Ireland

This case represented the first trial and conviction for female genital mutilation in Ireland. The accused were originally from a French-speaking African country, and were charged and convicted with female genital mutilation and neglect of their daughter in relation to the same incident. At the time of the offence, the girl was under two years old, and her injuries were discovered when her parents brought her to the Accident and Emergency Department of an Irish hospital due to uncontrollable bleeding. Following their conviction, the victim’s parents were sentenced to an unspecified number of years imprisonment for the female genital mutilation and neglect, the sentences running concurrently. They appealed their convictions, claiming that they had not received a fair trial because (i) they did not have the opportunity to present ‘appropriate’ expert evidence and (ii) the translation of H.M.’s testimony before the jury was inaccurate. The Court of Appeal quashed the appellants’ convictions on the second ground, finding that their trial was unsafe and unsatisfactory for not having complied with either the spirit or the substance of the European Union’s Interpretation and Translation Directive, which provides for the rights to interpretation and translation in criminal proceedings. Thus, according to the court, the appellants were unable to properly exercise their right of defence. Following the judgment, the DPP requested a retrial, which was not opposed by the appellants.

Section 17(4B) of the Electoral Act 1997 introduced a provision aimed at addressing a significant disparity in the sex of members of parliament in Ireland (“TDs”). Only 15.1% of TDs elected in 2011 were women. The figure has never exceeded 20%. The 2012 Act tried to solve this problem via candidate selection; it tied the level of political funding allocated to a political party to the gender balance of its candidates. From the first general election after the section came into force, a party would lose 50% of its public funding if at least 30% of its candidates in that election were not women (or if 30% of its candidates were not men). Seven years after that, the minimum requirement for each gender would increase to 40% or the same penalty would apply. The Act deals only with candidature, not election. It also does not compel a party to select any particular candidate, but instead penalises the party with a withdrawal of public funds for non-conformity. In this case, a member of a political party challenged the constitutionality of this measure on several grounds after his party did not select him as a candidate and informed him that their candidate “must be” a woman. He claimed that this was a result of the 2012 Act, in violation of several constitutional provisions, including the equality guarantee in Article 40.1; the right to free speech and association under Article 40.6; and the Article 16.1.1° guarantee that every citizen without distinction of sex is eligible for the Irish parliament. The High Court rejected these claims due to lack of standing; the plaintiff could not show ‘any, or any sufficient, causal nexus between the direction of the party excluding his nomination from consideration at the relevant candidate selection convention and the operation of that provision’. The court was not satisfied that the party would not, without the influence of the 2012 Act, have implemented gender quotas of its own motion. This finding was upheld by the Court of Appeal. The Supreme Court found that the plaintiff had standing, but also acknowledged that this sophisticated piece of legislation was pursuing an important social goal through “positive discrimination” on gender grounds and controlling public funding for political representation. Therefore, the court found that the case could be addressed on its merits rather than decided on the basis of standing and remitted it to the High Court for a full hearing.

The plaintiff was a mother whose second and third pregnancies were complicated by medical issues and resulted in her suffering from a stroke and temporary paralysis. She was advised that her life would be endangered if she became pregnant again. As such, she sought to obtain contraceptives, but their sale and importation was prohibited by Irish law. The Supreme Court held that a law prohibiting the importation, sale or advertising of contraceptives was inconsistent with the plaintiff’s right to privacy in marital affairs, an unenumerated right in the Irish Constitution. Although the Court left undisturbed the then-existing ban on sale of contraceptives in Ireland, the use and importation of contraceptives was not prohibited based on the law’s inconsistency with the Constitution.

The plaintiff, the Child and Family Agency, sought permission to disclose the HIV status of A., a minor teenager living with HIV since birth in the plaintiff’s care, to another minor (B.) who the plaintiff believed had a sexual relationship with A. A. denied having a sexual relationship with B. and refused to consent to the disclosure of his HIV status. The plaintiff argued that it was entitled to disclose A.’s status so that B. could obtain testing, medical treatment, and counseling. Citing doctor-patient confidentiality, the High Court refused to order disclosure of A.’s HIV status without his consent. The test applied by the court was whether, on the balance of probabilities, the failure to breach patient confidentiality would create a significant risk of death or very serious harm to an innocent third party. The court concluded that it did not because the plaintiff failed to establish on the balance of probabilities that A. and B. were having unprotected sex. In addition, the court reasoned, if B. was willing to have unprotected sex with A., thereby assuming all the risks associated with unprotected sex, then the “low” risk of HIV infection (due to (i) A. taking anti-retroviral medication, albeit without complete consistency, (ii) A. having an undetectable viral load when tested, and (iii) HIV being a "chronic condition" rather than "a terminal illness") in such circumstances is not such as to justify breaching a patient’s right to confidentiality, which should only be breached in exceptional circumstances. The court repeatedly expressed concerns about "paternalistic" state interference in private matters. Finally, the court emphasized the public interest in HIV-positive people seeking treatment rather than foregoing medical care to avoid potential disclosure of their status or sexual activities.

In 2007, the High Court held that the failure to allow the applicant, a transgender woman who had undergone gender-affirming surgery, to obtain a new birth certificate recording her gender as female violated her rights under Article 8 and 12 of the European Convention on Human Rights, which had been made part of Irish law, despite having found in previous proceedings involving the same applicant that her constitutional right to privacy was not disproportionately or excessively infringed. The Court agreed with the applicant that existing Irish law barred the effective recognition of her Article 8 and 12 rights in Ireland as they rendered her without the power to correct or vary the original entry on her birth certificate. The High Court considered the European Court of Human Right’s 2002 decisions in Goodwin v. United Kingdom and I. v. United Kingdom, in which the Court held that the State’s failure to have a system of law in place affording proper respect for a trans person’s Convention rights violated Articles 8 and 12 of the Convention.

The plaintiffs were two female criminal defendants who chose to be tried by a jury and objected to the Juries Act of 1927, which excluded all women from jury pools except those who opted to be part of the potential jurors list. The Supreme Court ruled the Juries Act unconstitutional because it constituted invidious discrimination on the basis of sex.

The applicant was found guilty of four counts of sexual assault on a 15-year-old girl. He appealed on the grounds that the judge did not instruct the jury as to the danger of convicting the accused in the absence of corroboration of the victim's testimony. The Court rejected the appeal and held that the Criminal Law (Rape) Amendment leaves it to the judge's discretion whether to issue a warning about corroboration or not.

The Report commences by highlighting that it deems the gender pay gap as a significant policy concern, and defines it as a metric that shows the difference in earnings of males and females in the labour market. It can be used to show the extent of gender inequalities in the labour market. As part of its analysis, the Report examined 2,600 employees in the Department of Justice, 60% of whom were women. It found that for department employees only (53% of the total figure, and not representing employees of agencies or bodies under the aegis of the Department of Justice), the unadjusted gender pay gap (comparing the pay of all men to all women) was 9%: in 2020, the average man earned €47,040, as opposed to the average female earning which stood at €42,953. The Report notes that 9% is lower than the Irish overall pay gap, which is 14.4%. It also compared the Department of Justice’s pay gap to other state departments, noting that some other gaps were lower. The difference was attributed to the make-up of the workforce in each organisation, levels of pay generally, the impact of senior appointments on organisations, the existence of targeted campaigns to recruit more women at senior management level, and/or the introduction of gender-related recruitment targets.

Article 41.2.1º of the Constitution provides: “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.” This report was one of several conducted to examine the wording of Article 41 of the Constitution with a view to recommending whether any amendments were necessary by way of a referendum. The Task Force was established by the Minister for Justice and Equality and was charged with collaborating with other government departments and the Office of the Attorney General, with a view to completing its tasks so that the Minister could report back to the Government on the issues arising in relation to Article 41.2. One of its main tasks was to examine proposals made for the amendment of Article 41.2 to find the most appropriate wording to present in a forthcoming referendum, and to consider cost implications of such proposals. The Task Force concluded by making two alternative recommendations. The first is to replace the existing text of Article 41.2.1º with a provision which would read along the lines of the following: “The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home as may be determined by law.” The second is to replace the text of the Articles 41.2.1º and 41.2.2º with the following: “The State recognises that home and family life gives to society a support without which the common good cannot be achieved.” This would be followed by another provision, reading: “The State shall endeavour to ensure that persons caring for others in the home and in the wider community receive support in recognition of the contribution they make to society.” In sum, the Task Force recommended that the Department of Justice and Equality, in consultation with the Office of the Attorney General, further examine recommendations that the Constitution as a whole be amended to express gender-neutral language throughout the text. A 2018 report from the Oireachtas (available here) examined these provisions and produced similar conclusions and recommendations. As of 2022, no constitutional referenda on any of these matters have been put to the people since the publication of the report.

This Act criminalized female genital mutilation and related offences in Ireland. Section 1 defines female genital mutilation as any act the purpose or effect of which is the excision, infibulation or other mutilation of the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris, or vagina. Section 2 makes this an offence, but lays down certain statutory defences, including where the act committed is a surgical operation performed by a medical practitioner (or in some cases a midwife) where it is necessary for the protection of physical or mental health, or where it is performed in connection with labour or birth. Section 2(3) also explicitly provides that consent is not a defence. Section 3 also makes it an offence to remove or attempt to remove a girl or woman from Ireland where one of the purposes of removal is to subject her to an act of female genital mutilation. Persons convicted of offences under the Act are liable to a term of imprisonment of up to 12 months on summary conviction or to a class A fine, or to up to 14 years’ imprisonment on conviction on indictment.

The 2015 Act provides for free health services for women who worked in Magdalen laundries (institutions ostensibly intended to house and employ ‘fallen’ women). Its Schedule provides for the 'Relevant Institutions' for the purposes of identifying women entitled to the provision of services. The 2015 Act was updated in 2019 (available here) to expand the group of women eligible for benefits under the Act.

The 2012 Act makes it an offence to withhold information, without reasonable excuse, about certain offences against children and vulnerable adults from the Garda Síochána (Sections 2 and 3). These ‘certain offences’ include, inter alia, murder, assault, false imprisonment, rape, sexual assault, and incest. Defences are set out in Section 4, including those which may be raised by “prescribed persons” employed or engaged by a prescribed organization (defined in Sections 5 and 6). Penalties for offenses under Sections 2 or 3 are set forth in Section 7. Upon summary conviction, a person is liable to a Class A fine (€5,000) and/or up to 12 months’ imprisonment; for conviction on indictment, the term of imprisonment changes relative to the term of imprisonment stipulated in the statute providing for the principal offence (Section 7).

Marital rape is a crime under the 1990 Act. The 1990 Act deletes the word “unlawful” from the statutory definition of rape (‘unlawful sexual intercourse’ without consent, as set forth in the Criminal Law (Rape) Act 1981). The amended definition of rape therefore does not exclude ‘lawful’ sexual intercourse (i.e., between married persons). The 1990 Act also explicitly abolished ‘any rule of law by virtue of which a husband cannot be guilty of the rape of his wife’ (Section 5). Section 4 defines rape as any penetration (however slight) of the anus or mouth by the penis or of the vagina by any object held or manipulated by another person, providing for a punishment on conviction of up to life imprisonment (Section 4). Section 7 of the Act also deals with the corroboration rule in the case of sexual offences. In particular, the judge is no longer required to give the jury a corroboration warning, but such warning is not prohibited.

The Civil Registration Act 2019 made technical amendments to the Civil Registration Act of 2004, the purposes of which were to facilitate legislation to provide for registration of the birth of donor-conceived children, and to enable both partners in a same-sex female relationship to have their details recorded in such registrations. Specifically, Section 10 provides for the recording of a ‘parent’s’ details and any parent may so register although the options of ‘mother’ and ‘father’ are still available.

The Act provides for parentage in case of donor-assisted human reproduction (“DAHR”) (Part 2), issues relating to DAHR facilities (including acquisition of gametes by operators) (Part 3), and amendments to the Guardianship of Infants Act 1964 (Part 4), Family Law (Maintenance of Spouses and Children) Act 1976, the Status of Children Act 1987, Family Law Act 1995, and among other legislation, to reflect rights and responsibilities of spouses or civil partners of biological parents and to take into account DAHR situations. The Act provides that a child born as a result of a DAHR procedure shall have as parents the mother and her spouse, civil partner, or cohabitant, provided that the mother and her spouse, civil partner, or cohabitant have consented to the latter being a parent to the child (Section 5). When construed as the parents of the child, the mother and any other parent, as the case may be, shall have all parental rights and duties in respect of the child (Section 5(3)). The donor of a gamete or embryo used in a DAHR procedure is not the parent of the child nor do they have any parental rights or duties in respect of the child (Section 5(5) and Section 5(6)). A person can only consent to providing a gamete for use in a DAHR procedure where they have attained the age of 18, have received the necessary information pursuant to the Act, and made a declaration pursuant to the Act (Section 6). An intending mother and her partner must be over the age of 21 to consent to parentage (Sections 9, 11).

The Criminal Law (Sexual Offences) Act 2017 gave effect to European Council Directive No. 2011/93/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography. It also amended certain other legislation, including the Criminal Law (Sexual Offences) Act 1993 (available here), the Criminal Law (Incest Proceedings) Act 1995, the Child Trafficking and Pornography Act 1998 (available here), the Criminal Law (Human Trafficking) Act 2008 (available here), and the Criminal Law (Sexual Offences) Act 2006. The Act provides for offences relating to sexual acts with protected persons and relating to payment for sexual activity with sex workers, offensive conduct of a sexual nature and harassment of victims of sexual offences. The Act defines ‘sexual exploitation’ in relation to a child and specifies the elements that would constitute a sexual offence against a child, including performing sexual acts in front of a child and prostitution of a child. Generally, Sections 4, 5, 6, 7, and 8 broaden the scope of criminal acts in relation to children, such as the prohibition of causing a child to watch sexual activity (Section 6), meeting a child for the purposes of sexual exploitation (Section 7), and the use of information and communication technology to facilitate the sexual exploitation of a child (Section 8). The Act also criminalizes the purchase of sexual services and prohibits sexual activity with a protected person, as defined by the Act. The Act creates a distinction related to the commission of a sexual act with a child under 17 years of age and with a child under 15 years of age, with a conviction on indictment for the former offence resulting in a term of imprisonment of up to 7 years (unless the person is in authority, in which case they may be sentenced for up to 15 years) (Section 17), and with a conviction on indictment for the latter offence resulting in a term of imprisonment of life (Section 16). Importantly, Section 48 of the Act reforms the law in relation to consent to sexual acts. In particular, it states that a person does not consent to a sexual act if, inter alia, they permits the act to take place or submits to it because of the application, threat or fear of use of force against them, if they are asleep, if they are incapable of consenting because of intoxication, or if they are mistaken as to the nature and purpose of the act or the identity of the person involved. The Act also clarifies that consent can be withdrawn at any time and that lack of physical resistance does not, of itself, constitute consent (Section 48). Finally, Section 46 allows a court to issue a “Harassment order” against a person when imposing a sentence for a sexual offence or at any time before the convicted person is released from prison.

The 1998 Act prohibits trafficking of children for the purposes of sexual exploitation. The Criminal Law (Human Trafficking) Act 2008 (available here) amended the 1998 Act’s provisions related to child trafficking and sexual exploitation (Section 3) and the Criminal Law (Human Trafficking) Act 2013 (available here) expanded the definition of labour exploitation and aggravating factors. The 1998 Act also criminalizes allowing a child to be used for child pornography (Section 4). A person found guilty on indictment of this offence faces up to 14 years’ imprisonment. Section 5 has been substituted by Section 12 of the Criminal Law (Sexual Offences) Act 2017 (available here), which prohibits the production, distribution, and possession, inter alia, of child pornography. Persons convicted of such offences are liable, on summary conviction, to a Class A fine (€5,000) and/or up to 12 months’ imprisonment, or conviction on indictment, to a fine and/or up to 14 years’ imprisonment (Section 5, as amended). Section 6, as amended, prohibits the possession of child pornography; persons convicted of such offences are liable, on summary conviction, to a Class A fine (€5,000) and/or up to 12 months’ imprisonment, or conviction on indictment, to a fine and/or up to 5 years’ imprisonment. Section 13 of the Criminal Justice Law (Sexual Offences) Act 2017 (available here) also inserts Section 5A, prohibiting, inter alia, causing, inciting, compelling, coercing, recruiting, inviting, or inducing of a child to participate in a pornographic performance or the gaining from such participation.

The 2008 Act, which amends the 1998 Child Trafficking and Pornography Act (available here) among other legislation, defines trafficking as when a person, in relation to another person, “(a) procures, recruits, transports or harbours the person, or (i) transfers the person to, (ii) places the person in the custody, care or charge, or under the control, of, or (iii) otherwise delivers the person to, another person, (b) causes a person to enter or leave the State or to travel within the State, (c) takes custody of a person or takes a person— (i) into one’s care or charge, or (ii) under one’s control, or (d) provides the person with accommodation or employment” (Section 1). Exploitation includes labour exploitation, sexual exploitation, or exploitation consisting of the removal of one or more of the organs of a person. Labour exploitation includes subjecting the person to forced labour, forcing him or her to render services to another, or enslavement or similar servitude. Sexual exploitation includes production of pornography depicting the person alone or with others, causing the person to engage in sexual activity for the purpose of the production of pornography, prostitution of the person, or otherwise causing the person to engage or participate in any sexual, indecent, or obscene act, etc. (Section 1). The Act contains specific provisions regarding trafficking of a child (a person under the age of 18), which were further amended by the Criminal Law (Sexual Offences) Act 2017 (available here). Trafficking a child for exploitation is an offense, as is selling or offering to sell a child, or purchasing or offering to purchase a child (Sections 2 and 3). There is an additional definition of “trafficks” in relation to a child, meaning that a person “(a) procures, recruits, transports or harbors the child, or— (i) transfers the child to, (ii) places the child in the custody, care or charge, or under the control, of, or (iii) otherwise delivers the child to, another person, (b) causes the child to enter or leave the State or to travel within the State, (c) takes custody of the child or takes the child— (i) into one’s care or charge, or (ii) under one’s control, or (d) provides the child with accommodation or employment” (Section 3). There is also separate definition of “sexual exploitation” in relation to a child, and includes inviting, inducing, or coercing a child to engage in prostitution or the production of child pornography, or inviting, inducing, or coercing the child to engage or participate in any sexual, indecent, or obscene act, etc. (Section 3). The offences of exploitation and sexual exploitation in relation to children are subject to penalties specified in sections 2 and 3; a court may sentence a person found guilty on indictment to a term of life imprisonment (or less) and a fine. Penalties for trafficking of persons other than children are specified in Section 4; the court may sentence a person found guilty on indictment to a term of life imprisonment (or less) and a fine. The Act also explicitly provides for penalties where an accused is found guilty of attempt, incitement, or conspiracy in relation to the offences under the Act. Soliciting or importuning for purposes of prostitution of trafficked persons, or benefiting from such activities, is also an offence subject to specified penalties (Section 5), as are offences committed by corporate bodies (Section 6). Jurisdiction includes extraterritorial jurisdiction (e.g., where a person commits an act in relation to an Irish citizen in a place other than the State that, if done in the State, would constitute one of certain enumerated offenses). The Criminal Law (Human Trafficking) (Amendment) Act 2013 (available here) further amends these provisions, in particular with expanded definitions of labour exploitation and aggravating factors.

The Equal Status Act pertains to the delivery of goods and services. (Section 1). It prohibits discrimination (with specified exceptions) in the disposal of goods and provision of services (Section 5), the disposal of premises and provision of accommodation (Section 6), and education establishments (Section 7). Discrimination by private clubs with regard to membership may be sanctioned via loss of permission to provide alcohol to members (Section 8 and 10) with some exceptions (Section 9). The Act also prohibits sexual and other harassment (Section 11); advertisement which indicates an intent to engage in prohibited conduct, or might reasonably be so understood (prohibited conduct means, per Section 1, discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of a person) (Section 12); and procurement of prohibited conduct (Section 13).

The 2018 Act consolidates the law on domestic violence. It provides for safety orders (Section 6), protection orders (Section 10), barring orders (Sections 8-9), and care or supervision orders (Section 12), which a court may issue based on all factors or circumstances it deems relevant, including the Act’s 19 enumerated factors (Section 5). The Act penalizes a contravention of an order with a class B fine (up to €4,000), imprisonment of a term not exceeding 12 months, or both. It also prohibits forced marriage (Section 38) and coercive control (Section 39) that has a serious effect on a relevant person (creating a fear of violence or serious alarm or distress that has a substantial adverse impact on a person’s day-to-day activities). The sentencing range for forced marriage is one to seven years, depending on the type of conviction. The sentencing range for coercive control is one to five years, depending on the type of conviction.

The Act focuses on the non-consensual distribution of explicit images, inter alia. Section 2 makes it an offence to distribute, publish, or threaten to distribute or publish an intimate image with (i) intent to harm or (ii) being reckless as to whether harm is caused. Section 1 defines “distribute” and “publish” as being distributed or published to the public or a section of the public. Section 1 further defines an “intimate image” in broad terms, encompassing a photographic, film, video, or digital representation, and includes nude, non-nude, or sexual images. “Harm” includes psychological harm (Section 1). A person found guilty of an offence under Section 2 is subject to a Class A fine (up to €5,000) and/or up to 12 months’ imprisonment if tried summarily, or a fine and/or up to seven years’ imprisonment if convicted on indictment. Section 3 makes it an offence to record, distribute, or publish intimate images without consent. A person found guilty of such an offence is liable, on summary conviction, to a Class A fine (up to €5,000), and/or up to 12 months’ imprisonment. Section 4 makes it an offence to distribute, publish, or send threatening or grossly offensive communications. A person found guilty of an offence under Section 2 is subject to a Class A fine (up to €5,000) and/or up to six months’ imprisonment if tried summarily, or a fine and/or up to two years’ imprisonment if convicted on indictment. Section 7 provides that summary proceedings for an offence under the Act may be instituted within two years from the date on which the offence was committed.

The 2015 Marriage Act enacted the Thirty-Fourth Amendment of the Constitution of Ireland into law, which legalized same-sex marriage. Previously, same-sex couples could enter into civil partnerships under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The Marriage Act amended the Civil Registration Act 2004, inter alia, by adding a provision that allows anything that applies to marriage between two people of the opposite sex to apply to marriage between people of the same sex (Section 5). The Act also provides that nothing therein obliges a religious body to recognize a particular form of marriage ceremony or to solemnize a marriage (Section 7). It also provides for the recognition of certain foreign marriages and registered foreign relationships (Sections 12 and 13) and amends the Guardianship of Infants Act 1964 to allow a married couple of the same sex to adopt a child (Section 16).

The three applicants in these three cases – L.F. (External URL below), K.O’S. and W.M. – are Irish citizens. Each gave birth to children in three hospitals in Ireland in the 1960s. Each applicant underwent surgical symphysiotomies in the respective hospitals during or in advance of labour. Their cases were among ten applications brought by women to the European Court of Human Rights (“ECtHR”) who had undergone such a procedure in Ireland around the same time. All three applicants alleged that they had not been informed about the procedure and had not given their full and informed consent. They stated that they had suffered physical and psychological trauma as a result of the procedure. The symphysiotomy procedure was uncommon in Western Europe around the time, but in Ireland, it was revived in the 1940s and continued to be used until the 1980s. Following a 2011 report into the use of the procedure in Ireland, the Minister for Health announced the establishment of an ex gratia payment scheme offering compensation to women who had undergone the procedure between 1940 and 1990. However, some women, including the applicants in these cases, instituted domestic proceedings. In L.F.’s case, the High Court found that, during the time in question, the procedure had been a reasonable though limited option. This decision was upheld by the Court of Appeal, and the Supreme Court refused L.F. leave to appeal. K.O’S. and W.M. subsequently abandoned their domestic claims. Further, none of the three applicants applied to the ex gratia payment scheme, as they all believed that there was no possibility of any acknowledgment of a breach of their rights. The three women then applied to the ECtHR in 2017, relying on Articles 3 (prohibition of inhuman or degrading treatments), 8 (right to respect for private and family life), and 13 (right to an effective remedy of the Convention). The applicants complained that the use of the procedure in Ireland had not been the subject of a Convention-compliant domestic investigation and that, in addition, they had been unable to fully litigate their claims at the domestic level. K.O’S. also complained that the State had failed in its obligation to protect women from inhuman and degrading treatment by allowing symphysiotomies to take place. In 2020, the ECtHR declared that each application was inadmissible. In respect of K.O’S.’s argument, the Court found that she had failed to exhaust domestic remedies as she had not made that complaint before the domestic courts. In respect of the other two applicants, their applications were refused on the grounds that they were manifestly ill-founded.

Pursuant to Article 177 of the European Economic Community treaty (“EEC treaty”), the High Court of Ireland requested a preliminary ruling on (i) whether abortion comes within the definition of “services” in Article 60 of the EEC treaty; (ii) whether a Member State can prohibit the dissemination of information about the identity, location, and means of communication with an abortion clinic in another Member State; and (iii) whether there is a right at Community law level to distribute such information. The underlying case was brought by an anti-abortion NGO against officers of student associations regarding the latter’s distribution of information on abortion clinics in another Member State in Ireland. The Court of Justice held that while medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a “service” within the meaning of Article 60 of the treaty, Article 59’s prohibition of restrictions on the supply of “services” did not apply to the information-dissemination activity of the student associations (which was not done in cooperation with the clinics). The Court reasoned that the link between the dissemination of information with the clinics’ services was too tenuous for the prohibition on distribution of information to be regarded as a “restriction” on the provision of the services. In 2018, Ireland enacted the Health (Regulation of Termination of Pregnancy) Act, which allows abortion (i) during the first 12 weeks of pregnancy, (ii) when the fetus has a condition that is likely fatal, or (iii) to protect the life or health of the woman.

The applicant’s child was adopted without his consent, but with the permission of the mother. After two years of domestic litigation and in consideration of his daughter’s best interests, he no longer sought to overturn the adoption, but requested damages from the government for the violation of his rights. The European Court of Human Rights found that the adoption of a child of unmarried parents without the father’s knowledge or consent was in accordance with Irish law and pursued the legitimate aim of protecting the rights and freedoms of the child. However, the Court found that the law violated the European Convention on Human Rights because it interfered with the applicant’s right to family life under Article 8(1), which would be permissible only if the interference were “necessary in a democratic society.” The Court found that the Irish Government had advanced no reasons relevant to the welfare of the child to justify such a departure from the principles governing respect for family ties. The Court also considered that Article 8 was not restricted to families based on marriage. Finally, because the applicant had no rights under Irish law to challenge the adoption decision either before the Adoption Board or in court, there was a violation of his right to a fair and public hearing by an independent and impartial tribunal under Article 6(1) of the Convention. The Court awarded pecuniary and non-pecuniary damages as well as legal costs and expenses.

In this case, the three applicants were Irish residents, but had abortions in the United Kingdom because abortion was unlawful in Ireland. Two of the applicants sought abortions for health and/or wellbeing-related reasons, while the third applicant was unable to establish her eligibility for a lawful abortion in Ireland. The third applicant was in remission for cancer and, due to a lack of information on the impact of the pregnancy on her remission and the effect of her treatment on the pregnancy, sought the abortion because of the risks involved with the pregnancy. The court found that while the European Convention of Human Rights did not confer a right to abortion, the prohibition of abortion in circumstances involving the applicant’s health and/or well-being, and the fact that the third applicant was unable to establish her eligibility came within the scope of the applicants’ right to their private lives under Article 8 of the Convention. The Court found no violation of Article 8 with respect to the first and second applicants because the interference with the right was in accordance with Irish law and “moral values deeply embedded in the fabric of society in Ireland”; however, the Court found that the prohibition violated the third applicant’s Article 8 right because there were no “effective and accessible procedures” that would allow the third applicant to establish that she qualified for a lawful abortion in Ireland. The State therefore had failed to comply with the “positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which she could have established whether she qualified for a lawful abortion in Ireland.” In 2018, Ireland enacted the Health (Regulation of Termination of Pregnancy) Act, which allows abortion (i) during the first 12 weeks of pregnancy, (ii) when the fetus has a condition that is likely fatal, or (iii) to protect the life or health of the woman.

The complainant in this case was informed that her fetus was suffering from a fatal fetal abnormality and would die in utero. At the time, she was unable to terminate her pregnancy in Ireland, so she traveled to the UK to obtain an abortion there, returning after 12 hours because she could not afford to stay longer. After returning to Ireland, she had no access to aftercare or counseling. The complainant applied to the UN Human Rights Committee (“the Committee”), claiming that Ireland had violated her rights under Articles 2(1) (freedom from discrimination, including sex-based), 3 (gender equality), 7 (freedom from torture, cruel, inhuman, or degrading treatment), 17 (right to privacy), 19 (freedom of information, including health-related), and 26 (equal protection of the law) of the International Covenant on Civil and Political Rights (“ICCPR”). The Committee found that because of the unavailability of abortion and other care, Ireland had violated the complainant’s rights under the following ICCPR articles: Art. 7 by denying the complainant reproductive health care and bereavement support, forcing her to continue carrying a dying fetus, compelling her to travel abroad to terminate her pregnancy, and causing her to feel extremely vulnerable, stigmatized, and abandoned; Art. 17 by interfering arbitrarily in the complainant’s right to privacy by denying respect for her physical and psychological integrity and reproductive autonomy; and Art. 27 by discriminating against the complainant for obtaining an abortion because the Irish healthcare system provides bereavement counseling to pregnant women after stillbirth resulting from carrying a fetus with fatal impairments to term, but not to women who terminate such pregnancies. The Committee held that Ireland had to provide the complainant with an effective remedy, including adequate compensation, and had to amend domestic law on the voluntary termination of pregnancy to comply with the ICCPR. In 2018, Ireland enacted the Health (Regulation of Termination of Pregnancy) Act, which allows abortion (i) during the first 12 weeks of pregnancy, (ii) when the fetus has a condition that is likely fatal, or (iii) to protect the life or health of the woman.