Mellet v Ireland (Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2324/2013)
In March 2016, the Human Rights Committee (Committee), which monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR), determined that Irish laws that forced a woman whose foetus had congenital heart defects (and a low chance of survival) to procure an abortion overseas contravened the ICCPR. The Committee determined that Articles 7 (privacy), 17 (cruel, inhuman and degrading treatment) and 26 (equality before the law) of the ICCPR were violated and the Irish government should pay compensation to the claimant and provide her with needed psychological treatment. The Committee also recommended that Ireland amend its laws on voluntary termination, and if necessary its constitution, to ensure compliance with the ICCPR and prevent similar violations occurring.
Amanda Mellet of Dublin, Ireland (the Claimant), received scans at a public hospital during her 21st week of pregnancy. The doctors discovered that her foetus had congenital heart defects and after further examination, the Claimant was informed that her foetus would die in utero or shortly after birth.
When the Claimant received the initial scans, the doctor told her that terminations were not available in the jurisdiction and that some people in her situation may choose to "travel". After the examination a midwife told the Claimant that she could carry the pregnancy to term knowing that the foetus would most likely die inside of her, or she could "travel".
After consulting with a family planning organisation, the Claimant organised an appointment at the Liverpool Women's Hospital. Before travelling to Liverpool, the Claimant returned to the public hospital to obtain scans, as she would have been eligible to receive care in an Irish hospital if the foetus had died. Her general practitioner detected a heartbeat and tried to dissuade her from seeking an abortion.
The Claimant then flew to Liverpool with her husband. She received medication over two days to end the pregnancy and after 36 hours in labour she delivered a stillborn baby girl. Twelve hours after the delivery and while still bleeding and feeling weak, the Claimant travelled back to Dublin as she could not afford to stay in England. The hospital in Liverpool did not offer any options regarding the remains of the foetus and the Claimant unexpectedly received the ashes three weeks later by courier.
The Claimant suffered enduring complicated grief and unresolved trauma and was unable to receive any aftercare at the public hospital in Dublin, as counselling was only available to women who had suffered a stillbirth. The Claimant did eventually received post-abortion counselling at the family planning organization but no bereavement counselling.
The Claimant alleged violations of the ICCPR by Ireland, specifically (and as applicable to the facts set out above):
(a) Article 2(1), which requires parties to the ICCPR to ensure all individuals have the rights recognised in the ICCPR without distinction based on sex and gender;
(b) Article 3, which requires parties to the ICCPR to ensure men and women the equal enjoyment of political and civil rights;
(c) Article 7, which states no one shall be subject to cruel, inhuman or degrading treatment;
(d) Article 17, which requires prohibits unlawful interference with a person's privacy;
(e) Article 19, which provides the right to freedom of expression, which includes the freedom to seek, receive and impart information; and
(f) Article 26, which states that all persons are equal before the law and are entitled to the equal protection of the law without discrimination.
The Committee found that the Claimant's circumstances resulting from Irish legal restrictions amounted to several contraventions of the ICCPR by Ireland, as follows.
The Committee determined that the Irish state subjected the Claimant to "conditions of intense physical and mental suffering" and the facts taken together amounted to cruel, inhuman or degrading treatment. The Committee noted the claimant was a pregnant woman in a highly vulnerable situation after learning that her pregnancy was not viable. Her physical and mental anguish was exacerbated by her inability to receive medical care and health insurance in Ireland, the need to choose between carrying a non-viable foetus to term or travelling to another country, the shame and stigma associated with the criminalisation of abortion, leaving the baby's remains in England, the unexpected delivery of the ashes and the refusal to provide post-abortion and bereavement care in reaching its decision. These elements were aggravated by the obstacles the Claimant faced in receiving information about her medical options.
A woman’s decision to request termination of pregnancy falls under Article 17. The Committee determined that Ireland's interference in the Claimant's decision not to continue her non-viable pregnancy was unreasonable and arbitrary. Given the Claimant’s circumstances and the negative consequences she would suffer, the Committee reasoned that Ireland's legal framework did not strike a fair balance between the rights of the woman and the protection of the foetus.
Articles 2(1), 3, 19 and 26
The Committee decided that by affording treatment and care to women who carry a foetus with a fatal impairment to term and not to women who choose to terminate a non-viable pregnancy, Ireland's laws did not meet the requirements of reasonableness, objectivity and legitimacy of purpose and thus constituted discrimination under Article 26 of the ICCPR. On the basis of this finding, the Committee declined to examine the Claimant's allegations under Articles 2(1), 3 and 19.
Three separate concurring opinions determined that Articles 2(1) and 3 of the ICCPR were breached on the grounds that Irish law discriminates on the basis of gender, while one dissenting opinion found no discrimination on the basis that men and women are biologically different.
Ireland contended in its submissions that abortion laws do not discriminate against women because of the factual biological differences between men and women. This argument only found support in one dissenting opinion.
The "biological differences" argument was explored and rejected in the individual concurring opinion of Committee member Sarah Cleveland. Cleveland argued that States must accommodate the fundamental biological differences between men and women and ensure laws do not discriminate directly or indirectly, nor be founded on gender stereotypes. To illustrate the point, Cleveland's opinion described a State denying health care coverage for essential care uniquely required by one sex, for example, the treatment of cervical cancer, while covering treatment for all other cancers, as being an example of a legal regime inconsistent with contemporary international human rights law. Cleveland also argued that Ireland's near comprehensive criminalization of abortion services denied access to services only women needed while imposing no equivalent burden on men, thus constituting direct discrimination on the basis of gender.
Cleveland quoted the definition of discrimination under the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). This broader definition of discrimination captures any distinction, exclusion, restriction or preference, based on a ground such as gender, that has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. Cleveland argued that this definition does not require an intent to discriminate and that "indirect discrimination" would contravene the ICCPR if the detrimental effects of a rule or decision exclusively or disproportionately affected persons with a protected characteristic and the rules or decisions were not based on objective and reasonable grounds.
The separate opinion of three committee members also found violations of Article 19. They determined that the existing legal framework in Ireland violated Article 19 insofar as it resulted in a lack of publically available information that was important for people to make decisions about their health.
The full decision can be found here.
Geordie Bundock-Livingston is a Lawyer at Ashurst.