The Wrong Mrs Vo - do the unborn have rights?

17 Apr 2015 Nick Garbutt    Last updated: 6 Jul 2015

Scope examines the landmark European case which ruled that the unborn do not have a right to life 

At the heart of the abortion debate is the issue of the point at which a human being becomes a person and therefore enjoys the full protection of the law.

In Europe different countries take very different views which fall into three broad categories: those that believe that this happens at the moment of conception; those that believe it happens at the moment a foetus becomes capable of independent life, and those who argue that you cannot be a person until you are born.

Strip away the moral arguments, and this is the legal basis for any debate.

It has proved an incredibly difficult issue for the European Court of Human Rights, not least because of the lack of consensus on the matter which stems from widely differing moral and cultural views.

There have been many cases where this area of the law has been put to the test.

One of the most important is the horrific case of Mrs Thi-Nho Vo, a French woman of Vietnamese origins who attended a routine examination at Lyons General Hospital when she was six months pregnant.

On the same day another woman Mrs Thi Thanh Van Vo was due to have a contraceptive coil removed at the same hospital. When the doctor who was scheduled to remove her coil called out her name the wrong Mrs Vo answered.

Mrs Vo’s command of French was not good and the doctor had difficulty understanding her. Nevertheless he attempted to remove the coil without examining her or realising she was the wrong patient. In doing so he pierced the amniotic sac causing the loss of a large amount of fluid.

Mrs Vo was hospitalised overnight, and once again her identity was confused with the other Mrs Vo by medical staff. She only escaped being operated on when an anaesthetist recognised her and intervened.

Four days later her pregnancy was terminated because the amniotic fluid had not been replaced .

She and her husband sued the French authorities for the unintentional homicide of the foetus in a case which ended up in the European Court of Human Rights.

Her case was that medical staff had breached Article 2 of the convention which states:

“Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

The case therefore hinged on whether the word “everyone” includes the unborn.

The Commission concluded that it didn’t and that if the unborn do have a right to life, it is implicitly limited by the mother’s rights and interests.

It did not, however, decide that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother.  Instead it stated that “the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-à-vis an unborn child.”

The court concluded: “At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2

“Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention.”



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