The Foetus and The European Court of Human Rights. To what extent has the European Court of Human Rights adopted a pro-life approach in its jurisprudence on abortion?

Master's Thesis, 2017

42 Pages, Grade: Merit




Chapter 1: Introduction

1.0 – Issues to be addressed and scope of research

1.1 What are foetal rights?

1.2 What is Abortion?

1.3 What does pro-life mean?

1.4 What does pro-choice mean?

Chapter 2: The European Convention On Human Rights

2.0 The European Convention on Human Rights: Brief Overview

2.1 European Court of Human Rights: Art 2 & Art 27 – A ‘Battle of Foetal Life and Standing’

2.2 The Right to Life (Art 2): A Foetal Pro-Life Instrument for the ECHR?

2.3 The Right to an Abortion & Practice: Art 8, Pro-life or Pro-Choice?

2.4 Fathers Rights – A Pro-Life or Pro-choice Approach?

Chapter 3: The European Court of Human Rights.

3.0 A Court of Margins and Morals?











The issue of abortion has always remained a taboo, not only socially but many legal systems have different attitudes towards it. With the creation of the European Convention on Human Rights and a Court of last resort to deal with alleged breaches by the State came the expectation that it had to deal with this pertinent issue due to States refusing to legalise abortion or limiting access to it. This paper considers the extent to which the Courts jurisprudence has adopted a pro-life approach and if so, why. The paper reveals that there are competing interests, namely between three parties: The foetus, the woman and the State and that the Court has had to balance its judgements carefully, depending on the circumstances of each case, without intruding on a woman’s right to privacy under Art 8. It concludes that the Court has tried to stay as neutral as possible when dealing with cases on abortion, presumably understanding the contentions that would be raised if it is overly eager to appease one party over the other. This necessitates a new legal theory which is necessary due to the competing interests of each party over the other.


Contained within the paper, a new legal theory named “The Triad of Rights” is created which shows how women’s rights, foetal rights and State rights are unable to be dissociated from each other on the issue of abortion, indicating why the Court tries to stay as neutral as possible


Chapter 1: Introduction


My body is but wax and wick for flame. When the candle burns out, the light shines elsewhere.”


The Egyptian Book of the Dead [Translated to English][1]


1.0 – Issues to be addressed and scope of research


The issues to be addressed and those contained in the scope of this paper is the extent to which the European Court of Human Rights has approached the issue of abortion from a pro-life perspective. Pro-choice theory however, will need to be considered to provide ripe analysis and to provide counter claims towards the question to give a balanced view of how the current Courts jurisprudence stands to date. The issues surrounding women’s rights will also be considered, due to the concept of foetal rights overlapping with a woman’s right to choose and to have self-determination over her body, especially under the right to a private and family life (Art 8). By doing so, it will assist in using a critical lens to critique the cases of the Court and to provide understanding as to whether the Courts jurisprudence grants foetuses, in part or full, legal rights.


1.1 What are foetal rights?


The concept of foetal rights according to Roden involve a moral and ethical right to life, together with the philosophical issue of ‘personhood’.[2] Personhood is the quality of being an independent agent that is self-aware and has self-introspection. The legal conception of personhood can be considered to relate to the mere state of “in being” or in existence.[3] However, such general definition is not unanimous within textual vocabulary. Indeed, Farlex Legal Dictionary defines foetal rights under a developmental timeframe as those attained by a “[developing] human from roughly eight weeks after conception to birth.”[4] Suggesting that foetal rights are only attained after a set period of being within the womb.


1.2 What is Abortion?


Abortion, for the purpose of this paper, is to be defined within the prerogative of a developing foetus, from conception until birth that is intentionally destroyed by the actions of an external party. Indeed, section 1 of the Oxford Living Dictionaries (OLD) stipulates abortion is ‘The deliberate termination of a human pregnancy, most often performed during the first 28 weeks.’[5] In contrast to the OLD, Ryrie considers abortion in a generalised scope of the "expulsion of the human foetus ... before it is capable of surviving outside the womb,"[6] which includes a natural abortion – a miscarriage.


1.3 What does pro-life mean?


The belief of a pro-life persuasion on abortion, is that the foetus, as a potential human life has rights (legal and moral) and that this ‘right to life’ attains a higher ethical value than a woman’s right to self-determination of her body.[7] The belief focuses on that a ‘deprivation of life’ is morally deplorable as opposed to the denial of bodily self-deterministic rights of the carrier. The woman’s right to have ultimate legal control over how her body functions. The Cambridge English Dictionary defines pro-life as those “opposed to the belief that a pregnant woman should have the freedom to choose an abortion…”.[8] In contrast, scholar Sider contends that to be of a pro-life inclination is connected to a wider scope towards a theological “definition of life”[9] Debatably this implicates the philosophical question of ‘what is the meaning of life?’ prominently originate from religious texts such as Christian, Islamic and Judaism’s collective notion of “community”.[10] As we can seen there are conflicting beliefs and understanding as to what the definition of pro-life on abortion entails resulting in differences of belief as to why one is pro-life.


1.4 What does pro-choice mean?


Pro-choice as a moralistic belief is the belief that the woman should have bodily self-deterministic rights to how her body operates and the control over her reproductive functions. This is opposed to any alleged rights the foetus pertains. Indeed, Webster’s Dictionary defines it as “favouring the legalization of abortion”.[11] In contrast, the Cambridge Dictionary (CD) defines it as “supporting the belief that a pregnant woman should have the freedom to choose an abortion”.[12] Arguably, Webster’s definition inclines towards a legalistic approach due to its emphasis on ‘legalization’ whereas the CD adopts a ‘belief’ and ‘freedom’ towards the right of a woman to have an abortion, therefore disregarding consideration of the law and displaces it with moral philosophical standards. Despite these two conflicting legalistic and moral definitions, Macagno & Walton offer a view that an abortion on a pro-choice narrative involves a purely biological function in that “a...foetus that is removed as a clump of tissues that is a product of conception and… not… a human being”.[13] (A belief pro-choice advocates propagate). These three definitions provide a corroboration of materials to refer upon which invoke such legal issues as freedom of choice, freedom of belief, medical law and freedom to execute in accordance with one’s functional bodily operations.


Chapter 2: The European Convention On Human Rights


 “Fundamental violations of human rights always lead to people feeling less and less human.”


- Aung San Suu Kyi


2.0 The European Convention on Human Rights: Brief Overview


The European Convention on Human Rights derived off the ‘backbone’ of the Universal Declaration of Human Rights which was crafted after the aftermath of World War II. The Declarations primary intention was to negate any further atrocities similar to the armed conflict which occurred and to consolidate a set of principles that could be viewed as intrinsically and universally attached to all homo sapiens unconditionally. The European Convention on Human Rights however, provided a legal framework which included such principles, that could be called upon by those who’s rights had been breached within the signatory States. Indeed, its implementation in 1953, and creation of the European Court of Human Rights was primarily intended to set a legal framework of Articles to protect the right to life (Art 2) and the right to a private and family life (Art 8). The purpose of the Convention itself and the Court is to protect the individual from public/governmental intrusion.[14] However, the scope of the Convention as an instrument to negate serious human rights violations can arguably be applied to contemporary human rights, moralistic and societal issues outside the framework of atrocities committed on an international and national scale. Indeed, Suliga contends that “The European Convention on Human Rights and the decisions of the European Court of Human rights are undoubtedly important not only for the protection of human rights, but also for building democracy.”[15] Extending these modern values towards contemporary issues such as abortion and women’s rights, Jackman argues the Convention has been important to allow women to access abortion,[16] therefore going beyond its original purpose towards a pro-choice approach on abortion. The question then arises whether the Convention and, importantly the European Court of Human Rights considers the foetus to be granted legal rights and to what extent has the Court adopted a pro-life approach within its jurisprudence in its rulings.


2.1 European Court of Human Rights: Art 2 & Art 27 – A ‘Battle of Foetal Life and Standing’


To deny people their human rights is to challenge their very humanity.”


- Nelson Mandel


The legal status of abortion within European jurisprudence has evolved considerably since the introduction of a court of last resort on human rights issues. Indeed, in the seminal case of X v Austria (1976) the now defunct Commission examined the issue of a right to life for the foetus and whether those acting on their behalf have the legal right to do so under the Convention. In X the applicant complained that the immunity of persons(s) from legal proceedings whom intentionally “interrupt” a pregnancy within 3 months violated the Right to Life as provided by Art 2 (1) of the European Convention on Human Rights. However, on a technical aspect the Commission ruled pursuant to Art 25 of the Convention that the applicant must be ‘…personally affected by the application of the law…” and proceeded to state that:


The applicant cannot with regard to [the right to life] pretend to be a victim of violations of the Convention. The application is therefore ratione persone incompatible with the provisions of the Convention and must consequently be rejected under Art 27 (2) of the Convention.”[17]


Despite the applicant in X not seeking an abortion, (similar to X v Norway),[18] it is arguable that the Commission was ruling Art 25 (2) - of the Convention maintains a higher status than Art 2 (1) due to its refusal to consider whether the foetus has the right to life. By doing so, the Commission was focusing purely on the issue of locus standi and demonstrating the subordination of Art 2 to that who the Court considered to have legal standing under Art 25. Therefore, the Commission refused those who maintain a conscientious objection on abortion and wished to challenge it under Art 2 but could not due to being deprived of locus standi. Grubb stipulates that locus standi perhaps could be attained for third parties if the foetus had a right to life and a “legal personality”.[19] However, given that the Commission ruled in X that the applicant had no standing, the extent to which the Commission adopted a pro-life approach to abortion was frustrated due to Art 25 of the Convention viewed as paramount. This suggests the Commission considered the foetus lacked a right to life under the European Convention on Human Rights early on in its jurisprudence. However, the ruling in X is arguably in modern violation of McCann & Others v UK whereby the ECHR stated that “Article 2 ranks as one of the most fundamental provisions in the Convention”.[20] If indeed this was the case perhaps the applicant in X could, within recent jurisprudence case law, bring an action on Art 2, as a “fundamental provision”. On the contrary, McCann may suggest that X was in fact a correct ruling as the Commission perhaps was sending the message that a foetus lacks the right to life and as Grubb states, a “legal personality”, therefore such “fundamental provision” is not applicable to the foetus. In concert, Gerards’ asserts that “a definition of a fundamental right, [such as foetal rights], is not strongly concerned with the individual complaint”[21] suggesting that there is a dissociation between Art 2, Art 25 and foetal rights to begin with. This results in a conflict within the Convention on whether a foetus has a right to life, supporting the view that European jurisprudence has not adopted a pro-life approach based on a battle and confliction contained within the Convention and the triumph of Art 25 over Art 2.


The concept of legal personality, or legal personhood involves the ability to enter into legal relations and to be the subject of duties and rights within the judicial sphere. Indeed, a foetus itself is understandably not able to bring a case itself to the European Court of Human Rights primarily due to this reason. This is affirmed in the ‘Practical Guide on Admissibility Criteria’ for one to access the ECHR. Numerous criteria would undoubtedly prohibit a foetus from being granted a theoretical ‘abortion injunction’. For example, A (2) (b) of the criteria states that “A legal entity claiming to be the victim of a violation by a member State of the rights set forth in the Convention and the Protocols has standing before the Court only if it is a nongovernmental organisation”.[22] We can confidently conclude that a foetus is a nongovernmental organisation, however, we cannot do the same in saying that it is a legal entity for the purposes of locus standi. From a peripheral scope, but still staying within the remit of locus standi, ECHR and foetal rights the right for a non-legal personality has been considered to be valid. Indeed, in Valentin Câmpeanu v. Romania a youth with mental disabilities died. He was abandoned at birth, lived in public institutions for most of his life. On turning eighteen, he was sent to a mental hospital. Left in isolation, without health care and deprived of food and clothing, he died within seven days. In holding the Romanian government liable for breaching Art 2 the Court stated that:


[E]xceptional circumstances of [cases together with] the serious nature of the allegations… a representative… [may] act [for the deceased]…”[23]


Despite the Admissibility Criteria to access the Court, it is showing that it is willing to entertain cases where “exceptional circumstances” arise under Valentin. It would appear from the case of X of which we have previously examined that the current Courts jurisprudence does not consider exceptional circumstances to apply to foetuses. Under Valentin the Court has arguably taken, what could be termed a ‘locus standi pro-choice’ approach towards those in exceptional circumstances. Based on this line of argument, it would seem that the Court has acted under an ethical relativism approach, allowing certain issues it considers exceptional to ‘pass through the net’ and barring others. Nékám considers that “Everything … can [be] a subject [of legal rights], whether a plant or an animal [or a foetus]”[24] As Nékám states, if anything is objectively capable of obtaining legal rights, then the issue of whether foetuses have legal personality and thus standing is purely a legal relativist approach. Therefore, under legal relativism the ECHR has taken a pro-choice approach by barring foetuses from having third party representation and standing in order to stop their termination.


In analysis, the ECHR position in not allowing foetuses the right to have representation, legal personality and standing is not alone. Indeed, the UK, a signatory State to the Convention those born but suffered adverse effects due to negligence from their mothers whilst in the womb equally have no remedy. In CP (A Child) v First-tier Tribunal a child sought compensation due to suffering from Foetal Alcohol Syndrome whilst in the womb. In attempting to gain compensation from the Criminal Injury Compensation Authority, the appellant argued that the crime of administering “poison to any other person [with the] intent to endanger life or inflict Grievous Bodily Harm” had been committed. Therefore, he argued he was entitled to compensation. The Court of Appeal decided, on the interpretation of “any other person” that:


 “[T]he time at which harm… occurred was whilst CP was in the womb. At that stage the child did not have legal personality so as to constitute "any other person"[25]


The denial of rights by the ECHR and the UK towards the foetus demonstrate a wider scope to be considered within the pro-life/pro-choice universe. If a foetus truly lacks legal personality within the signatory States, one may conclude that they have as much legal rights as, for example as an inanimate object. The case of CP (A Child) is a pertinent ‘case study’ into how a signatory State to the Convention has approached the issue of legal personality towards foetuses and is arguably in line with a pro-choice approach; a women not only has the right to decide whether to terminate the pregnancy, but retains the right to negligently damage the foetus despite seeing it through to ascertain legal personality.


2.2 The Right to Life (Art 2): A Foetal Pro-Life Instrument for the ECHR?


“Did you not pour me out like milk and curdle me like cheese, You clothed me with skin and flesh and knit me together with bones and sinews?”


-Bible, Job 10:10


The right to life is not only the pinnacle of the European Convention on Human Rights as a legal instrument, but a concept that derives from deontology (obligatory) course of action under normative ethics that stipulate as independent agents we owe a duty under natural law not to commit murder or harm to another agent. The question then arises within the remit of this dissertation, as to whether the European Court of Human Rights could accept the foetus as coming under the remit of personhood in application to Art 2. This Article states that:


Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally…”[26]


Prima Face, the Article appears to adopt a pro-life approach by mentioning the word “life”, thus placing the Court in a position to protect all human life. Indeed, the word “Everyone” (also mentioned) can be interpreted in a ‘collective’ term which is synonymous with the word ‘associated’.[27] There can be no doubt that the foetus is ‘associated’ with the carrier of the foetus, indeed its very existence is wholly dependent on the carrier. Without the existence of the carrier the foetal tissue can no longer survive and the potentiality of life is lost. However, the Convention itself provides little help, with no definition to the term of “Everyone” suggesting that the court itself would not consider its applicability. The word was considered in Paton v UK whereby the consideration of the word “Everyone” concluded that other mentioning of the word only applied post-birth[28] therefore leading the Commission into a position where it could not cover developing tissue within the womb. The judgement in Paton suggests that the Court adopts a pro-choice approach and that even such a broad word as “Everyone”, does not place the Court in a position to take a pro-life approach. Perhaps to be more specific and in order to assist the Courts jurisprudence, the Article should state instead “Everyone born shall have their right to life protected by law.” The addition of the word “Born” would enable the Court to be clear on the applicability of the instrument and clarify its position entirely on the extent to which it is able to apply a pro-life approach. The current Art 2 omission of the word “Born” results in confusion as to its application therefore placing the Court in a difficult position due to its current wording being obscure in nature. Indeed, such obscurity makes it easy to be misled in the Courts application, and leads one to assume that the approach the Courts jurisprudence has taken is pro-choice rather than pro-life despite this seemingly not the case.


The Cambridge Dictionary defines “Everyone” as “Every person”[29] adding further confusion due to the conjuring of a new word entirely. Whether the foetus can be definitively considered a person was dealt with in the ground-breaking case of Vo v France (2004). In Vo, Mrs Vo underwent medical examination in her second trimester. However, a woman of the same surname was to have her medical coil removed from her anatomy at the same hospital on the same day. In Mrs Vo’s pregnancy, Vo had her amniotic sac punctured necessitating an abortion, however the doctor was not prosecuted due to the foetus not being considered a ‘person’. Mrs Vo brought a complaint to the European Court of Human Rights, prosecuting the French government for failing to apply Art 2 to the foetus. In their ruling, the Grand Chamber of the Court stated:


““The Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention.”[30]


In refusing to apply Art 2 to Vo, the court was placing a restriction on “whether the unborn child is a person” pursuant to Art 2. Indeed, the court was interestingly placing an emphasis on what constitutes a ‘person’[31] rather than dealing with the right to life – of which debatably appeared to be a supplementary issue within its judgement. Blacks’ Law Dictionary (BLD) defines a Natural Person as “A human being, naturally born…”[32] BLD’s definition appears prima facie to be in line with the ruling in Vo as the foetus was never “naturally born” and therefore could not be considered a ‘person’. However, the definition in BLD is defective as this would suggest that those contrived through cesarean section (an unnatural method) do not pertain any human rights at the point of being outside of the womb. Such proposition contrary to the Universal Declaration of Human Rights which states “All human beings are born free and equal in dignity and rights”.[33] As can be seen, the court has refused to apply Art 2 and indeed consider what actually constitutes a person in Vo. Legal dictionaries such as Blacks’ offer little help in discerning a comprehensive understanding of what a ‘person’ actual means or is. Indeed, it can be submitted that due to the ECHR’s failure in Vo to specify what specific ingredient is necessary to constitute a person, the Courts have neither adopted a pro-life or a pro-choice approach. In addressing the concept of legal personhood, Michoud states that “[In] legal science, the notion of person is…a purely juridical notion. The word signifies…rights [and] duties, a being capable of having the subjective rights properly belonging to him.”[34]


In considering the ECHR application of Art 2 to the foetus, Plomer argues that “…criminal laws [are] required… in cases involving intentional violence or harm to the woman causing the death of the foetus, [which] would [protect the] life interests of the foetus.”[35] Indeed, in line with Plomer, the Grand Chamber in Vo did state that Mrs Vo had a civil remedy under French law to begin with,[36] arguably asserting the proposition that the Court, to a slight extent, has adopted a pro-life approach. It did so by affirming an agent pre-meditating intentionally inducing an abortion against a woman’s consent can still be prosecuted under jurisdictional civil law, therefore acting as a deterrent non-consensual abortion. Indeed, civil law and compensatory measures are said to restitutio in integrum (place the claimant in the position prior to when the tort occurred).[37] However, such principle is questionable as a mother is unlikely to consider monetary damages on par with their developing child that has now been negligently/intentionally destroyed without her consent. Therefore despite the courts affirmation of a ‘civil deterrent factor’, moving towards a pro-life approach, such principle falls short of complete protection under the Courts jurisprudence, for it to be soundly stated that the Court has adopted a pro-life approach on abortion.


The Right to Life as a philosophical concept can be viewed as a pro-life instrument and thus the extent to which the court has adopted the concept would prima face appear to be in favour of a pro-life persuasion. Indeed, Burtons Legal Thesaurus (BLT) considers the belief in the right to life as being ‘against abortion, [and] diametrically opposed to abortion’.[38] Based on BLT, one may conclude that the right to life does apply towards the foetus and that it is an unrestricted Article. Indeed, Puppinck states that as the Court has acknowledged the silence on the right to life in the Convention, it must protect all “without any limitation or reduction of the temporal scope of the right to life”.[39] In Reeve v. The United Kingdom the applicant gave birth to a baby suffering from a congenital defect of the spine and hydrocephalus. In holding the health authority liable she instituted a claim for ‘wrongful life’ – a tort stipulating that had she known of the defect, she would have terminated the pregnancy. However, the Commission ruled that:


“… a doctor cannot be considered as being under a duty to the foetus to terminate it [as this would be] violating the sanctity of human life… the Commission finds that the restriction… pursues the aim of upholding the right to life.”[40]


Based on the Ruling in Reeve, BLT is satisfied as it focuses on the sanctity of life (a theological and philosophical instrument pertaining to the intrinsic value of human life) to adopt a pro-life approach. By explicitly mentioning the sanctity of life as a reason as to why the applicant was unable to proceed, the Commission was leaning towards a pro-life approach by placing the foetus with a disability on par with foetus’ without defect. In the US case of Speck v Finegold,[41] the Court in considering the quality of a right to life stated: “Whether it is better never to have been born at all rather than to have been born with serious mental defects is a mystery more properly left to the philosophers and theologians, a mystery which would lead us into the field of metaphysics . . .” However, the ECHR in Reeve did not take such view and immediately ruled out that foetuses with disabilities are of lesser value than those without leaning towards a pro-life approach. The ruling in the ECHR case, Reeve is consistent with the stipulations made in Streletz, Kessler & Krenz v. Germany whereby the court ruled that ““the right to life is an inalienable attribute of the human beings and forms the supreme value in the hierarchy of human rights”.[42] This ‘cements’ its position as holding the disabled and non-disabled foetus on an equal footing thereby directing the ECHR towards a pro-life approach for the protection of disabled foetuses.


Arguably, in combining the rulings of Reeve and Streletz one may conclude that “the right to life [as] an inalienable attribute of the human being” applies purely based on “pursu[ing] the aim of upholding the right to life”. Therefore, it would appear that the European Court of Human Rights adoption of a pro-life approach is based on the intrinsic value of being human and ensuring such value is upheld. Ouellette states that there is “variation” of the human and therefore such variations should be valued[43] however, she stops short of propagating such rulings as Reeve placing the right of the parent to choose their child traits above the rights of the foetus suggesting the applicability of Art 2 should be disregarded in cases purely where the foetus suffers a disability. As demonstrated in Reeve the Commission did not adopt such view, however it did lean towards a value based system, whereby the destruction of an entity (despite such defect) will unable to be replaced with the terminated one and therefore this creates value within itself. Indeed, the irreplaceability destroys the “aim” of upholding Art 2 and perhaps this is what the jurisprudence of the European Court of Human Rights was insinuating by conjuring up the philosophical concept of the sanctity of life. However, Yorke considers that in some instances the sanctity of life can be rejected for the purposes of Art 2 due to death “sometimes [being more] preferable to life”.[44] Thus the extent to which the Courts jurisprudence has adopted a pro-life approach appears to be two-fold, one that if the foetus has no health defects Art 2 seemingly does not apply. However, if the foetus has health defects the carrier is unable to terminate purely on that basis, insinuating a pro-life approach towards the foetus.


Article 2 has not only been examined by the Court solely at the foetal stage but has equally been considered in its application to embryonic material (a pre-foetal stage). Due to the embryo having a potentiality in becoming a foetus, this forms part of the scope of this paper and must be open to critique. Indeed, in the case of Evans v United Kingdom Ms Evans signed an agreement with her partner that she may use his sperm for fertility treatment with his consent, for future use. The couple separated and he withdrew his consent, barring her from fertilisation with his sperm. In arguing inter alia that the embryos right to life had been infringed under Art 2 the applicant contended that withdrawal of consent and destruction of the embryos would be incompatible with the Convention. In finding that the embryo does not have a right to life under Art 2, the Court stated:


[A]n embryo does not have independent rights or interests and cannot claim – or have claimed on its behalf – a right to life under Article 2.”[45]


Debatably by stating that embryos do not pertain “rights or interests” the Court was barring any future rights when the biological material enters the foetal stage.[46] In concert with this view Judge Wall ruling in the case, was of the opinion that the absence of foetal rights under Art 2 immediately strikes out the view that the embryo pertains such rights.[47] Zucca takes the view that “…[T]he Court will have to develop a more elaborate position on what it takes to be dilemmas [on abortion] and on how to treat horizontal conflicts of rights involving incommensurable interests.”[48] Arguably Zucca is correct as the Court in Evans purely viewed the issue on a ‘competition of rights’ between the man and the woman rather than examining the relation to how such competition can indirectly result in either a pro-life approach or a pro-choice approach. In Evans the Court was taking a pro-choice approach by explicitly declaring that Art 2 does not apply pre-foetal stage and that the contrast the parties signed must be respected. In examining Evans, Ford considers that “For feminists, comfort might… be taken from the fact that [in the] ‘maternal/foetal conflict’ model the embryo or foetus seems like a being who deserves our moral consideration and might have it but for the ‘obstacle’ of the maternal body, Evans provides grounds for supposing that, even were it possible to remove this obstacle from the equation, rights for embryos and foetuses would not necessarily follow.”[49] Fords consideration does hold weight as the Court in Evans was never faced with a right to direct interference with a woman’s bodily autonomy and but was still ruling on a pro-life and pro-choice issue on the potentiality of what could develop into a foetus. However, even by removing the competing interests of the mother and foetus this does not necessarily lead by default to a pro-life approach on abortion as we have seen in the case of Evans. Therefore the Court was taking a pro-choice approach in the absence of an implicating factor of women’s rights.


In contrast to the facts in Evans, the Court has dealt with a States refusal to allow two consenting adults, with no dispute over consent, wishing to proceed with artificial insemination treatment. In the case of Dickson v United Kingdom the complainants were serving prisoners. The wife was released; however her husband was serving time for murder and was to be released when his wife was the age of fifty – a fact the complainant argued would make it difficult for her to conceive once she had access to his sperm. In considering the case under Art 8, the Court found that there was a breach to right to respect for private and family life and stated:


[A]rtificial insemination facilities concerned [the complainants] private and family lives, which notions incorporate the right to respect for their decision to become genetic parents.”[50]


In looking at parents reproductive rights under a pro-choice lens, Robertson argues the importance of procreative liberty stating that it is “The freedom to have children or to avoid having them.”[51] Arguably, the Court has taken a procreative liberty stance which has led to both a pro-life and a pro-choice approach. Indeed, by allowing the complainants in Dickinson the right to fertility treatment, the Court was allowing the creation of a foetus and giving those outside the remit of free society the rights bestowed upon those outside of prison walls. Mulligan argues that pre-pregnancy issues and reproductive rights does not conjure up issues that abortion itself does.[52] However, this may be challenged as if one is restricted to execute their reproductive bodily functions, a foetus will not be created. It appears that the Court decided that this was indeed the case by enforcing a pro-life approach – those wishing for fertility treatment even when detained may have access to it to create a foetus. Dickinson demonstrates how the Court has adopted a pro-life approach, in extending the ability to people outside the confines of society.


2.3 The Right to an Abortion & Practice: Art 8, Pro-life or Pro-Choice?


Was he not a drop of [fluid], then a blood-clot which He created and shaped, making from it both sexes, male and female?”


- Qur'an, 75:37-39


The right to an abortion is the right to be able to maintain bodily autonomy and the right of the carrier to decide how one’s body operates once impregnated. Indeed, it covers the accessibility to abortion services and the right to access these services without hindrance. Such rights involve Art 8 – the right to a private and family life, an instrument stopping governmental intrusion upon one’s personal affairs. Indeed, in Tysiąc v. Poland the applicant suffered ophthalmic health issues, namely myopia. She was informed that the continuation of her pregnancy posed significant risk to her retina and therefore wished to abort the foetus. However, she was refused the termination and suffered a retinal haemorrhage rendering her visually impaired. In deciding the case from the perspective of Poland’s positive obligation to uphold Art 8 the Court held that:


Polish law… [was not] effective [and] capable of determining whether the conditions for obtaining a lawful abortion had been met. That created a situation of prolonged uncertainty for Ms Tysiąc and, as a result, she suffered severe distress and anguish… the Polish State had failed to safeguard Ms Tysiąc’s right to the effective respect for her private life and that there had therefore been a breach of Article 8.”[53]


The extent to which the European Court of Human Rights adopted a pro-life approach in Tysiąc is arguably non-existent. By ruling in favour of Ms Tysiąc’s the court was debatably placing Art 8 above that of Art 2. However, this was due to the competing interests of the carrier and foetus and the detrimental impact the continuation of the pregnancy caused on the mothers health. Argument has been put forth that the ruling “strengthened the platform of the pro-choice lobbyists” and resulted in the “defeat of constitutional amendments [in Poland seeking] to strengthen the protection afforded to an unborn child”[54] which demonstrates how the Court has had adopted a pro-choice approach as evidence by the ‘trickle down’ effect on subsequent legislative instruments on a jurisdictional level.


Despite the Courts ruling in Tysiąc and its pro-choice effect, the Court has not considered that abortion itself is protected under the Convention: There is no right to an abortion. Indeed, in Maria do Céu Silva Monteiro Martins Ribeiro v. Portugal[55] the Court did not accept that abortion should be allowed on demand and therefore the application was inadmissible. Based on Maria one can infer that the Court does not consider an unrestricted pro-choice approach appropriate due to it not being explicitly covered under the Convention. It is arguable that the Court considered Art 8 outside the remit of such a contentious issue based purely on the right to bodily autonomy. In contrast to Tysiąc the carrier was to suffer serious harm to her retina and therefore a pro-choice approach was necessary whereas under Maria a pro-life approach was necessary due to it being based on abortion on demand, an action the Court seemingly considered a luxury rather than a necessity.

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The Foetus and The European Court of Human Rights. To what extent has the European Court of Human Rights adopted a pro-life approach in its jurisprudence on abortion?
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Abortion, Law, Foetus, Right to life, Women's Rights, Feminism, ECHR, European Court of Human Rights, Art 2, Reece Wilkes, International Law, Fetus
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Reece Wilkes (Author), 2017, The Foetus and The European Court of Human Rights. To what extent has the European Court of Human Rights adopted a pro-life approach in its jurisprudence on abortion?, Munich, GRIN Verlag,


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Title: The Foetus and The European Court of Human Rights. To what extent has the European Court of Human Rights adopted a pro-life approach in its jurisprudence on abortion?

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