E.B. v. Ireland

The author of the communication is E.B.,⁶ a national of Ireland born on 7 May 1980. The author claims that the State Party has violated her rights under articles 7, 17 and 26 of the Covenant. The Optional Protocol entered into force for the State Party on 8 March 1990. The author is represented by counsel.

6. In her additional submission of 10 February 2020, the author requested anonymity. ↩

The author is a schoolteacher⁷ who is married with two children, aged 6 and 3. On 29 January 2013, when she was 12 weeks pregnant, she was informed that the fetus was small and that she should undergo further tests. On 25 February 2013, the fetus was diagnosed with trisomy 18, a fetal anomaly consistent with Edwards’ syndrome, which is fatal. On 26 February 2013, the diagnosis of trisomy 18 was confirmed. The author was told by medical staff that she would risk miscarriage by continuing the pregnancy. However, given the law applicable at the time, it became evident that the requisite healthcare intervention would not be offered to the author in the State Party.

7. She was 37 years old at the time of submission of the initial communication. ↩

The Rotunda Hospital in Dublin suggested a medical termination of the pregnancy abroad and recommended the Liverpool Women’s Hospital (United Kingdom of Great Britain and Northern Ireland), to which all the medical records of the author were forwarded. On 5 March 2013, the author travelled to the Liverpool Women’s Hospital. On 6 March 2013, the author underwent the abortion procedure, which cost approximately 2,200 pounds sterling, at a time when Ireland was facing an economic crisis. The author and her husband were facing wage cuts and the family was struggling financially. Furthermore, they received no assistance from the State Party nor from their medical insurance company for the recommended intervention.

The abortion process was emotionally stressful as the author and her husband had to arrange childcare for their young children, take weeks off work and conceal the truth of her problematic pregnancy from others due to fear of feeling guilty, given the Catholic background of her family and her position as a teacher in a Catholic primary school. The author faced delays in the abortion process in a foreign country without support from the family and friends, further aggravating her emotional stress.⁸ The abortion procedure was to be completed on 5 March 2013. However, it had to be delayed to the following day, as a second round of medication had to be administered to induce labour. In addition, the couple was unable to attend the cremation of the fetus of their son because of financial limitations. On 20 March 2013, the author’s son, Michael, was cremated at Liverpool Women’s Hospital and a prayer service was held for him, in the absence of the parents. In April 2013, the author and her husband received a delivery from a courier company, which contained their son’s remains.

8. The author has presented a detailed description of her medical conditions, supported by medical evidence. ↩

The author received no counselling in the State Party, making it difficult for her to express herself and her grief. She also had to change jobs, leaving the Catholic primary school owing to the stigma attached to the fact that she had had to travel abroad for an abortion.

At the time, abortion was a criminal offence in the State Party.⁹ The author could not raise constitutional provisions in favour of her personal rights as the same could have been invoked on behalf of the fetus.¹⁰ Further, the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995, was upheld as constitutional, and the author had no reasonable prospect of challenging the Act.¹¹ Therefore, the author did not take steps to exhaust domestic remedies as there was no prospect of success and the remedies available would have been neither effective nor adequate.¹² The complaint in the same matter has not been presented to any other mechanism of international investigation or settlement.

9. At the time of the facts, section 58 of the Offences against the Person Act (1861) criminalized abortion for both women and abortion providers, even in cases where it was necessary to save the woman’s life. It provided for life imprisonment for any woman who tried to terminate her pregnancy and any doctor who tried to help her. In addition, section 22 of the Protection of Life During Pregnancy Act (2013) provided that: “(1) It shall be an offence to intentionally destroy unborn human life; (2) A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both.” ↩
10. Article 40.3.3 of the Constitution, introduced in 1983, reads: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” In Attorney General v. X and others, decided in 1992, the Supreme Court of Ireland held that article 40.3.3 permitted abortion only when “it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy”. In 2009, the Supreme Court further clarified the meaning of the constitutional protection of the “unborn”. In Roche v. Roche, the Court established that, once an embryo has been implanted in a woman’s womb, its relevant attachment with the pregnant woman has been created and it enters a state of “unborn”. ↩
11. There have been a number of political developments in respect of the ban on abortion contained in article 40.3.3 of the Irish Constitution. This included the setting up of a Citizens Assembly to consider the issue, among others, and the establishment of a cross-party parliamentary committee to consider article 40.3.3 of the Irish Constitution and to make recommendations as appropriate. None of these developments have altered the legal position and the author would be in the same position (as many Irish women were) at the time of submission of the initial communication, were the same circumstances to be replicated. Therefore, those developments have not had an impact on the issue of ineffectiveness of domestic remedies, which could not hence be exhausted. ↩
12. The Committee has examined similar cases against the State Party, finding violations of the Covenant (Mellet v. Ireland (CCPR/C/116/D/2324/2013) and Whelan v. Ireland (CCPR/C/119/D/2425/2014)). ↩

The author submitted the communication to the Committee more than five years after the alleged violations occurred because she suffered from undiagnosed post-traumatic stress disorder caused by the actions and omissions of the State Party. According to the author, the delay in submitting her complaint was reasonable.¹³ The author provided evidence to support her assertions in that regard, including a psychiatric report detailing the impact of the necessity of her travel to the United Kingdom to undergo the termination of her pregnancy, the stigma associated with abortion, the lack of support in the State Party and the need to hide the abortion procedure from her friends and colleagues.

13. In January 2014, the author gave birth to her third child. Throughout the pregnancy, she experienced further psychological distress and hypervigilance in respect of that pregnancy. ↩

The author provided her own affidavit, describing the psychological effects that the alleged violations had had on her, including post-traumatic stress disorder, anxiety and sleep disruption. Lastly, the author states that there is no prejudice to the State in its defence against the author’s claims on account of a delay in submitting the complaint to the Committee.

The author claims that the State Party violated its obligations under article 7 of the Covenant by denying her access to necessary healthcare and abortion services in the State Party. The near-total ban on abortion by the State Party forced the author to carry her nonviable fetus longer than she would have otherwise had to and forced her to travel abroad without the financial possibility of attending the funeral of the fetus of her son. This situation caused her severe mental suffering and emotional distress that have affected her physical and mental integrity and dignity, which amounts to cruel, inhuman or degrading treatment.

The author also claims that the State Party violated article 17 of the Covenant by denying her access to healthcare in the State Party and by interfering with her decision not to continue her non-viable pregnancy.

In addition, the author claims that the State Party’s restrictive abortion law, in particular criminalization of abortion on the grounds of fatal fetal anomaly, discriminates against women on the grounds of sex, thereby violating the author’s rights under article 26 of the Covenant, read alone and in conjunction with articles 7 and 17. She argues that the abortion law bans necessary medical procedures that only women need, fails to respect distinct women’s needs related to reproduction and reproductive decision-making, perpetuates negative gender-based stereotypes and enforces traditional attitudes towards women’s role in society and family. The author felt that she was reduced to her reproductive capacity by prioritizing the protection of the “unborn” over her health needs and decision to terminate her non-viable pregnancy. Lastly, the author claims that the State Party’s abortion regime discriminated against her in relation to her right to access sexual and reproductive health information as protected by article 19 of the Covenant.

On 10 February 2020, the author requested the following remedies should the Committee decide in favor of her claims: (a) a guarantee of non-repetition; (b) a public apology and appropriate compensation;¹⁴ and (c) a counselling service offered and paid by the State.

14. The apology (either public, private or both) should reflect the author’s request for anonymity. ↩

On 28 September 2020, the State Party submitted its observations, arguing that the author’s allegations should be considered inadmissible, or without merit.

The State Party notes that the author’s communication, submitted on 8 March 2018, and the subsequent supporting documents of November and December 2018, contained the claims of a violation of the author’s rights under articles 7, 17 and 26 of the Covenant.

Recalling the facts, the State Party observes that the author became pregnant in November 2012. The author had a scan on 21 February 2013 and an amniocentesis was performed at 16 and a half weeks. A report dated 25 February 2013 confirmed trisomy 18, consistent with the Edwards’ syndrome. The author travelled on 4 March 2013, when she was 18 weeks pregnant, to the United Kingdom, going to the Liverpool Women’s Hospital on 5 March 2013 to commence the induction of labour. The induction of her pregnancy took place on 6 March 2013, more than five years prior to the date of her communication, which was submitted on 8 March 2018.

The State Party argues that the author’s communication, whether the submission date is 8 March 2018 or November or December 2018, should be found inadmissible as constituting an abuse of the right of submission due to a delay in submission, pursuant to article 3 of the Optional Protocol. The Committee, given its latest jurisprudence, must reflect upon the five-year limit specified in its rules of procedure.¹⁵ The reasons provided by the author for the lapse of time do not justify the delay in submitting the communication more than five years after the events, taking into account all the circumstances.

15. Rule 99 (c) provides that a communication may constitute an abuse of the right of submission when it is submitted five years after the exhaustion of domestic remedies by the author of the communication, or, where applicable, three years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay, taking into account all the circumstances of the communication. ↩

Furthermore, the State Party states that the alleged violations have not been established. It emphasizes that the law on abortion has changed since 2013, following the thirtysixth amendment to the Constitution,¹⁶ and that the law applicable at the time struck a reasonable and proportionate balance between the rights concerned.¹⁷ The State Party notes that the author has relied heavily on the decisions of the Committee in the cases of Mellet v. Ireland and Whelan v. Ireland. While there is some similarity in circumstances between those cases and this communication, there is a clear difference between the facts of the present communication and the facts presented in those two cases, which the Committee should take into account.

16. The 2018 amendment made abortion permissible in certain circumstances, such as a risk to the health of a woman, following assessment by two doctors, without a distinction between physical and mental health; a medical emergency, following assessment by one doctor; or a fetal condition. ↩
17. The State Party submits that: “Although article 40.3.3 at that time restricted access to termination of pregnancy in Ireland, the Irish Constitution acknowledged the entitlement to travel to other jurisdictions for the purposes of obtaining terminations of pregnancy available in those jurisdictions. The legislative framework guaranteed the entitlement to information in relation to abortion services provided outside the State. Thus, the constitutional and legislative framework reflected a nuanced and proportionate approach to the considered views of the Irish electorate on the extent to which the right to life of the unborn should be protected and balanced against the rights of the mother.…” ↩

The State Party disputes the author’s contention that she is in the same position as the authors in the cases of Mellet v. Ireland and Whelan v. Ireland. The author cannot be said to have been “abandoned by the Irish State” as alleged, and was not refused necessary and appropriate post-abortion and bereavement care.

As a result of the factual differences, while the State Party recognizes that the author has evidently experienced significant trauma from finding out that her fetus was non-viable, the response of the State Party to this diagnosis did not violate her rights under article 7. These differences should be factored into the Committee’s assessment of the author’s allegations in relation to article 7. The State Party holds that the author did not avail herself of the free post-abortion counselling that was available to her and does not appear to have accepted her consultant obstetrician and gynaecologist’s offer of support. The State Party notes that, even today, the author can still access bereavement support, should she wish to avail herself of it.

The State Party argues that the author did not face obstacles in receiving the information she needed about appropriate medical options from known and trusted medical providers. Given the circumstances of this case, taking into account the nature, purpose and necessity of the treatment of the author and applying the Committee’s existing jurisprudence, the author’s cumulative experiences in the present case did not reach the high threshold required for a finding of cruel, inhuman or degrading treatment, in violation of article 7 of the Covenant.

There was no arbitrary or unlawful interference with the right to privacy of the author in violation of article 17 of the Covenant. Any interference with her right to privacy was neither arbitrary nor unlawful. Rather, it was an attempt to achieve a proportionate endeavour to reconcile conflicting rights and interests within the framework of the Covenant, taking into account a balance between the right to life of the unborn and that of the mother, by virtue of article 40.3.3 of the Irish Constitution, applicable at the time. The advice provided to the author by the hospital was properly, openly and lawfully given. The circumstances of the present case do not support a finding that article 17 of the Covenant was violated. An interference with the author’s decision as to how best to cope with her pregnancy, following the diagnosis of a fatal fetal impairment, was reasonable, as within the Irish law applicable at the time.

The State Party argues that the author has failed to substantiate her allegation of a violation of her rights under article 26 of the Covenant by the State Party. The author has not demonstrated that she was subjected to impermissible differentiation based on a ground that is prohibited under article 26. While the author has quoted paragraphs 7.10 to 7.12 of the Committee’s Views in Mellet v. Ireland and argued that she has been discriminated against on the ground of sex, she does not explain why the Committee should reach a different conclusion in this case than in the cases of Mellet v. Ireland and Whelan v. Ireland. The State Party submits that the author does not assert or articulate a violation of article 26 on the basis of the findings that were made in those two cases by the Committee, namely, discrimination between women in similar situations. Moreover, the State Party recalls that, in both of those cases, the Committee did not find a violation of article 26 on the grounds of sex and gender. The State Party submits that the Committee should find that there has been no violation of article 26 on the grounds of sex and gender in this case. Lastly, the State Party argues that no separate violation of article 19 has specifically been pleaded by the author, as the allegations were not based on the facts.

Should the Committee find that communication admissible, the State Party submits that there has been no violation of articles 7, 17 or 26 of the Covenant, taking into account the facts of this case.

On 15 September 2021, the author submitted her comments on the State Party’s observations, rejecting the State Party’s assertion that her communication should be deemed inadmissible.

The initial communication was submitted on 8 March 2018, a mere two days after the five-year period set out in the rule 99 (c) of the Committee’s rules of procedure. The delay is not such as to warrant exercising the Committee’s discretion to find the complaint inadmissible due to an abuse of the right of submission given the delay. When amending the rules, the Committee chose not to set a strict time limit.¹⁸ In the circumstances where there was no domestic remedy available to the author, she agrees with the State Party’s submission that the relevant date from which the time period should run is 6 March 2013, when her pregnancy was terminated in the United Kingdom.

18. This is reflected in the permissive wording of rule 99 (c), which states that a communication may constitute an abuse of the right of submission when it is submitted five years after the exhaustion of domestic remedies, unless there are reasons justifying the delay. ↩

Rule 99 (c) of the Committee’s rules of procedure provides that the time limit applies unless there are reasons justifying the delay. In this case, a very substantial reason, supported by medical evidence, has been put forward to explain the delay.¹⁹ The author suffered from post-traumatic stress disorder, which prevented her from engaging in any process relating to the events concerned by the complaint for several years after the termination of her pregnancy and continues to present challenges for the author’s engagement with these issues. The jurisprudence of the Committee, since the 2012 amendment of its rules of procedure, confirms that the question of delay should be considered on a case-by-case basis, and that the five-year time frame is not a strict time limit.²⁰ Based on its jurisprudence, the Committee considers both the length of the delay and any reasons offered for it in determining whether the delay constitutes an abuse of the right of submission.²¹ Any reference to the minimal length of the delay in this case (two days) is notably absent from the State Party’s observations. Such a short delay should not be considered by the Committee as an abuse of the right of submission. The medical evidence therefore supports the author’s submission that her diagnosis of post-traumatic stress disorder – caused by her need for a termination of her pregnancy due to fatal fetal abnormality in circumstances under which this treatment was not available in the State Party – prevented her from engaging in instructing legal representatives and instituting a complaint earlier than she did. Strong reasons justifying the delay have been set out in the initial communication, the additional comments of November 2018 and the present comments, which are supported by the two medical reports of the treating psychiatrist.

19. The State Party has disputed the author’s submission that her post-traumatic stress disorder prevented her from engaging a legal team and commencing proceedings in relation to the events complained of and claimed that “this assessment is not made in the findings of the consultant psychiatrist”. To exclude any doubt, the author sought an addendum report from the treating psychiatrist. The enclosed report of the treating psychiatrist, dated 5 September 2021, confirms that the author’s post-traumatic stress disorder caused avoidance and prevented her from engaging in proceedings concerning the events at issue at an earlier stage. ↩
20. In A.N. v. Russian Federation (CCPR/C/127/D/2518/2014), the Committee noted that “there are no fixed time limits for submission of communications under the Optional Protocol and that mere delay in submission does not of itself involve abuse of the right of communication” (para. 8.3). In Kaliyev v. Russian Federation (CCPR/C/127/D/2977/2017), the Committee reiterated its approach that, in determining what constituted an excessive delay in the submission of the communication, each case must be decided on its own facts and concluded, that “in light of the above considerations and in the particular circumstances of the present communication, the Committee considers that the delay in the submission of the present communication does not constitute an abuse of the right of submission pursuant to rule 99 (c) of the Committee’s rules of procedure” (para. 8.7). ↩
21. M.I. v. Russian Federation (CCPR/C/128/D/2534/2015), para. 6.6; and Jahelka and Jahelka v. Czech Republic (CCPR/C/100/D/1583/2007), para. 6.4. ↩

The author notes the State Party’s reliance on legal developments since the events complained of in this case, in March 2013. While the State Party has emphasized the fact that Irish law on abortion has changed since 2013, following the thirty-sixth amendment to the Constitution, the author submits that subsequent legal developments are irrelevant to her treatment and the violation of her rights at the time of the events. The subsequent legislative reform only highlights the inadequacy of the law in 2013 and the need for the referred reforms. The author objects to the assertion of the State Party that the law applicable at the time struck a reasonable and proportionate balance between the rights concerned. The author was unable to access the healthcare she required in the State Party and had to travel to the United Kingdom to terminate her pregnancy. In her view, the State Party’s arguments are untenable.²²

22. The legal position in 2013 that the State Party seeks to justify was precisely the same legal position as that in 2010, when the author in Whelan v. Ireland travelled to the United Kingdom for the termination of her pregnancy and in 2011, when the author in Mellet v. Ireland travelled to the United Kingdom for the termination of her pregnancy. ↩

The author reiterates that the State Party’s legal position in respect of abortion in the State Party in March 2013, resulting in the treatment described by the author in her complaint, constituted a violation of her rights under articles 7, 17 and 26.

The author disputes the State Party’s claim that her circumstances are distinguishable from the facts in Mellet v. Ireland and Whelan v. Ireland to the extent that the reasoning of the Committee in those decisions is not applicable to the present case. While there are some factual differences between the cases, the majority of the factors that led the Committee in those cases to find breaches of articles 7, 17 and 26 are equally applicable to the author’s communication, and her treatment a fortiori constitutes a violation of those articles of the Covenant.

The author rejects the State Party’s assertion that her cumulative experiences in this case did not reach the high level required for a finding of cruel, inhuman or degrading treatment in breach of article 7. The author was denied the medical treatment she required in the State Party in accordance with the constitutional and legislative framework in place at the time. This forced the author to carry her fetus longer than she otherwise would have, knowing that it had no prospect of survival, and forced her to travel to a foreign country for this treatment, with all of the attendant physical and mental suffering and stigma that the journey caused. Her experience, taken in its entirety, caused her severe mental anguish and her pain and suffering reached the threshold required to find a violation of article 7.

The author also rejects the State Party’s attempts to distinguish her treatment from that found to constitute cruel, inhuman and degrading treatment contrary to article 7 in the decisions in Mellet v. Ireland and Whelan v. Ireland. The State Party’s quotes from Mellet v. Ireland emphasize its refusal to provide the author with post-abortion and bereavement care, and the obstacles she faced in receiving information. The author accepts that the lack of information provision and aftercare in her case was not as stark as in that case, although the absence of any offer of counselling and the limitations on information imposed by the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act were still significant and contributed to her suffering.

The author’s medical procedure cost 1,634 pounds sterling. The flights and accommodation for her and her husband cost approximately 600 euros. The couple funded those expenses from personal savings.²³ The author’s distress was compounded by having to undergo the procedure abroad, without her friends and family around her. The author also had to travel home from the hospital on the same day as her pregnancy was terminated. She was still bleeding as she travelled home to the State Party. The author struggled significantly with the shame and stigma associated with having to travel abroad for a procedure of abortion of a fatally ill fetus that was criminalized in the State Party. The restrictive laws in place in the State Party made the author feel like a criminal.

23. The expenses were difficult for the couple to meet in the circumstances following the economic crash in the State Party, subsequent wage cuts and the need to make mortgage repayments on the family home. ↩

The author’s suffering was exacerbated by being unable to grieve with her son’s remains for more than a few hours. It was extremely difficult to leave her son’s remains in the hospital within a couple of hours of his birth in order to catch the flight home. The author and her husband were unable to remain in the United Kingdom to attend their son’s cremation and the prayer service held in the hospital for him. They felt a deep sense of guilt at leaving their baby’s body behind. The author’s anguish was exacerbated by receiving the ashes of her son by courier. There was significant indignity in the way that this occurred while the family was away.

In addition, the State Party did not offer the author the necessary and appropriate postabortion or bereavement counselling. While the State Party emphasized that various types of support were available to the author, she was not offered or referred to any counselling service. On 27 March 2013, for example, the author attended the Rotunda Hospital and, in April 2013, she attended a six-week check-up with her consultant. These hospital appointments were a regular part of maternity care. They did not amount to an offer of counselling or any specific post-abortion or bereavement care.²⁴ The only information that the author received about specific support services for people in her situation was leaflets that she received in Liverpool for support services provided in the United Kingdom. As she was not able to travel to the United Kingdom for support services, these services were not available to her.

24. The consultant indicated that she would facilitate an early scan if the author became pregnant again: the focus on future treatment related to the event of future pregnancies and did not constitute an offer of post-abortion or bereavement counselling. At the Rotunda Hospital, the author was provided with a leaflet for a support group called Termination for Medical Reasons, a meeting of which the author attended. The group was attended by mothers who had experienced a similar lack of care by the State, specifically as there was no State support for women in this situation. Far from remedying the State Party’s failure to provide appropriate post-termination support, the need for this group only underscores the absence of necessary State support. In addition, the author was contacted by her consultant, who was generally supportive, by text message upon her return from the United Kingdom. However, it did not constitute an offer of support or aftercare. While the State Party submits that the State-funded Health Services Executive Crisis Pregnancy Programme’s definition of “crisis pregnancy” “incorporates the experiences of those women for whom a planned or desired pregnancy develops into a crisis over time in circumstances which include a diagnosis of foetal abnormality”, the author argues that she would never have associated crisis pregnancy services with her pregnancy, which was very much planned and desired. While the State Party seeks to assert, after the fact, that these services were available to the author, it was never explained to her at the time that the services funded by the Crisis Pregnancy Programme extended to women who had suffered terminations for medical reasons. She was never referred to any such service and was not encouraged by her medical team to engage with any such services. Therefore, the availability of counselling through the Crisis Pregnancy Programme, which was not offered, explained, recommended or referred to the author as appropriate, does not negate or excuse the State Party’s failure to provide the author with necessary and appropriate post-abortion and bereavement care. ↩

The author disputes the State Party’s submission that she did not face obstacles in receiving the information she needed about her appropriate medical options from known and trusted medical providers. Other than directly identifying the hospital, rather than directing her to an intermediate organization, the author was not given any additional information about the procedure she required. The Regulation of Information (Services Outside the State For Termination of Pregnancies) Act prevented the hospital from making an appointment for the author for the procedure required, so she had to make the appointment herself. The State Party relies on the fact that the author’s relevant medical records were faxed to Liverpool Women’s Hospital as an alleged distinguishing feature. In fact, in Mellet v. Ireland, the author’s medical records had also been sent by fax to Liverpool Women’s Hospital by the Irish Family Planning Association. That did not preclude a finding of a violation of article 7.

As regards article 17, the State Party submitted that any interference with the author’s right to privacy was “neither arbitrary nor unlawful”. This submission was rejected by the Committee in both Mellet v. Ireland and Whelan v. Ireland. In the light of those decisions, it cannot reasonably be argued that the legal position rendering the necessary medical care unavailable to the author in her circumstances was reasonable or proportionate. The Committee’s reasoning in finding the interference with the right to privacy in Mellet v. Ireland to be arbitrary and unlawful is equally applicable to the present case.

As regards article 26, the author refutes that her claims would not be substantiated. The criminalization of the medical procedure that the author required discriminates against women on the grounds of sex because it bans necessary medical procedures that only women need, fails to respect distinct women’s needs related to reproduction and reproductive decision-making, perpetuates negative gender-based stereotypes and enforces traditional attitudes towards women’s role in society. The provisions of the Constitution and the Offences against the Person Act (1861), which criminalized abortion in 2013, were not “gender neutral”, as argued by the State Party. Such argumentation is untenable. As only a woman can become pregnant and only a woman can therefore require and be refused access to an abortion, the criminalization and refusal of this healthcare to women constitutes discrimination against women. This principle has been recognized in other forums.²⁵

25. In Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (case No. C–77/88, Judgment, 8 November 1990], the European Court of Justice held that “only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex” (para. 12). While that decision relates to employment equality, it applies a fortiori to other circumstances, such as the regulation of abortion, where laws or measures negatively affect pregnant women. ↩

The State Party notes that the Committee did not find violations of article 26 on the grounds of gender and that the Committee should similarly find that there has been no violation of article 26 on the ground of sex and gender in this case. In fact, the Committee did not specifically address in its decisions in Mellet v. Ireland and Whelan v. Ireland the question of whether the authors’ treatment constituted discrimination on the grounds of gender. It did not explicitly reject the authors’ arguments in this regard but instead found a violation of article 26 on the basis of differential treatment between women that failed to adequately take into account the authors’ medical needs and socioeconomic circumstances. It therefore remains open to the Committee to find that the author’s treatment constitutes discrimination on the ground of gender in addition to the form of discrimination identified in those previous cases.

While the question of restriction of abortion as gender discrimination was not specifically addressed by the Committee in Mellet v. Ireland and Whelan v. Ireland, the Committee can find precedents in the jurisprudence of the other United Nations treaty bodies.²⁶ Similarly in this case, the refusal to provide the author with a termination of her non-viable pregnancy was informed by the belief that the protection of the fetus should prevail over the mental and physical health of the author, a belief that only affects women, and constitutes discrimination on the basis of gender.

26. L.C. v. Peru (CEDAW/C/50/D/22/2009), para. 8.5. ↩

Even if the author had not asserted a violation of article 26 on grounds other than sex, the author rejects the State Party’s contention that this precludes the Committee from finding a violation of article 26 on grounds other than sex.²⁷ The Committee is similarly unrestricted in this case.

27. It is recalled that the violation of article 26 asserted by the authors in both Mellet v. Ireland and Whelan v. Ireland was discrimination on the grounds of sex (Mellet v. Ireland, paras. 3.15–3.20 and Whelan v. Ireland, paras. 3.9–3.11); however, the Committee was not impeded from finding a violation on the grounds of difference in medical needs and socioeconomic circumstances. ↩

On 4 April 2022, the State Party submitted its additional observations as a rejoinder to the author’s comments of 15 September 2021.

As to the merits, the State Party refers to the Committee’s views in Mellet v. Ireland and Whelan v. Ireland, noting that, unlike in the context of those cases, the State Party has provided detailed information in relation to the factual background of the present case.

The State Party respectfully disagrees with the author’s assertion that there are no true distinguishing features between her and the authors in Mellet v. Ireland and Whelan v. Ireland. Without repeating its arguments, the State Party requests the Committee to consider the State Party’s submissions on the factual distinctions as outlined in the identified parts of its previous observations, in the light of the author’s allegations. The State Party reiterates its position in this regard and requests the Committee to consider its observations in their entirety.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement. The Committee therefore finds that it is not precluded from considering the author’s claims by article 5 (2) (a) of the Optional Protocol.

The Committee notes the author’s argument that she did not take steps to exhaust domestic remedies since there was no prospect of success, and that the remedies available would have been neither effective nor adequate. In the absence of any objection by the State Party in this connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

The Committee notes the State Party’s argument that the author’s communication was submitted by the author five years and two days after the date of the abortion (6 March 2013) and that it therefore amounts to an abuse of the right of submission. The Committee also notes the author’s objection that her communication was submitted only two days after the discretionary period of five years, as set out in the Committee’s rules of procedure, after the alleged violations, that the delay in submission was a result of her psychological condition related to post-traumatic stress disorder, as evidenced by medical certificates, and that the Committee is entitled to reflect on the reasons for such a delay, which can be considered as justified in the given circumstances.²⁸ In the light of the above, the Committee considers that the reasons for the delay in the submission of her communication have been convincingly explained by the author, observing that the complaint was submitted as early as possible given her medical condition, caused by her treatment leading to abortion, which is the subject matter of her complaint. Accordingly, the Committee considers that the submission of her communication by the author after five years and two days, in the particular circumstances of the present case, has not amounted to an abuse of the right of submission and finds that it is not precluded from considering the author’s claims by the requirements of article 3 of the Optional Protocol.

28. A.N. v. the Russian Federation (CCPR/C/127/D/2518/2014), para. 8.3. See also rule 99 (c) of the rules of procedure, which states that a communication may constitute an abuse of the right of submission when it is submitted five years after the exhaustion of domestic remedies, unless there are reasons justifying the delay. See also H.R. v. Uzbekistan (CCPR/C/131/D/2479/2014), para. 6.3; and Murne et al. v. Sweden (CCPR/C/137/D/2813/2016), para. 9.2. ↩

The author’s claims before the Committee concern the alleged violations of articles 7, 17 and 26 of the Covenant by denying the author necessary healthcare and abortion services in the State Party, interfering with the author’s decision not to continue her non-viable pregnancy and discriminating against her on grounds of sex and gender and between her and women in similar situations. The Committee notes the State Party’s objection that the author has not sufficiently substantiated her claims and that her allegations under article 19 do not arise to a claim as they are not based on the facts. In particular, the Committee observes that the author was obliged to travel to the United Kingdom at her own expense to undergo the procedure of abortion, which was criminalized in the State Party at the time (March 2013), and terminate a non-viable pregnancy, of which she had been informed by the medical authorities. The Committee considers that the author’s claims under articles 7, 17 and 26 of the Covenant have been sufficiently substantiated for the purposes of admissibility. As regards the author’s allegations under article 19, the Committee has considered them insufficiently substantiated since the allegations have focused on article 26, without elaborating upon the asserted violations of article 19 as such. Accordingly, the Committee finds the claims under articles 7, 17 and 26 of the Covenant admissible and proceeds with its consideration of the merits.

The Committee has considered the communication in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.

The Committee notes the author’s allegation that she was informed by public medical professionals at the Rotunda Hospital in Dublin, in the sixteenth week of her pregnancy, on 25 February 2013, that the fetus had been diagnosed with a fatal malformation – trisomy 18 – which could lead to miscarriage or would have life-threatening consequences for the baby at the time of birth or after birth. As a result of the prohibition of abortion in Irish law at the time, she was confronted with two options: carrying to term, knowing that the fetus would most likely die inside her, or having a voluntary termination of pregnancy in a foreign country. The Committee also notes the State Party’s indication that article 40.3.3 of the Constitution, as interpreted by the Supreme Court, provided at the time that it was lawful to terminate a pregnancy in the State Party only if it was established as a matter of probability that there was a real and substantial risk to the life of the woman (as distinct from her health), which could only be avoided by a termination of the pregnancy.

The author claims to have been subjected to cruel, inhuman and degrading treatment as a result of the legal prohibition of abortion as she was, inter alia, provided with only partial information about post-abortion counselling and was denied the healthcare and bereavement support she needed in the State Party, compelled to choose between continuing to carry a dying fetus and terminating her pregnancy abroad and subjected to intense distress and stigma, as a result of which she was also obliged to change her job. The Committee notes the State Party’s opposing argument that, inter alia, the prohibition seeks to balance the competing rights between the fetus and the woman, that in the present case the author’s life was not at risk and that there were no arbitrary decision-making processes or acts of “infliction” by any person or State agent that caused or contributed to cruel, inhuman or degrading treatment of the author. The State Party also argues that the legislative framework guarantees citizens’ right to information in relation to abortion services provided abroad.

Recalling its jurisprudence, the Committee considers that the fact that a particular conduct or action is legal under domestic law does not mean that it cannot infringe article 7 of the Covenant.²⁹ By virtue of the existing legislative framework, the State Party subjected the author to conditions of intense physical and mental suffering. The author, as a pregnant woman in a highly vulnerable position after learning that her wanted pregnancy was not viable and, as documented, inter alia, in the psychological reports submitted to the Committee, had her physical and mental anguish exacerbated by not being able to continue receiving medical care and health insurance coverage for her treatment from the healthcare system of the State Party, the need to choose between continuing her non-viable pregnancy or travelling to another country while carrying a dying fetus, at her personal expense, separated from the support of her family and returning while not fully recovered, the shame and stigma associated with the criminalization of abortion of a fatally ill fetus, the fact of having to leave her son’s remains behind and later having them unexpectedly delivered to her by courier and the prevailing obstacles to her timely access to necessary and appropriate post-abortion counselling and bereavement care, although she received partial information to that effect. Many of the negative experiences that she went through could have been avoided if the author had not been prohibited from terminating her pregnancy in the familiar environment of her own country and under the care of the health professionals whom she knew and trusted, and if she had been afforded the health benefits she needed that were available in the State Party, and could have been enjoyed by her, had she continued her non-viable pregnancy to deliver a stillborn child in the State Party.

29. Mellet v. Ireland, para. 7.4. ↩

In addition, the Committee considers that the author’s suffering was further aggravated by the obstacles that she faced in receiving the information she needed about her appropriate medical options from known and trusted medical providers, as the Rotunda Hospital only identified the Liverpool Women’s Hospital as a suitable facility, leaving the practical arrangements to the author. The Committee notes that the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act legally restricted the circumstances in which any individual could provide information about lawfully available abortion services in the State Party or overseas and criminalized advocating or promoting the termination of pregnancy.³⁰ The Committee also notes the author’s unrefuted statement that she did not receive key medical information about the applicable restrictions on overseas abortions.

30. The Health (Regulation of Termination of Pregnancy) Act was adopted in 2018 and defines limited circumstances for the voluntary termination of pregnancy. ↩

The Committee observes, as stated in paragraph 3 of its general comment No. 20 (1992), that the text of article 7 allows of no limitation and that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reason. The Committee observes that the above facts have exacerbated the author’s mental anguish. She had to travel to the United Kingdom for the termination of her pregnancy, which subjected her to intense physical and mental suffering. She was not offered or referred to appropriate post-abortion and bereavement care and the State Party limited the information that her medical team could give her about the procedure she needed abroad, including by prohibiting her medical team from making a referral or appointment for her with Liverpool Women’s Hospital (see paras. 3.3 and 5.12 above). Accordingly, the Committee considers that, taken together, the above-mentioned facts amounted to cruel, inhuman or degrading treatment, in violation of article 7 of the Covenant.

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 the case, namely to terminate her pregnancy in the State Party, the State Party 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 that falls under the scope of this provision.³¹ 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 fetus and protection of the rights of the woman.

31. Llantoy Huamán v. Peru (CCPR/C/85/D/1153/2003), para. 6.4; L.M.R. v. Argentina, para. 9.3; Mellet v. Ireland, para. 7.7; Whelan v. Ireland, para. 7.8; Susana v. Nicaragua (CCPR/C/142/D/3626/2019), paras. 8.13 and 8.14; Lucía v. Nicaragua (CCPR/C/142/D/3627/2019), paras. 8.13 and 8.14; Norma v. Ecuador (CCPR/C/142/D/3628/2019), para. 11.16; and Fátima v. Guatemala (CCPR/C/143/D/3629/2019), paras. 15.13 and 15.14. See also the Committee’s general comment No. 28 (2000), para. 10. ↩

The Committee considers that the balance that the State Party chose to strike between protection of the fetus and protection of the rights of the woman in the present case cannot be justified.³² The Committee recalls its general comment No. 16 (1988) on the right to privacy, in which it stated that the concept of arbitrariness was intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee notes that the author’s wanted pregnancy was not viable, that the options open to her were inevitably a source of intense suffering and that her travel abroad to terminate her pregnancy had significant negative consequences for her, as described above, that could have been avoided if she had been allowed to terminate her pregnancy in the State Party. As a result, she suffered harm contrary to article 7. The Committee observes that the provision to the author of slightly more information about the available options by the hospital rather than by an intermediary, notably the name of a hospital in the United Kingdom that could provide an appropriate procedure, does not lessen the fundamental interference by the State Party in the author’s decision as to how best to cope with her non-viable pregnancy. The criminalization of the termination of her pregnancy in the State Party unreasonably and arbitrarily caused her to have to carry her non-viable fetus for nine days more than she otherwise would have and to travel to a foreign country for the medical treatment she required, causing all the attendant suffering. On that basis, the Committee considers that the interference in the author’s decision as to how best cope with her non-viable pregnancy was unreasonable and arbitrary and in violation of article 17 of the Covenant.

32. Mellet v. Ireland, para. 7.8; and Whelan v. Ireland, para. 7.9. ↩

The author claims that criminalization of abortion on the grounds of fatal fetal impairment violated her rights to equality and non-discrimination on the grounds of sex and gender and on the grounds of differences in medical needs between women in similar situations, under article 26 of the Covenant. The State Party rejects this claim and contends that its legal regime regarding termination of pregnancy is not discriminatory.

The Committee notes that under the legal regime in the State Party, women pregnant with a fetus with a fatal impairment who nevertheless decide to carry the foetus to term continue to receive the full protection of the public healthcare 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 post-natal medical attention and bereavement care they need. By contrast, women who choose to terminate a non-viable pregnancy must rely on their own financial resources to do so entirely outside the public healthcare system. They are denied health insurance coverage for that purpose, 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 post-termination medical care and bereavement counselling. The Committee notes the author’s uncontested allegations that, in order to secure a termination of her non-viable pregnancy, she was required to travel abroad, incurring financial costs that were difficult for her to bear. She also had to travel back to the State Party shortly after the delivery, as she and her husband could not afford to stay any longer in the United Kingdom.

In paragraph 13 of its general comment No. 28 (2000) on the equality of rights between men and women, the Committee states that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”. The Committee notes the author’s claim that the State Party’s criminalization of abortion subjected her to a gender-based stereotype of the reproductive role of women primarily as mothers, and that stereotyping her as a reproductive instrument subjected her to discrimination.³³ The Committee considers that the refusal to provide the author with a termination of her non-viable pregnancy was informed by the belief that the protection of the fetus should prevail over the mental and physical health of the author, a belief that only affects women and thereby constitutes discrimination on the basis of sex and gender. The Committee also considers that the differential treatment to which the author was subjected in relation to women in similar circumstances failed to adequately take into account her medical needs and socioeconomic circumstances and did not meet the requirements of reasonableness, objectivity and legitimacy of purpose. In this context, the Committee underlines that the refusal of the State Party to allow for terminations in the case of fatal fetal abnormality cannot even be justified as being for the protection of the potential life of the fetus. Accordingly, the Committee concludes that the failure of the State Party to provide the author with the services that she required constituted discrimination on grounds of sex and gender and on grounds of difference in medical needs between women in similar situations, and violated her rights under article 26 of the Covenant.

33. Norma v. Ecuador, paras. 11.21 and 11.22. ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of articles 7, 17 and 26 of the Covenant.

In accordance with article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State Party is obligated to provide the author with adequate compensation and to make available to her any psychological treatment and counselling she needs, paid by the State Party. The State Party is also under an obligation to take steps to prevent similar violations in the future. To that end, the State Party should further amend its law on the voluntary termination of pregnancy, including, if necessary, its Constitution, to ensure compliance with the Covenant, ensuring effective, timely and accessible procedures for pregnancy termination in the State Party, and take measures to ensure that healthcare providers are in a position to supply full information on safe abortion services without fearing that they will be subjected to criminal sanctions.³⁴

34. See also CCPR/C/IRL/CO/4, para. 9; and CCPR/C/IRL/CO/5, paras. 25 and 26. ↩

Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the languages of the State Party.