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.
Table of Contents
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?
Conclusion
Research Objectives and Themes
This research aims to critically examine the extent to which the European Court of Human Rights (ECHR) has adopted a pro-life or pro-choice approach in its jurisprudence regarding abortion, particularly by analyzing how the Court balances the competing rights of the foetus, the woman, and the State.
- The intersection of foetal rights and legal personhood under the European Convention on Human Rights.
- The application of Article 2 (Right to Life) and Article 8 (Right to Privacy) in abortion-related jurisprudence.
- The influence of the "margin of appreciation" doctrine on national approaches to abortion.
- The development of the "Triad of Rights" as a framework for understanding competing interests.
- Analysis of landmark cases involving abortion, reproductive rights, and fathers' rights.
Excerpt from the Book
2.1 European Court of Human Rights: Art 2 & Art 27 – A ‘Battle of Foetal Life and Standing’
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.”
Despite the applicant in X not seeking an abortion, (similar to X v Norway), 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.
Summary of Chapters
Chapter 1: Introduction: This chapter defines the scope of the research, introduces key concepts like foetal rights, abortion, pro-life and pro-choice definitions, and sets the critical framework for the analysis.
Chapter 2: The European Convention On Human Rights: This chapter analyzes the ECHR’s jurisprudence regarding Articles 2 and 8, examining case law to determine if the Court favors a pro-life or pro-choice stance and investigating rights of fathers in this context.
Chapter 3: The European Court of Human Rights.: This chapter explores the Court's application of the margin of appreciation doctrine and how it navigates conflicting moral, cultural, and societal views on abortion across different member states.
Conclusion: The conclusion synthesizes the findings, arguing that the Court maintains neutrality by prioritizing case-specific circumstances and introduces the "Triad of Rights" theory to explain the interconnected interests of the parties involved.
Keywords
Abortion, European Court of Human Rights, Article 2, Article 8, Foetal Rights, Pro-life, Pro-choice, Margin of Appreciation, Legal Personality, Locus Standi, Human Rights, Reproductive Rights, Bodily Autonomy, Triad of Rights, Jurisprudence
Frequently Asked Questions
What is the primary focus of this research paper?
The paper examines whether the European Court of Human Rights has adopted a pro-life or pro-choice approach in its rulings on abortion and how it balances the rights of the foetus, the woman, and the State.
What are the central themes discussed in the work?
The central themes include the interpretation of "Right to Life" (Art 2) and "Right to Privacy" (Art 8), the legal standing of a foetus, the doctrine of margin of appreciation, and the competing interests of parents and the State.
What is the central research question?
The paper investigates to what extent the Court's jurisprudence grants legal rights to foetuses and why the Court often avoids a definitive pro-life or pro-choice stance.
Which scientific or legal methods are utilized?
The research employs a legal analysis method, evaluating seminal ECHR case law through a critical lens and proposing a new legal theory ("Triad of Rights").
What is covered in the main body of the paper?
The main body analyzes specific case law such as X v Austria, Vo v France, and A, B and C v Ireland to evaluate how the Court applies various Convention Articles to abortion scenarios.
Which keywords best characterize this work?
Key terms include ECHR, abortion, pro-life, pro-choice, Article 2, Article 8, and the margin of appreciation.
What is the "Triad of Rights" theory mentioned in the conclusion?
It is a new legal theory introduced by the author to illustrate that the rights of women, the foetus, and the State are inextricably linked in the abortion debate, necessitating the Court's neutral position.
How does the Court handle the "margin of appreciation" in abortion cases?
The Court uses this doctrine to allow signatory States to reflect their own cultural and theological morality, which the author argues is a judicial tool used to avoid taking a definitive stance on the issue.
How are fathers' rights addressed in the context of abortion?
The author argues that fathers' rights are treated as a peripheral issue and are generally excluded, as the woman's right to bodily autonomy under Art 8 is viewed as paramount.
- Citar trabajo
- Reece Wilkes (Autor), 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?, Múnich, GRIN Verlag, https://www.grin.com/document/387034
