Aborto problematika Europos žmogaus teisių teismo jurisprudencijoje

Abstract

Summary In Europe, just like in the entire world in general, the issues related to abortion often become the main topics for discussions. Those debates include judicial, moral, political, religious as well as health aspects. While talking about the human right to life it is crucial to define the moment which is a stand point for legal human right defence, also to describe the concept as of what should be concidered the beginning life. International documents declaring human rights and those national laws coordinating the practice of abortion avoid to clearly define the beginning moment of the human life intially because it directly corresponds to the defence of realization of the human life. ECHR maintains the opinion that the question of definion of the beginning of the human life should be solved at the national level due to a number of reasons, one being that the problem of protection is still not implemented in most of the countries that have ratified teh Convention; second being the fact that in Europe there is a lack of common agreement on scientific and judicial moment of the beginning of the human life. Until now the ECHR has not been showing any initiative to resolve neither the judicial nor the protective status of the embryo claiming that perhaps „there is neither demanded nor even possible to answer the question if an unborn baby can be concidered a human being according to the article no2 of the European Human Rights“, however, the established practice indicates that giving the absolute right to the embryo would clearly contradict the content and purposes of the Convention. In order to define the judicial status of the embryo / fetus, the problem occurs as of how to interpret the concept of „everyone“ used in the Convention. Although the mentioned concept „everyone“ is not precisely defined by the Convention, nevertheless, the experience of the ECHR shows that unborn baby is not „everyone“ whose right to life is protected by the article no2 under Convention, and that the right of the unborn baby to life is limited by the rights and interests of the mother. Looking from the perspective of rights protection of a pregnant woman, Commision has admitted that the absolute forbidance of abortion would be unallowed intervention into a decision making of a human being and the respect for the provate life would be undermined which is protected by the article no 8 of the Convention. It is important to assure an honest balance between the interests of a woman and the need to rptect the fetus. Another aspect which follows from the practice of the ECHR shows the fact that the priority should be given to the healt and life of the woman instead of state or society´s moral interests to defend the rights of fetus. Finally it would be necessary to judicially define the interests of the father while analysing the issue of abortion. It is obvious that the laws in many countries do not give any rights to the father, without event concidering if the father is a husband of a woman or not. The judicial status of the father occurs only then when the baby is born.