Northern Irish court expands abortion rights, rejects disability discrimination argument

map of Northern Ireland with red stick pin in BelfastNorthern Ireland, home of Europe’s most restrictive abortion laws, must allow women to terminate their pregnancies when they are carrying a fetus with fatal disabilities, the Belfast High Court ruled November 30.

In Northern Ireland, abortion is illegal, punishable by life imprisonment, except where the life or health of the expectant mother is at stake.

In 2013, the Human Rights Commission filed a lawsuit, arguing that the laws failure to provide exceptions for cases of fatal fetal abnormalities or in cases of rape or incest violates the European Convention on Human Rights.

At oral arguments held in July, the government argued that in situations where abortion is legal, distinguishing between fetuses with or without abnormalities would violate the United Nations Convention on the Rights of Persons with Disabilities.

“There is also surely an illogicality in calling for no discrimination against those children who are born suffering from disabilities such as Down’s Syndrome or spina bifida on the basis that they should be entitled to enjoy a full life but then permitting selective abortion so as to prevent those children with such disabilities being born in the first place,” the government argued in its legal brief. “This smacks of eugenics.

“It is always difficult to draw the line and it comes as no surprise that the phrase ‘serious malformation of the foetus’ remains undefined. It can mean different things to different people.”

The Belfast High Court gave short shrift to the discrimination argument, finding instead that failing to provide an exception for fatal fetal abnormalities would violate Article 8 of ECHR, which protects the right to respect for private and family life.

“In the case of an (fatal fetal abnormality) there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is nothing to weigh in the balance.  There is no human life to protect,” the Court stated. “Furthermore, no evidence has been put before the Court that a substantial section of Northern Ireland’s community, never mind a majority, requires a mother to carry such a foetus to full term.

“Therefore even on a light touch review, it can be said to a considerable degree of confidence that it is not proportionate to refuse to provide an exception to the criminal sanctions imposed by the impugned provisions.”

The Court did not find that failure to provide the exception would violate Article 3 of the ECHR, which prohibits torture, or Article 14’s anti-discrimination prohibit. It did also find that North Ireland must provide exceptions for cases of rape and incest.

The case is expected to be appealed.