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September 01st 2009 print

Angela Shanahan

Human Rights and the Unborn

A few weeks ago I was listening to the evening news when I was prematurely jolted out of my winter’s-night-in-Canberra stupor by a tragic headline. The swine flu epidemic had “claimed its youngest victim”. A mother on Palm Island in North Queensland had been struck down with the virus. Her “unborn child” of thirty-six weeks gestation had died. I felt sympathy for the young mother and dismay that such an awful thing could happen in our wealthy country. My heart went out to that poor girl and her baby.

And then came the jolt. I realised that the announcer had called the baby what he or she in fact was: “her unborn child”. What is more, the first sentence had said that swine flu had “claimed its youngest victim”. The child’s death had actually preceded the further grim news that the mother was very ill and apparently in an induced coma. It was the unborn child’s suffering, first and foremost as a human person, that had made the headlines.

Now the fact that the unborn baby’s death was treated as a singular tragedy would not seem to be remarkable, because of course this child was mourned by his or her mother and her family—except for the language that was used. The language made the baby’s status as another member of the human family quite clear. He or she was a person, a singular person whose death was newsworthy.

But then I remembered other headlines, other unborn babies, other circumstances, and I asked myself how one child’s death could be mourned in such personal direct language when the deaths of so many other “unborn children” are not mourned as a loss to humanity. How can one of these unborn be called a “victim” when the deaths of so many other victims go unremarked? How could it be that one unborn child’s death is a tragedy in one set of circumstances, while another’s is its mother’s “human right”?

I could not help wondering why the very same purveyors of news headlines had not thought to call Baby Jessica a “victim”. She is probably better known as the “dwarf baby” of thirty-two weeks gestation whose mother claimed she would commit suicide without an abortion. Baby Jessica’s death was remarkable for two reasons. First, the doctor who killed her by injecting potassium chloride into her heart, Lachlan de Crespigny, was exposed. But instead of being accused as the killer of an unborn child who was surely a victim if ever there was one, Lachlan de Crespigny was turned into “the victim” who was trying to “help” the woman, the other victim whose distress was the other focus of emotion.

This is the language the Age used: “But he is conscious of the fact that, in speaking out, he risks adding to the distress of the woman, the biggest victim of all.” (The italics are mine.) “Eight years on, his blue eyes are still filled with sadness—not because he regrets helping the woman, but because of all the things that happened afterward.”

The distress of the baby was never touched on. She was a non-person. Jessica herself was consistently referred to in the headlines as simply “a foetus” of thirty-two weeks gestation—or at best “the dwarf baby”. There were never any references to an unborn girl called Jessica.

The only other reason this baby’s case was notable for the news media was that the push to decriminalise abortion in Victoria hinged on the supposed legality of her death.

How can such obvious inconsistency of language be the norm? The answer is simple. The legal right of the mother to abort has eclipsed the moral right of the unborn baby to live.

So much meaning turns on the words. So in cases of abortion we speak of the embryo or the foetus; in cases of accidental and untimely death we speak of the unborn child. The two entities at the centre of the two tragedies are of course the same. They are human beings in early stages of development. One set of the unborn are not less human than the other set. But in one set of circumstances the emotional focus is on the supposed moral rights of the mother, and in another set of circumstances the emotional focus is on the immature human being, the unborn child. But in neither circumstance does the unborn child seem to have “rights”. In both circumstances the legal concept of “rights” seems to belong solely to the adult human being, the mother.

The unborn child is the bearer of rights which are violated by abortion, but in the common-law world there is a complex mass of decisions relating to unborn children which are often difficult to reconcile. (For example, there is the so-called Byron law in New South Wales, which disallowed a prosecution for manslaughter when an unborn child called Byron was killed after a road rage assault on his mother.) Their incoherence derives from the obvious fact that the unborn child is an individual organism of the human species, and the objective in certain respects is to ensure that he or she does not have the same rights as other human beings.

The common law has not treated the unborn child as a legal person for all purposes. However, it cannot be right that the most basic questions—Who is the subject of human rights? Who is a member of our community under the rule of law?—should be left piecemeal or incoherent by the legislature or by the courts. And it cannot be reasonably treated as a matter to be decided by arbitrary line-drawing by the accidents of precedent.

This is an issue which, as a matter of basic principle, must be decided by informed reasoning. The thing that all those recognised as (natural) persons have in common is that they are living individuals of the human species. In law there was added a further thing in common: that they were already born. But that addition was made at a time when it could not be known with any precision what was growing in the womb. Now we do know. Modern knowledge entitles courts to recognise, at least for the purposes of the most basic protection, that the unborn are living individuals of the human species—like Byron, like Jessica, like the baby who died on Palm Island.

In order to clarify that unborn human beings do have a recognised place in the framework of international law and human rights by virtue of their “humanness”, reaching back to the UN Declaration of Human Rights and beyond, Rita Joseph, a veteran of the UN conference circuit, has written Human Rights and the Unborn Child. This collection of documents and commentary on the instruments of international law relating to the status of the unborn is unique, and will be welcomed—although not by pro-choice groups—as the standard text on the matter. Joseph has gathered a vast array of references to the unborn in the major documents of international law, and carefully collated, analysed and put them into context.

The spur to write it was a letter in the Age replying to her spirited defence of the unborn in which she argued against decriminalising abortion in Victoria on the foundation principles of international law. The letter was written by a lecturer in the law faculty at the University of Melbourne, John Tobin, who denied that there was any foundation in international law to prohibit abortion because “international law is silent on abortion and provides no rights to the unborn child”. He then cited the International Covenant on Civil and Political Rights (ICCPR) judgment about a case in Peru as proof of the opposite: that in fact international law supports abortion where it is legal in defence of the human rights of the mother, and withholding the procedure in countries where it is legal is a form of human rights abuse. (Recently the same has been argued in Italy in the case of a very young girl who was a victim of incest.)

In her introduction Joseph counters:

I was at once intrigued and appalled. I knew that legal protection for unborn children is one of the founding principles of modern international law, that as one of the Nuremberg judgments, this principle was mandated to be codified in the International Bill of Rights. And I certainly knew that the citation of a judgment made forty-eight years later was scarcely “proof” of “no foundation” for arguing the historical fact of such protection.

Indeed she knows this from more than three decades of research, writing and teaching on the language of international law and from attendance at numerous UN commissions and committees, sometimes as representative of NGOs and sometimes as a member of the Australian delegation in working group sessions where the language of human rights was being negotiated. Her specialty is “unpacking” that language, shaking it out for meaning.

The nub of Joseph’s argument is in the first few chapters, where she discusses the historical context of the Universal Declaration of Human Rights. As far as the unborn are concerned it is a context of inclusiveness. Within that historical context there is both implicit and explicit recognition of the child before as well as after birth:

Context shines a powerful light on what the authors of the 1948 Universal Declaration of Human Rights (UDHR) recognized as definitive and universal when they framed that crucial first modern statement of human rights. This is particularly important when we come to examine later human rights documents that derive from and codify the rights expounded in the UDHR, especially as relating to the rights of the child before birth.

Joseph makes it quite clear that if you examine the historical context from 1924, and then particularly discussion after the Nuremberg trials, the term “human being” applies to all who are human, before and after birth, and that is implicit:

Research on the historical context reveals that the concept of “the child” as understood at the time of the International Bill of Rights included the child before as well as after birth—from 1924, unbroken conceptual continuity can be established on this issue of inclusion.

But more than that, in the 1940s when the UDHR was being drawn up, up until the 1960s, abortion was almost universally condemned, and was against the law in most Western countries. Historically, even though common law is confused about the status of the unborn there had been a common-law tradition of protecting the unborn child from abortion.

The medical profession regarded abortion with disdain. In the immediate postwar period most doctors still took the Hippocratic oath, which specifically forbids abortion. The significance of these historical facts, as Joseph points out, is that people regarded the unborn as part of humanity, part of the continuum of human life, and therefore included them in the Universal Declaration of Human Rights

That human rights apply to the child before as well as after birth was also made explicit. Abortion was explicitly and specifically condemned as a tool of Nazi eugenics and genocide. Then in the preamble to the 1959 Declaration of the Rights of the Child we read the well-known paragraph of significance to the unborn child:

Whereas 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

Even examining this paragraph devoid of any context, it is clear that the phrase “before as well as after birth” connotes a consideration that was universally assented. Not only is there no hint of any qualification or mitigation of the entitlements accruing to a child that is unborn; the inclusion of this phrase actually reflects the determination of the international community in 1959 not to rely on a silent assumption of the rights of the unborn child but to give explicit emphasis to those rights.

Pro-lifers tend to cite only this paragraph in examining the rights of the child before birth, but according to Joseph that is not the whole story: “To do so is to miss the full significance that comes from reading the paragraph in the context of the preamble to which it belongs, as well as in the historical context of contemporary human rights documents.” In short both the UDHR and the Declaration of the Rights of the Child specifically protect the child before and after birth.

Abortion advocates, relying on legalism, have continued to argue that the wording “before as well as after birth” is not legally binding, that although the Convention on the Rights of the Child (CRC) is a legally binding document that entails obligations for state parties (except the USA, which has not ratified it) the obligations do not extend to children before birth because the rights before birth are only mentioned in the preamble: and “no operative provisions of the CRC refer to the rights of unborn children”.

However, Joseph makes the point that this bizarre reasoning contradicts the foundation principles of the Declaration of the Rights of the Child, because the preamble is a statement of the motivation and substantive content of what comes after in the conventions. Then hoisting the legalists on their own petard, she nails the ruse by quoting a better legal authority. Ignoring the preamble contradicts the Vienna Convention on the Law of Treaties (1969):

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble …

If there is indeed a right to life before as well as after birth—and Joseph’s treatise clearly establishes that there is—then why does this universal right to life not override national legislation, particularly in states that have enacted their own human rights acts, bills or charters? The answer is simple: it is precisely in order to subvert the right to life that they have established their own bills and charters. What is more, they have replaced what would seem to be the foundation of all natural rights, the right to life of all humans, with a plethora of phony non-rights, like the “right” to abortion, or the “right” to homosexual marriage or the “right” to a child, the latter two of which have been cobbled on to real rights, like the right to marry and found a family.

In fact human rights acts such as those in the ACT or Victoria or the one proposed federally with all its attendant hoopla and “consultation” are never meant to define anything clearly. They are only meant to introduce us gradually to the idea of a new framework of rights and new principles quite outside that which was operating when the original framers of the Universal Declaration of Human Rights wrote that pioneering document. And once again it all comes down to the language.

Take the ACT Human Rights Act as an example. The ultra-liberal abortion laws of the Territory, which basically allow abortion to term, are in direct contravention of the founding international human rights instruments. However, the pro-abortion-rightists simply argued that because the phrase “from the moment of conception” was not included in the International Covenant on Civil and Political Rights (article 6 ICCPR) it didn’t count. According to Joseph this was no more than a desire for inclusive minimalism, since the more maximalist a declaration, the more exclusive. After all, before birth is before birth. What the pro-abortion lobby does not say is that the same discussion deliberately rejected a motion with the words: “from birth”.

The same pro-choice lawyers also quote a litany of human rights case precedents that allow abortion. But this only proves that by setting up their own human rights acts and stacking human rights courts with like-minded experts, the pro-abortion lobby can create its own precedents.

This has led to some ludicrous conclusions. Thomas Faunce, a senior lecturer in medicine and law at the ANU, writing for the Canberra Times during the debate on the ACT Human RightsAct, concluded that since the ACT will not be able to strike down legislation for any perceived incompatibility with the Human Rights Act such as the right to life, the power to define “human being” remained with the legislature. So the ACT parliament would retain the capacity to define a human being! Likewise, the “make up your own human rights” push has for twenty years been twisting language, both explicit and implicit, to make its back-to-front cases at international conferences. Lawyers from the New York based Center for Reproductive Rights have even claimed that because the terms fetus and embryo are not used in the Universal Declaration or the following instruments, therefore they don’t “exist” for human rights purposes. The language ploy is deliberately used by lawyers, but ordinary people know the difference.

More and more the pro-abortion lobby at the UN is pushing a bold agenda which the original framers of the UDHR would have recognised as part of the Nazi agenda. With the collusion of the feminists, abortion crept into maternal health and welfare programs via the infamous UNFPA. What was argued as legalising something used as a last resort for poor and powerless women has become in various women’s protocols the “right” to abortion. These Western-oriented feminists are using “abortion rights” to support funding for abortion programs in countries where women do not have even basic obstetric care. These women don’t particularly want abortion, just the chance to see their children grow up. What is more, abortion was explicitly rejected as a form of family planning by the international law-makers from the earliest days—and it still is. It was explicitly condemned as a form of family planning in Cairo in 1994, in Beijing in 1996, right up to the present. Some small nations are getting fed up with the cultural diktat of a few feminists—East Timor, for example, which wants a Catholic health service.

In July this year, after contentious and prolonged negotiations, the UN Economic and Social Council finally agreed to implement internationally agreed goals and commitments in regard to global public health. It rejected a push by the USA and most European countries to include language which would have been interpreted to mean abortion. In a statement, Malta’s ambassador Victor Camilleri stressed that:

the right to life extended to the unborn child from the moment of conception and that the use of abortion as a means of resolving health or social problems was a denial of that right. And therefore Malta consistently disassociated itself from, and considered invalid, all statements or decisions that used references to sexual and reproductive health, directly or indirectly, to impose obligations on anyone to accept abortion as a right, a service or a commodity that could exist outside the ambit of national legislation.

This statement suggests that, at least “outside the ambit of national legislation”, the right to life prevails in international law. But what about the idea embodied in all international legislation that the right to life can be limited by national legislation? If there is indeed a right to life—and Rita Joseph firmly establishes that there is—does this right to life override national legislation?

One often-cited reason why the language of human rights becomes vague is the problem of a shift in context. If, as Joseph argues, we must take the context of the Universal Declaration language into account, does the subsequent history, especially our view of women who are no longer chattels and have the unequivocal freedom not to bear children, change what has sometimes been called the rights “balance”?

In other words, can someone’s human right not be a human right in some circumstances? Utilitarian ideologies are all about context. In one context we speak of the “unborn child”, in another context the “dwarf baby” that can be aborted.

Of course, history and context do change our understanding of things—even the right-to-lifers would agree. We now know a lot more about the unborn child and about our development from its earliest moments than we ever did before. We have three-dimensional ultrasounds, and we can listen to our babies’ hearts at twelve weeks and hear them hiccupping at twenty.

However, context shifts nothing in natural law. In terms of the right to life you can only balance rights if someone else’s life has less value than yours. So there is nothing wrong with change if it deepens and strengthens our concept of human rights. But what we have experienced since the 1970s is a narrowing of the ambit of human rights, a narrowing which, like slavery before it, deprives whole classes of people of their lives, and has effectively endorsed eugenics, which was the complete opposite of what was envisaged after Nuremberg.

So abortion on demand, reframed as a “human right” now means that 90 per cent of Down syndrome babies are aborted. This looks suspiciously like the Nuremberg description of Nazi genocide against “the incurably ill, the handicapped, the mentally defective”.

Once, of course, human rights principles were deontologically based. Now the system is supposed to be consequentialist, utilitarian—so we need so many exceptions to the principles because otherwise we have to go back to those natural law principles. Ideologies should conform to human rights, not human rights to ideologies. However, even the ideological feminists are now split over the mass abortion of girls in India and China, and it exposes their moral weakness. One group says that eugenic abortion must be maintained at any cost simply to maintain the “right”. It will be interesting to see the response of this group now that in Korea and Japan boys are suffering the same fate because in countries with declining fertility old people need someone to look after them.

So whether the unborn do have the legal right to life, the basis for all those other rights, will become increasingly important. Perhaps it is the major issue if a proposed bill or charter of rights is adopted in Australia. At the heart of this issue is a conundrum because, even at the most visceral emotional level, denying that the unborn have any rights at all simply doesn’t satisfy our ingrained sensitivity about their fate, as the emotional language of the news report I quoted at the beginning would indicate. Although the rights of the mother are held as paramount in law and medicine, it simply will not satisfy those who point to the right to life of the child as the paramount consideration in an abortion, since the child dies and the mother, despite her trauma, does not.

Whether the unborn child is valued for his unique potential personhood or more accurately his unique humanness as Rita Joseph argues, to deny that the human unborn child before birth has rights is ultimately a futile exercise. People simply don’t buy it. And Joseph knows that the real foundation of all real human rights can be found, if you look for it, in the language of the instruments of international law—rather than in what Mary Ann Glendon has famously dubbed “rights talk”.

Angela Shanahan is a Canberra journalist.

Rita Joseph’s presentation to the National Human Rights Consultation Committee at Parliament House, Canberra, in July, can be found here

Her book Human Rights and the Unborn Child is published by Martinus Nijhoff Publishers, US$148.