CYIL vol. 9 (2018)

PAVEL CABAN CYIL 9 ȍ2018Ȏ C. v. Ireland, the Court added that “a broad margin of appreciation is … in principle to be accorded to the … State in determining the question whether a fair balance was struck” between the protection accorded by national law to the right to life of the unborn and the conflicting rights of the pregnant woman to respect for her private life under Article 8 of the Convention. 39 According to the Court, “of central importance” for the breadth of such margin of appreciation is the finding that “the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2”. 40 Accordingly, the Court concluded that it does not consider that “prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the … protection to be accorded to the right to life of the unborn, exceeds the margin of appreciation accorded in that respect to the Irish State”. 41 Thus, the jurisdiction of the Court, which oversees the protection of human rights in the region with the most liberal national laws on abortion, does not confirm the implied existence of any substantive “right to abortion” (at least under the European Convention on Human Rights), not even when abortion is sought for reasons of health and/or wellbeing. As regards euthanasia, the HRC, as quoted above, in its draft General Comment suggests that “States parties [may allow] [should not prevent] medical professionals to provide medical treatment or the medical means in order to facilitate the termination of life of [catastrophically] afflicted adults, such as the mortally wounded or terminally ill, who experience severe physical or mental pain and suffering and wish to die with dignity.” Several comments concerning this suggestion seem to be warranted. First, the HRC’s brief and simple draft comment does not adequately reflect the complexity of the controversial topic of assisted suicide and euthanasia. It can be just noted that, traditionally, medical ethics differentiates among various types and characteristics of euthanasia: so-called “passive euthanasia” is regarded as permissible in certain situations, while “active euthanasia” is regarded as always prohibited. According to this approach, the decisive criterion for distinguishing between permissible passive euthanasia, which should be properly termed as a “therapeutical abstention”, and impermissible passive euthanasia should be the intent to kill the patient in the latter case, and the absence of such intent in case of therapeutical abstention. Thus, prohibited euthanasia could be characterized as intentional killing of a patient, on his request, by someone else than the patient, namely by the physician, either by conduct (active euthanasia) or omission (impermissible passive euthanasia). Assisted suicide has the same impermissible character as 39 A., B. and C., op. cit. sub 25, para. 233. Ireland is (in fact was – after recent referendum) the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. 40 A., B. and C., op. cit. sub 25, para. 237. See further Vo v. France, op. cit. sub 21, paras. 82 and 85. However, as regards the alleged lack of scientific consensus in this area, see the textbooks on embryology – e.g. MOORE, Keith L. The Developing Human: Clinically Oriented Embryology , 10th edition, Philadelphia, PA: Elsevier, 2016, p. 1094 (“Human development begins at fertilization … when a sperm fuses with an oocyte to form a single cell, the zygote. This highly specialized, totipotent cell marks the beginning of each of us as a unique individual.”). 41 A., B., and C., op. cit. sub 25, para. 241. The Court took also into account the fact that Irish pregnant women have the right to travel abroad lawfully for an abortion, with access to appropriate information and medical care. VI. Assisted suicide and euthanasia under draft HRC‘s General Comment

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