Will the European Court of Human Rights force Ireland to introduce abortion ‘on demand’?

To date, the European Court of Human Rights has said that it is up to every individual state to decide whether and, if so, when to allow for lawful abortion.

In states where abortion is legal on limited grounds, the state must make sure that women who are legally entitled to access an abortion are able to do so in practice. For example, the state must take steps to ensure that women do not experience unnecessary delays in accessing treatment.

It is extremely unlikely that this will change in the foreseeable future, especially as international human rights law does not recognise a right to abortion ‘on demand’. Instead, it establishes a right to access abortion in cases of rape, incest, and ‘fatal foetal anomaly’.


The European Convention on Human Rights does not protect a general right to access abortion (Vo v France (2014); A, B & C v Ireland (2011))

According to the European Court of Human Rights, there is no consensus on when life begins (Vo v France (2014)). As a result, it is up to every country to decide for itself whether and when to allow lawful abortion.

If abortion is legal it must be practically accessible.  In 2011 the European Court of Human Rights found that Ireland was in breach of the European Convention on Human Rights because there was no law to regulate how women could access their constitutional right to abortion where life is at risk (A, B & C v Ireland (2011)). This led to the introduction of the current law: the Protection of Life During Pregnancy Act 2013 (see explanation here).

It is possible that this will change in the future. The meaning of the European Convention on Human Rights evolves over time as science, society, and national laws change.

However, even if the law does evolve in this way it is extremely unlikely that it will develop into a right to access abortion ‘on demand’. This is not recognised as a right in international human rights law, which only protects the right to access abortion in cases of rape, incest, and ‘fatal foetal anomaly’ (see explanation here).

No country in the world recognises a right to access abortion without restriction; instead, restrictions (such as time limits, or grounds) are permitted in every jurisdiction. This is true even in Canada, for example, where there is no national law regulating abortion (explainer).

It is practically unforeseeable that the European Court of Human Rights will ever decide that there is a human right to abortion ‘on demand’. Over time, it may develop a right to access abortion in cases of risk to life, health, and in situations of ‘fatal foetal anomaly’, but there is no indication to date of any such development.

Further Reading

Human Rights Watch, Q&A: Human Rights and Abortion (2017)

A, B & C v Ireland (2010) (& explainer)

Vo v France (2014)

European Court of Human Rights Press Unit, “Reproductive Rights: Factsheet” (2018)

Leah Hoctor, Compilation of Legal Provisions on Abortion in 46 European States (Information Provided to Joint Oireachtas Committee)

 

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