International Human Rights Law Supports Women's Case

Irish Independent Dearbhail McDonald

Any efforts by the Irish Government to prevent Miss D from terminating her pregnancy could invite further legal action in Europe and international courts. Miss D is not the only mother-to-be carrying a foetus with the fatal brain condition anencephaly to face legal opposition to her request to have a termination.

Babies born with anencephaly die within hours or days after birth, but because the condition poses no risk to the life of the mother it is not, under current legislation a ground for legal abortion in Ireland.

Unlike Ireland, therapeutic abortions are legal in Peru. But when that country forced a 17 year-old girl to carry her unborn baby, who had anencephaly, to full term, it was forced to compensate her and adopt regulations to guarantee access to legal abortion.

KL v. Peru was the first abortion case to be heard by the United Nations Human Rights Committee (UNHRC). KL, a 17 year old girl, was forced by state officials to carry her fatally impaired foetus to term in 2001. Fourteen weeks into the pregnancy, doctors at a public hospital in Lima diagnosed the foetus with anencephaly, but because Peru had failed to adopt clear regulations, women there are at the mercy of public officials and KL was denied an abortion by the hospital's director. She was later forced to breastfeed the infant for the four days it survived.

Two years ago, the UNHRC, which monitors countries compliance with International Covenant on Civil and Political Rights- to which Ireland is a party- found that KL's right to be free from inhuman and degrading treatment had been violated.

It found Peru liable for denying KL's access to an abortion she needed to avoid a risk of serious harm to her health- harm associated with being forced to continue a pregnancy involving foetal anencephaly. It was the first time that an international human rights body has held a national government accountable for failing to ensure access to abortion.

Last March, the ECHR awarded €25,000 to a Polish woman after it ruled that her human rights were breached because Poland has no effective legal framework that enables a pregnant woman to assert her right to an abortion on medical grounds.