CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ REFLECTIONS OF ETHICAL DEBATE IN THE INTERNATIONAL LAW REGULATION … With reference to the principle of margin of appreciation, the ECtHR therefore allows strict anti-abortion legislations. 50 The only exception is represented by the cases of pregnancy threatening the woman’s life, where the ECtHR requires a legal option for abortion. 51 In the decision of 13 May 1980, Application no. 8416/79, Paton v. the United Kingdom , the Commission concluded that the term “everyone” either does not cover the unborn child or it covers the unborn child only with certain implied limitations. The usage of the term “unborn child” in this context reveals with further clarity that the Commission took an empirical functionalist approach. We will now very briefly introduce two reasons the Commission expressed in order to explain its conclusion. First, the general use of the term “everyone” in Article 2 of the Convention can only be applied to born persons. For example, only a born person can be sentenced to death or killed in self-defence. We can, however, note that this also applies to many human beings who are considered persons whose lives are protected by Article 2, for example new-borns, little children or paralysed patients. The second reason is the alleged imbalance between the rights of the unborn child and the mother in case of granting the unborn life full legal protection. Such a full protection would have to be absolute. For that reason, it would not be possible to abort the child even if it would be the only option to save the pregnant woman’s life. The “unborn life” would be regarded as being of a higher value than the life of a pregnant woman, imposing on the woman’s right to life further, implied limitation. If we wanted to criticise this argument, we would have to highlight the fact that the Commission automatically considered the life of the pregnant woman more worthy than the “unborn life”, since if both were equal, it could be equally possible to consider the woman’s right to life (or her right to autonomy) a factor imposing an implied limitation to the foetus’ right to life. In any case, the Commission did not really investigate the inherent value of the “unborn life” and rather judged possible consequences of granting it full protection. In this way, the Commission seems to have fully embraced a consequentialist approach not only towards abortion, but also its own decision making, when preserving a certain status quo seems to be of more importance than finding the truest possible answer to the question raised. In Paton v. the United Kingdom , and subsequently in several other cases, 52 the Commission and the ECtHR dismissed the complaint of a father of the unborn child against the legality of abortion chosen by the mother. For example in the decision of 19 May 1992, Application no. 17004/90, H. v. Norway , the Commission stated that it was not necessary to decide whether the foetus possibly may enjoy a certain (limited) protection under Article 2, even though it can be the case in certain circumstances. In an important judgment of 8 July 2004, Application no. 53924/00, Vo v. France , the ECtHR referred to the lack of European consensus on the scientific and legal definition of the beginning of human life and concluded once again that this issue comes within the States’ margin of appreciation.

50 See for example A. B. and C. v. Ireland, (application no. 25579/05), the ECtHR judgment of 16 December 2010. 51 See for example Paton v. the United Kingdom, (application no. 8416/79), the Commission decision of 13 May 1980, or A. B. and C. v. Ireland, (application no. 25579/05), the ECtHR judgment of 16 December 2010. 52 See for example Boso v. Italy, (application no. 50490/99), the ECtHR decision of 5 September 2002.

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