EHRM, 16-12-2010, nr. 25579/05

Prior to the adoption of the Eighth Amendment to the Constitution in 1983, Article 40.3 of the Constitution read as follows:

Certain judgments relied upon Article 40.3 and other Articles of the Constitution to recognise the right to life of the unborn and to suggest that the Constitution implicitly prohibited abortion (McGee v. Attorney General [1974] IR 284; G v. An Bord Uchtála [1980] IR32; and Finn v. Attorney General [1983] IR 154).

Abortion is also prohibited under the criminal law by section 58 (as amended) of the Offences Against the Person Act 1861 (‘the 1861 Act’):

Section 59 of the 1861 Act states that:

Section 58 of the Civil Liability Act 1961 (‘the 1961 Act’) provides that ‘the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive’.

Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory prohibition of abortion and stated as follows:

Article 50.1 of the Irish Constitution makes provision for the continuation of laws, such as the 1861 Act, which were in force on the adoption of the Constitution in 1937 as follows:

The meaning of section 58 of the 1861 Act was considered in England and Wales in R. v. Bourne ([1939] 1 KB 687), where the defendant had carried out an abortion on a minor, pregnant as a result of multiple rape. Macnaghten J. accepted that abortion to preserve the life of a pregnant woman was not unlawful and, further, where a doctor was of the opinion that the woman's physical or mental health would be seriously harmed by continuing with the pregnancy, he could properly be said to be operating for the purpose of preserving the life of the mother. This principle was not, however, applied by the Irish courts. In the case of Society for the Protection of the Unborn Child (Ireland) Ltd (S.P.U.C.) v. Grogan and Others ([1989] I.R. 753), Keane J. maintained that ‘the preponderance of judicial opinion in this country would suggest that the Bourne approach could not have been adopted … consistently with the Constitution prior to the Eighth Amendment’.

From the early 1980s there was some concern about the adequacy of existing provisions concerning abortion and the possibility of abortion being deemed lawful by judicial interpretation. There was some debate as to whether the Supreme Court would follow the course adopted in England and Wales in Bourne (cited above) or in the United States of America in Roe v. Wade (410 US 113 (1973)).

A referendum was held in 1983, resulting in the adoption of a provision which became Article 40.3.3 of the Irish Constitution, the Eighth Amendment (53.67% of the electorate voted with 841,233 votes in favour and 416,136 against). Article 40.3.3 reads as follows:

The judgment of the Supreme Court gave rise to a number of questions. Certain obiter dicta of the majority in the Supreme Court implied that the constitutional right to travel could be limited so as to prevent an abortion taking place where there was no threat to the life of the mother.

A further referendum, in which three separate proposals were put forward, was held in November 1992. 68.18% of the electorate voted.

The first was a proposal to amend the Constitution to provide for lawful abortion where there would otherwise be a real and substantial risk to the mother's life, except a risk of suicide. Its acceptance would therefore have limited the impact of the X case: it was rejected (65.35% to 34.65%).

The second proposal was accepted and became the Thirteenth Amendment to the Constitution (added to Article 40.3.3). It was designed to ensure that a woman could not be prevented from leaving the jurisdiction for an abortion abroad and it reads as follows:

The third proposal was also accepted and became the Fourteenth Amendment (also added to Article 40.3.3). It allows for the provision in Ireland of information on abortion services abroad and provides as follows:

Further to certain public reflection process (see paragraphs 62–76 below), in March 2002 a third referendum on abortion was held to resolve the legal uncertainty since the X case by putting draft legislation (Protection of Human Life in Pregnancy Act, 2002) to the electorate. The intention was threefold.

The referendum was to ensure that the draft 2002 Act, once adopted by referendum, could only be changed by another referendum.

The proposed 2002 Act defined the crime of abortion (to replace sections 58 and 59 of the 1861 Act and to reduce the maximum penalty). It also removed the threat of suicide as a ground for a lawful abortion and thereby restricted the grounds recognised in the X case. The definition of abortion excluded ‘the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction’.

The proposed 2002 Act also provided safeguards to medical procedures to protect the life of the mother by setting out the conditions which such procedures were to meet in order to be lawful: the procedures had, inter alia, to be carried out by a medical practitioner at an approved place; the practitioner had to form a reasonable opinion that the procedure was necessary to save the life of the mother; the practitioner had also to make and sign a written record of the basis for the opinion; and there would be no obligation on anyone to carry out or assist in carrying out a procedure.

The referendum resulted in the lowest turnout in all three abortion referenda (42.89% of the electorate) and the proposal was defeated (50.42% against and 49.58% in favour). The Referendum Commission had earlier explained that a negative vote would mean that Article 40.3.3 would remain in place as it was. Any legislation introduced thereafter would have to accord with the present interpretation of the Constitution which would mean a threat of suicide would continue to be a ground for a legal abortion.

Following the above-described amendments, Article 40.3 of the Constitution reads as follows:

The 1995 Act was the legislation envisaged by the Fourteenth Amendment and constituted a response to the above-cited judgment of this Court in the Open Door case. That Act defines the conditions under which information relating to abortion services lawfully available in another State might be made available in Ireland.

Section 2 defines ‘Act information’ as information that

Section 1 confirms that a ‘person to whom section 5 applies’ means a person who engages in, or holds himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy. Section 5 of the Act provides as follows:

Section 8 of the 1995 Act reads as follows:

Before its enactment, the 1995 Act was referred by the President to the Supreme Court for a review of its constitutionality. The Supreme Court found it to be constitutional so that the 1995 Act thereby became immune from future constitutional challenge (Article 34.3.3 of the Constitution). In so concluding, the Supreme Court examined, inter alia, whether the provisions of Articles 5 and 8 were repugnant to the Constitution namely, whether, from an objective point of view, those provisions represented ‘a fair and reasonable balancing by [Parliament] of the various conflicting rights and was not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons.’ In this respect, the Supreme Court noted that:

The Supreme Court considered that the submission, that a woman's life and/or health might be placed at serious risk in the event that a doctor was unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated, was based on a misinterpretation of the provisions of section 8 of the 1995 Act:

Established in April 1995, the Review Group's terms of reference were to review the Constitution and to establish those areas where constitutional change might be necessary with a view to assisting the governmental committees in their constitutional review work.

In its 1996 report, the Review Group considered the substantive law on abortion in Ireland following the X case and the rejection of the Twelfth Amendment to be unclear (for example, the definition of the unborn, the scope of the admissibility of the suicidal disposition as a ground for abortion and the absence of any statutory time-limit on lawful abortion following the X case criteria). The Review Group considered the option of amending Article 40.3.3 to legalise abortion in constitutionally defined circumstances:

The Review Group concluded that, while in principle the major issues should ideally be tackled by constitutional amendment, there was no consensus as to what that amendment should be and no certainty of success for any referendum proposal for substantive constitutional change in relation to Article 40.3.3. The Review Group therefore considered that the only practical possibility at that time was the introduction of legislation to regulate the application of Article 40.3.3. Such legislation could, inter alia, include definitions (for example of the ‘unborn’); afford express protection for appropriate medical intervention necessary to protect the life of the mother, require written certification by appropriate medical specialists of ‘real and substantial risk to the life of the mother’ and impose a time-limit on lawful abortion namely, in circumstances permitted by the X case.

A cabinet committee was established to supervise the drafting of a Green Paper on abortion and the preparatory work was carried out by an Interdepartmental Working Group of officials. In drawing up the Green Paper, submissions were invited from the public, from professional and voluntary organisations and any other parties who wished to contribute. Over 10,000 such submissions were received, as well as petitions containing 36,500 signatures. The introduction to the Green Paper 1999 noted that:

Paragraph 1.09 noted that there was no medical evidence to suggest that doctors in Ireland did not treat women with cancer or other illnesses on the grounds that the treatment would damage the unborn.

Chapter 7 of the paper comprised a discussion of seven possible constitutional and legislative solutions:

As to the fifth option (legislation to regulate abortion as defined in the X case), the Green Paper 1999 noted as follows:

As to the Seventh option (permitting abortion beyond the grounds specified in the X case), the Green Paper 1999 noted as follows:

The Green Paper 1999 was then referred to this Committee. The Committee consulted widely, initially seeking submissions on the options discussed in the Green Paper 1999. Over 100,000 submissions were received from individuals and organisations. Approximately 92% of these communications took the form of signatures to petitions (over 80,000 signatures were contained in one petition alone). The vast majority of communications were in favour of the first option in the Green Paper 1999 (an absolute constitutional ban on abortion).

Since very few medical organisations had made submissions during the preparation of the Green Paper 1999, the Committee was concerned to establish authoritatively the current medical practice in Irish hospitals as regards medical intervention during pregnancies. The Committee therefore heard the views and opinions of experts in the fields of obstetrics, gynaecology and psychiatry through public (and recorded) hearings.

The Chairman of the Institute of Obstetricians and Gynaecologists, which represents 90%–95% of the obstetricians and gynaecologists in Ireland, gave written evidence, inter alia, that:

In oral evidence, the Chairman also noted that:

In 2000 the Committee issued its Fifth Progress Report on Abortion. The Report explained that was not a comprehensive analysis of the matters discussed in the Green Paper 1999 but rather a political assessment of questions which arose from it in the context of the submissions received and the hearings conducted.

The Committee on the Constitution agreed that a specific agency should be put in place to implement a strategy to reduce the number of crisis pregnancies by the provision of preventative services, to reduce the number of women with crisis pregnancies who opt for abortion by offering services which make other options more attractive and to provide post-abortion services consisting of counselling and medical check-ups. There was agreement on other matters including on the need for the Government to prepare a public memorandum outlining the State's precise responsibilities under all relevant international and European Union (‘EU’) instruments.

The Committee agreed that clarity in legal provisions was essential for the guidance of the medical profession so that any legal framework should ensure that doctors could carry out best medical practice necessary to save the life of the mother. However, the Committee found that none of the seven options canvassed in the Green Paper 1999 commanded unanimous support of the Committee. Three approaches commanded substantial but not majority support: the first was to concentrate on the plan to reduce the number of crisis pregnancies and the rate of abortion and to leave the legal position unchanged; the second approach would add legislation which would protect medical intervention to safeguard the life of the mother within the existing constitutional framework; and the third approach was in addition to accommodate such legislation with a Constitutional amendment. The Committee did not therefore reach agreement on a single course of reform action.

Further to the Fifth Progress Report on Abortion 2000, the CPA was established by the Crisis Pregnancy Agency (Establishment) Order 2001 (S.I. No. 446 of 2001). Section 4 of that Order described the functions of the Agency, in so far as relevant, as follows (prior to its amendment in 2007):

The CPA implemented its first Strategy (2004–2006) and is in the process of implementing its second one (2007–2011). It achieves its objectives mainly through its communications programme (including media campaigns and resource materials), its research programme (promoting evidence-based practice and policy development) and its funding programme which funds projects ranging from personal development to counselling, parent supports and medical and health services.

Further to the Health (Miscellaneous Provisions) Act 2009, the CPA was integrated into the Health Service Executive (HSE) from 1 January 2010. Funding of the crisis pregnancy function was also transferred to the HSE.

The CPA Guidelines, developed in association with the Irish College of General Practitioners, outline the role of GPs in the management of crisis pregnancy. The Guidelines detail the role of GPs in the prevention of crisis pregnancies, in assisting the woman in making decisions about the outcome of her crisis pregnancy (by, inter alia, counselling on all options available to her including pregnancy, adoption and abortion) and assisting her in safely carrying out her decision (by, inter alia, advising on the importance of follow-up care, including medical care, after any abortion). GPs are advised on the importance of providing sensitive counselling to assist the decision-making process (‘to minimize the risk of emotional disturbance, whatever decision is reached’) and of pre- and post-abortion counselling and medical care. GPs are reminded of their duty of care to the patient, that they should never refuse treatment on the basis of moral disapproval of the patient's behaviour and that, where they have a conscientious objection to providing care, they should make the names of other GPs available to the patient.

The Guidelines went on to note that ‘Irrespective of what decision a woman makes in the crisis pregnancy situation, follow-up care will be important. This may include antenatal care, counselling, future contraception or medical care after abortion. The GP's response to the initial consultation will have a profound influence on her willingness to attend for further care’. If a woman decides to proceed with an abortion, it is the GP's main concern to ensure that she does so safely, receives proper medical care, and returns for appropriate follow-up. GPs are advised to supplement verbal advice with a written handout.

A Patient Information Leaflet is attached to the Guidelines. It informs women that, should they choose an abortion, they should plan to visit their GP at least three weeks after the termination to allow the GP to carry out a full check-up and allow the woman to express any questions or concerns she may have.

The subject of this report was the perceptions of Irish women in the general age range of 20–30 about fertility, sex, and motherhood. The report captured the meanings young women attributed to their fertility and fertility-related decisions in relation to life objectives and women's changing roles in education, careers, relationships, and motherhood. The report uses data drawn from qualitative interviews (twenty individual case studies and twelve focus groups; the total sample was 66 women with an age range of 19–34). The research reflected the views of a diverse group of women by socio-economic status, geographic location, and relationship history. The data demonstrated a need for greater support for young Irish women in the range and variety of their decision-making about fertility, sex and motherhood.

The significant findings included that the X case and the declining role of the Catholic Church were major events in the lives of young women and shaped their attitudes and experiences. Young women had moved into adulthood more firmly convinced that sexual and reproductive decisions should be part of a person's private actions, with the freedom to decide as they think best.

The aim of the study was to establish nationally representative data on current attitudes, knowledge and experience of contraception, crisis pregnancy and related services in Ireland. It carried out a cross-sectional national survey of the young adult population using a telephone interview (in 2003) of 3000 members of the public to include equal numbers of women and men and people aged 18–45 in order to focus on those for whom contraceptive practices, service perceptions and service usage were considered most relevant. It was also considered that the age profile of the sample meant that the results would be particularly relevant to contemporary evaluation of services and in planning for the future.

Public attitudes to aspects of crisis-pregnancy outcomes were assessed to evaluate the acceptability of alternative outcomes (lone parenting, adoption and abortion). The questions were adapted from a prior survey in 1986 and the replication of these questions in the CPA study provided an opportunity to measure any changes in attitudes to abortion. In the 1986 survey, over 38% of participants indicated that they believed abortion should not be permissible under any circumstances while 58% felt that it should be allowed in certain circumstances. 4% did not express a view.

In the CPA study, the question was extended to include the option that a woman ‘should always have a choice to have an abortion, regardless of the circumstances’: 8% of participants felt that abortion should not be permissible under any circumstances, 39% felt that it should be allowed under certain circumstances, 51% felt women should always have a choice to have an abortion and 2% were unsure.

Since many participants, who thought that a woman should have a choice in certain circumstances or who did not know, were considered to hold qualified views concerning the acceptability of abortion, those participants were asked whether they agreed or disagreed that a woman should have a choice to have an abortion in specific circumstances (based on the 1986 survey). The Report described the results as follows:

The findings as to the circumstances in which abortion was acceptable were compared with those reported from the 1986 survey. The percentages of those who agreed that abortion was acceptable in various circumstances were reported as a proportion of all those interviewed for the relevant study. This showed that the acceptability of abortion in various circumstances ‘had increased substantially in the population over time’:

This case concerned a thirteen-year-old girl (‘C’) who became pregnant following a rape. The Health Board, which had taken the girl into its care, became aware that she was pregnant and, in accordance with her wishes, obtained a interim care order (under the Child Care Act 1991) from the District Court allowing the Health Board to facilitate a termination of her pregnancy. C's parents sought to challenge that order by judicial review. On appeal C, her parents and the Health Board were each represented by a Senior and Junior Counsel, and the Attorney General was represented by two Senior and two Junior Counsel.

On 28 November 1997 the High Court accepted that, where evidence had been given to the effect that the pregnant young woman might commit suicide unless allowed to terminate her pregnancy, there was a real and substantial risk to her life and such termination was therefore a permissible medical treatment of her condition where abortion was the only means of avoiding such a risk. An abortion was therefore lawful in Ireland in C's case and the travel issue became unnecessary to resolve. It rejected the appeal on this basis. In rejecting the parents' argument that the District Court was not competent given, inter alia, the reconciliation of constitutional rights required, the High Court found:

The parties disputed the ‘ownership’ of embryos fertilised in vitro. The High Court ([2006] IEHC 359) analysed at some length the decision of the Supreme Court in X which it found equated ‘unborn’ with an embryo which was implanted in the womb or a foetus. The High Court concluded that there was no evidence that it was ever in the mind of the people voting on the Eighth Amendment to the Constitution that ‘unborn meant anything other than a foetus or child within the womb’. Accordingly, it could not be concluded that embryos outside the womb or in-vitro fell within the scope of Article 40.3.3. As regards the Medical Council Guidelines 2004, the High Court noted as follows:

The appeal to the Supreme Court ([2009] IESC 82) was unanimously dismissed, the five judges each finding that frozen embryos did not enjoy the protection of the unborn in Article 40.3.3 of the Constitution. Hardiman and Fennelly J.J. also expressed concern about the absence of any form of statutory regulation of in vitro fertilisation in Ireland.

D was a minor in care who had been prevented by the local authority from going abroad for an abortion. Her foetus had been diagnosed with anencephaly, which diagnosis was accepted as being incompatible with life outside the uterus. According to a transcript of its ex tempore oral judgment, the High Court clarified that the case was ‘not about abortion or termination of pregnancy. It is about the right to travel, admittedly for the purposes of a pregnancy termination, but that does not convert it into an abortion case.’ Accordingly, the legal circumstances in which a termination of pregnancy was available in Ireland were not in issue, and this ‘judgment expressly disavows any intention to interfere, whether by enlargement or curtailment, with such circumstances’. The High Court held that the right to travel guaranteed by the Thirteenth Amendment took precedence over the right of the unborn guaranteed by Article 40.3.3. There was no statutory or constitutional impediment preventing Ms D from travelling to the United Kingdom for an abortion.

Efforts to preserve, inter alia, the existing Irish prohibition on abortion gave rise to Protocol No. 17 to the Maastricht Treaty on European Union which was signed in February 1992. It reads as follows:

On 12 June 2008 the proposed constitutional amendment for the ratification of the Lisbon Treaty was rejected by referendum. The Government commissioned University College Dublin to conduct independent research into the behaviour and attitudes of the electorate and, notably, to analyse why the people voted for, against or abstained in the referendum. The Report (entitled ‘Attitudes and Behaviour in the Referendum on the Treaty of Lisbon’ prepared by professionals with expertise in political science, quantitative research methods, economics and social science data) is dated March 2009. Fieldwork was completed in July 2008 and the sample size was 2,101. The Executive Summary concluded:

The Government sought and obtained a legally binding Decision of the Heads of State or Governments of the 27 Member States of the EU reflecting the Irish people's concerns that Article 40.3.3 would be unaffected by the Lisbon Treaty (The Presidency Conclusions of the European Council of 11/12 December 2008 and of 18/19 July 2009 (172171/1/08 and 11225/2/08). The relevant part of the Decision, which came into effect on the same date as the Lisbon Treaty, reads as follows:

On 2 October 2009 a referendum approved a constitutional amendment allowing for the ratification of the Treaty of Lisbon.

This resolution was adopted by 102 votes to 69. The 4 Irish representatives to the PACE voted against it, two of the members urging the PACE to apply the Programme of Action of the Cairo ICPD 1994.

The Resolution reads, in so far as relevant, as follows:

The Commissioner noted that there was still no legislation in place implementing the X judgment and, consequently, no legal certainty when a doctor might legally perform a life-saving abortion. He opined that, in practice, abortion was largely unavailable in Ireland in almost all circumstances. He recalled the Tysiąc v. Poland judgment (no. 5410/03, ECHR 2007-IV) and urged the Irish authorities to ensure that legislation was enacted to resolve this problem.

The Report of the CEDAW of July 2005 (A/60/38(SUPP) recorded Ireland's introduction of its periodic report to the Committee as follows:

In the Committee's concluding comments, it responded as follows:

In the Committee's Concluding Comments on the third periodic Report of Ireland on observance of the UN Covenant on Civil and Political Rights (CCPR/C/IRL/CO/3 dated 30 July 2008), it noted:

Abortion is available on request (according to certain criteria including gestational limits) in some 30 Contracting States. An abortion justified on health grounds is available in some 40 Contracting States and justified on well-being grounds in some 35 such States. Three Contracting States prohibit abortion in all circumstances (Andorra, Malta and San Marino). In recent years, certain States have extended the grounds on which abortion can be obtained (Monaco, Montenegro, Portugal and Spain).

The Government considered that the profoundly important issues in this case were based on subjective and general factual assertions which were unproven, disputed and not tested either by review by a domestic tribunal or through any other form of interaction with the State. No documentation was submitted, in contrast to the above-cited case of Tysiąc v. Poland. Many of the alleged perceptions and assumptions (notably as regards information available and medical treatment) were countered by authoritative documents. It was a serious and unsubstantiated allegation to suggest that doctors and social workers would not carry out the duties imposed on them by law.

As to the first applicant, the Government did not accept that her health was adversely affected by travelling for an abortion (her alleged side effects were known complications of abortion) or that the stress which she allegedly suffered resulted from the Irish legal regime. If she received inadequate medical treatment on her return, this was due to her reluctance to see a doctor. Her suggestions that a social worker would have denied or reduced her access to her children and that she did not consult her doctor as he or she might disapprove, were unsubstantiated and, indeed, such alleged acts would have been unlawful.

As to the second applicant, the Government maintained that nothing demonstrated that her health and well-being were affected by having to travel for an abortion. Part of the distress she claimed to have suffered stemmed from her family's opinions and, if she were advised by the English clinic to lie to Irish doctors, that clinic misunderstood Irish law. The alleged ‘chilling effect’ of Irish criminal law did not affect her factual situation. If she had an ectopic pregnancy, she would have been able to seek an abortion as well as the necessary follow-up care in Ireland.

As to the third applicant, the Government submitted that the asserted facts (her rare form of cancer) did not allow a determination of whether her pregnancy was life threatening or whether she was unable to obtain relevant advice to that effect. She had not demonstrated that her health and well-being were affected by a delay caused by travelling for a surgical abortion: she herself submitted that she chose an abortion provider who did not offer a medical abortion. It was equally unclear whether she suggested that she was not afforded the proper treatment due to some form of moral disapproval.

The applicants considered their factual submissions to be clear. The first two applicants travelled to England for abortions for reasons of health and/or well-being and the third applicant given her fear that her pregnancy posed a risk to her life. The third applicant also referred to a fear for the health of the foetus given the prior tests for cancer she had undertaken. They took issue with the Government's description of their seeking abortion for ‘social reasons’, a vague term with no legal or human rights meaning. The Court should take note of the first applicant's concern about her mental health, alcoholism and custody of her children and it was understandable that the first applicant would prefer not to inform her social worker, given the possibility that the latter would disapprove and prejudice her chances of regaining custody of her children. The Court should also take note of the second applicant's concern about her well-being and of the third applicant's concern for her own life and for the health of her foetus. All felt stigmatised as they were going abroad to do something that was a criminal offence in their own country. The constitutional and criminal restrictions added to the difficulties and delays in accessing abortions and all applicants faced significant hardship as a result of having to travel abroad for an abortion.

Joint observations were submitted by ‘Doctors for Choice’ (an Irish non-governmental organisation of approximately 200 doctors) and by the British Pregnancy Advisory Service (‘BPAS’, a British non-governmental organisation set up following the Abortion Act 1967 to provide non-profit services, to train doctors and to ensure premises for safe abortions).

They made detailed submissions as to the physiological and physical consequences for women of the restrictions on abortion in Ireland. Women had to bear the weight of abortions abroad. They had recourse to less safe abortions, inevitable delays in abortions abroad, de facto exclusion from early non-invasive medical abortion, ‘backstreet’ illegal abortions in the country or abortions abroad in unsafe conditions. Continuing pregnancy was riskier than a termination. Studies were not definitive about the negative psychological impact of an abortion, especially measured against the burden of an unwanted pregnancy. Nor was there evidence that abortion affected fertility.

The third parties also made the following additional submissions. They suggested that vital post-abortion medical care and counselling in Ireland were randomly available and of poor quality due to a lack of training and the reluctance of women to seek care. Women in Ireland were also being denied other medical care: life saving treatment was denied to pregnant women and women with a diagnosis of severe foetal abnormality were denied an abortion and necessary genetic analysis post-abortion in Ireland. Concealment of pregnancy and the abandonment of newborns were not unusual in Ireland. The restrictions on abortion also impacted on women's autonomy and rights: families suffered as a result of the unintended addition; women of already reduced resources found their lives disproportionately disadvantaged by abortion restrictions; women were entitled to confidentiality as regards their reproductive choices but feared that admitting an abortion would mean that their privacy would not be respected and, sometimes, it inevitably was not as, for example, in the case of female immigrants who had to apply for travel documents to travel for an abortion; and comforted, by the restrictions, treating health professionals pressured women against abortion.

The Government disputed these third party submissions. In particular, they considered unsubstantiated the suggestion that pre- and post-abortion care and counselling in Ireland was ‘randomly available or of poor quality’. The CPA funded 14 service providers to offer non-judgmental crisis pregnancy and post-abortion counselling free of charge in 27 cities and towns in Ireland; some of the larger cities and towns had more than one service; the CPA funded 7 service providers to offer free post-termination medical checks, provided by the relevant service in family planning clinics or through a network of GPs in a number of locations around the country; GPs and family planning clinics which did not receive funding from the CPA also provided such services, which were either paid for, or subsidised through, the health service; the CPA had developed information resources on post-abortion care including an information leaflet published in 2006 and widely distributed throughout Ireland and in abortion clinics in the United Kingdom, a new website and a service providing messages to mobile telephones to raise awareness and provide clarity about the availability of free post-abortion medical care as well as counselling. The Irish College of GPs had reported that 95% of doctors provided medical care after abortion.

The Court would underline at the outset that it is not its role to examine submissions which do not concern the factual matrix of the case before it: rather it must examine the impugned legal position on abortion in Ireland in so far as it directly affected the applicants, in so far as they belonged to a class of persons who risked being directly affected by it or in so far as they were required to either modify their conduct or risk prosecution (Burden v. the United Kingdom [GC], no. 13378/05, §§ 33–34, 29 April 2008; and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 28, 22 December 2009). In this respect, the present case is to be contrasted with the above-cited Open Door case where the interference in question was an injunction against the provision by the applicant non-governmental organisations of, inter alia, information to women about abortion services abroad so that the Court's response in that case necessarily involved consideration of the general impact on women of the injunction.

Turning therefore to the circumstances of the present applicants' cases, the Court notes that, although arguing that the facts were unsubstantiated and disputed, the Government did not seriously dispute (Open Door, § 76, cited above) the core factual submission that the applicants had travelled to England for abortions. Having regard also to the nature of the subject matter as well as the undoubted personal reticence associated with its disclosure in proceedings such as the present, the Court considers it reasonable to accept that each of the applicants travelled to England for an abortion in 2005.

As to their reasons for doing so, the Court notes the claimed involvement of a social worker and the fact that the first applicant's children had been in care, facts which were not specifically disputed by the State. It considers that it can reasonably rely on the related personal circumstances outlined by her (her history of alcoholism, post-natal depression and her difficult family circumstances) as her reasons for seeking an abortion abroad. The second applicant acknowledged that she knew her pregnancy was not ectopic before her abortion and the Court has accepted her core factual submission that she travelled for an abortion as she was not ready to have a child. Equally, it is reasonable to consider that the third applicant previously had cancer, this not being specifically disputed by the Government, so that she travelled abroad for an abortion because of a fear (whether founded or not) that her pregnancy constituted a risk to her life (that her cancer would return because of her pregnancy and that she would not be able to obtain treatment for cancer in Ireland if she was pregnant) and because she would be unable to establish her right to an abortion in Ireland. She also suggested that her foetus might have been harmed by tests undergone for cancer but she did not indicate that she had undertaken the relevant clinical tests or established that this was an overriding reason for obtaining an abortion abroad.

Accordingly, the Court finds that the first applicant travelled for an abortion for reasons of health and well-being, the second applicant for well-being reasons and the third applicant as she mainly feared her pregnancy constituted a risk to her life. While the Government's use of the term ‘social reasons’ is noted, the Court has considered it useful to distinguish between health (physical and mental) and other well-being reasons to describe why the applicants choose to obtain abortions.

As to the psychological impact on the applicants of their travelling abroad for an abortion, the Court considers that this is by its nature subjective, personal and not susceptible to clear documentary or objective proof. The Court considers it reasonable to find that each applicant felt the weight of a considerable stigma prior to, during and after their abortions: they travelled abroad to do something which, on the Government's own submissions, went against the profound moral values of the majority of the Irish people (see also paragraphs 222–227 below) and which was, or (in the case of the third applicant) could have been, a serious criminal offence in their own country punishable by penal servitude for life (paragraph 30 above). Moreover, obtaining an abortion abroad, rather than in the security of their own country and medical system, undoubtedly constituted a significant source of added anxiety. The Court considers it evident that travelling abroad for an abortion constituted a significant psychological burden on each applicant.

As to the physical impact of travelling for an abortion abroad, it is evident that an abortion would have been physically a less arduous process without the need to travel, notably after the procedure. However, the Court does not find it established that the present applicants lacked access to necessary medical treatment in Ireland before or after their abortions. The Court notes the professional requirements on doctors to provide medical treatment to women post-abortion (the CPA Guidelines and Medical Council Guidelines (paragraphs 80–81 and 89–91 above). Against this, the first and second applicants accepted that they obtained medical treatment post-abortion when required. The third applicant's suggestions as to the inadequacy of medical treatment available to her for a relatively well-known condition (incomplete abortion) are too general and improbable to be considered substantiated.

As to the financial burden of travelling for an abortion abroad, it would be reasonable to consider that the costs of doing so constituted a significant financial burden on the first applicant (given her personal and family circumstances as accepted at paragraph 125 above) and constituted a considerable expense for the second and third applicants.

As to any delay (and the consequent physical and psychological impact on the applicants), the financial demands on the first applicant must be accepted as having delayed somewhat her abortion. The second applicant herself chose to delay her travel to consult further in Ireland. While the third applicant alleged she had to await 8 weeks for a surgical abortion (in addition to the time taken in making her earlier enquiries about her medical situation), she again remained vague on essential matters notably as to the precise stage of her pregnancy when she obtained her abortion: the Court considers she has not either demonstrated that she was excluded from an early medical abortion or established a specific period of delay in travelling for an abortion.

As to the first and second applicants' submissions that there was a lack of information on the options available to them and that this added to the burden of the impugned restrictions on abortion in Ireland, the Court finds these submissions to be general and unsubstantiated. While Doctors for Choice/BPAS maintained that information services in Ireland were inadequate, the Court has had regard to the developments in Ireland since the above-cited Open Door judgment including: the adoption of the 1995 Act (the breadth of which was explained by the Supreme Court during its review of its constitutionality) to ensure a right to provide and receive information about, inter alia, abortion services abroad (paragraphs 56–61 above); the establishment of the CPA in 2001, with the aims outlined in section 4 of the relevant establishing order, its first Strategy (2004–2006) and the Government's clarifications as regards care and counselling provided or facilitated by the CPA (paragraphs 77–79 and 122 above); and the adoption of the CPA Guidelines and Medical Council Guidelines (paragraphs 80–81 and 89–91 above). Against this, the first two applicants' core submission was that they understood that their only option for an abortion on health and/or well-being grounds was to travel abroad and, in that respect, neither indicated precisely what information they sought but could not obtain.

The third applicant's submission about a lack of information is different. She complained that she required a regulatory framework by which any risk to her life and her entitlement to a lawful abortion in Ireland could be established, so that any information provided outside such a framework was insufficient. This submission will be examined as relevant on the merits of her complaints.

Finally, and as to the risk of criminal sanctions, the first and second applicants did not submit that they had considered an abortion in Ireland and Irish law clearly allowed them to travel for an abortion abroad (the Thirteenth Amendment to the Constitution and D(A Minor), paragraphs 48 and 99 above): apart from the psychological impact of the criminal regime in Ireland referred to above, the criminal sanctions had no direct relevance to their complaints. The risk of such sanctions will be examined on the merits of the third applicant's complaints in so far as she maintained that those sanctions had a chilling effect on the establishment of her qualification for a lawful abortion in Ireland.

The Government had two general observations. They noted the applicants' distinction between the relevant legal provisions, on the one hand, and the State's restrictive interpretation of those provisions, on the other. Since the applicants took issue with the latter, this underlined the need for them to have exhausted domestic remedies. The Government emphasised the consequences for the Convention system of this Court deciding on such vitally important issues when the underlying facts, as well as the application of the relevant domestic laws to each applicant's case, had not been determined by a domestic court.

The Government argued that there were effective remedies at the applicants' disposal. Supported by a Senior Counsel's Opinion, they relied on the principles outlined in the decision in D v. Ireland ((dec.), no. 26499/02, 6 September 2005) and, notably, underlined the need to test domestically, in a common law constitutional system, the meaning and potential of any alleged lack of clarity in domestic law so as to afford the State the opportunity to address breaches domestically. The Constitution provided remedies where there were constitutional rights and the domestic courts would make all rulings required to protect those rights.

The main remedies on which the Government relied, supported by the Opinion, were a challenge to the constitutionality or compatibility of the 1861 Act or, since the 1995 Act had been found to be constitutional, by taking an action for mandatory relief requiring the provision of information in compliance with that Act.

As to the merits of a constitutional action, they underlined the interpretative potential of Article 40.3.3 of the Constitution as confirmed by the admission of a risk of self-harm itself as a ground for lawful abortion in the X case and by two later domestic cases: the MR v. TR case raised the question of the point at which Article 40.3.3 would apply in the process of fertilisation and conception and demonstrated that it was possible to ‘raise arguments’ in the Irish courts as to the breadth of Article 40.3.3; and in the case of D(A Minor), the High Court noted that the question of the minor's right to an abortion in Ireland (given her foetus' diagnosis) gave rise to ‘very important and very difficult and very significant issues’. This potential was such that it was difficult ‘to exclude on an a priori case basis many arguments in this area, particularly where the facts are compelling’ and the domestic courts would be unlikely to interpret Article 40.3.3 with ‘remorseless logic’. However, the Government confirmed in their observations that on no analysis did Article 40.3.3 permit abortion in Ireland for social reasons.

As to seeking a post-abortion declaration of incompatibility under the 2003 Act and an ex gratia payment of damages from the Attorney General, the Government argued that it was incorrect to suggest that the 2003 Act afforded minimal weight to Convention rights. The courts were required to interpret statutes in a Convention compliant manner and, if that was not possible, to make a declaration of incompatibility (the above-cited Carmody case). While a declaration of incompatibility was not obligatory on the State, it would be formally put to the houses of the Oireachtas (parliament) and Ireland's record of solemn compliance with its international obligations entitled it to a presumption that it would comply with those obligations and give effect to declarations of incompatibility.

As regards the first applicant specifically, the Government accepted that an abortion in Ireland in the circumstances outlined by her would have contravened domestic law and that ‘it was hard to see that she had any real prospects of succeeding on the merits of her claim to an entitlement to a termination’. Nevertheless, the domestic courts were deprived of the possibility of fact-finding and of determining the scope and application of the relevant legislative and constitutional provisions. Had the second applicant been diagnosed as suffering from an ectopic pregnancy, she would have been entitled to a therapeutic abortion in Ireland. In so far as the third applicant maintained that she was refused an abortion when her life was at risk, she could have sought mandatory orders from the courts requiring doctors to terminate her pregnancy in accordance with the X case criteria. In so far as she suggested that the 1861 Act produced a chilling effect precluding her from a lawful abortion in Ireland, she could have brought proceedings to establish that the Act interfered with her constitutional rights and to have its offending provisions set aside. The suggestion that legislation, and not litigation, was required was inconsistent with the Commission's position in Whiteside v. the United Kingdom (no. 20357/92, (dec.) 7 March 1994).

The Government noted that the applicants had submitted no legal opinion or evidence that they had taken legal advice at the relevant time. The Government also responded in some detail to other effectiveness issues relied on by the applicants as regards the constitutional actions, notably the timing, speed, costs and confidentiality of those actions.

The applicants maintained that the State had not demonstrated that an effective domestic remedy was available to any of them and they were not required to initiate ineffective actions simply to clarify facts. They underlined that it was not the law, but the State's interpretation of the law, which was overly restrictive. In addition, only remedies which could intervene prior to any necessary abortion could be considered effective.

Different submissions were made as regards the first and second applicants, on the one hand, and the third applicant, on the other.

The first and second applicants submitted that domestic entitlements to abortion remained general (Article 40.3.3 as clarified in the X case). While there had been numerous consultations and reports, the law had not changed since 1992 and certainly not towards allowing abortion in Ireland on the grounds of health or well-being. Moreover, even if the domestic courts could find in favour of these applicants, they would be unlikely to order the Government and/or a doctor to facilitate access by these applicants to abortion services in Ireland in a timely manner. Indeed, it would also be difficult to find a doctor to perform the procedure given the potential stigma and intimidation of a high profile case. This Court's decision in D v. Ireland was distinguishable from the present case since the conflicting interests in that case were entirely different from the present cases.

In addition, the 2003 Act did not require a balancing of the rights of the unborn and the mother or of the Convention and Constitutional rights and a constitutional prohibition would always trump Convention rights. A declaration of incompatibility created no legal obligation on the State and a successful applicant could only apply for an ex gratia award of damages. There had been only three declarations of incompatibility to date (concerning the Irish Civil Registration Act 2004 and the Housing Act 1966) and these statutes remained in force pending ongoing current appeals.

As to the third applicant, there were no procedures at all to be followed by a woman and her advising doctor to determine her qualification for a life-saving abortion. Accordingly, the lack of such procedures constituted ‘special circumstances’ absolving the third applicant from any obligation to exhaust domestic remedies (Opuz v. Turkey, no. 33401/02, § 201, ECHR 2009-…). Even if she could have raised different arguments in a constitutional action about a risk to her life, it would have had little chance of success. In any event, legislation was required to clarify constitutional provisions not litigation.

The applicants also made detailed submissions on other effectiveness issues as regards the proposed constitutional actions and, notably, as regards the timing, speed, costs and confidentiality of such actions.

The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, amongst many other authorities, McFarlane v. Ireland [GC], § 107, 10 September 2010). The Court also recalls the relevant principles set out at paragraphs 83–85 of its decision in the above-cited D v. Ireland case and, notably, the established principle that in a legal system providing constitutional protection for fundamental rights it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation. In this respect, it is recalled that a declaratory action before the High Court, with a possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights (D v. Ireland, at § 85).

It is further recalled that the question of the applicants' exhaustion of domestic remedies must be approached by considering the high threshold of protection of the unborn provided under Irish law by Article 40.3.3 as interpreted by the Supreme Court in the X case (Open Door, cited above, § 59). It is further recalled that the constitutional obligation that the State defend and vindicate personal rights ‘by its laws’ (Article 40.3.1 of the Constitution) has been interpreted by the courts as imposing an obligation on the Irish courts to defend and vindicate constitutionally protected personal rights.

While the Court has noted the applicants' distinction between domestic law on abortion and what they described as the State's interpretation of that law, the meaning of this submission is not entirely clear. The Court has had regard to the relevant Irish abortion laws namely, the constitutional and legislative provisions as interpreted by the Irish courts. It has examined whether the applicants had available to them any effective domestic remedies as regards their complaints about the prohibition in Ireland of abortion on health and well-being grounds (the first two applicants) and as regards a lack of legislative implementation of the right to abortion in Ireland in the case of a risk to the woman's life (the third applicant).

Accordingly, the Court dismisses the Government's objection on grounds of a failure to exhaust domestic remedies as regards the first and second applicants and joins this objection to the merits of the third applicant's complaint under Article 8 of the Convention.

These third parties described themselves as persons and bodies dedicated to the defence of the sanctity of human life.

As regards Article 2 of the Convention, Ireland had a sovereign right to determine when life began and the appropriate protections based on the paramount right to life, which right outweighed other rights. Ireland's abortion regime was based on full and equal rights to life of the mother and of the unborn. It was against the paramount right to life of the unborn that the lesser rights to privacy and bodily integrity of the mother had to be measured. The primacy of the right to life came from the fact that the basic building block of the State was the individual and personal rights existed only because a human being existed from the moment of conception. This primacy was recognised by many international instruments. The principle of respect for national sovereignty formed the very basis for the Convention rights because those rights stemmed from treaty obligations. Recognising a right to abortion would create a new Convention right to which Ireland had never acceded. Ireland's position deserved special deference because of its longevity and consistency despite numerous domestic challenges and given its inscription in the Constitution ratified by the overwhelming majority of the Irish people. The Irish Government have always taken the firm position that their participation in the European political union would not impact on Article 40.3.3 of the Constitution.

The Convention organs recognised that Article 2 gave States the option of protecting the unborn (H v. Norway, cited above). The above-cited judgment of Vo v. France confirmed that the unborn belonged to the human race and that the highest deference had to be shown to States in determining the extent of that protection which amounted, indeed, to a higher measure of protection, inclusive of life, envisaged by Article 53 of the Convention. Since abortion in Ireland was lawful in case of a risk to life, it met any positive obligations under Article 2 of the Convention. Neither was there any negative aspect of Article 2 requiring States to deny life to the unborn to protect the life of women. Interpreting Article 2 in that manner would be tantamount to limiting the right to life by prohibiting States from recognising that right in the unborn and, indeed, creating a right to kill: the scope of Article 2 did not reach that far (Pretty v. the United Kingdom, no. 2346/02, § 39, ECHR 2002-III).

Just as Article 2 did not provide a right to abortion, Ireland's restrictions on abortion could not be said to unduly interfere with the Article 8 rights of women. A woman's right to privacy and bodily integrity in the context of pregnancy was not absolute, nor was pregnancy a purely private matter as it was to be analysed against the rights of the unborn and the State's right to choose when life began. In any event, the impugned restrictions were ‘prescribed by law’. They were precise in their formulation, clearly defined in the case law (see the X case), codified by the Medical Council Guidelines and uniform in their application. In this latter respect, it was legitimate to rely on clinical judgments. The restrictions were also ‘proportionate’ given the paramount right to life of the unborn. Deference to the fact that Ireland was inclusive in recognising the right to life of the mother and the unborn outweighed any alleged conflict with the interests of the woman to health, privacy and bodily integrity. In fact, the restrictions also protected women: they avoided the selection of female children for abortion; Ireland's maternal mortality rate was the lowest in Europe; and abortion had negative effects on women's health, lives (the rate of death after abortion being higher than after childbirth) and on future pregnancies. The right to life of the unborn took precedence over any financial concerns of the mother.

That Irish women could travel for an abortion did not defeat the legitimacy of Ireland's abortion laws: that exception was imposed by the right to travel under the EC law and could not be used to justify an even wider exception to the restrictions.

There was no universal consensus towards recognising a right to abortion in international law: on the contrary, certain international instruments and 68 countries prohibited abortion entirely or allowed it to save the mother's life only.

The PLC described itself as an Irish non-governmental organisation which promoted pro-life education and defends human life from conception.

The PLC pointed out that the protection of the life of the unborn was fundamental to the Constitutional scheme of fundamental rights. That tradition of human rights protection via constitutional jurisprudence was a long, proud and praiseworthy one which had given Ireland an exemplary record before this Court as compared to other Contracting States.

The constitutional protection of the unborn was only capable of being curtailed in the limited circumstances outlined in the X case, in which circumstances abortion would be lawful in Ireland. Information on services abroad was available (the 1995 Act) and, in general, no one's travel was restricted. The Medical Council Guidelines made it clear that doctors should not refuse to treat any patient on grounds of moral disapproval.

The Irish courts had due regard to any decision or judgment of the Court but, despite the incorporation of the Convention into Irish law by the 2003 Act, the Constitution remained the paramount source of law in Ireland so that Convention argument could not be used to overthrow laws that were otherwise constitutional. The Contracting States had a margin of appreciation in relation to the implementation of the Convention since the national authorities were, in principle, better placed than an international court to evaluate local needs and conditions. Any examination of the extent to which the Convention complimented, supplemented or deepened existing rights, should be addressed in the domestic courts prior to this Court.

As well as the submissions outlined at paragraphs 120–121 above, they submitted figures as to the annual rates of abortion by Irish women in England and Wales published by the United Kingdom Department of Health (from the CPA Report no. 19) as follows: 1975 (1573); 1980 (3320); 1985 (3888); 1990 (4064); 1995 (4532); 2000 (6391); 2001 (6673); 2002 (6522); 2003 (6320); 2004 (6217); 2005 (5585); 2006 (5042); and 2007 (4686). However, they explained that Irish women give addresses in the United Kingdom to maintain confidentiality and/or to obtain British health cover. They argued that the reduction in the numbers of Irish women obtaining abortions in England and Wales in recent years could be explained by the availability of other more accessible options (abortions in other euro zone countries or greater use of abortion medication, ‘the abortion pill’). They also suggested that Irish women were statistically more likely to consult later for an abortion abroad and that there was no evidence that banning abortion in a country actually reduced the rate of abortion when other means were available.

Irish medical professionals were in an unclear position and unable to provide adequate medical services. Doctors advising a patient on the subject faced criminal charges, on the one hand, and an absence of clear legal, ethical or medical guidelines, on the other. The Medical Council Guidelines were of no assistance. They had never heard of any case where life-saving abortions had been performed in Ireland. Irish doctors did not receive any training on abortion techniques and were not therefore equipped to carry out an abortion or to provide adequate post-abortion care.

These third parties mainly argued that international human rights' laws and comparative standards should inform the Court's consideration and that the impugned Irish restrictions on abortion were inconsistent with such laws and standards for two reasons.

In the first place, they maintained that denying a lawful abortion to protect a woman's physical and mental health was inconsistent with international law and comparative standards. As to that international law, the UN human rights monitoring organs (inter alia, the Human Rights Committee and CEDAW) interpreted the human rights to life, health and non-discrimination, as well as the right to freedom from cruel, inhuman and degrading treatment or punishment, as requiring States to lawfully permit abortion where necessary to protect a woman's health. These bodies had consistently advised States to amend national abortion laws which prohibited abortion without exception or permitted abortion only where necessary to protect the woman's life. Laws permitted abortion to protect the health of the mother in all but 4 of the 47 Contracting States and 40 out of 47 allowed abortion for broader socio-economic reasons or on request within certain gestational limits. Constitutional courts in Europe, relying on women's rights to physical and mental health and personal autonomy, reflected these health-based exceptions to abortion restrictions.

Neither international law nor comparative standards supported a distinction between the right to life and health in abortion regulation. It was a basic principle of international human rights' law that no formal hierarchy could be drawn between life and health as interests equally deserving of State protection, so that a law which permitted abortion to protect life but not health would not be acceptable. International human rights' law also reflected an understanding in an abortion context that the protection of life was practically indistinguishable from the protection of health. A comparative review revealed that all Contracting States which permitted abortion to preserve life also admitted abortion to protect health: all except Ireland. This recognised that distinctions between life and health protection could not be meaningfully drawn in a clinical context.

Secondly, they submitted that international law and comparative standards recognised that the State should seek to protect pre-natal interests through proportionate means that give due consideration to the rights of pregnant women so that restrictive criminal abortion laws and harsh penalties were excessively burdensome on women and abortion providers. UN human rights monitoring bodies consistently called on States to amend and/or repeal legislation criminalising abortion to ensure access to lawful abortion. Criminal laws were considered not to restrict access to abortion but rather access to safe abortion. Certain of those UN human rights' monitoring bodies considered criminal restrictions on abortion discriminatory. While most Contracting States controlled abortion via criminal law, the majority did not have criminal punishment for women, the penalties were moderate and they permitted lawful abortion in a broad set of circumstances. Ireland's criminal law was the harshest criminal penalty in abortion regulations across Europe. Equally, international and comparative standards supported the adoption by States of less restrictive measures that protected the State's interest in pre-natal life and guaranteed women's rights. International standards supported pre-natal life by ensuring safe pregnancies, welfare provisions and supporting family planning. Most Council of Europe Member States had procedural frameworks regulating access to abortion which balanced the State interest in protecting pre-natal life with a mother's rights.

In conclusion, the degree of conformity of the above-described international laws and comparative standards was such that it did not admit of a margin of appreciation being accorded to Ireland in this matter.

The Court recalls that the notion of ‘private life’ within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to personal autonomy and personal development (see Pretty v. the United Kingdom, cited above, § 61). It concerns subjects such as gender identification, sexual orientation and sexual life (for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18–19, § 41; and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions 1997-I, p. 131, § 36), a person's physical and psychological integrity (Tysiąc v. Poland judgment, cited above, § 107) as well as decisions both to have and not to have a child or to become genetic parents (Evans v. the United Kingdom [GC], cited above, § 71).

The Court has also previously found, citing with approval the case-law of the former Commission, that legislation regulating the interruption of pregnancy touches upon the sphere of the private life of the woman, the Court emphasising that Article 8 cannot be interpreted as meaning that pregnancy and its termination pertain uniquely to the woman's private life as, whenever a woman is pregnant, her private life becomes closely connected with the developing foetus. The woman's right to respect for her private life must be weighed against other competing rights and freedoms invoked including those of the unborn child (Tysiąc v. Poland judgment, cited above, § 106; and Vo v. France [GC], cited above, §§ 76, 80 and 82).

While Article 8 cannot, accordingly, be interpreted as conferring a right to abortion, the Court finds that the prohibition in Ireland of abortion where sought for reasons of health and/or well-being about which the first and second applicants complained, and the third applicant's alleged inability to establish her qualification for a lawful abortion in Ireland, come within the scope of their right to respect for their private lives and accordingly Article 8. The difference in the substantive complaints of the first and second applicants, on the one hand, and that of the third applicant on the other, requires separate determination of the question whether there has been a breach of Article 8 of the Convention.

It is not, in these circumstances, necessary also to examine whether Article 8 applied as regards its family life component.

The third applicant's complaint concerns the failure by the Irish State to implement Article 40.3.3 of the Constitution by legislation and, notably, to introduce a procedure by which she could have established whether she qualified for a lawful abortion in Ireland on grounds of the risk to her life of her pregnancy.