Center for Reproductive Rights
Federation for Women and Family Planning
Legal Protections of the Right to Life
International human rights treaties provisions and the official bodies that interpret their provisions do not extend “right to life” protections to fetuses. Furthermore, they support the position that recognizing the right to life from conception would interfere significantly with women’s basic human rights.
What follows are provisions and analysis regarding the right to life from the international and regional human rights treaties to which Poland is a party and a brief analysis of right to life provisions in national constitutions of European countries. The Center for Reproductive Rights and the Federation for Women and Family Planning, submits this information in hopes that it will support an informed debate on the implications of recognizing the right to life from conception in the Polish Constitution.
The Center for Reproductive Rights is an international human rights non-profit organization which provides international and comparative legal analysis on reproductive health-related issues to governments, inter-governmental human rights bodies, including the United Nations and the European Court of Human Rights, and NGOs around the world. The Federation for Women and Family Planning in Poland is a non-profit organization which has been advocating for human rights of women, particularly reproductive rights. The Federation has a Special Consultative Status to UN ECOSOC.
National European Constitutions
With the exception of the Irish Constitution, constitutions of European countries do not recognize the right to life from conception. Importantly, the Irish constitution explicitly recognizes the conflict such a provision has with women’s right to life and guarantees to respect, defend and vindicate the right to life of the ‘mother’.[i]
The Universal Declaration of Human Rights
Article 1 opens the Universal Declaration of Human Rights with the fundamental statement of inalienability: “All human beings are born free and equal in dignity and rights” (Art.1).[ii] Significantly, the history of the negotiations (travaux préparatoires) indicates that the word “born” was used intentionally to exclude the fetus or any antenatal application of human rights. An amendment was proposed and rejected that would have deleted the word “born”, in part, it was argued, to protect the right to life from the moment of conception. One of the drafters, a representative from France, explained that the statement “All human beings are born free and equal…” meant that the right to freedom and equality was “inherent from the moment of birth” [iii] Article 1 was adopted with this language by 45 votes, with nine abstentions.[iv] Thus, a fetus is not a holder of rights under the Universal Declaration of Human Rights. The deliberately gender-neutral term “everyone has the right to life…”,[v] utilised thereafter in the Declaration to define the holders of human rights, refers to born persons only.
The International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR)[vi] likewise rejects the proposition that the right to life, protected in Article 6(1), applies before birth. The history of the negotiations indicates that an amendment was proposed and rejected that stated: “the right to life is inherent in the human person from the moment of conception, this right shall be protected by law.”[vii] The Commission ultimately voted to adopt Article 6, which has no reference to conception, by a vote of 55 to nil, with 17 abstentions.[viii]
Subsequently, the Human Rights Committee, which interprets and monitors States parties' compliance with the International Covenant on Civil and Political Rights, has repeatedly emphasised the threat to women's lives posed by prohibitions on abortion that cause women to seek unsafe abortions. It has also repeatedly called upon states, including Poland, to liberalise criminal laws on abortion,[ix] a position that would be problematic if the Covenant's protection of the right to life extended before birth.[x] In an authoritative interpretation of the principle of equality protected by the Convention, the Committee has also emphasised the states' responsibility to eliminate women's mortality from clandestine abortion and recognised that such criminal laws could violate women's right to life.[xi]
A recent decision by the Human Rights Committee established that denying access to abortion in circumstances where it is legal violates women’s most basic human rights. The Committee, in the case of K.L. v. Peru, held the government of Peru in breach of its Covenant obligations, including right to privacy (article 17) and right to be free from inhumane and degrading treatment (article 7), for denying access to a therapeutic abortion permitted by its own domestic law. In finding a violation of the right to be free from inhuman and degrading treatment, the Committee found the state liable for denying K.L.’s access to an abortion she needed to avoid a risk of serious harm to her health—harm associated with being forced to continue a pregnancy involving fetal anencephaly. It follows that a state’s obligations to respect and ensure the right set out in article 7 require it to guarantee a woman’s access to abortion in cases where pregnancy threatens her physical or mental health, including because of severe fetal impairment.
While K.L. was denied access to a legal abortion, the Committee’s finding of an article 7 violation did not depend on the lawfulness of the procedure, as there is no derogation from article 7. The language of this part of the decision is neutral; the state is liable for “not enabling [K.L.] to benefit from a therapeutic abortion (emphasis added),” not necessarily a legal one. Thus, in the context of article 7, both the legal and practical inaccessibility of a therapeutic abortion could constitute violations.
The Committee accepted K.L.’s claims of mental suffering both during pregnancy and after delivery, as well as the impact of such harm on her development and future mental health. These findings show the Committee’s recognition of the continuing nature and long-term implications of the harm K.L. experienced. It ordered the state to provide the complainant with an effective remedy, including compensation, and take steps to prevent the future occurrence of similar violations. [xii] This decision highlights the potential conflict a constitutional provision that protects life from conception would have with women’s human rights.
The Convention on the Rights of the Child
Likewise, both the negotiations (travaux préparatoires) and the interpretation by its expert treaty body make clear that the Convention on the Rights of the Child (CRC)30 does not recognise the right to life until birth. An argument to the contrary is erroneously built upon Paragraph 9 of its Preamble, which provides: “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.’”[xiii] This reflects, at most, recognition of a state's duty to promote, through nutrition, health and support directed to the pregnant woman, a child's capacity to survive and thrive after birth.
The travaux make clear that this duty must not affect a woman's choice to terminate an unwanted pregnancy. As originally drafted, the Preamble did not contain the reference to protection “before as well as after birth,” although this language had been used in the earlier Declaration on the Rights of the Child. The Holy See led a proposal to add this phrase, at the same time as it “stated that the purpose of the amendment was not to preclude the possibility of an abortion”.[xiv] Although the words “before or after birth” were accepted, their limited purpose was reinforced by the statement that “the Working Group does not intend to prejudice the interpretation of Article 1 or any other provision of the Convention by States Parties”[xv] The reference is to the definition of “a child”. Article 1 states: “For the purposes of the present Convention a child means every human being below the age of 18 years.…”
The Committee on the Rights of the Child, the expert treaty body that interprets and applies the Child Rights Convention, likewise has not recognized a right to life to the fetus. The Committee has expressed repeated concern over adolescent girls' access to safe abortion services and the need for states “to provide access to sexual and reproductive health services, including... safe abortion services”.[xvi] (emphasis added) In its Concluding Observations on various State reports, the Committee has also recognised that safe abortion is part of adolescent girls' right to adequate health under Article 24, noting that “high maternal mortality rates, due largely to a high incidence of illegal abortion” contribute significantly to inadequate local health standards for children.[xvii] It has also explicitly called for “review of [state practices]… under the existing legislation authorising abortions for therapeutic reasons with a view to preventing illegal abortion and to improving protection of the mental and physical health of girls”[xviii] Based on the above noted information, the definition of “a child” for purposes of the Convention does not include a fetus.
Convention on the Elimination of All Forms of Discrimination Against Women
The Women's Convention[xix] does not explicitly protect the right to life or the right to abortion. Its Preamble does however reaffirm the Universal Declaration of Human Rights's recognition that “all human beings are born free and equal in dignity and rights” and states that “everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex…”. The Convention also provides the general foundation for reproductive rights in Article 16(e) guaranteeing women “the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights”.
Because of the inextricable inter-relationship between the right to make reproductive decisions and women's equal right to life, the CEDAW Committee has frequently had occasion to address issues concerning abortion and the status of fetal life in the context of women's equality. In General Recommendation 24: Health,[xx] the CEDAW Committee recognises the importance of women's right to health during pregnancy and childbirth as closely linked to their right to life. The Committee explained that coverage of reproductive health services is an essential aspect of women's equality, stating that “it is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women”. It describes as barriers to appropriate health “laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures”, as well as high fees, requirements of parental, spousal or hospital authorisation, and inaccessibility because of distance and/or travel barriers.[xxi] Further, when considering State reports, the Committee has repeatedly expressed great concern about maternal mortality due to unsafe abortion, framed the issue as involving a woman's right to life, and called upon states to eliminate criminal laws and other barriers restricting access to safe abortion. [xxii]
The European Convention for the Protection of Human Rights and Fundamental Freedoms
The drafters of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)[xxiii] relied heavily on the Universal Declaration of Human Rights and, according to the history, did not even debate the question of dating rights from conception.[xxiv] They based the European Convention's protection of everyone's right to life in Article 2 on parallel language in Article 3 on the “moral authority and technical value” of the Universal Declaration.[xxv] The Preamble to the European Convention repeatedly cites the Universal Declaration and declares that the purpose of the Convention is to “take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration”.[xxvi] In this light, it is manifest that the term “everyone” used throughout the European Convention as well as in Article 2 protecting the right to life likewise does not apply before birth.
The long-standing jurisprudence of both the European Commission on Human Rights and the European Court establish that the fetus is not legally considered a person entitled to the “right to life” under Article 2(1) and, further, that granting the fetus human rights would place unreasonable limitations on the rights of women.
In l980, Paton v. United Kingdom,[xxvii] a case by a husband seeking to prevent his wife's abortion, explicitly rejected the claim that the right to life in Article 2 covered the fetus. The European Commission held that the word “everyone” in Article 2, and elsewhere in the Convention, did not include fetuses. Further, recognising the inseparability of the fetus and the pregnant woman, it gave precedence to the woman's rights under Article 2.[xxviii]
“The life of the fetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman. If Article 2 were to cover the fetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the“unborn life” of the fetus would be regarded as being of a higher value than the life of the pregnant woman.” (Para.19)
Paton was followed in R.H. v. Norway (1992)[xxix] and Boso v. Italy (2002),[xxx] also cases brought by male partners seeking to prevent their female partner’s abortions based on the right to life of the fetus. In both of these cases, the Commission sustained the permissive abortion laws at issue.
Most recently, in Vo v. France (2004),[xxxi] the Court again refused to extend the right to life to fetuses. The female applicant in this case had wanted to carry her pregnancy to term but had to have a therapeutic abortion due to medical negligence. Represented by anti-abortion lawyers, her case asserted that the negligence of the doctor that necessitated the abortion was a violation of the fetus' right to life under Article 2 of the Convention and, therefore, required prosecution of the doctor for unintentional homicide instead of the lesser charge of malpractice or a regulatory violation as provided by French law.[xxxii] Again the Court affirmed that “the unborn child is not regarded as a ‘person’ directly protected by Article 2 of the Convention,” and that if the unborn do have a ‘right’ to ‘life’, it is implicitly limited by the mother's rights and interests”.[xxxiii] Noting that “there is no European consensus on the scientific and legal definition of the beginning of life”,[xxxiv] the Court declined to treat the fetus as a “person” or require a homicide prosecution even though, as in this case, there was no conflict with the rights of the woman.[xxxv] This decision protects all of Europe's liberal abortion laws, and prevents doctors and providers from being deterred from providing abortions for fear of criminal sanction. For these reasons, Vo also protects women's access to reproductive health care, including legal abortion, as well as the full range of obstetric interventions.
The European Commission and Court have thus repeatedly reaffirmed in the cases brought before them that the Convention protects women's fundamental right to a safe abortion. Although the European jurisprudence recognises some discretion in the States to balance protection of fetal life against the human rights of women, it has never invalidated a permissive abortion law nor stated (or been required to state) to what extent European law requires legalisation of abortion.
As noted above, the recognition of fetal rights has potentially far-reaching implications for the rights of pregnant women. Including a clause in the constitution which recognises the right to life from conception lays the theoretical foundation for interference with women’s health and autonomy. Human rights bodies have
[i] Irish Constitution Article 40. (3.3) “ The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
[ii] United Nations Universal Declaration on Human Rights, UN GAOR, Art.1, G.A. Res.217, UN Doc. A/810, 1948.
[iii] UN GAOR 3rd Comm., 99th mtg. at 110–124, UN Doc. A/PV/99, 1948.
[iv] UN GAOR 3rd Comm., 183rd mtg. at 119, UN Doc. A/PV/183, 1948.
[v] J Morsink, Women's rights in the Universal Declaration, Human Rights Quarterly 13 (1991), pp. 229–256.
[vi] International Covenant on Civil and Political Rights, 16 December 1966, 993 UNTS 171, entered into force 23 March 1976.
[vii] UN GAOR Annex, 12th Session, Agenda Item 33, at 96, UN Doc. A/C.3/L.654; UN GAOR, 12th Session, Agenda Item 33, at 113 UN Doc. A/3764, 1957.
[viii] UN GAOR, 12th Session, Agenda Item 33, at 119 (q), UN Doc. A/3764, 1957.
[ix] Concluding Observations of the Human Rights Committee, UN Doc. CCPR/C/79/Add.104; Concluding Observations of the Human Rights Committe Chile, 30/3/1999, UN GAOR, Hum. Rts. Comm., 65th Session, 1740th mtg. Para.15e: Argentina, 15/11/2000, UN Doc. CCPR/CO/70/ARG, Para.14; Concluding Observations of the Human Rights Committee: Costa Rica, 08/04/99, UN Doc. CCPR/C/79/Add.107, Para.11; Concluding Observations of the Human Rights Committee: Peru; Concluding Observations of the Human Rights Committee: United Republic of Tanzania, 18/08/98, UN Doc. CCPR/C/79/Add.97, Para.15; Concluding Observations of the Human Rights Committee: Venezuela, 26/04/2001, UN Doc. CCPR/CO/71/VEN, Para.19; Concluding Observations of the Human Rights Committee: Poland, 05/11/2004, UN Doc. CCPR/CO/82/POL, Para.8; Concluding Observations of the Human Rights Committee: Bolivia, 05/05//97, UN Doc. CCPR/C/79/Add.74, Para.22.
[x] Concluding Observations of the Human Rights Committee: Colombia, 03/05/97, UN Doc. CCPR/C/79/Add.76, Para.24; Concluding Observations of the Human Rights Committee: Ecuador, 18/08/98, UN Doc. CCPR/C/79/Add.92, Para.11; Concluding Observations of the Human Rights Committee: Mongolia, 25/05/2000, UN Doc. CCPR/C/79/Add.120, Para.8(b); Concluding Observations of the Human Rights Committee: Poland, 29/07/99, UN Doc. CCPR/C/79/Add.110, Para.11; Concluding Observations of the Human Rights Committee: Senegal, 19/11/97, UN Doc. CCPR/C/79/Add 82, Para.12.
[xi] Human Rights Commission, Gen Comment 28: Equality of Rights Between Men and Women (68th Session 2000) at Para.10, reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 12/05/2004, UN Doc. HRI/GEN/Rev.7.
[xii] K.L. v. Peru, United Nations Human Rights Committee, Communication No. 1153/2003, Views adopted on Oct. 24, 2005.
[xiii] Convention on the Rights of the Child, GA Res. 44/25, Annex, UN GAOR 44th Session, Suppl. No.49 at 166, UN Doc. A/44/49 (1989) (entered into force Sept. 2, 1990).
[xiv] UN Commission on Human Rights, Question of a Convention on the Rights of a Child: Report of the Working Group, 36th Session, UN Doc. E/CN.4/L/1542 (1980).
[xv] UN Commission on Human Rights, Report of the Working Group on a Draft Convention on the Rights of the Child, 45th Session, E/CN.4/1989/48 at p.10 (1989), quoted in Jude Ibegbu, Rights of the Unborn in International Law 145 (2000); LJ LeBlanc, The Convention on the Rights of the Child: United Nations Lawmaking on Human Rights, University of Nebraska Press, London (1995), p. 69; J Ibegbu, Rights of the Unborn Child in International Law, E Mellen Press, Lewiston NY (2000), pp. 146–147.
[xvi] Committee on the Rights of the Child, General Comment No.4: Adolescent health and development in the context of the Convention on the Rights of the Child (33rd Session 2003) at Para. 31, reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 12/05/2004, UN Doc. HRI/GEN/Rev.7.
[xvii] Concluding Observations of the Committee on the Rights of the Child: Guatemala, 9/7/2001, UN Committee on the Rights of the Child, 27th Session, p.40, UN Doc. CRC/C/15/Add.154; Concluding Observations of the Committee on the Rights of the Child: Chad, 24/8/1999, UN GAOR, Committee on the Rights of the Child, 21st Session, 557th mtg. Para.30, UN Doc. CRC/C/15/Add.107; Concluding Observations of the Committee on the Rights of the Child: Nicaragua, 24/8/1999, UN GAOR, Committee on the Rights of the Child, 21st Session, 557th mtg. Para.35, UN Doc. CRC/C/15/Add.108.
[xviii] Concluding Observations of the Committee on the Rights of the Child: Chad, 24/8/1999, UN GAOR, Committee on the Rights of the Child, 21st Session, 557th mtg. Para.30, UN Doc. CRC/C/15/Add.107; Concluding Observations of the Committee on the Rights of the Child: Nicaragua, 24/8/1999, UN GAOR, Committee on the Rights of the Child, 21st Session, 557th mtg. Para.35, UN Doc. CRC/C/15/Add.108.
[xix] Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180 (18 December 1979).
[xx] Committee on the Elimination of Discrimination against Women, General Recommendation 24: Women and Health (20th Session, 1999), in Compilation of General Comments and General Recommendations by Human Rights Treaty Bodies, at 274, Para.14, U.N .Doc. HRI/GEN/1/Rev.7 (2004).
[xxi] Committee on the Elimination of Discrimination against Women, General Recommendation 24: Women and Health (20th Session, 1999), in Compilation of General Comments and General Recmmendations by Human Rights Treaty Bodies, at 274, Para.14, U.N .Doc. HRI/GEN/1/Rev.7 (2004).
[xxii] Center for Reproductive Rights and University of Toronto International Programme on Reproductive and Sexual Health Law. Bringing Rights to Bear: An Analysis of the Work of the U.N. Treaty Monitoring Bodies on Reproductive and Sexual Rights, New York: CRR, 2002.
[xxiii] European Convention on Human Rights and Fundamental Freedoms, 312 UNTS 221 (entered into force on 3 September 1953), as amended by protocols 4, 6, 7, 12 and 13 to the Convention.
[xxiv] Committee on Legal and Administrative Questions Report, Section 1, Para.6, 5 September 1949, in Collected Edition of the Travaux Préparatoires, Vol. 1 (1975), p.194.
[xxv] United Nations Universal Declaration on Human Rights, UN GAOR, Art.1, G.A. Res.217, UN Doc. A/810, 1948; Committee on Legal and Administrative Questions Report, Section 1, Para.6, 5 September 1949, in Collected Edition of the Travaux Préparatoires, Vol. 1 (1975), p.194.
[xxvi] European Convention on Human Rights and Fundamental Freedoms, 312 UNTS 221 (entered into force on 3 September 1953), as amended by protocols 4, 6, 7, 12 and 13 to the Convention.
[xxvii] Paton v. UK, App. No. 8317/78, European Commission on Human Rights, 13 May 1980, 3 European Human Rights Rep.408 (1981), (Commission report), also cited as X. v. UK.
[xxviii] Paton v. UK, App. No. 8317/78, European Commission on Human Rights, 13 May 1980, 3 European Human Rights Rep.408 (1981), (Commission report), also cited as X. v. UK.
[xxix] RH v. Norway, Decision on Admissibility, App. No.17004/90, 73 European Commission on Human Rights Dec. & Rep. 155 (19 May 1992).
[xxx] Boso v. Italy, App. No.50490/99, European Commission on Human Rights (September 2002). American Declaration, OAS Off. Rec. OEA/Ser.L/V/II.82, Doc.6, Rev.1(1948).
[xxxi] Vo v. France, App. No.53924/00, European Court of Human Rights, 8 July 2004.
[xxxii] Vo v. France, App. No.53924/00, European Court of Human Rights, 8 July 2004, paras.50,89,92,93
[xxxiii] Vo v. France, App. No.53924/00, European Court of Human Rights, 8 July 2004, para 80
[xxxiv] Vo v. France, App. No.53924/00, European Court of Human Rights, 8 July 2004, para 84
[xxxv] Vo v. France, App. No.53924/00, European Court of Human Rights, 8 July 2004, paras.89,92,93.