Act 1861 (1861 Act) and Section 25 of the Criminal Justice Act (1945 Act). Sections 58 and 59 stipulated criminal sanctions and fines for procuring drugs and using instruments to cause an abortion. Section 25 ordered life imprisonment for the destruction of a child capable of being born alive.

The Commission sought a declaration that these laws breached Article 3 (prohibition on torture and inhuman or degrading treatment), Article 8 (right to respect for private and family life), and Article 14 (prohibition on discrimination) of the European Convention on Human Rights (“Convention”).

The Court held that the provisions breached Article 8 of the Convention only by the absence of exceptions to the general prohibition on abortions in the cases of FFAs and pregnancies resulting from sexual crimes, up to the date when the fetus becomes capable of existing independently of the mother. In the case of FFAs, the court held that there is no human life to protect and it is not proportionate to refuse to provide an exception to criminal sanctions. Sexual crimes violate the personal autonomy of a woman. Consequently, the court held that the provisions prohibited abortion for innocent victims in a way that ignores their circumstances. In the case of SMF, the Court held that, given the possibility that a child with an SMF may be born and enjoy life, the failure to provide an exception for SMFs under the impugned provisions was proportionate.

The Court added that when a fetus becomes capable of existing independently of the mother, it is in  counter-balance with the rights of the mother. In those circumstances, the prohibition of abortion under the 1945 Act is not disproportionate.

The Court further held that the legislation did not breach Article 3 of the Convention, which provides absolute protection against inhuman and/or degrading treatment. Article 3 imposes a negative obligation on a state preventing it from inflicting ill-treatment and a positive obligation to take appropriate measures to prevent individuals from suffering ill-treatment at the hands of third parties. In the case of SMA, FFA or sexual crime, the Court observed that the status of the pregnancy was not of the State’s doing. Moreover, the State did not prevent pregnant women from traveling to England for abortions.

Because the Court found a breach under Article 8 – a substantive article – it did not consider the Article 14 claim.

“Mindful that the State's obligations under Article 3 are primarily negative, and that we are dealing solely with the additional stress of pregnant women having to travel to England for an abortion, there is no convincing evidence before me that there are victims or potential victims within any of the three categories, which are the subject of this application, who are able to satisfy the minimum threshold of severity necessary to allow a Court to conclude that there has been a breach of their Article 3 rights. The ‘thin end of the wedge’ or ‘slippery slope’ argument also cannot be ignored. There is no reason to dismiss the possibility that a young woman who has become pregnant as the result of a consensual relationship due to an error on her part or a contraceptive malfunction, might also suffer a similar amount of additional stress of having to travel far from her family incurring substantial expenses in order to have her pregnancy terminated in England. It all depends on the psychological make-up and personal circumstances of the woman concerned.” Para. 121.

“As discussed, a normal foetus does not have an Article 2 right to life, although it does have some statutory protections. But in the case of an FFA, there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is nothing to weigh in the balance. There is no human life to protect. Furthermore, no evidence has been put before the court that a substantial section of Northern Ireland's community, never mind a majority, requires a mother to carry such a foetus to full term. Therefore, even on a light touch review, it can be said with a considerable degree of confidence that it is not proportionate to refuse to provide an exception to the criminal sanctions imposed by the impugned provisions in this particular case.” Para. 160.

“Further, there can be no doubt as I have observed that the current law places a disproportionate burden on the victim of sexual crime. She has to face all the dangers and problems, emotional or otherwise, of carrying a foetus for which she bears no moral responsibility but is merely a receptacle to carry the child of a rapist and/or a person who has committed incest, or both. For many weeks after the unlawful impregnation the foetus remains incapable of an existence outside the mother's womb. The law makes no attempt in those particular circumstances to balance the rights of the woman. In doing so, the law is enforcing the prohibition of abortion against an innocent victim of a crime in a way which completely ignores the personal circumstances of the victim. Weighed in the balance is the foetus, incapable of an independent existence for many weeks into the pregnancy. By imposing a blanket ban on abortion, reinforced with criminal sanctions, it effectively prevents any consideration of the interests of any woman whose personal autonomy in those circumstances has been so vilely and heinously invaded. A law so framed, can never be said to be proportionate.” Para. 162.