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 stage. The doctor had been acquitted of causing unintentional harm on the ground that the foetus was not at that stage a person. Complaint was made that this involved a breach of article 2.
Held: After considering the previous case law and in the circumstances examined to date, under various national laws on abortion, the unborn child is not regarded as a person, directly protected by article 2. However, it went on to leave open the possibility that in certain circumstances certain safeguards might be extended to the unborn child.
The Court explained that it declined to hold that the unborn foetus is directly protected under Article 2 ; ‘It follows from this recapitulation of the case law that in the circumstances examined to date by the Convention institutions – that is, in the various laws on abortion – the unborn child is not regarded as a ‘person’ directly protected by Art.2 of the Convention and that if the unborn do have a ‘right’ to ‘life’, it is implicitly limited by the mother’s rights and interests. The Convention institutions have not, however, ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child. That is what appears to have been contemplated by the Commission in considering that ‘Article 8 ss 1 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother’ and by the Court in the above-mentioned Boso decision. It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-a-vis an unborn child . . As is apparent from the above recapitulation of the case law, the interpretation of Art.2 in this connection has been informed by a clear desire to strike a balance, and the Convention institutions’ position in relation to the legal, medical, philosophical, ethical or religious dimensions of defining the human being has taken into account the various approaches to the matter at national level. This has been reflected in the consideration given to the diversity of views on the point at which life begins, of legal cultures and of national standards of protection, and the state has been left with considerable discretion in the matter, as the opinion of the European Group on Ethics at Community level appositely puts it: ‘the . . Community authorities have to address these ethical questions taking into account the moral and philosophical differences, reflected by the extreme diversity of legal rules applicable to human embryo research . . It is not only legally difficult to seek harmonisation of national laws at Community level, but because of lack of consensus, it would be inappropriate to impose one exclusive moral code.’
It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that states should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention, a ‘living instrument which must be interpreted in the light of present-day conditions’. The reasons for that conclusion are, first, that the issue of such protection has not been resolved within the majority of the Contracting States themselves, in France in particular, where it is the subject of debate and, secondly, that there is no European consensus on the scientific and legal definition of the beginning of life.’
Wildhaber P
53924/00, [2004] ECHR 326, (2005) 40 EHRR 12, (2004) 79 BMLR 71, [2004] 2 FCR 577, [2005] Inquest LR 129, 17 BHRC 1, (2005) 40 EHRR 12
Wordlii, Bailii
European Convention on Human Rights 2
Human Rights
Cited by:
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Rabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
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 – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.198607