The European Court of Human Rights - Essay Example

Legal Research Faculty Location Legal Research The European Court of Human Rights (ECHR) is a global judicial organ, formed under the 1950 European Convention on Human Rights to observe the protection of human rights by countries. The Grand Chamber judgement in the case of Vo V France can be located in the following site: Grand Chamber Judgement A, B and C v. Ireland [GC], no. 25579/05, ECHR 2005. [http://www.1cor.com/1315/?form_1155.replyids=1307] Human Rights & Public Law Update Vo v France [GC], no. 53924/00, ECHR 2000 [http://www.1cor.com/1315/?form_1155.replyids=370] The article examines the range of the application of the European Convention on Human Rights (Article 2), regarding the unborn foetus. In the case of Vo V France, the focus is on the jurisprudence of the ECHR on a country’s duty to life protection in view of both charitable and involuntary, neglectful extinction of pregnancies. According to the laws of abortion of Europe and United States, a gradualist ethical viewpoint on the embryo status could substantiate the obligation of criminal punishments for foetal death resulting from aggressive conduct against an expectant woman without discrimination to the woman’s rights. In the case of Vo v. France, Mrs. Thi-Nho Vo (applicant) was a Vietnamese born staying in France. She visited Lyons General Hospital on November 17, 19991 to have regular medical check during her six months of pregnancy. Another woman, Mrs. Thi Thanh van Vo, had visited the same hospital the same day to remove the coil. Because of a mistake due to sharing of a common name by the two women, he physician who examined the first woman perforated amniotic sac, facilitating therapeutic abortion. Although the complainant and her husband lodged a claimant in 199, the physician was acquitted by the Court of Cassation on 30 June 1999. Basing on Article 2 of European Convention, the applicants lodged complain on the government’s refusal to categorize the inadvertent killing of the unborn child as involuntary homicide. The Grand Chamber considered that the subject of the start of life was an issue to be determined at national stage; since the subject had not been determined in the many of the members of the Convention, France in particular, where the matter was an issue of public discussion. Also, the decision made since there was no universal European agreement on the legal and scientific definition of the start of life. That is, at European level, of consensus was present regarding the status and nature of the embryo and foetus; although it could be considered universal ground between countries that the foetus/embryo belonged to humanity. Its capacity to become a human being needed protection in terms of human dignity, devoid of making it an individual with the liberty of life for reasons of Article 21. Moreover, all the nine adjudicators who joined the like-minded and dissenting views felt the issue of whether a foetus lies within the protection of article 2 is in the province of the Court to ascertain. Nonetheless, the ECHR should have accomplished its duty by analyzing the Convention and its procedures to understand the extent of ‘everyone’ in regard to article 2. Because of these fundamental and serious objections towards bringing a foetus in the protective sector of the ECHR, Judge Rozakis, together with several judges on the panel were correctly concerned to mention the fault in the Court’s analysis; that, while declining to approve that Article 2 was appropriate in this court case, the majority decided to abandon their neutral position based the conclusion of non violation on the assertion that the technical guarantees natural in the defense of Article 2 had already been gratified in the states of this court case. Through the application the ‘even assuming’ method on the suitability of Article 2; and by linking the life of the foetus to that of the mother—paragraph 86—the greater part had surreptiously brought the Conventions’ Article 2 to the front of this case. A, B and C v. Ireland In the case of A, B, and C v. Ireland about abortion, the Grand Chamber held that Ireland should permit access to abortion in situations where the life of a woman is endangered. This case was brought to the ECHR by three Irish women who assert that the Ireland law on abortion threatens their health and welfare and breaches the ECHR. Unlike the ECHR, the Irish Constitution clearly expands the right to life to the unborn. Moreover, abortion is forbidden under the criminal rule section 58 of the 1861 Act of Offences Against the Person (OAP) giving punishment ‘punitive servitude for life.’ In this case, the Court’s Grand Chamber differentiated between situations of the first two applicants from the third one. It was established that the first two applicants sought for an abortion on health and/or welfare grounds; while the third sought an abortion for fear that her pregnancy posed a risk to her life. After declining all grievances within Article 3, the Chamber reiterated that Article eight cannot be construed as bestowing a right to abortion, although the complaints of the applicants fall within the range of their liberty to esteem private lives and consequently Article 8. The Chamber, in establishing the proportionality of the limits, elaborated an extensive analysis on the scope of the fringe of approval in the immediate case. The extensive range of consideration was, thus, in theory to be granted to Irish in establishing the issue whether a fair balance was reached between the safety of that public concern, especially the protection agreement under Irish regulation to the right to life of the foetus, and the disagreement rights of the first two applicants to value their private lives within Article 8 of the European Convention2. Nonetheless, the ECHR then examined the issue whether this broad margin of approval demanded to be constricted by the subsistence of a pertinent European agreement. The Court deemed that such an agreement subsists amongst a considerable majority of the astringent countries of the Europe Council towards permitting abortion on wider grounds than granted under the regulation in Ireland. Specifically, the Curt distinguished that the first claimant could have acquired an abortion warranted on health and welfare basis in nearly 40 member States, while the second claimant could have received the same on welfare basis in some 35 member States. Moreover, Island remains the only country that permits abortion mainly when there is a risk to the expectant mother. It is with this alternative the two claimants took issue. Although, in view of the popular, it is likewise to this alternative that the wide margin of approval centrally relates. Consequently, having consideration to that liberty to legally travel overseas for an abortion with contact to suitable medical care and information in Ireland, the Court did not regard that the ban of abortion in Ireland for health and welfare grounds, founded on the thoughtful, moral opinions of the Irish as to the type of life and to the resultant protection to be granted to the liberty to life of the foetus, surpassed the margin of approval granted in relation to the Irish State; and thus, Article 8 had not been debased. The verdict in this case does not characterize an important departure from the present position of Irish law—as it does not need the country to sanction abortion much than it theoretically has done—however, the likely alterations in the law might result into a broad softening on abortion generally, since, theoretically at least, it would be much simpler for mothers in life-threatening conditions to get an abortion. Thus far, the rule has made it nearly hard to do so. Furthermore, the acknowledgement of that abortion lies within Article 8—the right to family and private life—might also result to future extensive judgments, in line with the likes of Roe v Wade in the U.S. Part Two The case of Paton v British Pregnancy Advisory Service Trustees; Paton v United Kingdom presents a father’s rights in extinction a mother’s pregnancy3. In this case, a married woman became expectant and received a medical certificate warranting to a legal abortion within the scope of the Abortion Act of 1967. The husband, the (applicant) applied for a restriction to hold back his wife and the British Advisory Service Trustees and from causing or allowing a termination of the pregnancy upon his wife without his approval. However, the court maintained that because an unborn child had no rights and the father had no liberty at ordinary law concerning his illegitimate child, his right to apply for the restriction had to be based on that fact that he had the position of a husband. Moreover, the court illustrated explicitly that it had never applied command to control married relationships and, in the lack of liberty to be conferred under the Act, the husband lacked any rights implementable in law to stop his spouse from conducting an abortion or prevent the physicians from performing the same which was legal under the 1967 Abortion Act. The case was later moved to the ECHR as Paton v. United Kingdom wherein the plaintiff argued that the UK law infringed articles 2 and 5 of the Convention for the protection of Human Rights and Fundamental Freedoms (PHRFF 1950) since it permits abortion and denies the unborn child (foetus) any lawful rights. This case demonstrate that during abortion, whether the father is a victim—is strongly influenced by termination of a mother’s pregnancy—can allege to be a casualty. According to article 2, subject to an oblique limitation validating extinction of pregnancy is its premature stages so as to safeguard the health and life of the mother at this stage. In terms of failure to confer with the father—defiance of reverence for family life—was reasonable under article 8(2) as being essential for the defense of the mother’s rights. Right to value for family life may not be deduced so extensively as to bestow on the father a liberty to be conferred with or to make claims regarding abortion his spouse plans to have conducted. In the case of Evans v. United Kingdom, the case analyzed whether a British law necessitating assent of both biological parents to the embryo implantation produced through IVF (vitro fertilisation) is in line with Articles 2, 8 and 14 of the ECHR. This case purposely ascertained whether a UK woman could, above her ex- boyfriend’s oppositions, use frozen embryos, which she had formed with him to perform impregnation after the loss of her ovaries due to cancer. The case further ascertained in general whether state members to the ECHR could need sperm donor approval to IVF cure without infringing citizen’s liberty to private existence and right from prejudice founded on disability4. In 2002, Natallie Evans started a movement in England, and Wales’s High Court of justice in the Family Division to stop a fecundity clinic from obliterating frozen embryos, which she had generated through IVF process with her ex-boyfriend Howard Johnston in 2000. Johnston and Evans terminated their relationship in 2002 and, as a result, Johnston withdrew his approval to utilize the embryos, putting the clinic under a lawful responsibility to obliterate them. Evans asserted that the British Embryology and Fertilisation Act 1990 that authorized the obliteration of the embryos, was contrary to the ECHR since it denied the embryo the right to life and hampered with right to private life of Evans. These cases illustrate that judicial systems have been unwilling to identify any paternal right to participate in the pregnancy extinction decision making procedures5. Given that two medical professionals who have decided that a mother’ situations lie within the legal basis the decision is ultimate. The case, however, exclusively concerned measures seeking the stop of an abortion. Even as, it can be predicted that the probable outcome of a measure aggressively cause a termination would lead to the same verdicts as cases stopping an abortion a notable case from Chicago, provides pause for consideration. In Philips v. Irons 354 Ill. No 3d 1164, 2005 the plaintiff Court of Illinois concluded that Chicago physician could litigate his girlfriend and a doctor, for emotional pain after his girlfriend banked sperm from oral sex and planned to be impregnated using the same. The verdict itself does provide the reason for debate as the judgment is not obligatory in United Kingdom jurisdiction, although, the actions that lead to the hearing of this case are issues for debate. The applicant (Dr. Phillips) enlightened that he did not fancy having children before matrimony which Irons appreciated and approved. The spouse did not participate in virginal piercing sex6. This case, just like the previous ones, indicates that a father has no right to be conferred with whether an abortion is performed or not. After the introduction of the 1967 Abortion Act, it was possibly one of the mainly progressive sections of law introduced by any regime, although, according to Jackson7, the legislation in this section seems to have stood firm since its introduction. In spite of whether one considers that a father must or must not have any liberties in establishing whether an abortion is performed it appears unjust that, in the occasion of deception, a father gets no right of establishing whether to become a parent or not, whilst he has all the monetary duties proportionate with fatherhood without any of the alternative. It is apparent, however, that at this instance, the only groups who have a decision in establishing whether an abortion must or must not be conducted are the doctors. Until such a moment, the law in this section gains considered notice to tackle issues of father’ liberty as it relates to pregnancy, the question will always remain, leaving third parties with no rights. Bibliography A, B and C v. Ireland [GC], no. 25579/05, ECHR 2005 Erickson, T.M. 2010. Surrogacy and embryo, sperm, & egg donation: What were you thinking? considering IVF and third-part reproduction. London: iUniverse.com Publishers. Jackson, E. 2009. Medical law: Text, cases and materials 2nd ed. London: Oxford University Press. Merdith, S. 2006. Policing pregnancy: The law and ethics of obstetrics conflict. New York: Ashgate Pub Co. Phillips v. Irons 354 Ill. App. 3d 1164, 2005 (Ill. App. Ct. 1st Dist. 2005). Vo v France [GC], no. 53924/00, ECHR 2000 Read More