Treaty Monitoring Bodies
Ireland’s implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) is due to be reviewed in June 2015. In the List of Issues sent to the Government in advance of the review, the United Nations Committee on Economic, Social and Cultural Rights requested further information from the Government in relation to Article 12 – the right to physical and mental health – and Ireland’s abortion laws:
“Please provide information on whether the State party intends to revise its legislation criminalizing abortion to provide for exceptions, including in cases of rape, incest and risks to the health of the mother, inter alia. Please also indicate what progress has been made in adopting comprehensive guidelines to clarify what constitutes “real and substantive risk” to the life, as opposed to the health, of a pregnant woman. Please also clarify what measures are being taken to ensure that pregnant women have access to information concerning safe abortion methods and services.”
It is likely that during the review, the Committee will ask further questions and make a recommendation to the Government that Ireland’s abortion laws should be brought into compliance with the Covenant.
In July 2014, the United Nations Human Rights Committee conducted its fourth periodic review of Ireland’s implementation of the International Covenant on Civil and Political Rights (ICCPR).
In his concluding remarks, Committee Chair and former UN Special Rapporteur on Torture Nigel Rodley highlighted that under human rights law, “recognition of the primary right to life of the woman…has to prevail over that of the unborn child”. He expressed grave concern at how Irish abortion law treats women who are pregnant as a result of rape, and denied access to an abortion, as "vessels and nothing more”.
In its Concluding Observations, the Committee criticised Ireland's abortion laws and urged legislative and constitutional change to bring these laws in line with human rights standards:
“The Committee reiterates its previous concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in the State party owing to article 40.3.3 of the Constitution and its strict interpretation by the State party.
In particular, it is concerned at: (i) the criminalization of abortion under section 22 of the Protection of Life During Pregnancy Act, including in cases of rape, incest, fatal foetal abnormality and serious risks to the health of the mother, which may lead to up to 14 years of imprisonment, except in cases that constitutes a “real and substantive risk” to the life of a pregnant women; (ii) the lack of legal and procedural clarity concerning what constitutes “real and substantive risk” to the life, as opposed to the health, of the pregnant women; (iii) the requirement of an excessive degree of scrutiny by medical professionals for pregnant and suicidal women leading to further mental distress; (iv) the discriminatory impact of the Protection of Life During Pregnancy Act on women who are unable to travel abroad to seek abortions; (v) the strict restrictions on the channels via which information on crisis pregnancy options may be provided to women and the imposition of criminal sanctions on healthcare providers who refer women to abortion services outside the State party under the [Abortion] Information Act 1995; and (vi) the severe mental suffering caused by the denial of abortion services to women seeking abortions due to rape, incest, fatal foetal abnormality or serious risks to health (arts. 2, 3, 6, 7, 17, 19, 26).”
The Committee issued the following recommendations to the Government:
(a) Revise its legislation on abortion, including its Constitution, to provide for additional exceptions in cases of rape, incest, serious risks to the health of the mother, or fatal foetal abnormality;
(b) Swiftly adopt the Guidance Document to clarify what constitutes a “real and substantive risk” to the life of the pregnant woman; and
(c) Consider making more information on crisis pregnancy options available through a variety of channels, and ensure that healthcare providers who provide information on safe abortion services abroad are not subject to criminal sanctions.
In May 2011, the United Nations Committee Against Torture (CAT) reviewed Ireland’s first periodic report under the International Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment. In its Concluding Observations, the Committee expressed a number of concerns in relation to Ireland’s restrictive abortion laws:
“The Committee expresses concern at the lack of clarity cited by the European Court of Human Rights (ECtHR) and the absence of a legal framework through which differences of opinion could be resolved. Noting the risk of criminal prosecution and imprisonment facing both the women concerned and their physicians, the Committee expresses concern that this may raise issues that constitute a breach of the Convention.
The Committee appreciates the intention of the State party, as expressed during the dialogue with the Committee, to establish an expert group to address the issue of abortion and the ECtHR's ruling. The Committee is nonetheless concerned further that despite the already existing case law allowing for abortion, no legislation is in place and that this leads to serious consequences in individual cases, especially affecting minors, migrant women, and the indigent.
The Committee notes the concern expressed by the ECtHR about the absence of an effective and accessible domestic procedure in the State party for establishing whether some pregnancies pose a real and substantial medical risk to the life of the mother, which leads to uncertainty facing women and their medical doctors, who are also at risk of criminal investigation or punishment if their advice or treatment is deemed illegal.
The Committee urges the State party to clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in the State party, so that its law and practice is in conformity with the Convention.”
In July 2005, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) considered Ireland’s fourth and fifth combined periodic reports. In its Concluding Comments, the Committee reiterated its concern regarding Ireland’s restrictive abortion laws:
"While acknowledging positive developments in the implementation of article 12 of the Convention, in particular the Strategy to Address the Issue of Crisis Pregnancy (2003) that addresses information, education and advice on contraceptive services, the Committee reiterates its concern about the consequences of the very restrictive abortion laws under which abortion is prohibited except where it is established as a matter of probability that there is a real and substantial risk to the life of the mother that can be averted only by the termination of her pregnancy.
The Committee urges the State party to continue to facilitate a national dialogue on women’s right to reproductive health, including on the very restrictive abortion laws. It also urges the State party to further strengthen family planning services, ensuring their availability to all women and men, young adults and teenagers."
The Committee on the Elimination of Discrimination against Women also criticised Ireland’s abortion laws in 1999 following their review of Ireland’s human rights record.
Charter Monitoring Bodies
The Universal Periodic Review (UPR) was established in 2006 to assess how individual member states of the United Nations respect their human rights commitments. The process highlights any gaps in human rights fulfilment and protection in the state under review. Each member state is reviewed under the UPR every four years.
In October 2011, Ireland’s human rights record was examined under the UPR. Six states - France, Denmark, UK, Slovenia, Spain, and the Netherlands - made recommendations in relation to Ireland’s restrictive laws on abortion. They also called for firm timelines for the implementation of the European Court of Human Rights judgment in the case of A, B and C v Ireland. Ireland’s second UPR examination will take place in 2016.
In December 2012, the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Anand Grover, called for the decriminalisation of abortion during a seminar in Dublin organised by the Women’s Human Rights Alliance.
Mr. Grover told the seminar that in cases where a barrier to health is created by a criminal law or other legal restrictions, it is the obligation of the State to remove these restrictions. Mr. Grover stated that barriers arising from laws and policies affecting sexual and reproductive health must be immediately removed in order to ensure full enjoyment of the right to health.
Mr. Grover outlined the impact of criminalisation of sexual and reproductive health services, particularly in relation to women, and how criminalisation impinges on the right of persons to the enjoyment of the highest attainable standard of physical and mental health.
He also discussed how laws and other legal restrictions are used to regulate abortion, conduct during pregnancy, sexual and reproductive education, and contraception and family planning. Mr. Grover also outlined the negative impact that such criminal laws and other legal restrictions have on healthcare.
In November 2012, during a visit to Ireland, the UN Special Representative on the situation of human rights defenders, Ms. Margaret Sekaggya, criticised the Government for failure to protect sexual and reproductive human rights defenders from harassment and intimidation.
In a statement, Ms. Sekaggya expressed her concern at “reports and evidence indicating the existence of a smear campaign and stigmatisation of those advocating for the reproductive rights of women, on the part of vested interest groups using printed media”. She recommended that the Government recognise and protect those who work to ensure the enjoyment of the right to health of women, including sexual and reproductive rights.
In her subsequent report delivered to the UN Human Rights Council following the mission, Ms. Sekaggya criticised the Regulation of Information Act (1995), expressing concern at specific provisions of which she determined could pose “significant barriers for counsellors and potentially restrict women’s access to information on sexual and reproductive rights, particularly access to health services available abroad.”
The Special Rapporteur also highlighted the disproportionate impact and specific barriers the Regulation of Information Act creates for women in isolated or rural areas, young women, women in State care and migrant women.
In addressing the situation of human rights defenders in Ireland who provide women with information on legal abortion, the report stressed that the stigmatisation of these human rights defenders may lead to the selective enforcement of existing laws and regulations, reinforce existing stigma, and ultimately lead to the criminalisation of legitimate activities.
Other monitoring bodies
Following his visit to Ireland in June 2011, the Commissioner for Human Rights of the Council of Europe, Mr. Thomas Hammarberg, issued a report which included the following statements:
"The Commissioner notes with concern that despite the 1992 Supreme Court judgment in the X case, still no legislation is in place to set a framework allowing for abortion in limited circumstances where a woman’s life is deemed to be in danger because of pregnancy, in compliance with domestic case law and the Irish Constitution.
He observes that this lacuna caused the European Court of Human Rights in 2010 to find Ireland in breach of the right to respect for private life as guaranteed in Article 8 of the European Convention on Human Rights.
The Commissioner reiterates that the lack of legislation adversely affects women who do not have the financial means to seek medical services outside the country and are therefore particularly vulnerable. He notes that on 16 June 2011 the Government submitted to the Council of Europe Committee of Ministers an action plan for the implementation of the European Court of Human Rights’ judgment in the case of A, B and C.
The Commissioner noted with interest that according to the action plan, the Government undertook to establish an expert group by November 2011 to make recommendations on how to implement the above judgment. The Commissioner hopes that this expert group will speedily fulfil its mandate and that a coherent legal framework including adequate services will be put in place without delay".
Following his previous visit to Ireland in November 2007, the Commissioner for Human Rights of the Council of Europe also criticised Ireland’s abortion laws in a report issued in 2008.