Ms Leah Hoctor:

What the Human Rights Committee specified in the Siobhán Whelan and Amanda Mellet decisions is that, in regard to law reform, Ireland must amend its law on abortion, including, if necessary, its Constitution, to ensure similar violations do not occur in the future. It stated it must make abortion services practically accessible in a timely and effective manner in Ireland. What is really key here is the phrase "similar violations". The violations that the committee found in the decision were violations involving inhuman and degrading treatment, the right to privacy, and inequality before the law. The facts of the cases of Amanda Mellet and Siobhán Whelan concerned the circumstances of fatal foetal impairment and the really tragic circumstances the women were in. The analysis of the committee, however, and the decision on why the suffering the women endured was inhuman and degrading focused a lot on the experience of travel and what it meant to have to leave the country to gain access to care in another country, in addition to the breach in the continuum of care that they endured and the fact that they could not obtain health care here from doctors and nurses they knew and trusted. What is really key for Ireland, the committee and lawmakers as they move ahead is to understand that until Ireland changes its laws on abortion so women, whatever their circumstances, will not face inhuman and degrading treatment or violations of the right to privacy and equality before the law, it may happen that Ireland will continue to appear before the committee. I am not aware of cases that are pending.

Under international human rights law, making abortion legal is one requirement in a broad range of circumstances. Another requirement, however, is to make abortion that is legal under domestic law accessible and available in practice. This is really critical. Poland serves as an interesting example in Europe. In that country, abortion has been legalised on many more grounds than it is currently legal in Ireland. These grounds cover circumstances of severe foetal impairment, rape and the risk to a woman’s health, but do not cover abortion on request or socioeconomic grounds. Owing to the strictures and restrictive nature of the Polish law, however, it is very difficult for women to gain access to services in practice. Therefore, Poland has been held accountable by the European Court of Human Rights three times. We can see, therefore, that it is not simply a matter of the grounds on which abortion is legal in a country’s law; it is also a matter of ensuring that it is available in practice when it is legal.

With regard to the UN Convention on the Rights of the Child, the provision is preambular. It does not in any way refer to the right to life prior to birth, or prenatally. In fact, in thetravaux preparatoires, which are the legal documents used to interpret the treaty, namely, the negotiations of the states that drafted it, it is very clear and specific that the inclusion of this preambular provision was not in any way meant to lead to the application of Article 1 of the convention, on the right to life, prior to birth or in a manner as to prevent the legalisation of abortion in countries that have ratified the treaty. In fact, we have seen from the jurisprudence and recommendations of the Committee on the Rights of the Child, which is the monitoring and adjudicative body that oversees the convention, that the body has called on Ireland and many other countries with restrictive abortion laws to ensure abortion is decriminalised and that adolescents and girls can gain access to safe and legal abortion services.