Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the readiness to abort foetuses with identified Down’s genes – more than 50% were aborted.
Held: Section 1(1)(d) does not interfere with the Claimants’ Article 8 rights nor did it fall within the ambit of Article 8 for the purposes of Article 14.
There is no positive decision of the European Court of Human Rights (or even the former Commission) which decides that a foetus is protected by the Convention rights, including in particular Article 3. In accordance with the Ullah principle, the domestic courts must follow the clear and constant jurisprudence in Strasbourg but, in the present context, the clear and constant jurisprudence is not in favour of the submission made
Lord Justice Singh and Mrs Justice Lieven
[2021] EWHC 2536 (Admin), CO/2066/2020
Bailii, Judiciary Summary, Judiciary
Abortion Act 1967 1(1)(d), European Convention on Human Rights, Infant Life Preservation Act 1929 1, UN Convention on the Rights of Persons with Disabilities 2006, Convention on the Elimination of Discrimination Against Women 1979, Congenital Disabilities (Civil Liability) Act 1976
England and Wales
Citing:
Cited – Paton v United Kingdom ECHR 1980
An abortion conducted in the tenth week of pregnancy was not condemned. The Commission construed Article 2 to be subject to an implied limitation to allow a balancing act between the interests of mother and unborn child. . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Attorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
Cited – Boso v Italy ECHR 5-Sep-2002
The applicant was married. In 1984 his wife, who was pregnant, decided to have an abortion despite his opposition. Her pregnancy was terminated on 10 October 1984.
On 8 November 1984 the applicant brought an action against his wife in the San . .
Cited – RR v Poland ECHR 26-May-2011
The applicant learned of possible malformation of the foetus from an ultrasound at the 18-week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not . .
Cited – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – SC, CB and 8 Children, Regina (on The Application of) v Secretary of State for Work and Pensions and Others SC 9-Jul-2021
The Supreme Court was asked to decide whether the ‘two child limit’, a provision of primary legislation which restricts payment of amounts of subsistence benefit for children to the first two children in a family, is incompatible with the . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – The Northern Ireland Human Rights Commission, Re Judicial Review QBNI 30-Nov-2015
The Court concludes that in Northern Ireland:
(i) There is no general right to abortion whether under the common law or under statute.
(ii) The Northern Ireland Human Rights Commission (‘the Commission’) has legal standing under the . .
Cited – Jepson v Chief Constable of West Mercia Police Admn 2003
An abortion had been carried out of a foetus which was of more than 24 weeks’ gestation. The foetus had been diagnosed as suffering from a bilateral cleft lip and palate. The abortion was carried out pursuant to section 1(1)(d) of the 1967 Act. The . .
Distinguished – Paton v British Pregnancy Advisory Service Trustees QBD 1979
Sir George Baker P said: ‘The case put to me finally by Mr. Rankin . . is that while he cannot say here that there is any suggestion of a criminal abortion nevertheless if doctors did not hold their views, or come to their conclusions, in good faith . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Carson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
Cited – Aksu v Turkey ECHR 15-Mar-2012
Dangers of negative sterotyping . .
Cited – McConnell and Another, Regina (on The Application of) v The Registrar General for England and Wales CA 29-Apr-2020
Whether the First Appellant, Alfred McConnell (whose name was at one time anonymised to TT), a transgender man and holder of a gender recognition certificate, is entitled to be registered as the ‘father’, or otherwise ‘parent’ or ‘gestational . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights
Updated: 11 November 2021; Ref: scu.668232