of Application No. 8416/78
by W P
against the United Kingdom
The European Commission of Human Rights sitting in private on 13 May 1980, the following members being present:
MM. C. A. NØRGAARD, Acting President (Rule 7 of the Rules of Procedure)
Mr.K. ROGGE, Head of Division replacing the Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 November 1978 by W: P against the United Kingdom and registered on 14 November 1978 under file No. 8416/78;
Having regard to the report provided for in Rule 40 fo the Rules of Procedure of the Commission;
Having deliberated on 10 December 1979, 13 March 1980 and 13 May 1980;
Decides as follows:
8416/78
The applicant is represented by MM. Berkson and Berkson, solicitors at Birkenhead, Merseyside.
The certificate in the present case was issued under para. (a) (injury to the physical or mental health of the pregnant woman).(1).
6As to the question whether, in English law, the unborn child has a right to life, which could be invoked by the father, reference was inter alia made, on the one hand, to Roman law, where abortion without the father's consent was a crime, and, on the other, to the United States Supreme Court's decision in Planned Parenthood of Central Missouri v. Danforth A.G. where the Court, by a majority, held that the State of Missouri "may not constitutionally require the consent of the spouse .... as a condition for an abortion ...."
Counsel for the applicant observed: "I do not pretend to be, by size of shape or feat, a 'Foetal Advocate', but I have endeavoured, whilst I have been developing the submissions to your Lordship, to look at it in that context. If the foetus has some kind of right to have its life preserved it might be possible to spell out of that a derivative right in the father. Everything is against that particular notion. It comes to this: the Supreme Court's decision has got to be wrong, admittedly although they are in a different jurisdiction in dealing with different principles. The fact a man has got a right to father children, in the face of the Abortion Act does not entitle him to cause a wife whose health may be at risk to bear that risk and produce a child. The fact he has got some interest in the child has been urged by some of the authorities both in the Commonwealth and in America, but in this country they are against any such notion."
7The President dismissed the application. He stated that an injunction could be granted only to restrain the infringement of a legal right; that in English law the foetus has no legal rights until it is born and has a separate existence from its mother; and that the father of a foetus, whether or not he is married to the mother, has no legal right to prevent the mother from having an abortion or to be consulted or informed about a proposed abortion, if the provisions of the 1967 Act have been complied with.
8The abortion was carried out within hours of the dismissal of the application.
##### Complaints
The applicant contends that the Law of England and Wales violates:
The applicant states that it is the object of his petition "to obtain the opinion of the European Court and the Commission of Human Rights upon the (above) contentions" and "to secure such amendments of the law of England and Wales as may be necessary to remove such violations of the Convention that the Court and Commission may find presently exist."
The applicant finally submits with regard to Art. 26 of the Convention (exhaustion of domestic remedies) that his application to the High Court "was for an injunction. An abortion having been carried out on Mrs P within hours of the dismissal of the application, it was not legally possible to pursue the application further. An injunction is (not) an equitable remedy. It is a maxim of equity that equity does nothing in vain. Accordingly, the dismissal of the application on 24 May 1978 by the President of the Family Division of the High Court of Justice marked the exhaustion of the applicant's domestic remedies."
1The applicant complains of the refusal, by the High Court of Justice, of his application for an injunction to prevent the termination of his wife's pregnancy. He submits that the Abortion Act 1967, under which this abortion was authorised and eventually carried out, violates Arts. 2 and/or 5, 6, 8 and 9 of the Convention.
2The Commission accepts that the applicant, as potential father, was so closely affected by the termination of his wife's pregnancy that he may claim to be a "victim", within the meaning of Art. 25 of the Convention, of the legislation complained of, as applied in the present case. The Commission here refers to its decision on the admissibility of Application No 2758/66 - X v. Belgium - Collection of Decisions 30, 11 = Yearbook on the European Convention on Human Rights 12, 175. The applicant in that case, a widow, complained that her husband had been killed in violation of Art. 2 of the Convention, and the Commission assumed by implication that, for the purpose of that complaint, she fulfilled the "victim" condition of Art. 25. The Commission further recalls that, in Application No 5961/72 - Amekrane v. the United Kingdom - Collection 44, 101 = Yearbook 16, 356, it accepted, again by implication, that the widow and the children of Mohamed Amekrane could claim to be "victims" - not only under Art. 8, but also under Arts. 3 and 5 of the Convention - of the measures taken against their late husband and father.
3The Commission also accepts that the present applicant, by his unsuccessful application to the High Court for an injunction, has exhausted the only available "domestic remedy" in the sense of Art. 26 of the Convention.
4The Commission, therefore, has to examine whether this application discloses any appearance of a violation of the provisions of the Convention invoked by the applicant, in particular Arts. 2 and 8. It here recalls that the abortion law of High Contracting Parties to the Convention has so far been the subject of several applications under Art. 25. The applicants either alleged that the legislation concerned violated the (unborn child's) right to life (Art. 2) or they claimed that it constituted an unjustified interference with the (parents') right to respect for private life (Art. 8). Two applications invoking Art. 2 were declared inadmissible by the Commission on the ground that the applicants - in the absence of any measure of abortion directly affecting them by reason of a close link with the foetus - could not claim to be "victims" of the abortion laws complained of (Application No 867/60 - X v. Norway - Collection 6, 34 = Yearbook 4, 270, and Application No 7045/75 - X v. Austria - Decisions and Reports 7, 87). One application (No 6959/75 - Brüggemann and Scheuten v. the Federal Republic of Germany), invoking Art. 8, was declared admissible by the Commission, insofar as it had been brought by two women. The Commission, and subsequently the Committee of Ministers, concluded that
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8416/78
there was no breach of Art. 8 (Decisions and Reports 10, 100-122). That conclusion was based on an interpretation of Art. 8 which, inter alia, took into account the High Contracting Parties' law on abortion as applied at the time when the Convention entered into force (ibid. page 117 - para. 64 of the Commission's Report).
5The question whether the unborn child is covered by Art. 2 was expressly left open in Application No 6959/75 (loc. cit. page 116 - para. 60 of the Report) and has not yet been considered by the Commission in any other case. It has, however, been the subject of proceedings before the Constitutional Court of Austria, a High Contracting State in which the Convention has the rank of constitutional law. In those proceedings the Austrian Constitutional Court, noting the different view expressed on this question in legal writings, found that Art. 2 (1), first sentence, interpreted in the context of Art. 2, paras. (1) and (2), does not cover the unborn life (decision of 11 October 1974, Erk. Slg. (Collection of Decisions) No 7400 = EuGRZ (Europäische Grundrechtezeitschrift) 1975, 74).
6Art. 2 (1), first sentence, provides: "Everyone's right to life shall be protected by law" (in the French text: "Le droit de toute personne à la vie est protégé par la loi"). The Commission, in its interpretation of this clause and, in particular, of the terms "everyone" and "life", has examined the ordinary meaning of the provision in the context both of Art. 2 and of the Convention as a whole, taking into account the object and purpose of the Convention.
7The Commission first notes that the term "everyone" ("toute personne") is not defined in the Convention. It appears in Art. 1 and in Section I, apart from Art. 2 (1), in Arts. 5, 6, 8 to 11 and 13. In nearly all these instances the use of the word is such that it can apply only postnatally. None indicates clearly that it has any possible prenatal application, although such application in a rare case - e.g. under Art. 6 (1) - cannot be entirely excluded.
8As regards, more particularly, Art. 2, it contains the following limitations of "everyone's" right to life enounced in the first sentence of para. (1):
All the above limitations, by their nature, concern persons already born and cannot be applied to the foetus.
9Thus both the general usage of the term "everyone" ("toute personne") in the Convention (para. 7 above) and the context in which this term is employed in Art. 2 (para. 8 above) tend to support the view that it does not include the unborn.
10The Commission has next examined, in the light of the above considerations, whether the term "life" in Art. 2 (1), first sentence, is to be interpreted as covering only the life of persons already born or also the "unborn life" of the foetus. The Commission notes that the term "life", too, is not defined in the Convention.
11It further observes that another, more recent international instrument for the protection of human rights, the American Convention on Human Rights of 1969, contains in Art. 4 (1), first and second sentences, the following provisions expressly extending the right to life to the unborn:
"Every person has the right to have his life respected.
This right shall be protected by law and, in general,
from the moment of conception."
The Commission notes that no such express extension is contained in Art. 2 of the European Convention on Human Rights.
12The Commission is aware of the wide divergence of thinking on the question of where life begins. While some believe that it starts already with conception others tend to focus upon the moment of nidation, upon the point that the foetus becomes "viable", or upon live birth.
13The German Federal Constitutional Court, when interpreting the provision "Everyone has a right to life" in Art. 2 (2) of the Basic Law, stated as follows (judgment of 25 February 1975 - Appendix VI to the Commission's Report in the Brüggemann and Scheuten Case - C I 1b of the grounds):
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8416/78
"Life in the sense of the historical existence of a human individual exists according to established biological and physiological knowledge at least from the 14th day after conception (Nidation, Individuation) .... The process of development beginning from this point is a continuous one so that no sharp divisions or exact distinction between the various stages of development of human life can be made. It does not end at birth: for example, the particular type of consciousness peculiar to the human personality only appears a considerable time after the birth. The protection conferred by Art. 2 (2) first sentence of the Basic Law can therefore be limited neither to the 'complete' person after birth nor to the foetus capable of independent existence prior to birth. The right to life is guaranteed to every one who 'lives'; in this context no distinction can be made between the various stages of developing life before birth or between born and unborn children. 'Everyone' in the meaning of Art. 2 (2) of the Basic Law is 'every living human being', in other words: every human individual possessing life; 'everyone' therefore includes unborn human beings."
14The Commission also notes that, in a case arising under the Constitution of the United States (Roe v. Wade, 410 U.S. 113), the State of Texas argued before the Supreme Court that, in general, life begins at conception and is present throughout pregnancy. The Court, while not resolving the difficult question where life begins, found that, "with respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability".
15The Commission finally recalls the decision of the Austrian Constitutional Court mentioned at para. 6 above which, while also given in the framework of constitutional litigation, had to apply, like the Commission in the present case, Art. 2 of the European Convention on Human Rights.
16The Commission considers with the Austrian Constitutional Court that, in interpreting the scope of the term "life" in Art. 2 (1), first sentence, of the Convention, particular regard must be had to the context of the Article as a whole. It also observes that the term "life" may be subject to different interpretations in different legal instruments, depending on the context in which it is used in the instrument concerned.
. / .
17The Commission has already noted, when discussing the meaning of the term "everyone" in Art. 2 (para. 8 above), that the limitations, in paras. (1) and (2) of the Article, of "everyone's" right to "life", by their nature, concern persons already born and cannot be applied to the foetus. The Commission must therefore examine whether Art. 2, in the absence of any express limitation concerning the foetus, is to be interpreted:
18The Commission has first considered whether Art. 2 is to be construed as recognising an absolute "right to life" of the foetus and has excluded such an interpretation on the following grounds.
19The "life" of the foetus is intimately connected with, and cannot be regarded in isolation of, the life of the pregnant woman. If Art. 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the "unborn life" of the foetus would be regarded as being of a higher value than the life of the pregnant woman. The "right to life" of a person already born would thus be considered as subject not only to the express limitations mentioned in para. 8 above but also to a further, implied limitation.
20The Commission finds that such an interpretation would be contrary to the object and purpose of the Convention. It notes that, already at the time of the signature of the Convention (4 November 1950), all High Contracting Parties, with one possible exception, permitted abortion when necessary to save the life of the mother and that, in the meanwhile, the national law on termination of pregnancy has shown a tendency towards further liberalisation.
21Having thus excluded, as being incompatible with the object and purpose of the Convention, one of the three different constructions of Art. 2 mentioned in para. 17 above, the Commission has next considered which of the two remaining interpretations is to be regarded as the correct one - i.e. whether Art. 2 does not cover the foetus at all or whether it recognises a "right to life" of the foetus with certain implied limitations.
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22The Commission here notes that the abortion complained of was carried out at the initial stage of the pregnancy - the applicant's wife was ten weeks pregnant - under Section 1 (1) (a) of the Abortion Act 1967 in order to avert the risk of injury to the physical or mental health of the pregnant woman. It follows that, as regards the second of the two remaining interpretations, the Commission is in the present case not concerned with the broad question whether Art. 2 recognises a "right to life" of the foetus during the whole period of the pregnancy but only with the narrower issue whether such a right is to be assumed for the initial stage of the pregnancy. Moreover, as regards implied limitations of a "right to life" of the foetus at the initial stage, only the limitation protecting the life and health of the pregnant woman, the so-called "medical indication", is relevant for the determination of the present case and the question of other possible limitations (ethic indication, eugenic indication, social indication, time limitation) does not arise.
23The Commission considers that it is not in these circumstances called upon to decide whether Art. 2 does not cover the foetus at all or whether it recognises a "right to life" of the foetus with implied limitations. It finds that the authorisation, by the United Kingdom authorities, of the abortion complained of is compatible with Art. 2 (1), first sentence because, if one assumes that this provision applies at the initial stage of the pregnancy, the abortion is covered by an implied limitation, protecting the life and health of the woman at that stage, of the "right to life" of the foetus.
24The Commission concludes that the applicant's complaint under Art. 2 is inadmissible as being manifestly ill-founded within the meaning of Art. 27 (2).
25In its examination of the applicant's complaints concerning the Abortion Act 1967 and its application in this case, the Commission has next had regard to Art. 8 of the Convention which, in para (1), guarantees to everyone the right to respect for his family life. The Commission here notes, apart from his principal complaint concerning the permission of the abortion, the applicant's ancillary submission that the 1967 Act denies the father of the foetus a right to be consulted, and to make applications, about the proposed abortion.
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The Commission also observes that the applicant, who under Art. 2 claims to be the victim of a violation of the right to life of the foetus of which he was the potential father, under Art. 8 invokes a right of his own.
26As regards the principal complaint concerning the permission of the abortion, the Commission recalls that the pregnancy of the applicant's wife was terminated in accordance with her wish and in order to avert the risk of injury to her physical or mental health. The Commission therefore finds that this decision, insofar as it interfered in itself with the applicant's right to respect for his family life, was justified under para. (2) of Art. 8 as being necessary for the protection of the rights of another person. It follows that this complaint is also manifestly ill-founded within the meaning of Art. 27 (2).
27The Commission has next considered the applicant's ancillary complaint that the Abortion Act 1967 denies the father of the foetus a right to be consulted, and to make applications, about the proposed abortion. It observes that any interpretation of the husband's and potential father's right, under Art. 8 of the Convention, to respect for his private and family life, as regards an abortion which his wife intends to have performed on her, must first of all take into account the right of the pregnant woman, being the person primarily concerned in the pregnancy and its continuation or termination, to respect for her private life. The pregnant woman's right to respect for her private life, as affected by the developing foetus, has been examined by the Commission in its Report in the Brüggemann and Scheuten Case (loc. cit. paras. 59 et seq.). In the present case the Commission, having regard to the right of the pregnant woman, does not find that the husband's and potential father's right to respect for his private and family life can be interpreted so widely as to embrace such procedural rights as claimed by the applicant, i.e. a right to be consulted, or a right to make applications, about an abortion which his wife intends to have performed on her. The Commission concludes that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Art. 27 (2).
28The Commission does not find that any of the other provisions invoked by the applicant (Arts. 5, 6 and 9 of the Convention) are relevant for the examination of his complaints.
For these reasons, the Commission
Head of Division replacing the
Secretary to the Commission
Acting President of the Commission
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