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International Legal Documents
Mellet v. Ireland, a decision of the United Nations Human Rights Committee from June 2016, is significant both for Ireland and for international human rights law generally.1
In respect of Ireland it establishes the incompatibility of Irish abortion law with Ireland's international obligations. Since 1983, the Irish Constitution has contained a provision (Article 40.3.3) recognizing the equal rights to life of "the unborn" and the "mother" and pledging the state to protect and vindicate those rights "as far as practicable." This has been interpreted to mean that abortion is prohibited unless there is a "real and substantial risk to the life, rather than the health" of a pregnant woman that can only be averted by termination of the pregnancy. As a result, abortion is criminally prohibited in almost all circumstances.2
This includes situations of "fatal fetal abnormality," i.e., where the fetus suffers from a condition that means it will die either before or very shortly after the birth. In such cases many, although not all, women decide to terminate the pregnancy, but unless their lives are at "real and substantial risk" they cannot do so in Ireland. Instead, they must leave the state and attempt to access abortion care in another jurisdiction, most commonly the United Kingdom (excluding Northern Ireland), where abortion is available under the Abortion Act 1967.
During her pregnancy, Amanda Mellet received a diagnosis of likely-fatal fetal abnormalities. She made the decision that termination was the right choice for her, but because of the Irish abortion law regime she had to travel abroad to give effect to that decision. She had very limited access to information about abortion in Ireland (due to legal restrictions on the availability of information),3and her medical care team in Ireland could not refer her to a clinician in the United Kingdom (due to a criminal prohibition on so doing).4She traveled to Liverpool Women's Hospital where the pregnancy was brought to an end and she delivered a stillborn baby girl after a thirty-six-hour labor. Mellet's limited financial means meant that she had to return to Ireland just twelve hours after delivery, and she was not entitled to bereavement support when she returned (as she had had an abortion)....