Any woman or girl must have access to a safe and legal abortion where she becomes pregnant as the result of rape, sexual assault or incest, or where the pregnancy poses a risk to her life or health, or in cases of severe or fatal foetal impairment.
Amnesty International bases its position firmly on international human rights law. Under international human rights law, governments must provide access to abortion services for all women and girls, at a minimum in these circumstances. Amnesty International takes no position on whether or not a woman or girl should have an abortion in these circumstances, just that it should be her choice and the decision be left to her and her health care provider.
Amnesty International also calls for the decriminalisation of abortion under all circumstances.
Decriminalisation means removing criminal sanctions, such as imprisonment or fines imposed on women or girls who seek or have an abortion. Under international human rights laws, women and girls should never be subject to criminal penalties for having an abortion. Therefore, the possible 14 year prison sentence for women under Irish law is a violation of their human rights.
It also means that doctors should not face specific criminal sanctions for performing unlawful abortions, but instead abortion should be regulated and doctors dealt with under medical disciplinary procedures and the general criminal law.
Having a standalone specified criminal offence for abortion, when that does not exist for other areas of medicine, is disproportionate and has a chilling effect on doctors’ ability to make their clinical decisions without fear of unreasonable prosecution. For example, the requirement that medical providers be licensed, must exercise due care for their patients, and must only conduct medical interventions after obtaining informed consent of their patients. Any practitioner suspected of breaching their ethical and legal obligations related to medical practice, including those who provide abortion services, must be investigated and held to account if a violation is found.
Firstly, we do not know that women and girls will not be charged or prosecuted for having illegal abortions in Ireland, including now under Ireland’s new Protection of Life during Pregnancy Act 2013. Enforcement of the criminal law is a matter for the Director of Public Prosecutions, and the DPP has not said that women and girls will not be prosecuted.
But the criminalisation of abortion by a state still violates women’s and girls’ rights even if the law is not rigorously implemented.
Criminal sanctions are punitive measures sending out a strong signal of what a society will not tolerate, and therefore have a stigmatising effect on women and girls who choose to have abortions, including those who travel outside Ireland for abortion. The state’s criminal law can also have what is called a “chilling effect” on health providers, in intimidating and potentially deterring them from fulfilling their obligations even where abortion is lawful, due to the perceived risk of imprisonment if they get the balance wrong.
Amnesty International’s position, based on international human rights law, is that all women and girls should have the option to decide whether or not to carry on with a pregnancy in cases of severe foetal impairment (which includes fatal foetal impairment).
Amnesty International has followed the lead of the UN’s human rights bodies in calling for access to safe and legal abortion services in cases of severe and fatal foetal impairment where women or girls wish to terminate the pregnancy on these grounds.
For example, the UN Human Rights Committee, which monitors state compliance with the International Covenant on Civil and Political Rights (in July 2014) has called on Ireland to provide access in cases of fatal foetal impairment.
To fail to provide this ground in law and practice is a violation of women’s and girl’s human rights. For instance, in its 2005 decision in KL v Peru, the UN Human Rights Committee found that compelling a 17-year-old girl to carry an anencephalic foetus (lacking most of the brain and spinal cord, and will die before or shortly after birth) to term violated her right to be free from cruel and inhuman treatment and arbitrarily interfered with her private life. Since then, the UN’s treaty bodies have not limited their calls for access to abortion to cases in which foetal impairments are such that stillbirth or death immediately after birth is a virtual certainty. The UN Committee on the Elimination of Discrimination against Women has called for access to abortion in cases of severe rather than just fatal foetal impairment.
‘Severe foetal impairment’ does not mean ‘disabilities’, including Down Syndrome.
Severe foetal impairment (as opposed to fatal foetal impairment/anomaly) refers to serious medical conditions, which may not be fatal, in that survival beyond the first few hours or days after birth - and sometimes longer – may be possible. For many women and girls, carrying such a pregnancy to term is extremely traumatic and can have physical health implications. For this reason, women and girls have a right, under international human rights law, to choose to have an abortion if the foetus has a severe (or fatal) impairment. Some may decide not to. In the end, it is their choice and right.
The line between fatal and severe, and what constitutes either, is a medical assessment. Determinations of whether it is medically advisable to terminate a pregnancy in these circumstances require case-by-case assessments by health care providers in consultation with their patients. This is what we are calling for. Neither the World Health Organisation nor any human rights body has characterised severe foetal impairment as a disability of the foetus. Amnesty International is not campaigning for access to abortion on disability grounds.
Restricting access to abortion will not enhance the rights of people with disabilities. The best way for governments to promote the rights of individuals with disabilities and combat discrimination against them is to put into place laws and policies that support the autonomy and rights of all persons, as outlined in the Convention on the Rights of Persons with Disabilities (CRPD). This includes providing families with the support they need to raise children with disabilities and ensuring that persons with disabilities can participate as equal members of society.
Yes, access to safe and legal abortion under certain circumstances is already recognised as a human right.
Access to safe abortion is a human right because women and girls have a legally recognised right to life, a right to health, and a right to live free from violence, discrimination, torture and cruel, inhuman and degrading treatment. The denial of abortion leads to violations of those human rights. This is what the UN human rights bodies have said and Amnesty International research confirms.
A total ban on abortion, and other restrictions (like in Ireland) which do not, at a minimum, ensure access to abortion in cases when a woman’s or girl’s life or physical or mental health is at risk, in cases of rape, sexual assault or incest and in cases of severe foetal impairment (including fatal fetal impairment) violates these rights. Additionally, governments have an obligation to ensure access to abortion where it is legal; the right to abortion cannot be a theoretical one, but must be practical and effective.
In addition, governments have an international human rights obligation to decriminalise abortion under all circumstances.
Amnesty International’s position on access to abortion, simply reflects the minimum government obligations under international human rights standards.
The UN’s human rights treaties were not created by Amnesty International but by states, including Ireland. These treaties are not imposed on states - but once states ratify them, they are legally binding. Ireland has ratified the treaties we are talking about.
The rights set out in the treaties are expressed in broad terms, leaving it to expert treaty bodies (also created and elected by states like Ireland) to interpret their precise meaning on an evolving basis. Treaty bodies are very clear that women and girls have a human right to abortion, at a minimum when they are pregnant as a result of rape or incest, where their life or health is at risk, or where there is a fatal or severe foetal impairment.
States may go further, but denying abortion in these minimum circumstances is a violation of women and girls’ rights to life, health, information and freedom from torture or other ill-treatment. Treaty bodies are also clear that making it a criminal offence - as Ireland does - for a woman to have an abortion is a violation of her human rights.
Human rights protections, including the right to life, apply after birth, not before. The history of the development of UN human rights treaties, including the Convention on the Rights of the Child, and the subsequent interpretation of their right to life provisions by their official interpretative bodies, show that the right to life treaty provisions apply after birth. In fact, no human rights body has ever found allowing termination of pregnancy to be incompatible with human rights, including the right to life.
UN human rights bodies, however, have recognised that prenatal interests can be protected by states through promoting the health and well-being of pregnant women and girls, such as ensuring access to comprehensive safe motherhood programs, including nutritional programs during pregnancy.
Some people say paragraph 9 of the UN Convention on the Rights of the Child Preamble provides the foetus with human rights protections. It states: “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.’” Firstly, the Preamble does not have any legal effect. Secondly, the history of negotiations by states on this treaty clarifies that such safeguards “before birth” must not affect a woman's choice to terminate an unwanted pregnancy.
The decision of whether or not to carry on with a pregnancy which is the result of rape must rest solely with the rape survivor herself.
The physical and mental harm that women and girls face by forcing them to continue with a pregnancy that is a result of rape, sexual assault or incest is well-documented and recognised as a serious human rights violation, including by the UN Committee against Torture. Human rights standards are clear that governments should ensure access to abortion in such cases.
Amnesty International does not advocate for particular gestational time limits. Amnesty International recognises that states may impose reasonable gestational limitations on access to abortion.
So, for example, many states ban abortions after the foetus has become ‘viable’, i.e. where it is capable of survival outside the uterus (what are sometimes called ‘late term abortions’).
For such limits to be reasonable, however, they must take into account the human rights of women and girls, not least their right to life and physical and mental health of the pregnant woman or girl. So for example, gestational limits in cases when there is a threat to health or life of pregnant woman or girl may be unreasonable.
Amnesty International’s campaign calls for access to abortion only in the above mentioned minimum circumstances. While international human rights law is very clear on the minimum circumstances in which a state must provide access to abortion, it also permits states to provide access on wider grounds. It also allows states to put in place reasonable restrictions on such wider availability, such as gestational limits.
Amnesty International’s policy recognises that doctors do exercise their conscience in the context of providing abortion services, but governments must not allow for indiscriminate exercise of freedom of conscience. The right to conscientious objection is linked to the right to manifest one’s freedom of thought, conscience, religion or belief, protected, for example, in article 18(3) of the International Covenant on Civil and Political Right (ICCPR). This right is not absolute however, and may be subject to certain limitations as stipulated in the ICCPR. It is incumbent upon states to regulate the right to conscientious objection in the health field in such a way as to balance and protect both the health practitioner’s rights and the rights of her/his patients to life, health, non-discrimination, and other rights of those potentially denied services.
International and regional human rights institutions require that states regulate the practice of conscientious objection so as to ensure it does not limit the rights to access lawful abortion services. The UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) has stated, with regard to reproductive health services generally, “if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers”.
Amnesty International objects to the position on conscientious objection in Ireland’s Protection of Life during Pregnancy Act 2013. The Act does not define conscientious objection in a manner that guarantees equal access to care for all women and girls in Ireland, regardless of their place of residence, immigration status, age or other considerations.
The death penalty and abortion are two different human rights issues.
The death penalty is when a person is killed by the state as a punishment for a crime, in the name of justice. The death penalty is the ultimate denial of human rights. It violates the right to life as proclaimed in the Universal Declaration of Human Rights. It also violates the right to be free from torture, to which no exception is permitted. Therefore Amnesty International opposes the death penalty in all cases without exception.
Abortion involves women and girls’ rights to life, to freedom from torture and other ill-treatment, and to control and make decisions about their own bodies. To deny access to abortion can violate the right to life of women and girls who may need it. But international and regional human rights treaty provisions protecting the right to life do not extend prenatally (for example, article 1 of the Universal Declaration of Human Rights states: “All human beings are born free and equal in dignity and rights.”). No international or regional human rights body has ever recognised the foetus as a subject of protection under international human rights treaties, including the UN Convention on the Rights of the Child.
It has been 14 years since Amnesty International expanded its mandate to work on the full spectrum of human rights, beyond prisoners of conscience and fair trial rights. (We still work on these issues though.) Rights like women’s and girls’ health and sexual and reproductive rights are not ‘left-wing’ or ‘political’. They are real human rights equally deserving of our attention. And, as it happens, the majority of people in Ireland are in favour of what we are seeking.
While abortion might be a controversial issue for some individuals and groups, as a human rights organisation, Amnesty International has a mandate to work toward ensuring that government laws and policies do not violate human rights, and thus cannot shy away from complex and controversial issues. Amnesty International will continue to raise awareness of the rights of women and girls all over the world, including in Ireland, regardless of opposition to this vital work.
In 2013, our members voted at our AGM to back AI’s global policy and for Amnesty International Ireland to campaign for Irish abortion law to be human rights complaint. Not every Amnesty International member or supporter will agree with this campaign, of course.
Adoption should always be an option for women and girls who may want to continue with their pregnancy and birth a child. However, any counselling on alternatives to abortion should not be biased or coercive; adoption should never be forced on women and girls, and they should not be forced or manipulated in any way to continue with a pregnancy.
Amnesty International’s policy supports options for women and girls faced with an unwanted pregnancy, including adoption.
The lives and health of women and girls are most at risk when they cannot access safe abortion, and need to resort to clandestine abortions. The best way for states to stop unsafe abortions is to ensure access to safe and legal abortion, and as well as access to modern contraceptive methods and comprehensive sexuality education both in and out of schools that is evidence-based, non-discriminatory and that promotes gender equality.
Amnesty International’s own research and evidence from the World Health Organisation shows that abortion bans do not stop women and girls from having abortions, but instead from having safe abortions. States should also ensure that any woman or girl who suffers complications from an abortion will have access to the confidential medical services she needs, regardless of the legal status of the abortion. They should ensure that women and girls who seek post-abortion care after having undergone an illegal abortion, are not reported to law enforcement authorities.
Yes, people have a human right to freedom of religion or belief, and this is a right Amnesty International actively defends throughout the world. We respect their right to hold such views and beliefs. But people’s religious or other views or beliefs on abortion cannot be imposed on women and girls to the detriment of their human rights.
We fully understand that not everyone will agree with the international human rights law position on abortion, but this is no excuse for a government to fail to meet its international human rights obligations.
And ensuring access to abortion does respect women’s and girls’ religious beliefs, as it provides them choices on whether or not to terminate a pregnancy and does not force one particular religious interpretation on them. Ensuring access to abortion is based on women and girls’ autonomy and decision-making, including decisions not to terminate a pregnancy based on religious or other belief. Such guarantees also respect decisions to terminate a pregnancy, which may also be based on one’s conscience.
In 2000, the UN Human Rights Committee (in its General Comment No. 28) recognised the discrimination women experience because of state laws and policies influenced by religious beliefs and other attitudes to women: “Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes. … States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s equal enjoyment of all Covenant rights.”
A state's Constitution is no excuse for its violating human rights, no matter how the Constitution is created or amended. In putting the constitutional right to life of "the unborn" on an equal footing with the right to life of the pregnant woman or girl, the 1983 8th Amendment is at the heart of the grave violations revealed in our report.
Ireland’s law and policy on abortion cannot become human rights compliant, and women's and girls' human rights be respected, until and unless the 8th Amendment is repealed. The possible 14-year jail term for women and health professionals for having or providing abortion outside risk to life situations cannot be repealed until the 8th Amendment is repealed. Therefore this is one of our central calls on Ireland. The UN Human Rights Committee and UN Committee on Economic, Social and Cultural Rights have both told the Irish Government that Ireland's Constitution needs to be amended.
As it happens, the majority of people in Ireland agree that Irish abortion law, and therefore the Constitution, needs to change. But they cannot vote on this unless the Government schedules a referendum.
Amnesty International commissioned Red C Research and Marketing to carry out a poll on attitudes to abortion in Ireland in May 2015. Asked whether the Irish Government should decriminalise abortion, 67% agreed and 25% disagreed. 81% are in favour of significantly widening the grounds for legal abortion access in Ireland.
Other headline figures are as follows:
RED C conducted more than 1,000 telephone interviews among a nationally representative sample of the adult population on 11-14 May 2015. The sample size was quota controlled by age, gender, socio-economic status and region. The poll also asked respondents for their personal views on when access to abortion should be provided in Ireland. The polling results were then cross-compared across these groups.
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Download the Top Line Results
In this report as with all Amnesty International's reports, we document the human rights violations under research. For this report we spoke to women affected by Ireland’s abortion ban and in some cases their partners as well as service providers, medical professionals and politicians.
We wanted to understand how Ireland’s current abortion laws affect women and medical professionals in deciding what the best course of action for women who seek terminations and how travelling abroad might affect them or the level of care they receive. We spoke to people who are trying to support the human rights of women. We did not speak to those who wish to further limit Ireland’s abortion laws or those who try to stop women from accessing their human right.
Download the report here: 09.06.15 - She Is Not A Criminal Report | Amnesty International
My Body My Rights (MBMR) campaign works to stop governments and others controlling and criminalising people for exercising their sexual and reproductive rights.
We all have the right to make decisions on our own health, body, sexuality and reproductive health, without fear, coercion, violence or discrimination. But all over the world, women and girls' freedom to make these decisions is controlled by governments, medical professionals, even their own families.
Criminal law and harsh sanctions are frequently used to control such choices. In the end, many people are prevented from making any choice at all.
The MBMR campaign aims to ensure that we all have the right to make decisions about our bodies and sexual and reproductive lives.
The MBMR campaign aims to ensure real change in people's lives. Our priority countries include El Salvador, Nepal, Ireland, Morocco, Algeria, Tunisia and Burkina Faso where we work with individuals, communities and civil society organisations to challenge stigma, break the silence surrounding these issues and increase empowerment and confidence so that people can claim and exercise their sexual and reproductive rights.
