Abortion in the Practice of the European Court of Human Rights in the Context of the Concept of Somatic Human Rights and the Right to Freedom of Religion

Abstract

The case-law of the European Court of Human Rights contains a range of decisions touching upon the problem of abortions. The latest of such decisions, as of October 2020, were issued in March 2020 (Grimmark v. Sweden and Steen v. Sweden). Although there is no right to abortion in the European Convention on Human Rights, the abortion cases are being taken by the Court, inter alia, in context of the right to life (usually that of the pregnant woman, but not of the unborn child), right to respect for private life (usually that of the pregnant woman, but not, e. g. of the father of the unborn child), freedom of religion (usually that of a health care worker refusing to carry out an abortion and generally being left without the protection of the Court), etc. It is notable that, when deciding the abortion cases, the Court de facto employs the concept of the so called somatic human rights and tends recently not to trouble itself with seeking the real balance between the different human rights that become intertwined in connection with abortion. The theory of somatic rights as of fourth generation human rights emanates from the world outlook accepting rights of a person to disposal of one’s body supported by the rapid development of biomedicine, bioengineering and industrial production, but being in contradiction with the Orthodox faith. The present article reveals the basic provisions related to the so called somatic rights, especially reproductive rights, notes their incongruity with the Christian attitude towards a human life and body, brings three examples of the European Court’s of Human Rights cases connected with abortions, that witness a tendency to accept ‘a right to abortion’ generally and, in particular, as a more prioritized one than the protection of the freedom of religion, if the matter concerns the conscientious abjection to carry out an abortion on the part of the health care worker. The article was prepared with the financial support of the Russian Foundation for Basic Research within the framework of research project No. 18-011-00292.