Abortion and Human Rights: legal developments in Europe may open the door to wider availability of abortion in Ireland.

THE EUROPEAN COURT OF Human Rights has been examining the abortion issue in two cases against Ireland and Poland. In D v. Ireland, the applicant was expecting twins. After a scan, she learned that one twin had died in utero. An amniocentesis test showed her other twin had trisomy 18, a fatal chromosomal anomaly. She wanted to terminate her pregnancy. Her doctors believed that was not possible in Ireland, so she traveled to the United Kingdom for a lawful abortion.

Tysiac v Poland concerns a severely myopic woman who was advised that continuation of her third pregnancy put her sight at risk. She obtained medical opinions from three ophthalmologists that the continuation of her pregnancy was a risk to her sight. Her general practitioner certified that a termination was justified, but a hospital gynecologist refused to perform it. After the baby was born, her sight deteriorated, and she is now registered disabled.

Ireland amended its Constitution in 1983 to read: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." In i992, the Supreme Court ruled that an abortion was permissible to save the life of a girl, pregnant as the result of rape, who was thought to be a suicide risk. When D got her diagnosis, it never occurred to her that she was eligible for an abortion on the same criteria. She complained to the European Court about the absence of legal provision for women in her situation.

Polish law permits abortion where a pregnancy results from rape or incest; where there is serious fetal abnormality; or where the woman's life or health is at serious risk. Tysiac complains that although Polish law permitted her an abortion in theory, she could not access one in practice. In particular, the doctors thought she could have an abortion only if it was certain that her sight would be damaged, and there was no effective means of reviewing their decision.

Both women invoked Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment; Article 8 on the right to respect for private life, and physical and moral integrity; Article 13 on the right to an effective domestic remedy for a breach of Convention rights; and Article 14, which prohibits discrimination. D also complained that a statutory prohibition preventing her obstetrician from making "an appointment or any other arrangement" for her abroad violated Article 10 on the right to give and receive information.

The European Court operates strict admissibility criteria: Over 90 percent of complaints fail at the admissibility stage. On June 27, it found Tysiac admissible, and it will rule on the merits in due course. But on July 6, 2006, a majority of the court ruled D inadmissible, stating that D had failed to exhaust local remedies. It is a principle of international law that, before applying to any international tribunal, a complainant must first seek local redress.

Tysiac initially tried to prosecute the doctors who refused her termination, and had complained to their professional bodies, unsuccessfully. But D had not sought any legal redress in Ireland. No official publication in Ireland had ever suggested that abortion for lethal fetal anomaly was constitutionally permissible. The European Court, which granted D's anonymity, was concerned to establish whether an Irish court could have protected her privacy, and given a speedy decision, if she had applied for a declaration once she got her diagnosis. It accepted that there was no point in seeking a retrospective ruling, after an abortion abroad.

The court said that D should have issued a plenary summons for an urgent in camera hearing to assess the judicial reaction to her plight, and in particular what measures it would take to protect her privacy. But the court also hinted at how an Irish court might rule on the merits: "There is, in the Court's view, a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and of the fetus could have shifted in favor of the mother when the 'unborn' suffered from an abnormality incompatible with life."

The government was vague about the measures an Irish court could take to protect a litigant's privacy, because the Constitution mandates a system of open justice unless the law provides otherwise, and there is no statute governing the situation. Nevertheless, the European Court considered that D should have been prepared to test the legal waters. It stated that an Irish court would need to ensure that a woman's confidentiality was protected.

It accepted the government's submission that an Irish judge would be unlikely to interpret Article 40.3.3 of the Constitution with "remorseless logic." The government's stance suggests that it no longer takes an absolutist position on abortion. For example, it suggested that an Irish court could rule in a matter of days, and would not expect a woman to pay the state's legal costs, if she lost.

This ruling may encourage the medical profession in Ireland to take a more proacrive role in supporting pregnant women with diagnoses like D's who wish to test the law. It is highly unlikely that such a woman would be prepared to disclose her identity, in the way that the applicant in Tysiac has.

In the United Kingdom, litigation over controversial medical decisions is quite common. The Family Division of the High Court in England and Wales routinely makes reporting restriction orders to protect the identity of patients and doctors in sensitive cases. Will Ireland follow this trend? While the court's decision on the merits in Tysiac is awaited, the stage is now set for a future test case in Ireland that may widen the grounds for legal abortion there.

BARBARA HEWSON is a barrister practicing at Hardwicke Building, Lincoln's Inn in London and counsel for D.