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Rätten till abort under Europakonventionen

Lundgren, Isabella (2008)
Department of Law
Abstract
The subject of this graduate thesis (The right to abortion under the European Convention of Human Rights) is wheather the right to abortion can be considered as a human right under the European Convention on Human Rights. Focus is on the right to abortion as a woman's right. The issue of abortion in view of the Convention raises both material and procedural questions. In addition to that is the question of what falls within the states margin of appreciation and how that relates to the effectiveness in acquiring the rights under the Convention. Public international law is not only for the European Court of Human Rights to decide upon and decisions from other regions, the United Nations and the United States of America are included for... (More)
The subject of this graduate thesis (The right to abortion under the European Convention of Human Rights) is wheather the right to abortion can be considered as a human right under the European Convention on Human Rights. Focus is on the right to abortion as a woman's right. The issue of abortion in view of the Convention raises both material and procedural questions. In addition to that is the question of what falls within the states margin of appreciation and how that relates to the effectiveness in acquiring the rights under the Convention. Public international law is not only for the European Court of Human Rights to decide upon and decisions from other regions, the United Nations and the United States of America are included for background purposes. The legal questions have to some degree been treated by the European Court. The Court interprets the Convention as a living document to be viewed in the light of the present and the High Contracting Parties are obliged to follow the Courts judgments. In a few cases concerning admissibility, the Court has rejected claims from others than women to have access to court. In reaching that conclusion the Court answered the question of the possibility that the foetus had an absolute right to life in the negative. This decision was motivated by the right to life of the mother, that has to be regarded as an absolute right and there is a possibility of a pregnancy to threaten the life of an already living and breathing person. The pregnant womens right to life and health can be at risk if a pregnancy is not terminated. Because of the right to life, denial of access and legality of a terapeutic abortion is very likely to be considered a violation of the rights protected by the Convention. Abortion on other grounds is more of an uncertain issue. The Court has made it clear that pregnancy and termination of pregnancy is to be regarded as a part of private life. Sexual life and reproduction concerns the most intimate parts of private life. It is however possible for High Contracting Parties to make provisions that is interfering with the right to private life for the protection of the rights and freedoms of others. Even if the foetus does not have an absolute right to life it is still possible that the Court could allow legislation that interferes with pregnant womens right to private life on that ground. The uncertainties concerning the right to abortion is dependent of the weighing of these mentioned rights and the possibility for interventions by laws. Furthermore it is a highly charged political question. If the Court were to establish abortion on demand as a human right through a judgment, it could be criticized for judicial activism. (Less)
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author
Lundgren, Isabella
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt, Statsrätt
language
Swedish
id
1559870
date added to LUP
2010-03-08 15:55:24
date last changed
2010-03-08 15:55:24
@misc{1559870,
  abstract     = {The subject of this graduate thesis (The right to abortion under the European Convention of Human Rights) is wheather the right to abortion can be considered as a human right under the European Convention on Human Rights. Focus is on the right to abortion as a woman's right. The issue of abortion in view of the Convention raises both material and procedural questions. In addition to that is the question of what falls within the states margin of appreciation and how that relates to the effectiveness in acquiring the rights under the Convention. Public international law is not only for the European Court of Human Rights to decide upon and decisions from other regions, the United Nations and the United States of America are included for background purposes. The legal questions have to some degree been treated by the European Court. The Court interprets the Convention as a living document to be viewed in the light of the present and the High Contracting Parties are obliged to follow the Courts judgments. In a few cases concerning admissibility, the Court has rejected claims from others than women to have access to court. In reaching that conclusion the Court answered the question of the possibility that the foetus had an absolute right to life in the negative. This decision was motivated by the right to life of the mother, that has to be regarded as an absolute right and there is a possibility of a pregnancy to threaten the life of an already living and breathing person. The pregnant womens right to life and health can be at risk if a pregnancy is not terminated. Because of the right to life, denial of access and legality of a terapeutic abortion is very likely to be considered a violation of the rights protected by the Convention. Abortion on other grounds is more of an uncertain issue. The Court has made it clear that pregnancy and termination of pregnancy is to be regarded as a part of private life. Sexual life and reproduction concerns the most intimate parts of private life. It is however possible for High Contracting Parties to make provisions that is interfering with the right to private life for the protection of the rights and freedoms of others. Even if the foetus does not have an absolute right to life it is still possible that the Court could allow legislation that interferes with pregnant womens right to private life on that ground. The uncertainties concerning the right to abortion is dependent of the weighing of these mentioned rights and the possibility for interventions by laws. Furthermore it is a highly charged political question. If the Court were to establish abortion on demand as a human right through a judgment, it could be criticized for judicial activism.},
  author       = {Lundgren, Isabella},
  keyword      = {Folkrätt,Statsrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Rätten till abort under Europakonventionen},
  year         = {2008},
}