In 2011, Ms. Mellet learned that the pregnancy involved a fatal fetal imapirment. Her doctors in Dublin told her that either the foetus would die in utero or would not survive long after birth. Upon receiving this information, Ms. Mellet found the prospect of continuing her pregnancy unbearable and decided to seek an abortion. However, Ireland’s law only allows abortions for women whose pregnancies threaten their lives. Ms. Mellet was told that in order to end her pregnancy she would have to travel to another country. Ms. Mellet travelled at her own expense to a hospital in the United Kingdom where she underwent the procedure. She flew home to Dublin only 12 hours later, although still weak and bleeding.
In November 2013, Ms. Mellet filed an individual complaint to the Human Rights Committee, under the Optional Protocol to the International Covenant on Civil and Political Rights.
The Human Rights Committee held that Ireland violated the right to be free from cruel, inhuman or degrading treatment (Article 7), right to privacy (Article 17), and right to equality before the law (Article 26) as enshrined in the International Covenant on Civil and Political Rights
It held that by prohibiting and criminalizing abortion, and thereby preventing Ms. Mellet from accessing abortion services in Ireland, the state subjected her to conditions of severe emotional and mental pain and suffering. The pain and suffering was sufficiently severe to amount to cruel, inhuman or degrading treatment, in violation of Article 7. In finding a violation of the right to be free from cruel, inhuman or degrading treatment, the Committee reiterated that states parties to the Covenant may not invoke any kind of justification or extenuating circumstances to excuse a violation of Article 7, which is absolute in nature and allows for no limitations.
The Committee reaffirmed that a woman’s decision to have an abortion falls within the scope of her right to privacy, and held that Ireland’s prohibition and criminalization of abortion interfered with Ms. Mellet’s decision not to continue her pregnancy. This interference with her privacy was unreasonable because “the balance that the State party has chosen to strike between protection of the fetus and the rights of the woman in this case cannot be justified” and this violated Article 17. In this regard, the Committee noted that Ms. Mellet’s pregnancy was non-viable, that the options available to her were “inevitably a source of intense suffering”, and that being legally prohibited from obtaining an abortion in Ireland amounted to a violation of her right to be free from ill-treatment.
The Committee observed that women in Ireland who decide to carry to term a non-viable pregnancy continue to receive the full protection of the Irish public health care system, such as coverage by health insurance, access to care from known medical professionals, and medical attention after the end of the pregnancy. In contrast, the Committee found that because of Ireland’s prohibition on abortion, Ms. Mellet was placed entirely outside of the Irish public health system and had to rely on her own resources to obtain the care she needed in another country. As a result, the Committee held that Irish law “failed to adequately take into account her medical needs and socio-economic circumstances,” and thus discriminated against Ms. Mellet and denied her equal protection of the law in violation of Article 26.
The Committee instructed Ireland to make full reparation to Ms. Mellet for the harms she suffered, including adequate compensation and making available psychological counselling:
- “amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant;”
- ensure “effective, timely and accessible procedures for pregnancy termination in Ireland;” and
- “take measures to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing being subjected to criminal sanctions.”
The Human Rights Committee’s groundbreaking decision in this case is the first time, in a decision on an individual complaint against any state, that an international or regional court or quasi-judicial body has explicitly and unequivocally held that prohibiting and criminalizing abortion violates women’s human rights. It provides critical confirmation of the acute impact that preventing women who have decided to end a pregnancy from doing so in their own country can have on their physical and mental health.