Mellet v. Ireland

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The author of the communication stated that she became pregnant in 2011 and in her 21st week, she was informed that the foetus had congenital heart defects. She was further informed that the impairment might prove to be fatal. However the hospital told her that abortion was not possible in the current jurisdiction (Ireland) and the doctor stated that one option would be to travel abroad. After a couple of days, the author was further informed that either the foetus would die in utero or after birth. The midwife also stated to her that she could choose to travel. The healthcare providers were not allowed to make appointments for termination of pregnancy for their patients abroad. A family planning organization gave her the information about a hospital in Liverpool, UK. She travelled to UK and was admitted the hospital for the termination of pregnancy. After giving birth to a stillborn child, she traveled back to Ireland in pain, as she and her husband could not afford to stay in the UK. She stated that no financial assistance was given to her by the state or private health insurers. She further did not receive any aftercare. While the hospitals were allowed to offer aftercare services to patients who suffered a spontaneous stillbirth, it was not available to patients who chose to terminate their pregnancy, be it due to fatal congenital defects.

The author alleged that her right under Article 7 of the (ICCPR) International Convention on Civil and Political Rights (prohibition of cruel, inhuman and degrading treatment) had been violated. Further she claimed her right under Article 17 (right to privacy) and Article 2(1) and 3 and 26 (rights to equality and non-discrimination).

The Committee found that there had been a violation of Article 7 of the ICCPR. The Committee stated that a provision, which has the sanction of the law, could nevertheless infringe Article 7. In the present case, the state party subjected the author to immense mental and physical anguish. It states that her suffering was aggravated by the fact that there were several restrictions on access to information about abortion services abroad and the aftercare services the healthcare professionals could provide. The fact that she had to endure mental and physical pain of carrying a dying foetus to another country that too at her own personal expenses with no support from the state party is inhuman.

The Court held that the Irish laws interfered immensely with the author’s decision of terminating her pregnancy and thus violated her right to privacy under Article 17.

The Court held that the laws and the health system discriminated between women who wanted to carry on their pregnancy irrespective of viability for the full term and women who wanted to terminate the pregnancy. Criminalisation of abortion is based on a gender stereotype that the primary role of women is to become a mother. Women, who carry the foetus to term, receive the benefits of the healthcare system whereas women who don’t do so cannot even receive the benefits from a private health insurer. Such act constitutes discrimination and does not meet the criteria of reasonableness, objectivity and legitimacy of purpose.

The Committee considers that the author’s suffering was further aggravated by the obstacles she faced in receiving needed information about her appropriate medical options from known and trusted medical providers. The Committee notes that the Abortion Information Act legally restricts the circumstances in which any individual may provide information about lawfully available abortion services in Ireland or overseas, and criminalizes advocating or promoting the termination of pregnancy. The Committee further notes the author’s unrefuted statement that the health professionals did not deliver such information in her case, and that she did not receive key medically indicated information about the applicable restrictions on overseas abortions and the types of terminations most appropriate given her period of gestation, thereby disrupting the provision of medical care and advice that the author needed and exacerbating her distress.” (Para 7.5)

 The author claims that by denying her the only option that would have respected her physical and psychological integrity and reproductive autonomy under the circumstances of this case (allowing her to terminate her pregnancy in Ireland), the State interfered arbitrarily in her right to privacy under article 17 of the Covenant. The Committee recalls its jurisprudence to the effect that a woman’s decision to request termination of pregnancy is an issue which falls under the scope of this provision.10 In the present case, the State party interfered with the author’s decision not to continue her non-viable pregnancy. The interference in this case was provided for under article 40.3.3 of the Constitution and therefore was not unlawful under the State party’s domestic law. However, the question before the Committee is whether such interference was unlawful or arbitrary under the Covenant. The State party argues that there was no arbitrariness, since the interference was proportionate to the legitimate aims of the Covenant, taking into account a carefully considered balance between protection of the foetus and the rights of the woman.” (Para 7.7)

The Committee notes that under the legal regime in the State party, women pregnant with a foetus with a fatal impairment who nevertheless decide to carry the foetus to term continue to receive the full protection of the public health care system. Their medical needs continue to be covered by health insurance, and they continue to benefit from the care and advice of their public medical professionals throughout the pregnancy. After miscarriage or delivery of a stillborn child, they receive any needed post-natal medical attention as well as bereavement care. By contrast, women who choose to terminate a non-viable pregnancy must do so in reliance on their own financial resources, entirely outside of the public health care system. They are denied health insurance coverage for these purposes; they must travel abroad at their own expense to secure an abortion and incur the financial, psychological and physical burdens that such travel imposes, and they are denied needed post-termination medical care and bereavement counselling. The Committee further notes the author’s uncontested allegations that in order to secure a termination of her non-viable pregnancy, the author was required to travel abroad, incurring financial costs that were difficult for her to raise. She also had to travel back to Dublin only 12 hours after the delivery, as she and her husband could no longer afford to stay in the UK.” (para 7.10)