UN Committee Says Children in the Womb Have No Right to Life, But Drops Claims of “Right to Die”
The first draft of a new “general comment” of the Human Rights Committee (HRC), a mostly unknown but influential committee that reviews and records the implementation of the International Covenant on Civil and Political Rights (ICCPR)—one of two founding UN human rights treaties, the other being the treaty on social, economic and cultural rights. The draft will be opened up for comment after the next session of the committee concludes next month in Geneva. Draft General Comment 36 can be found here in its entirety. Below are my comments and some highlights.
As was expected, the UN committee has declared that women have a right to so-called “therapeutic” abortion, and a right to abortion in cases of rape, incest, where the child in utero is disabled. It went even further and said states have a positive obligation to allow abortion in order to avoid “unsafe abortions,” and that they cannot prescribe “lengthy” mandatory waiting periods to obtain an abortion. It also says that adolescents must be informed of their rights to dispose of “undesired pregnancies.”
It must be noted that this kind of document thankfully does not carry the force of law and is not binding on State Parties. UN committees like to say that these comments contain “authoritative interpretations” of the treaty. That is fanciful. They are actually a few notches below that. We like to describe them as recommendations, and even then, they are only validly made when UN committee’s interpret treaties in an impartial and objective way, applying the basic canons of interpretation for treaties that are binding on all States, and enshrined in the Vienna Convention on the Law of Treaties. Whenever treaty bodies like the HRC misapply a treaty they should be considered as acting ultra vires.
It is troubling how the committee applied a double standard in interpreting the treaty. It says children in the womb are not protected under international law because the treaty is silent about the right to life of children in the womb. The same could be said about abortion. The treaty never mentions abortion. While the treaty does not contain expressly or impliedly any right to abortion under any circumstance, as the San Jose Articles explain, quite the opposite is true for the right to life of children in the womb.
The treaty presumes that states would/should protect unborn life, as is implied for example by Article 6.5 of the treaty, which prohibits the application of the death penalty to pregnant women. The only explanation for this is that the child in utero is innocent and has not forfeited his/her right to life by virtue of the mother’s crime. Moreover, when the treaty was negotiated in the early 60s even the countries that now allow the destruction of children in the womb prohibited abortion. These are important legal markers that should direct the interpretation of the treaty, especially if any development of the law is contemplated it should be in favor of protecting life in the womb, not destroying it—and we do not admit the committee is competent to asses such developments, as would for example be a national court in a country where the treaty is self-executing, and where the legal system allows that kind of judicial license.
Below is the relevant part of the draft comment addressing abortion:
7. Unlike the American Convention on Human Rights,the Covenant does not explicitly refer to the rights of unborn children, including to their right to life.In the absence of subsequent agreements regarding the inclusion of the rights of the unborn within article 6 and in the absence of uniform State practice which establishes such subsequent agreements, the Committee cannot assume that article 6 imposes on State parties an obligation to recognize the right to life of unborn children. Still, States parties may choose to adopt measures designed to protect the life, potential for human life or dignity of unborn children, including through recognition of their capacity to exercise the right the life, provided that such recognition does not result in violation of other rights under the Covenant, including the right to life of pregnant mothers and the prohibition against exposing them to cruel, inhuman and degrading treatment or punishment. Thus, any legal restrictions on the ability of women to seek abortion must not jeopardize their lives or subject them to severe physical or mental pain or suffering. States parties whose laws generally prohibit voluntary terminations of pregnancy must, nonetheless, maintain legal exceptions for therapeutic abortions necessary for protecting the life of mothers, inter alia by not exposing them to serious health risks, and for situations in which carrying a pregnancy to term would cause the mother severe mental anguish, such as cases where the pregnancy is the result of rape or incest or when the fetus suffers from fatal abnormalities. Furthermore, States parties should not regulate pregnancy or abortion in a manner that would compel women to seek clandestine illegal abortions that could endanger their lives. For example, they should not criminalize pregnancies by unmarried women or apply criminal sanctions against women undergoing abortion or against physicians assisting them in doing so. Nor should States parties introduce excessively burdensome or humiliating requirements for seeking permission to undergo abortion, including the introduction of lengthy mandatory waiting periods before a legal abortion can be carried out. The duty to protect the lives of women against the health risks associated with the termination of undesirable pregnancies requires State parties to provide women, and, in particular, adolescents, with information about reproductive options, with access to contraception and with access to adequate prenatal health care.
The committee then develops an incoherent explanation of Article 6.5 of the convention which prohibits the application of the death penalty to pregnant women. It says children in the womb indeed have rights, even though it does not specify that they have the right to life. Presumably, the committee is trying to sever the right to life from other legal rights, i.e. the their right to inherit. So we find ourselves with the absurd situation where children may have property rights, and rights under tort law, and even protections under criminal law, but they do not have a right to life! Here is where the committee contradicts itself:
50. Article 6, paragraph 5 prohibits the application of the death penalty to minors and pregnant women.Whereas for minors, the provision pertains to the time of the offence and, by necessary implication, also to the time in which the sentence is to be carried out, for pregnant women, it pertains only to the time of carrying out the sentence. The special CCPR/C/GC/R.36/Rev.2 12 protection afforded to minors stems from a recognition of their limited ability to defend themselves, their reduced moral culpability, and their diminished ability to understand the reasons for the sentence due to their immaturity. It also reflects concerns about the exceptional harshness of depriving a minor of the remainder of his or her life. The special protection afforded to pregnant women stems from an interest in protecting the rights and interests of affected family members, including the the unborn fetus and the fetus’s father.
The committee also has something to say about the earliest stages of human life:
8. Although, for reasons similar to those mentioned in paragraph 7, the Covenant does not directly regulate questions relating to the right to life of frozen embryos, eggs or sperms, stem cells or human clones. States parties may regulate the protection of these forms of life or potential life, while respecting their other obligations under the Covenant.
But in a surprising twist of events, the committee has dropped any reference to a so-called “right to die”,which had previously been included in a draft of subjects to be discussed and included in the general comment. The committee’s approach is strikingly conservative, considering how the issue had been framed in discussions so far. It unequivocally condemns euthanasia. But it is problematic because it establishes the “wish to die with dignity” as the operative principle for removal of life-saving treatment, and does not define what “life saving treatment” can be rejected. This might be interpreted to permit death by sedation, starvation, and dehydration, which are a form of soft euthanasia, for lack of a better word, that is widely recognized as being carried out, even where euthanasia is not enshrined in the law. On another positive note, it categorically excludes children from death “with dignity” (shame on you Belgium!). Here is what the HRC had to say about “death with dignity”:
5. Deprivation of life involves a deliberate or otherwise foreseeable and preventable infliction of life-terminating harm or injury that goes beyond mere damage to health, body integrity or standard of living.Examples of deprivations of life regulated by article 6 United Nations International Covenant on Civil and Political Rights includethe carrying out of a death penalty, extra-judicial killings, murder, road-traffic deaths, death resulting from medical malpractice, assisted suicide, euthanasia and infanticide. Deprivation of life also represents a more serious attack against the lives of individuals than general threats or attacks directed against their personal security. Still, article 6 may require States parties to address threats to life and life-threatening harms and injuries that do not result in loss of life.
9. The Covenant does not define the moment of death – in particular, whether it should be determined by the end of cardiovascular or cerebral activity. In the Committee’s view such determinations ought to be undertaken by medical professionals on the basis of the available scientific data, and in light of applicable ethical considerations.
10. While generally respecting personal autonomy and the importance of freely exercising rights under the Covenant, States parties should presume that individuals planning or attempting to commit suicide may experience a temporary crisis that hinders their ability to take rational decisions with long term implications, and they should take adequate measures to prevent suicides, especially among vulnerable population groups, without violating their other Covenant obligations. For example, they should seek to limit access by suicidal individuals to firearms. States parties may also allow medical professionals to assess on a case-by-case basis whether or not to accommodate,on a highly exceptional basis and as a method of last resort, explicit, unambiguous, free and informed requests for the termination of life-prolonging treatment made by mortally wounded or terminally ill adults, who experience intolerable pain and suffering and wish to die with dignity. The assessment of such requests must be based on medical, psychological and ethical considerations, and any decision taken must be subject to robust legal and institutional safeguards in order to prevent pressure and abuse.
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