Abortion Without Free and Informed Consent? an Austrian Case of First Impression

Abstract

Notwithstanding the question of whether abortion is generally or exceptionally a legitimate means of family planning, it is basically agreed that abortion is not justifiable without free and informed consent of the pregnant woman. However, if abortion is held by the legislature to be a ground of justification (i.e., a far-reaching exception to criminal liability), is it true that abortion may also be carried out for the benefit of a pregnant woman who is not able to give free and informed consent? Should a substituted-judgment approach be applied in cases where the woman is incompetent to decide? Or should the pregnant womans relatives interests be taken into account exclusively? The author tries to answer these questions, which were tackled by the Austrian Supreme Court in a recent case.