Paton v. United Kingdom

App. No. 8416/78, 3 Eur. H.R. Rep. 408 (1980)
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The applicant claimed that English law violated provisions of the European Convention on Human Rights (Convention), after he found out that his wife was pregnant and planned to have a legal abortion without his consent. Specifically, the applicant claimed that England and Wales violated the right to life and the right to liberty and security of the person under Articles 2 and 5, respectively, by permitting abortion at all. He also claimed that the respondent violated his due process rights under Article 6 of the Convention, his rights to private and family life under Article 8, as well as his right to freedom of conscience under Article 9 of the Convention, insofar as English law did not require his consultation on the proposed abortion or permit him to participate in appointing medical professionals involved in the process for approving and carrying out the procedure. The family court where the applicant first filed the case dismissed the claim, ruling that the fetus had no legal rights until after birth in English law, and that the father, whether married or not, had no right to prevent the mother from legally obtaining an abortion. The applicant then appealed to the European Commission of Human Rights (Commission). In his submission, the applicant claimed the respondent State violated his right to domestic remedies under Article 26 of the Convention when it permitted his wife to carry out the abortion within hours of the High Court dismissing his appeal and request for an injunction.

The Commission declared the application inadmissible on account of the claims being “manifestly ill-founded” within the meaning of Article 27(2), with respect to both Articles 2 and 8. Specifically, the Commission noted that the applicant’s wife pursued the abortion to protect her own life. The Commission did not find any of the other provisions invoked – Articles 5, 6 and 9 of the Convention – relevant to the examination of the applicant’s complaints.

7. The Commission first notes that the term 'everyone' ('toute personne') is not defined in the Convention. It appears in Article 1 and in Section I, apart from Article 2 (1), in Articles 5, 6, 8 to 11 and 13. In nearly all these instances the use of the word is such that it can apply only postnatally. None indicates clearly that it has any possible prenatal application, although such application in a rare case – e.g. under Article 6 (1) – cannot be entirely excluded.

8. As regards, more particularly, Article 2, it contains the following limitations of "everyone's" right to life enounced in the first sentence of paragraph (1):

– a clause permitting the death penalty in paragraph (1), second sentence: 'No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law'; and

– the provision, in paragraph (2), that deprivation of life shall not be regarded as inflicted in contravention of Article 2 when it results from 'the use of force which is no more than absolutely necessary' in the following three cases: 'In defence of any person from unlawful violence'; 'in order to effect a lawful arrest or to prevent the escape of a person lawfully detained'; 'in action lawfully taken for the purpose of quelling a riot or insurrection'.

All the above limitations, by their nature, concern persons already born and cannot be applied to the foetus.

19. The 'life' of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the 'unborn life' of the foetus would be regarded as being of a higher value than the life of the pregnant woman. The 'right to life' of a person already born would thus be considered as subject not only to the express limitations mentioned in paragraph 8 above but also to a further, implied limitation.

27. The Commission has next considered the applicant's ancillary complaint that the Abortion Act 1967 denies the father of the foetus a right to be consulted, and to make applications, about the proposed abortion. It observes that any interpretation of the husband's and potential father's right, under Article 8 of the Convention, to respect for his private and family life, as regards an abortion which his wife *417 intends to have performed on her, must first of all take into account the right of the pregnant woman, being the person primarily concerned in the pregnancy and its continuation or termination, to respect for her private life. The pregnant woman's right to respect for her private life, as affected by the developing foetus, has been examined by the Commission in its Report in the Brüggemann and Scheuten case. [FN14] In the present case the Commission, having regard to the right of the pregnant woman, does not find that the husband's and potential father's right to respect for his private and family life can be interpreted so widely as to embrace such procedural rights as claimed by the applicant, i.e. a right to be consulted, or a right to make applications, about an abortion which his wife intends to have performed on her. The Commission concludes that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 (2).

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