The rights and freedoms guaranteed by the European Convention on Human Rights (ECHR) became directly enforceable in the courts in the United Kingdom through the Human Rights Act 1998 (HRA). 1 Section 1 of the HRA fully incorporates the rights set out under the ECHR. Section 2 requires English courts to consider convention rights when making a decision regarding an individual’s human rights. 2 The role of the European Court of Human Rights (ECtHR) is a positive duty defined under Article 1, to ‘secure to everyone within the jurisdiction the rights and freedoms defined in the Convention’.
3 There are many examples of the complex relationship between English medical law and the ECHR but the focus will be on a select few in this assignment. In the relationship between domestic medical law and European human rights, there are particular areas where English law stands alone with no influence from human rights. Abortion is one of the areas. The Abortion Act 1967 states abortion is lawful if performed by a registered doctor, in circumstances where two doctors agree and is performed in good faith.
4 Abortion is permitted until the 24th week of pregnancy on grounds where the pregnancy may lead to physical or mental injury to the pregnant women or other children. 5 It is clear the Act provides no legal status for the foetus until it is born. 6 English common law also coincides with the Abortion Act. In the case of St. Georges Healthcare NHS Trust v S; R v Collins and Others7, the Court of Appeal (CA) stated an unborn child wasn’t separate from its mothers and its rights didn’t prevail over its mothers.
Lord Mustill confirmed this in the case of the Attorney General’s Reference8 where he stated a foetus lacked the entire range of characteristics of the complete human being it would become later. European human rights also hold a similar view to English domestic law. In the case of Paton v UK9, a father sought an injunction to prevent an abortion being carried out by a pregnant woman on the grounds it would infringe the foetus’s right to life. The case went to the European Commission of Human Rights who had to consider whether Article 2 of the ECHR applied which stated ‘Everyone’s right to life shall be protected by law.
‘ The Commission noted the word ‘Everyone’ wasn’t defined in the Convention but it did not include the unborn. 10 Any interests the foetus may have were overridden by the pregnant woman’s right to life and health. The Commission in the case of H v Norway11 held a similar view granting members of states a wide margin of appreciation. 12 The ECtHR in the case of Vo v France13 considered whether Article 2 applied where a foetus had been negligently aborted due to a mix-up of identities. Ms. Vo argued the child although unborn was a human being.
However, the French courts, following English law, 14held a foetus’s right to life wasn’t protected under Article 2. The ECtHR also stated the foetus has no legal rights under Article 2. The court held the issue when the right to life begins, came within the margin of appreciation as there was no European consensus on the scientific and legal definition of the beginning of life. 15 The law clearly takes a utilitarianism approach to achieve the greater good and to prevent the criminalisation of the act of abortion to protect women’s rights.
16 Judith Thomson states the foetus’s right to life doesn’t guarantee the right to or continued use of another’s body even if it needs it to survive. 17 The mother’s right to autonomy is protected and making abortion accessible and legal improves women’s health and their right to self-determine their life’s course. 18 However, Foster argues English medical law is inconsistent, as a foetus exists in succession but becomes non-existent when its life is at stake.
Foster also argues there was confusion in the decision made in Vo v France because the ECtHR didn’t define the term ‘everyone’. The concept of margin of appreciation was flawed because although the mother’s autonomy had been protected, autonomy had been philosophically weakened by ignoring the status of the foetus. It is clear that in the present state of development of science, law and morals across Europe, the right to life of the unborn child is yet to be secured.
19 However, not excluding all the ethical debates regarding abortion, it is clear European law doesn’t influence English law on abortion as a margin of appreciation is given by the ECtHR. Another case where English law is not influenced by human rights is the case of Evans v UK20. The case involved Ms. Evans, who sought an injunction against her ex-partner Mr. J to restore his consent to the use and storage of embryos fertilised with his sperm. Due to a breakdown in the relationship, Mr. J had withdrawn his consent.
The couple had agreed to provisions set out in the Human Fertilisation and Embryology Act 1990 (HFEA), which states it’s possible for either to withdraw consent anytime before the embryos were implanted. Ms. Evans claimed the embryos had the right to life under Article 2, that her right to respect for private and family life was breached under Article 8. She also claimed she would suffer discrimination on the grounds of disability (infertility) under Article 14. The High Court and the Court of Appeal (CA) both rejected the arguments.
21 Arjen L. J. stated in the CA, under Article 8 each person had the right to be protected against interference in their private life. This reflected the principle of self-determination or personal autonomy. Ms. Evan’s right to become a mother did not exceed Mr. J’s right not to be forced into fatherhood. 22 The Grand Chamber of the ECtHR held the issue of when the right to life began came within the margin of appreciation. 23 Under English law the embryo had no independent rights or interests, and no right to life under Article 2.
The Court held the domestic legislative provisions balanced out competing public and private interests under Article 8. It didn’t consider Ms. Evans right to become a parent in the genetic sense should be accorded greater weight than J’s right not to have a genetically related child with her. The Court emphasised since the use of IVF gave rise to sensitive, moral and ethical issues against a background of evolving medical and scientific developments and that there was no common consensus within Europe that a wide margin of appreciation would be appropriate.