Boso v. Italy

App. No. 50490/99, Eur. Ct. H.R. 846 (2002).
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The applicant, an Italian national, claimed violations under Articles 2 (right to life), 8 (respect for private and family life) and 12 (right to marry and family) of the European Convention on Human Rights (the Convention) after his wife obtained a legal abortion without his consent.

Prior to bringing an action in the European Court of Human Rights, the applicant had sought relief in Italy’s domestic courts based on the constitutional right to life of the fetus and on his right to found a family. The domestic courts dismissed his claims because the abortion procedure was in accordance with Italian law.

The Court found the application to be inadmissible, determining that the arguments raised by the applicant under the Convention were ill-founded, and that his wife's abortion had appropriately conformed with Italian law. Under Article 2 (right to life) the Court noted that the domestic law in question struck a fair balance between protecting the fetus and a woman’s physical and mental health. Under Article 8 (respect for private and family life), the Court opined that any interpretation of the father’s rights under Article 8  should yield to the mother’s rights when she intends to have an abortion because she is the person primarily impacted by the pregnancy and its potential continuation or termination. Similarly, under Article 12 (right to marry and family) the Court stated that any interference with family life justified under Article 8 cannot also comprise a violation of Article 12.

"In this connection, the Court notes that the relevant Italian legislation authorizes abortion within the first twelve weeks of a pregnancy if there is a risk to the woman’s physical or mental health. Beyond that point, an abortion may be carried out only where continuation of the pregnancy or childbirth would put the woman’s life at risk, or where it has been established that the child will be born with a condition of such gravity as to endanger the woman’s physical or mental health. It follows that an abortion may be carried out to protect the woman’s health."

"[T]he Commission has also taken the view that the potential father’s right to respect for his private and family life cannot be interpreted so widely as to embrace the right to be consulted or to apply to a court about an abortion which his wife intends to have performed on her (see X. v. the United Kingdom, cited above, at p. 254, and H. v. Norway, cited above, at p. 170).

The Court considers that any interpretation of a potential father’s rights under article 8 of the Convention when the mother intends to have an abortion should above all take into account her rights, as she is the person primarily concerned by the pregnancy and its continuation or termination."

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