By Ivana Bacik, Spokesperson for the Safe and Legal (in Ireland) Abortion Rights Campaign
The State has displayed scant regard for the reproductive health rights of women and men facing difficulties with conception – and scant regard for the rights of any children born as a result of assisted human reproduction techniques.
Reproductive rights are recognised as human rights in international law. This was explicitly affirmed in the Programme of Action agreed at the International Conference on Population and Development in Cairo in 1994, where a definition of “reproductive health rights” was developed, to include the right to sexual health; the right of access to safe, effective and affordable family planning methods; and the right to appropriate healthcare services to enable safe pregnancy and childbirth. This holistic approach to reproductive health has been confirmed in many other international treaties and covenants.
In Ireland, however, law and policy on reproductive health falls far short of the rights-based approach advocated at international level. In particular, women’s reproductive health is jeopardised by the lack of access to legal abortion in this country. The 1992 X case established that abortion is only legal in Ireland where the woman’s life is at risk due to the continuation of her pregnancy, and in all other circumstances abortion remains a criminal offence. As a result, thousands of women are forced to travel abroad each year in order to avail of terminations of pregnancy in other EU countries.
Abortion is illegal here, even where women are pregnant as a result of rape or incest; face severe health risks from continuing pregnancy; or find that they are carrying a foetus with severe disabilities. Incredibly, it is denied even to those women in the deeply traumatic position of being told that their baby will be stillborn. Such unfortunate women must either carry their pregnancy to term in Ireland, knowing their baby has died; or travel to England for a termination.
By contrast to the extremely restrictive law on abortion, legal regulation of assisted human reproduction is notably lacking. The Government-appointed Commission on Assisted Human Reproduction produced a comprehensive report in 2005, recommending the need for legislation to deal with issues around infertility treatments, donor programmes, surrogacy, legal parentage, and stem-cell research. Despite the sensible approach taken by the Commission, and the need for urgency due to the existence of unregulated services here, no legislation has been forthcoming. The State has displayed scant regard for the reproductive health rights of women and men facing difficulties with conception – and scant regard for the rights of any children born as a result of assisted human reproduction techniques.
The Government must now begin to take reproductive health more seriously; especially as it is becoming increasingly likely that we will be held accountable internationally for any further inaction. In July 2005, the Committee to monitor compliance with the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) expressed its concern about the consequences of the “very restrictive abortion laws” in Ireland, and called for “a national dialogue on women’s right to reproductive health, including on the very restrictive abortion laws”.
In a landmark decision in November 2005, the UN Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, gave its decision in a case taken by human rights groups on behalf of a young Peruvian woman who was forced by state officials to carry a fatally impaired foetus to term. The decision established that denying access to legal abortion violates women’s basic human rights – the first time an international human rights body had held a government accountable for failing to ensure access to legal abortion.
There are obvious lessons for Ireland in this decision. Irish law on abortion has already been raised before the European Court of Human Rights in Strasbourg. In a 1992 case taken by Open Door Counselling and the Dublin Well Woman Centre Ltd., the Court declared that the ban on providing information about abortion clinics in England was an interference with the right to freedom of expression under the Convention.
Since then, information on abortion has become legally available, and the establishment of the Crisis Pregnancy Agency in 2001 has brought about greatly increased access to counselling for pregnant women generally.
But other cases taken against Ireland, dealing directly with the ban on abortion, have recently been initiated before the Strasbourg Court. In D v. Ireland, the applicant argued that her Convention rights were violated because she could not get an abortion under Irish law, although she was carrying a foetus with a severe abnormality incompatible with life. The Court ruled in 2006 that she should have litigated that particular issue before the Irish courts.
In August 2005, a group of three women living in Ireland – all of whom had recent experience of a crisis pregnancy, involving a much broader range of circumstances than those at issue in D’s case – lodged a complaint before the Strasbourg Court, facilitated by the Irish Family Planning Association. They argue that the prohibition on abortion has violated their rights to privacy and to freedom from inhuman and degrading treatment, among other things. Their case has not yet been heard.
Around the world, individuals are coming forward in increasing numbers to challenge violations of their human rights before international courts and institutions. Our Government should take notice of this important development, and act without delay to implement a rights-based policy for reproductive health.
Ivana Bacik, Barrister, Reid Professor of Criminal Law, Criminology and Penology, Trinity College Dublin and independent candidate for the Seanad election 2007 on the Dublin University panel is Spokesperson for the Safe and Legal (in Ireland) Abortion Rights Campaign.
This article appeared in the Irish Medical News on February 12th 2007