The UN Human Rights Committee has on two occasions found that Ireland’s law on abortion has caused women to suffer cruel, inhuman or degrading treatment.
On 12 June 2017 the UN Human Rights Committee found that the Irish State had violated Siobhán Whelan’s right to be free from torture and other forms of cruel, inhuman or degrading treatment after she was forced to travel to Liverpool for an abortion at 21 weeks and five days of pregnancy, following a diagnosis of fatal holoprosencephaly.
Ms. Whelan reported feeling totally isolated during this time. She had been told that in another country she would be offered a termination but in Ireland she would have to “continue with the pregnancy, attend ante-natal appointments ‘as normal’ and wait for nature to take its course.” She reported “feeling like a criminal” whilst travelling, as well as being unable to process her grief owing to being consumed by the travel arrangements.
The committee noted:
“[Ms Whelan] was in a highly vulnerable position after learning that her much-wanted pregnancy was not viable. As documented in the psychological reports submitted to the Committee, her physical and meant situation was exacerbated by the following circumstances arising from prevailing legislative framework in Ireland and by [her] treatment by some of her health care providers in Ireland”
The Committee further stated:
“[…] much of the suffering [she] endured could have been mitigated if she had been allowed to terminate her pregnancy in the familiar environment of her own country and under the care of health professionals whom she knew and trusted; and if she had received necessary health benefits that were available in Ireland, which she would have enjoyed had she continued her non-viable pregnancy to deliver a stillborn child in Ireland”
In 2016, the UN Human Rights Committee found that Ireland had subjected Amanda Mellet to cruel, inhuman or degrading treatment contrary to Article 7 of the International Covenant on Civil and Political Rights.
In 2011, in her 21st week of pregnancy, Amanda Mellet was informed that the foetus she was carrying had congenital heart defects. A week later, she was informed that the foetus had trisomy 18 and would die in utero or shortly after birth.
Due to the Eighth Amendment, Ms. Mellet was confronted with two options: carrying to term, knowing that the foetus would most likely die inside of her, or having a termination of pregnancy in a foreign country. For weeks after learning that her foetus was dying, Ms. Mellet reported feeling tormented by the question of whether the foetus had died inside her, and the fear that she would go into labour and give birth, only to subject her child to suffering and watch it die.
Ms. Mellet flew to Liverpool and received medication at the Women’s Hospital to induce labour. Still feeling weak and bleeding, she had to travel back to Dublin only 12 hours after the delivery as she and her husband could not afford to stay longer in the UK. After her return to Dublin, Ms. Mellet received no aftercare, although she felt that she needed bereavement counselling to cope with the loss of her pregnancy and the trauma of travelling abroad for pregnancy termination. Counselling was offered to couples who had suffered a spontaneous stillbirth but not to those who had chosen to terminate the pregnancy as a result of fatal foetal impairments.
The UN Human Rights Committee highlighted that Ms. Mellet’s wanted pregnancy was not viable, that the only options open to her (travel or carry the pregnancy to term) were inevitably a source of intense suffering, and that her travel abroad to terminate her pregnancy had significant negative consequences for her that could have been avoided if she had been allowed to terminate her pregnancy in Ireland.
Significantly, the Committee found that Ireland’s restrictive abortion law, in itself, is a violation of human rights stating:
“the fact that a particular conduct or action is legal under domestic law does not mean that it cannot infringe article 7 of the Covenant. By virtue of the existing legislative framework, the State party subjected the author to conditions of intense physical and mental suffering.”
The ICCL believes that the cases of Ms Y and X are also instances where the State caused cruel, inhuman or degrading treatment.
In March 2014 Ms Y travelled to Ireland seeking asylum from violence in her home country. She stated that prior to arriving in Ireland she had been kidnapped, held against her will, beaten and repeatedly raped by the head of a paramilitary organisation. Upon arriving in Ireland a medical exam indicated she was pregnant. Ms. Y received support from three different charitable organisations (but, remarkably, not one statutory body) in her attempts to obtain the paperwork necessary to obtain a visa to travel to the Netherlands.
As her pregnancy advanced and she did not receive her visa, Ms Y became increasingly distressed. On 22 July, as she approached the 24-week limit for legal abortion in the Netherlands, she visited a GP and told him she was suicidal. She was transferred to a mental health hospital where she was informed it was too late for an abortion. She began to refuse food and liquids, saying that she wanted to die, and was threatened with involuntary detention at the mental health institution. She was transferred to a maternity hospital where she continued to refuse food and liquid. On 28 July, following intervention by a second psychiatrist, a plan to deliver the foetus by Caesarean section on 3 August was devised. Ms Y agreed on condition that she would not see the baby after the birth and began to take fluids. However, the HSE sought legal advice leading to the operation being postponed and Ms Y again refused fluids. Legal proceedings were thus heard at the hospital. She remained on hunger strike until 6 August when, at 25 weeks gestation, a baby boy was delivered by Caesarean section and taken into state care.
The X case
In December 1991, a 14-year-old girl became pregnant as a result of rape, in the infamous case that would become known as the “X case”. When her parents found out they arranged for her to have an abortion in the UK. They reported the rape to the Gardaí and asked whether it would be possible to have scientific tests carried out on the retrieved foetal tissue with a view to determining the identity of the rapist. The Director of Public Prosecution (DPP) was consulted and he in turn contacted the Attorney General (AG). Following an application by the AG the court issued an interim injunction ex parte. This injunction restrained the girl from travelling outside Ireland or from arranging or carrying out an abortion. The family returned home to fight the injunction.
On 17 February, a high court judge ruled that the injunction prohibiting the girl travelling for an abortion should be extended until the birth. This was despite hearing evidence that the girl was suicidal owing to the pregnancy. Having weighed the evidence regarding the girl’s life versus the foetus’ life, as dictated by the 8th Amendment, the judge came to the following conclusion:
“the risk that the defendant may take her own life, if an order is made, is much less and of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made…. having had regard to the rights of the mother in this case, the court’s duty to protect the life of the unborn requires it to make the order sought.”
In March 1992, the Supreme Court overturned the decision of the High Court and allowed the girl to travel to London for an abortion on the basis that there was a “real and substantial risk” to the life of the girl. It is understood that she later miscarried.
Subsequent to this case, the “right to travel” for an abortion was enshrined in the Constitution. The ruling also clarified that abortion is legal where there is a “real and substantial risk” of the loss of the woman’s life, including by suicide, but legislation to clarify the parameters of this right came only 21 years later, with the Protection of Life During Pregnancy Act 2013.