The European Convention on Human Rights does not “contain, nor create a right to abortion,” a major new study [1] 
on the jurisprudence of the European Court of Human Rights (ECHR) has found.
The study, published this month in the Irish Journal of Legal Studies, also found that rulings by the ECHR had not excluded the unborn child from the general protection of the right to life in Article 2 of the Convention.
Written by Dr Gregor Puppinck, an expert on ECHR jurisprudence relating to bioethical issues, the study, entitled Abortion and the European Convention on Human Rights, cites a range of cases in which the Court, while never allowing that the Convention bans abortion, accepted that Article 2 does not exclude the unborn child.
Dr Puppinck is also the director of the European Centre for Law and Justice, which campaigns on bioethical issues at a European level.
The study also found that the Court has never accepted that States have a right to legalise abortion on demand.
It said: “In the case of abortion on demand, (abortions which were not motivated by health reasons, but only by the will of the mother), the Court has never admitted that the autonomy of the woman could, per se, suffice to justify an abortion in terms of Convention requirements.
“Moreover, the Court explicitly excluded this ground when it declared that Article 8, which protects individual personal autonomy, does not contain any right to abortion.
“Abortion on demand harms the unborn child without any proportionate motive. As this study will conclude, the legal arguments supporting the conventionality of carrying out an abortion on demand are very weak or even inexistent.”
Citing the rulings in two cases, Bruggemann & Scheuten v. Germany and Boso v. Italy, it said that the Court recognised that “pregnancy cannot be said to pertain uniquely to the sphere of private life”.
The study also cited the ruling of the Court in the case of Vo v France, where it affirmed that: “it may be regarded as common ground between States that the embryo/foetus belongs to the human race” and that he/she “require[s] protection in the name of human dignity”.
The study found that:
“1. The Convention does not exclude prenatal life from its scope of protection and the Court has never excluded prenatal life from its field of application;
2. The Convention does not contain, nor create a right to abortion;
“3. In most European national legislation, abortion is a derogation to the protection granted in principle to the life of the unborn;
“4. If the State allows abortion in its national legislation, it remains subject, under the Convention, to an obligation to protect and respect competing rights and interests; those rights and interests weigh on both sides of the balance in restricting the scope of the derogation as well as in supporting it.
“5. Finally, this article observes that abortion on demand is a “blind spot” in the case-law of the Court and draws the conclusion that this practice violates the Convention, because it harms interests and rights guaranteed by it without any proportionate justification.”