human rights law review volume 8 issue 2 2008 [doi 10.1093%2fhrlr%2fngn008] zampas, c.; gher, j. m....

8/16/2019 Human Rights Law Review Volume 8 Issue 2 2008 [Doi 10.1093%2Fhrlr%2Fngn008] Zampas, C.; Gher, J. M. -- Ab…

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Human Rights Law Review 8:2 The Author [2008]. Published by Oxford University Press.

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doi:10.1093/hrlr/ngn008. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Abortion as a Human

RightçInternational andRegional Standards

Christina Zampas* and Jaime M. Gher**

Abstract

This article focuses on the striking expansion of international and

regional human rights standards and jurisprudence that support

women’s human right to abortion. It summarises pertinent develop-

ments within the United Nations, European, Inter-American and

African human rights systems regarding abortion, as they relate towomen’s rights to life and health, in situations of rape, incest or foetal

impairment, and for abortion based on social and economic reasons

and on request. In doing so, the article touches on charged issues

such as maternal mortality, prohibitions of therapeutic abortion as

infringing on the right to be free from cruel, inhuman and degrad-

ing treatment, and state procedural obligations to ensure women’s

right to access legal abortion. Finally, the article addresses the growing

recognition by international human rights bodies that criminalisation

of abortion leads women to obtain unsafe abortions, threatening

their lives and health, and recent national-level developments in thefield.

* Senior Regional Manager Legal Adviser for Europe, Center for Reproductive Rights^InternationalLegal Program, 120 Wall Street, 14th Floor, New York, New York 10005.

** Attorney^Consultant, Center for Reproductive Rights^International Legal Program, 120 WallStreet, 14th Floor, New York, New York 10005.

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Human Rights Law Review 8:2(2008), 249^294

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1. Overview

Every year, at least 70,000 women die from complications related to unsafe

abortions.1

It is further estimated that unsafe abortions account for 13% of all maternal deaths worldwide and, in some countries, it accounts for 60%

of maternal deaths.2 Research indicates that there is a strong correlation

between abortion legality and abortion safety,3 and thus women living in

countries with restrictive abortion laws often resort to unsafe, clandestine

abortions, jeopardising their lives and health.

As unsafe abortion is increasingly considered a major public health pro-

blem, human rights advocacy for abortion has gained greater momentum.

The most explicit pronouncement of women’s right to access abortion in

the text of a human rights treaty is found in the Protocol on the Rights of Women in Africa (African Women’s Protocol), adopted by the African Union

on 11 July 2003.4 Intended to fill the gaps of the African Charter on Human

and Peoples’ Rights 1981 (African Charter),5 the Protocol explicitly states:

States Parties shall take all appropriate measures to . . .protect the repro-

ductive rights of women by authorising medical abortion in cases of

sexual assault, rape, incest, and where the continued pregnancy endan-

gers the mental and physical health of the mother or the life of the

mother or the foetus.

6

The African Women’s Protocol is the only legally binding human rights

instrument that explicitly addresses abortion as a human right and affirms

that women’s reproductive rights are human rights.7 At present, 20 African

countries have ratified the Protocol,8 however, the Protocol’s reach is limited

to the African region and its efficacy has yet to be tested. Nevertheless, there

are other international and regional human rights protections that support

1 World Health Organization (WHO), Unsafe Abortion: Global and Regional Estimates of Incidenceof and Mortality due to Unsafe Abortion with a Listing of Available Country Data, 3rd edn(Geneva: WHO, 1997), WHO/RHT/MSM/97.16 at 3^14.

2 Cook, Dickens and Fathalla, Reproductive Health and Human Rights: Integrating Medicine,Ethics and Law (Oxford: Oxford University Press, 2003) 26.

3 Alan Guttmacher Institute, ‘Abortion in Context: United States and Worldwide’, May 1999,available at: http://www.guttmacher.org/pubs/ib_0599.html [last accessed 17 September2007].

4 Res. AHG/RES.240 (XXXI). The African Women’s Protocol entered into force on 25 November2005 after ratification by 15 African states.

5 OAU Doc. CAB/LEG/76/3 Rev.5; 21 ILM 58 (1982).6 Article 14.2(c), African Women’s Protocol.7 Article 14, African Women’s Protocol.8 African Commission on Human and Peoples’ Rights (ACHPR), List of countries which

have signed, Ratified/Acceded to the African Union Convention on Protocol to theAfrican Charter on Human and People’s Rights on the Rights of Women in Africa, available at:http://www.achpr.org/english/ratifications/ratification_women%20protocol.pdf [last accessed7 September 2007]. Ratifying countries are: Benin, Burkina Faso, Cape Verde, Comoros,Djibouti, Gambia, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Namibia, Nigeria,Rwanda, South Africa, Senegal, Seychelles, Togo and Zambia.

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women’s right to safe, legal abortion. While these protections are less explicit

than the African Women’s Protocol, their weight and importance is just the

same. In addition to the right to life and health, women’s right to abortion is

bolstered by the broad constellation of human rights that support it, such asrights to privacy, liberty, physical integrity and non-discrimination. In fact, it

is the evolution of human rights interpretations and applications, stemmed by

increased sophistication, women’s empowerment and changing times, which

have given force to women’s human right to abortion.

The recent ground-breaking pronouncement regarding women’s right to

abortion issued on 16 April 2008 by the Parliamentary Assembly of the

Council of Europe, representing 47 European states whose mission is, in part,

to protect and promote human rights and democracy in Europe, reflects such

evolution and sophistication. A majority of the parliamentarians adopted a

report issued by the Committee on Equal Opportunities for Women and Men

entitled ‘Access to Safe and Legal Abortion in Europe’ (the Report). The Report

calls upon Member States to decriminalise abortion, guarantee women’s effec-

tive exercise of their right to safe and legal abortion, remove restrictions that

hinder de jure and de facto access to abortion, and adopt evidence-based

sexual and reproductive health strategies and policies, such as access to con-

traception at a reasonable cost and of suitable nature, and compulsory age-

appropriate and gender-sensitive sex and relationship education for youngpeople.9 The adoption of the Report is particularly significant in a region pep-

pered with stark differences within the levels of sexual and reproductive

health laws and policies. While not legally binding, it is the most progressive

pronouncement on the right to abortion by any international or regional

human rights system.

This article summarises pertinent developments within the United Nations

(UN), European, Inter-American and African human rights systems regarding

abortion, as they relate to women’s rights to life and health, in situations of

rape, incest or foetal impairment, and for abortion based on social and eco-nomic reasons and on request. Notably, a large share of the regional discussion

in this article is devoted to Europe, as there have been substantial develop-

ments in that region in response to tightening restrictions in law and practice

on women’s access to abortion.

The discussion is organised according to the above-listed categories, which

generally mirror the varying categories to which countries permit abortion, so

as to limit repetition. The article accounts for the significant overlap between

the implicated rights and highlights gaps in protection for women’s right

to abortion. Finally, the article touches upon criminalisation of women who

9 Council of Europe Parliamentary Assembly, Resolution 1607 on access to safe and legal abor-tion in Europe, 15th sitting, 16 April 2008, available at: http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta08/ERES1607.htm [last accessed 8 May 2008].

Abortion as a human right 251



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undergo illegal abortions as an independent human rights violation and recent

legal successes expanding the right to abortionat the regional and national levels.

2. Scope of Women’s Right to Abortion within

International and Regional Human Rights Law

Promotion of women’s reproductive rights has recently gained momentum,

in large part, due to the 1994 International Conference on Population and

Development (ICPD), held in Cairo, and the 1995 Fourth World UN Conference

on Women, held in Beijing.10 Commentators consider that ‘[t]hese two confer-

ences led to the recognition that the protection of reproductive and sexual

health is a matter of social justice, and that the realization of such health can

be addressed through the improved application of human rights contained

in existing national constitutions and regional and international human

rights treaties’.11 The consensus statements created at these conferences touch

on women’s right to abortion, and thus provide additional support for the

notion that women’s reproductive rights are human rights.

With regard to women’s right to health, the 1994 ICPD Programme of

Action calls upon governments to contemplate the consequences of unsafe

abortion on women’s health, and urges state governments and relevant inter-

governmental and non-governmental organisations to strengthen their com-

mitment to women’s health, directly address unsafe abortion as a major public

health concern and reduce the incidence of abortion through expanded and

improved family-planning services.12 The Programme of Action also affirms

that women faced with unwanted pregnancies should have expedient access

to reliable information and compassionate counselling.13

Notably, the ICPD Programme of Action confirms that where abortion is

legal, the procedure should be accessible and safe.14 While it does not explicitly

call for legalisation of abortion worldwide, the ICPD Programme of Action con-firms that ‘women should have access to quality services for the management

of abortion-related complications, and [p]ost-abortion counselling, education

and family-planning services should be offered promptly, which will also help

to avoid repeat abortions’.15 During the five year review of the ICPD

Programme of Action’s implementation, country delegates called on health sys-

tems to increase women’s access to services where abortion is not against

10 Cook, Dickens and Fathalla, supra n. 2 at 148.11 Ibid. at 148^9.

12 Report of the International Conference on Population and Development, Cairo, 5^13September 1994, A/CONF.171/13/Rev.1 (1995), Chapter VIII C. Women’s Health and SafeMotherhood at para. 8.25.

13 Ibid.14 Ibid.15 Ibid.

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the law by training and equipping health-care providers and taking other mea-

sures to safeguard women’s health.16 While international consensus docu-

ments are non-binding, the statements contained in these documents are

persuasive and indicative of the world community’s growing support for repro-ductive rights, and are often used to support legislative and policy reform, as

well as interpretations of national and international law.

Treaty-monitoring bodies’ interpretations and jurisprudence have also

played a large role in advancing women’s reproductive rights.17 The UN

treaty-monitoring system acts to ensure state compliance with international

treaty obligations.18 Each of the major international human rights treaties

establishes a Committee to monitor compliance with it. The Committees issue

‘General Comments’ or ‘General Recommendations’ on an as-needed basis,

to elaborate on the treaties’ broadly worded human rights guarantees and

to help states understand their obligations under various treaty provisions.

The Committees also facilitate a ‘country reporting’ process. This process

requires states to report periodically on their efforts to respect, protect and

fulfil the human rights enshrined in a particular treaty. Following dialogues

with government representatives, Committee members issue Concluding

Observations to the reporting government. Concluding Observations provide

a mechanism through which Committees apply the overall human rights

standards developed in General Comments and General Recommendations.

Although Committees are not judicial bodies and their Concluding Observa-

tions are not legally binding, the increasingly comprehensive quality of the

Concluding Observations on the subject of reproductive rights has

enormous potential to influence national laws and policies. When taken

together and analysed, the Committees’ General Comments and Concluding

Observations may be considered a type of jurisprudence or collective work

guiding the development and application of human rights both at the national

level and at the international level.19 Some Committees also have a mandate

to examine individual complaints of human rights violations and issue writtendecisions in such cases.

16 Vukovich, Key Actions for the Further Implementation of the Programme of Action of theInternational Conference on Population and Development (Report of the Ad Hoc Committeeof the Whole of the Twenty-First Special Session of the General Assembly), 1 July 1999,A/S-21/5/Add.1 at para. 63(iii), available at: www.un.org/popin/unpopcom/32ndsess/gass/215a1e.pdf [last accessed 21 September 2007].

17 In this article a significant portion of the analysis of treaty-monitoring bodies’ functions,interpretations and jurisprudence, is derived from: Center for Reproductive Rights, ‘BringingRights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductiveand Sexual Rights’, 2002, available at: http://www.reproductiverights.org/pdf/pub_bo_tmb_

full.pdf [last accessed 2 October 2007].18 Office Of The High Commissioner For Human Rights, ‘Treaty Bodies’, 14 February 2002, avail-

able at: http://www.unhchr.ch/pdf/leafletontreatybodies.pdf [last accessed 21 September2007].

19 Much of the research on Concluding Observations from Treaty Monitoring Bodies comes from‘Bringing Rights to Bear’, supra n. 17.




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Similar to the UN system, regional human rights systems monitor states’

compliance with regional human rights treaties. The Council of Europe

adopted the European Convention on the Protection of Human Rights and

Fundamental Freedoms (ECHR)20 in 1950, which in turn created theEuropean Court of Human Rights (ECtHR). The ECtHR is authorised to hear

interstate complaints and alleged individual human rights violations under

the ECHR. Similarly, the Inter-American Commission on Human Rights

(Inter-American Commission) was created in 1959 to be the primary human

rights organ of the Organization of American States.21 With the adoption of

the American Convention on Human Rights (American Convention) in 1969,

the Inter-American Commission was granted the legal authority to issue

recommendations regarding alleged American Convention violations.22 The

American Convention also created the Inter-American Court on Human

Rights (Inter-American Court), to interpret the Convention and hear individual

cases following their consideration by the Inter-American Commission and

give legally binding judgments in those cases.23

Finally, the African Commission on Human and Peoples’ Rights (ACHPR)

was established under the African Charter on Human and Peoples’ Rights

(African Charter), which was adopted in 1981, by the Organisation of African

Unity (now the African Union).24 The ACHPR ensures the protection and

promotion of human rights throughout Africa. Under the African Charter,States Parties are called upon to submit, on a biennial basis, a report on the

measures they have taken to give effect to the rights and freedoms recognised

and guaranteed by Charter.25 The ACHPR then issues corresponding reports

evaluating the Member States’ compliance with the African Charter.

The African Charter also created a ‘communication procedure,’ through

which the Commission can be petitioned to assess alleged violations.26 More

recently, the African Court on Human and Peoples’ Rights was created to

20 ETS No. 5. See Council of Europe, ‘About the Council of Europe’, available at: http://www.coe.int/T/e/Com/about_coe/ [last accessed 21 September 2007].

21 Declaration of Santiago, Final Act of the Fifth meeting of Consultation of Foreign Minister,Res.VI, OEA/SER.C/11.5 (1959) at 10^11.

22 Inter-American Institute on Human Rights (IIHR) and Latin American and CaribbeanCommittee for the Defense of Women’s Rights (CLADEM) (eds), Proteccio¤n Internacional de losDerechos Humanos de las Mujeres, Papers from the proceedings of a conference held in San

Jose, Costa Rica, April 1997 (Portada de la Editorial Farben, 1997) at 150. See also AmericanConvention on Human Rights 1969, OAS Treaty Series No. 36, OEA/Ser.L.V/II.23, doc. 21, rev.6 (American Convention), which entered into force on 18 July 1978.

23 Supra n. 22 at 150.24 ACHPR, ‘African Commission on Human and Peoples’ Rights, Establishment ^ Information

Sheet No. 1’ (African Commission-Information Sheet), available at: http://www.achpr.org/eng-

lish/information_sheets/ACHPR%20 inf.%20sheet%20no.1.doc [last accessed 21 September2007].

25 Article 62, African Charter.26 African Commission ^ Information Sheet, supra n. 24. A communication can also be made by

a State Party that reasonably believes that another State Party has violated any of theCharter’s provisions.

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complement the ACHPR by interpreting and applying the African Charter and

to give legally binding judgments in individual cases, which will, bolster

women’s rights under the African Charter and its Women’s Protocol.27 At pre-

sent, there is not a regional human rights monitoring system in Asia.Despite progress made by treaty-monitoring bodies regarding reproductive

rights, to date no such body has explicitly recognised women’s right to

abortion on request or for economic and social reasons, nor have they expli-

citly called for the legalisation of abortion on those grounds. The extent to

which women’s right to abortion is currently protected under human rights

law generally hinges on whether a woman’s life or health is at risk, the preg-

nancy resulted from rape or incest or there is risk of foetal impairment.

In these contexts, significant progress has recently been made within inter-

national and regional human rights discourses requesting States Parties

to liberalise abortion laws and actualise women’s right to safe abortion ser-

vices. The recognition by treaty-monitoring bodies that restrictive abortion

laws may force women to seek illegal, and hence, unsafe abortions which

threaten their lives, can be used by advocates to support abortion on request

or for socio-economic reasons.

Notwithstanding protection for women’s right to abortion in the above-listed

contexts, a constellation of human rights, including the rights to privacy, liberty,

physical integrity, non-discrimination and health, support the notion that abor-tion on request is a human right. While international and regional human

rights treaties and treaty-monitoring bodies have yet to directly address the

issue of abortion on request, there is strong textual and interpretive support for

the above-listed related rights which have been used by national legislatures

and courts around the world to guarantee a woman’s right to abortion, and

which can be used byadvocates to promote women’s right to abortion on request.

A. Abortion to Save a Woman’s Life

(i) International human rights parametersçthe woman’s right to life

Some pregnancies and their related complications can place women’s lives at

grave risk. It is estimated that at least 70,000 women worldwide die each year

as a consequence of unsafe abortion, and 5.3 million suffer temporary or per-

manent disability.28 Restrictive or criminal abortion legislation also jeopardises

women’s lives by compelling women to obtain dangerous clandestine abortions.

While there has been a worldwide trend towards liberalising restrictive abor-

tion laws,

29

maternal mortality and morbidity due to unsafe abortion

27 Beyani,‘A Human Rights Court for Africa’, (2005) 15 Interights Bulletin 1.28 WHO, supra n. 1.29 Center for Reproductive Rights, ‘The World’s Abortion Laws’, available at: http://www.

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continues to be a major public health concern. At present, Chile, El Salvador

and Nicaragua have legislation eliminating all exceptions to the countries’

abortion prohibitions, even when a woman’s life is at risk, thus giving women

no recourse when their lives are imperilled during pregnancy.30 Furthermore,a persistent foetal rights movement has emerged asserting that foetuses are

entitled to a right to life at the expense of women’s human rights. Advocates

can rely upon the below discussed international and regional human rights

treaty provisions and their interpretations, to reject foetal rights claims and to

ultimately safeguard women’s right to access abortion.

International covenant on civil and political rights

The International Covenant on Civil and Political Rights 1966 (ICCPR)31 pro-vides an explicit pronouncement of the right to life. Article 6(1) of the ICCPR

states that: ‘Every human being has the inherent right to life.’ The Human

Rights Committee (HRC), the ICCPR’s interpretive body, emphasises in General

Comment No. 6 (right to life), that the inherent right to life should not be

understood in a restrictive manner.32 General Comment No. 6 requires States

Parties to take positive measures to ensure the right to life, particularly mea-

sures to increase life expectancy.33 Additionally, the HRC’s General Comment

No. 28 on equality of rights between men and women, asks States Parties,

when reporting on the right to life protected by Article 6, to ‘give information

on any measures taken by the State to help women prevent unwanted pregnan-

cies, and to ensure that they do not have to undergo life-threatening clandes-

tine abortions’.34 General Comment No. 28 also considers laws or policies

where States impose a legal duty upon doctors and other health personnel to

report cases of women who have undergone abortion, a potential violation of

the right to life (Article 6) and the right torture or to cruel, inhuman or

degrading treatment or punishment (Article 7).35

The HRC’s Concluding Observations also provide strong support for women’s

right to access abortion and, in particular circumstances, impose duties on

States Parties to take affirmative steps to realise women’s right to life in the

context of abortion. For example, the Committee has made the link between

30 IPAS, ‘Abortion ban saga continues in Nicaragua’, 22 November 2006, available at: http://www.ipas.org/Library/News/News_Items/Abortion_ban_saga_continues_in_Nicaragua.aspxht=[last accessed 25 September 2007].

31 999 UNTS 171, which entered into force on 23 March 1976.32 HRC, General Comment No. 6: Article 6 (Right to life), in Compilation of General Comments

and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev. 7(2004) (Compilation of General Comments) at 128.

33 Ibid. at 129, para. 5.34 HRC, General Comment No. 28: Article 3 (Equality of rights between men and women), in

Compilation of General Comments supra n. 32 at 179, para. 10.35 Ibid. at 181, para. 20.

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illegal and unsafe abortions and high rates of maternal mortality.36 The HRC

has further noted that illegal abortions have serious harmful consequences

for women’s lives, health37 and well-being.38

The HRC has expressed particular concern for restrictive abortion laws,especially when women’s lives are at risk.39 More specifically, the HRC has

expressed concern regarding the criminalisation of abortion,40 even when the

pregnancy is the result of rape,41and confirmed that such legislation is incom-

patible with women’s right to life under Article 6.42 In that regard, the HRC

has recommended that States Parties adopt measures to guarantee the right

to life for women who decide to terminate their pregnancies,43 including

ensuring the accessibility of health services and emergency obstetric care.44

In the HRC’s 1998 Concluding Observations to Ecuador, it linked the high

rate of suicide among adolescent girls and the restrictions on abortion to find

this to be incompatible with adolescents’ right to life, and recommended that

the State Party adopt all legislative and other measures, including increasing

access to adequate health and education facilities, to address the problem.45

The HRC has also called upon States Parties to amend restrictive abortion

laws to help women avoid unwanted pregnancies and unsafe abortions,46 and

to bring laws in line with the ICCPR,47 specifically Article 6 (right to life).48

For example, the HRC’s 2004 Concluding Observation to Poland expressed

deep concern regarding the State Party’s restrictive abortion law that

36 Concluding Observations of the HRC regarding: Chile, 30 March 1999, CCPR/C/79/Add.104 atpara. 15; Colombia, 1 April 1997, CCPR/C/79/Add.76 at para. 24; Ecuador, 18 August 1998,CCPR/C/79/Add.92 at para. 11; Guatemala, 27 August 2001, CCPR/CO/72/GTM at para. 19;Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; Mongolia, 25 May 2000, CCPR/C/79/Add.120 at para. 8(b); Peru, 15 November 2000, CCPR/CO/70/PER at para. 20; Poland, 29

July 1999, CCPR/C/79/Add.110 at para. 11; and United Republic of Tanzania, 18 August 1998,CCPR/C/79/Add.97 at para. 15.

37 Concluding Observations of the HRC regarding: Mali, 16 April 2003, CCPR/CO/77/MLI at para.14; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8.

38 Concluding Observations of the HRC regarding El Salvador, 22 August 2003, CCPR/CO/78/SLVat para. 14.

39 Concluding Observations of the HRC regarding; Chile, 18 May 2007, CCPR/C/CHL/CO/5 atpara. 8; and Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14.

40 Concluding Observations of the HRC regarding: Mauritius, 27 April 2005, CCPR/CO/83.MUSat para. 9; and Venezuela, 26 April 2001, CCPR/CO/71/VEN at para. 19.

41 Concluding Observations of the HRC regarding Gambia, 12 August 2004, CCPR/CO/75/GMBat para. 17.

42 Peru, supra n. 36 at para. 20.43 Venezuela, supra n. 40.44 Mali, supra n. 36.45 Ecuador, supra. n. 36. For further discussion of the threat of suicide as a potential risk to life

and thus a viable exception to abortion prohibitions, see infra section 2(A)(ii) EuropeanSystem.

46 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 atpara. 8; El Salvador, 22 August 2003, CCPR/CO/78/SLV at para. 14; Madagascar, 11 May 2007,CCPR/C/MDG/CO/3 at para. 14; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8.

47 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 atpara. 8; and Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14.

48 Chile and El Salvador, supra n. 46.




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‘. . . incite[s] women to seek unsafe, illegal abortions, with attendant risks to

their life and health’.49 The HRC focussed on the lack of accessibility of abor-

tion in Poland, even when the law permits it, due to lack of information and

the use of conscientious objection by medical practitioners, and advisedPoland to liberalise its legislation and practice on abortion.50

To reduce the rate of abortion and address the prevalence of unsafe

abortion, the HRC has recommended increased access to family planning ser-

vices51 and education.52 The HRC has also expressly referenced States Parties’

duty to protect all persons’ lives, including women who decide to terminate their

pregnancies.53 For example, the HRC recommended that Chile amend its ban on

abortion to include exceptions.54 The Committee similarly recommended that

Guatemala provide the necessary information and resources to guarantee

women’s right to life, and incorporate additional exceptions to the country’s

abortion law that only permits abortion where a woman’s life is at risk.55

Convention on the elimination of all forms of discrimination against women

The International Convention on the Elimination of all Forms of

Discrimination Against Women 1979 (ICEDAW) does not explicitly confer the

right to life; however, the Committee on the Elimination of Discrimination

Against Women (CEDAW) has addressed how issues concerning abortionimpact women’s health and life, and, ultimately, women’s equality.56 For exam-

ple, CEDAW has recognised the inextricable link between women’s right to

health during pregnancy and childbirth, and their right to life in its General

Recommendation No. 24 on women and health.57 CEDAW explained that provi-

sion of reproductive health services is essential to women’s equality and that

‘it is discriminatory for a State Party to refuse to provide legally for the perfor-

mance of certain reproductive health services for women.’58

With respect to abortion, CEDAW has given considerable attention to the

issue of maternal mortality as a result of unsafe abortions,59 and explicitly

49 Poland, supra n. 46.50 Ibid.51 Chile and Guatemala, supra n. 36.52 Ecuador, supra n. 36.53 Chile and Guatemala, supra n. 36.54 Chile, supra n. 36.55 Guatemala, supra n. 36.56 1249 UNTS 13.57 Committee on the Elimination of Discrimination Against Women, General Recommendation

24: Article 12 of the Convention (Women and Health), in Compilation of General Commentssupra n. 32 at 280, para. 27 (CEDAW ^ General Rec. 24).

58 Ibid. at 276, para. 11.59 Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38/Rev.1 at 10,

para. 73; Belize, 1 July 1999, A/54/38 at para. 56; Burundi, 2 February 2001, A/56/38 at para.61; Colombia, 4 February 1999, A/54/38 at para. 393; Georgia, 1 July 1999, A/54/38 at para.

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framed the issue as a violation of women’s right to life.60 For example, CEDAW

consistently makes the important point that lack of access to contraceptive

methods and family planning services, as well as restrictive abortion laws,

tend to correspond with the high prevalence of unsafe abortions, which inturn, contributes to high rates of maternal mortality.61 To this end, CEDAW

has recommended that States Parties increase access to family planning pro-

grammes and services,62 especially to reduce the number of unsafe abortions63

and maternal mortality rates.64 CEDAW has also recommended making a

range of contraceptives and family planning methods more affordable65 and

providing social security coverage for abortion procedures.66 Finally, CEDAW

has asked States Parties to review legislation making abortion illegal67 and

has praised States Parties for amending their restrictive legislation.68

Convention on the rights of the child

Article 6 of the International Convention on the Rights of the Child 1989

(ICRC), protects children’s right to life and survival.69 The Committee on the

111; Kyrgyzstan, 27 January 1999, A/54/38 at para. 136; Mongolia, 2 February 2001, A/56/38at para. 273; Myanmar, 28 January 2000, A/55/38 at para. 129; Nepal, 1 July 1999, A/54/38 atpara. 147; Nicaragua, 31 July 2001, A/56/38 at paras 300^1; Peru, 8 July 1998, A/53/38/Rev.1at 73 and 75, paras 300 and 339; Romania, 23 June 2000, A/55/38 at para. 314; andZimbabwe, 14 May 1998, A/53/38/Rev.1 at 16, para. 159.

60 Concluding Observations of CEDAW regarding; Belize, 1 July 1999, A/54/38 at para. 56;Colombia, 5 February 1999, A/54/38 at para. 393; and Dominican Republic, 14 May 1998,A/53/38 at para. 337.

61 Concluding Observations of CEDAW regarding: Chile, 9 July 1999, A/54/38 at paras 209 and228; Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 atpara. 254; Lithuania, 16 June 2000, A/55/38 at para. 158; Ukraine, 9 May 1996, A/51/38 atpara. 287; and Georgia and Mongolia, supra n. 59.

62 Concluding Observations of CEDAW regarding; Burundi, 2 February 2001, A/56/38 atpara. 62; Chile, 9 July 1999, A/54/38 at para. 229; Chile, 25 August 2006, CEDAW/C/CHI/CO/at para. 20; Georgia, 1 July 1999, A/54/38 at para. 112; Greece, 1 February 1999, A/54/38 atpara. 208; Ireland, 1 July 1999, A/54/38 at para. 186; Kazakhstan, 2 February 2001, A/56/38at paras 76 and 106; Lithuania, 16 June 2000, A/55/38 at para. 159; Mongolia, 2 February2001, A/56/38 at para. 274; Nicaragua, 31 July 2001, A/56/38 at para. 301; and Slovenia,12 August 1997, A/52/38/Rev.1 at para. 119.

63 Concluding Observations of CEDAW regarding: Burkina Faso, 31 January 2000, A/55/38 atpara. 275; Luxembourg, 12 August 1997, A/52/38/Rev.1, Part II at para. 221; Myanmar,28 January 2000, A/55/38 at para. 130; and Slovenia, 12 August 1997, A/52/38/Rev.1 atpara. 119.

64 Chile, 25 August 2006, supra n. 62.65 Ibid.66 Burkina Faso, supra n. 63 at para. 276.67 Concluding Observations of CEDAW regarding: Andorra, 31 July 2001, A/56/38 at para. 48;

Beli ze, 1 July 1999, A/54/38 at para. 57; Cameroon, 26 June 2000, A/55/38 at para. 60; Chile,25 August 2006, CEDAW/C/CHI/CO/4 at paras 19-20; Colombia, 4 February 1999, A/54/38 atpara. 394; Ireland, 1 July 1999, A/54/38 at para. 186; Jordan, 27 January 2000, A/55/38 at

para. 181; Nepal, 1 July 1999, A/54/38 at paras 139 and 148; Panama, 2 July 1998, A/55/38/Rev.1 at para. 201; Peru, 8 July 1998, A/53/38/Rev.1 at para. 340; Saint Vincent and theGrenadines, 12 August 1997,A/52/38/Rev.1 at para. 148; and United Kingdom, 1 July 1999,A/55/38 at para. 310.

68 Concluding Observations of CEDAW regarding; Belgium, 9 May 1996, A/51/38 at para. 181.69 1249 UNTS 13, which entered into force on 2 September 1990.




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Rights of the Child (CRC) has expressed repeated concern over adolescent girls’

access to safe abortion services and the need for states parties ‘ to . . . provide

access to sexual and reproductive health services, including . . . safe

abortion services’.70 The CRC has also urged States Parties to provide safeabortion services where abortion is not against the law, in its General

Comment No. 4 on adolescent health and development.71 Further, the CRC has

linked unsafe abortion to high maternal mortality rates,72 and expressed con-

cern over the impact of punitive legislation on maternal mortality.73 In that

regard, the CRC has specifically recommended that a state party undertake a

study of the negative impact of early pregnancy and illegal abortion.74

International covenant on economic, social and cultural rights

The International Covenant on Economic, Social and Cultural Rights 1966

(ICESCR) does not explicitly confer the right to life, but the Committee on

Economic, Social and Cultural Rights (CESCR) has repeatedly expressed con-

cern regarding the relationship between high rates of maternal mortality and

illegal, unsafe, clandestine abortions.75 The CESCR has thus called upon

States Parties to take remedial measures to address the problems of unwanted

pregnancies, clandestine abortions and high maternal mortality rates,76 and

70 Committee on the Rights of the Child, General Comment No. 4; Adolescent health and devel-opment in the context of the Convention on the Rights of the Child, in Compilation of General Comments, supra n. 32 at 328, para. 27 (CRC ^ General Comment No. 4).

71 Ibid. Note, the CRC has also expressed concern within its Concluding Observations regardingsex-selective abortions and female infanticide: see China, 24 November 2005, CRC/C/CHN/CO/2 at para. 28; India, 26 February 2004, CRC/C/15/Add.228 at para. 33, and recommendedStates Parties implement existing legislation prohibiting such practices and taking additionalmeasures such as imposing sanctions to end such practices. See Concluding Observations of the CRC regarding: China, 24 November 2005, CRC/C/CHN/CO/2 at para. 29; and India, 26February 2004, CRC/C/15/Add.228 at para. 34. The CRC has not, however, addressed the com-plex intersection between curbing sex-selective abortion practices and promoting women’sabortion rights, or specifically, called for States Parties to safeguard women’s abortion rightswhen seeking to eradicate sex-selective abortion.

72 Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 atpara. 30; Colombia, 16 October 2000, CRC/C/15/Add.137 at para. 48; Guatemala, 9 July 2001,CRC/C/15/Add.154 at para. 40; and Nicaragua, 24 August 1999, CRC/C/15/Add.108 at para. 35.

73 Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 atpara. 30; and Guatemala, 9 July 2001, CRC/C/15/Add.154 at para. 40.

74 Chad, ibid.75 993 UNTS 3, which entered into force on 23 January 1976. See Concluding Observations of

the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 25; Nepal, 24September 2001, E/C.12/1/Add.66 at para. 32; Panama, 24 September 2001, E/C.12/1/Add.64at para. 20; Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12; Senegal, 24 September 2001,E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2003, E/C.12/1/Add.99 at para. 22.

76 Concluding Observations of the CESCR regarding: Nepal, 24 September 2001, E/C.12/1/Add.66at para. 55; and Poland, 19 December 2002, E/C.12/1/Add.82 at para. 51.

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to permit or consider permitting abortion for therapeutic reasons,77 and when

pregnancies are life threatening or a result of rape or incest.78

(ii) Regional human rights parametersçthe woman’s right to life

In addition to international human rights obligations, advocates can rely on

regional human rights parameters to advocate on behalf of women’s right

to access abortion.

European system

The right to life protections under Article 2 of the European Convention on

Human Rights (ECHR)79 confer both substantive and procedural obligations.

As to the substantive obligations, Article 2 requires Member States to avoid

taking actions to intentionally deprive individuals’ lives. As to the procedural

obligations, Article 2 requires Member States to provide an effective official

investigation when an individual dies due to acts by state agents,80 and in the

context of health care, requires medical institutions to have regulations for

the protection of patients’ lives and an effective system to determine the cause

of death which occurs in a hospital and which may pose civil and/or criminal

liability.

81

Thus, even if the ECtHR finds no substantive violation for a loss of life, it may find a procedural violation. At present, the ECtHR has not heard a

case where a woman was denied an abortion when her life was under threat

based on application of a Member States’ abortion law. The ECtHR has also

77 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105at para. 53; Malta, 14 December 2004, E/C.12/1/Add.101 at para. 41; and Monaco, 13 June2006, E/C.12/MCO/CO/1 at para. 23.

78 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105at para. 53; Malta, 14 December 2004, E/C.12/1/Add.101 at para. 41; Monaco, 13 June 2006, E/

C.12/MCO/CO/1 at para. 23; and Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 55.79 Article 2 of the ECHR provides:

Everyone’s right to life shall be protected by law. No one shall be deprived of his life

intentionally save in the execution of a sentence of a court following his conviction of

a crime for which this penalty is provided by law.

Note that the European Commission on Human Rights (EComHR) interpreted this right as notonly requiring State Parties to prevent intentional killing, but to also take necessary affirma-tive measures to protect life against unintentional loss. See Cook, Dickens, and Fathalla,supra n. 2 at 161, citing Tavares v France, Application No. 16593/90, EComHR, Report of 12September 1991, which was declared inadmissible on technical grounds. While the ECtHRnow has the sole role of interpreting and applying the ECHR, prior Commission statements

and decisions are persuasive.80 Krzyanowska-Mierzewska, How to Use the European Convention for the Protection of Human

Rights and Fundamental Freedoms in Matters of Reproductive Law: The Case L aw of the EuropeanCourt of Human Rights, (Astra, 2004) at Part III.1, available at: http://www.astra.org.pl/astra_ guide.htm [last accessed 9 September 2007].

81 Tavares v France, supra n. 79.




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never confirmed whether threat of suicide is equivalent to a threat to life, in

the context of reviewing a Member States’abortion law.82

Protections under Article 2 of the ECHR will be addressed at greater length,

under the sections addressing claims of foetal rights and abortion to preservea woman’s health.

African system

The African Women’s Protocol is the only international human rights instru-

ment to explicitly pronounce, in the text of the instrument, women’s right to

access abortion when pregnancy ‘endangers the . . . life of the mother or the

foetus’.

83

While some African states permit abortion to save a woman’s life,the Protocol calls upon ratifying States to take a step further and extend the

right to women whose lives are ‘endanger[ed]’ by pregnancy.84 This permissive,

unqualified language represents a significant expansion of women’s right to

access abortion in Africa.

B. Foetal ClaimsçRight to Life

In some instances, those opposing abortion have attempted to co-opt right to

life protections set forth within international and regional human rights lawto assert that foetuses are similarly accorded a right to life. These assertions

are incompatible with women’s fundamental human rights to life, health and

autonomy, by imposing involuntary motherhood on to women and, in essence,

requiring women to jeopardise their own lives for the lives of their future

children. Nevertheless, as demonstrated subsequently, such contentions have

been defeated on various occasions within both international and regional

human rights forums.

(i) International human rights parameters

Historical analyses of the Universal Declaration of Human Rights 1948

(UDHR),85 ICCPR and ICRCçthe major international human rights treaties

conferring the right to lifeçconfirm that that right does not extend to foe-

tuses. As the first pronouncement of the right to life, Article 3 of the UDHR

82 Recently, the ECtHR referenced the Irish Supreme Court decision Attorney General v X , whichheld a pregnant teenager’s suicidal tendencies to be a real and substantial risk to life underIreland’s life exception to the constitutional abortion ban, in the case D. v Ireland , to assert

that Ireland’s Constitutional Court has the potential to develop the parameters of the Irishabortion law, thus requiring the exhaustion of domestic remedies. See D. v Ireland (2006) 43EHRR SE16 at paras 88^103. See also Attorney General v X [1992] 2 CMLR 277.

83 Article 14.2 (c), African Women’s Protocol.84 Ibid.85 GA Res. 217A(III), 10 December 1948.

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specifically limits that right to those who have been ‘born’. In fact, the term

‘born’ was intentionally used to exclude the foetus or any other antenatal appli-

cation of human rights. This is confirmed by the fact that a proposed amend-

ment to remove the term and protect the right to life from the moment of conception, was denied.86 Therefore, in the context of abortion, the UDHR

limits the right to life to women and girls.

Similar to the UDHR, the ICCPR rejects the proposition that the right to life

attaches before birth. The ICCPR’s negotiation history indicates that an amend-

ment was proposed and rejected which stated: ‘the right to life is inherent in

the human person from the moment of conception, this right shall be protected

by the law’.87 The HRC has also repeatedly called upon States Parties to liberal-

ise criminal abortion laws,88 a position that is discordant with any purported

right to life for foetuses.89

Along similar lines, the ICRC’s travaux pre¤ paratoires and its interpretation

by the CRC confirm, that the ICRC’s protections concerning life begin at

birth.90 Arguments to the contrary have been made based on Paragraph 9 of

the ICRC’s preamble which states: ‘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’’’.91 At most, this language recog-

nises a state’s duty to promote a child’s capacity to survive and thrive afterbirth, by targeting the pregnant woman’s nutrition and health.

The ICRC’s travaux actually confirm that the pre-natal language is not

intended to infringe on any women’s right to access abortion. Notably, the

ICRC’s initial draft did not contain the ‘before as well as after birth’ language,

which was subsequently added as an amendment proposed by The Holy See.92

When proposing the amendment, The Holy See clarified that ‘the purpose of

the amendment was not to preclude the possibility of abortion’.93 The ICRC’s

Working Group also confirmed the amendment’s limited nature when stating

86 GA OR 3rd Comm., A/PV/99 (1948) at 110^124.87 GA OR Annex, 12th session (1957), Agenda Item 33 at 96, A/C.3/L.654 at para. 113. The

Commission on Human Rights ultimately voted to adopt Article 6, which has no referenceto conception, by a vote of 55 to nil, with 17 abstentions: see GAOR, 12th Session, AgendaItem 33, A/3764 (1957) at 119(q).

88 Concluding Observations of the HRC regarding: Argentina, CCPR/CO/70/ARG (2000) at para.14; Costa Rica, CCPR/C/79/Add.107 (1999) at para. 11; United Republic of Tanzania, CCPR/C/79/Add.97 (1998) at para. 15; Venezuela, CCPR/CO/71/VEN (2001) at para. 19; and Poland,CCPR/CO/82/POL (2004) at para. 8.

89 Concluding Observations of the HRC regarding: Ecuador, 18 August 1998, CCPR/C/79/Add.92at para. 11; Mongolia, 25 April 2000, CCPR/C/79/Add.120 at para. 8(b); and Poland, 29 July

1999, CCPR/C/79/Add.110 at para. 11.90 CRC, supra n. 69.91 Ibid. at Preamble, para. 9.92 Commission on Human Rights, Question of a Convention on the Rights of a Child: Report of

the Working Group, 10 March 1980, E/CN.4/L/1542.93 Ibid.




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that ‘the Working Group [does] ‘‘not intend to prejudice the interpretation of

Article 1 or any other provision of the Convention by States Parties’’’.94

Therefore, the focus of the preamble’s language is on the ‘child’, as defined

under the ICRC as ‘every human being below the age of eighteen years[,]’ andnot a foetus.95 Finally, the CRC implies within its Concluding Observations,

that the definition of a ‘child’, for the purposes of the ICRC, does not include a

foetus. As such, the CRC has never applied Article 6’s protections to foetuses.

(ii) Regional human rights parameters

Foetal rights to life have also been vetted within the regional human rights

systems, through cases brought before the EHRC and the Inter-American

Commission.

European system

Foetal claims to the right to life brought to the European human rights system

have largely been ineffective. As noted before, there are substantive and proce-

dural elements to the right to life (Article 2) under the ECHR. When foetal

rights claims have been asserted based on Article 2’s substantive protections,

the ECHR bodies repeatedly conclude that foetuses do not enjoy an absolute

right to life. For example, the European Commission of Human Rights

(EComHR) confirmed in Paton v United Kingdom, that the use of the term

‘everyone’ in Article 2, protecting the right to life, does not include

foetuses, although it left open the question whether the ‘right to life’ in

Article 2 might cover the ‘life’ of the foetus, with implied limitations.96 The

husband-applicant in Paton asserted that his pregnant wife should be pre-

vented from aborting the foetus based on the foetus’ right life under Article 2.

The EComHR dismissed the complaint and confirmed that a foetus’ potential

right to life did not outweigh the interests of the pregnant woman sincethe foetus is intimately connected with and cannot be isolated from, the life

of the pregnant woman.97 The EComHR went on to say that: ‘If Article 2 were

held to cover the foetus and its protections 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

94 UN Commission on Human Rights, Report of the Working Group on a Draft Convention on theRights of the Child, E/CN.4/1989/48 (1989) at p. 10, as cited in LeBlanc, The Convention on theRights of the Child: United Nations Lawmaking on Human Rights (Lincoln: University of

Nebraska Press, 1995) 69 (quoted in Ibegbu, Rights of the Unborn in International Law (Lewiston NY: E Mellen Press, 2000) at 145 and 146^7.

95 Article 1, ICRC.96 Paton v United Kingdom (X v United Kingdom) (1980) 19 DR 244; (1981) 3 EHRR 48 at paras 7^

9 and 23.97 Ibid. at paras 7^9 and 19.

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would involve a serious risk to the life of the pregnant women[,]’and this would

mean that the ‘unborn life’ of the foetus would be more regarded as of higher

value than the life of the pregnant woman.98 By making this statement, the

EComHR implied that the rights and interests of the woman’s right to life takeprecedence over the interests of the foetus.

A similar claim was brought in Boso v Italy, when the ECtHR found that the

contested abortion was not in breach of Article 2. It was performed under

Italian law which permitted an abortion in the first 12 weeks to protect the

woman’s physical or mental health. This law struck a fair balance between

the woman’s interest and the state’s interest in protecting the foetus.99 Boso

highlights the ECtHR’s tendency to analyse abortion from a view of health,

regardless of the nature of an applicant’s substantive claims. For example,

while Boso alleged that his partner’s abortion constituted an Article 2 viola-

tion, the ECtHR rejected the applicant’s claim based partially on the fact that

Italy’s abortion law protects the health of pregnant women.100 Notably, each

of the abortion laws at issue in these cases were fairly liberal. It is unclear

whether the ECtHR would accord similar deference to Member States with

more restrictive abortion laws.

While the ECtHR has affirmed that foetuses do not enjoy an absolute right

to life, the Court has failed to unequivocally state whether Article 2’s protec-

tions apply to foetuses, and in turn, avoided drawing any conclusion that mayadversely affect Member States’ abortion laws.101 The ECtHR was asked for the

first time, in Vo v France, to squarely determine whether foetuses enjoy the

right to life under Article 2.102 While the ECtHR reaffirmed its jurisprudence

on abortion laws which recognise 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’, it avoided explicitly confirming whether Article 2 applied to foe-

tuses by noting that, there is no European consensus on the scientific and

legal definition of the beginning of life’. 103

98 Ibid. at para. 19.99 Boso v Italy 2002-VII 99.

100 Ibid.101 Hewson, ‘Dancing on the Head of a Pin? Foetal Life and the European Convention’, (2005)

13 Feminist Legal Studies 363 at 372.102 Vo v France (2005) 40 EHRR 12 at para. 80.103 Ibid. at paras 80 and 82. See also Gre ¤ goire Loiseau,‘Histoire d’une vie vole ¤ e: le foetus n’est pas

une personne’, Droit et patrumone, November 2001, chron. Droits des personnes, p. 99, sum-marising the 2001 case. The Cour de Cassation confirmed that a ‘human being’ is a biologicalconcept in France, and ‘human beings’are understood to exist from the beginning of life, gen-

erally considered as conception, although there is no firm agreement on when life begins.On the other hand, the term ‘person’ is a legal term that is attached to a legal categorywhose rights takes effect and are perfected by birth, although in certain circumstances therights acquired at birth will be retroactive to conception. The decision was based on thedistinction made in French law between the concepts of ‘human being’ and ‘person’, whichscholars assert is deeply founded in principles of French civil law: ibid.




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The applicant in Vo argued that her foetus was denied the right to life based

on medical negligence which led to her unanticipated therapeutic abortion.

After unsuccessfully pursuing a criminal prosecution against the negligent

doctor within the French court system, Vo filed a petition with the ECtHR alle-ging that France, in refusing to treat the foetus as a person and thus, prosecute

the doctor for unintentional homicide, violated her foetus’ Article 2 right to

life.104 The ECtHR ultimately declined to treat the foetus as a ‘person’ or require

a homicide prosecution, by deferring the issue to France, in line with the

margin of appreciation doctrine.105 In the Court’s view, the civil remedy avail-

able in French law was sufficient. The Vo decision is indicative of the ECtHR’s

ambivalence regarding Article 2’s application to foetal life and reluctance to

pose challenges to Member States’abortion laws.106

More recently, the ECtHR was asked to consider, in Evans v United Kingdom,

whether embryos are entitled to Article 2 right to life protections under the

ECHR.107 The applicant in Evans complained of a violation of rights under

Articles 2, 8 and 14 of the EHRC based on her partner’s withdrawal of consent

for use of embryos they had created and frozen for future implantation.

Specifically, she claimed that the provisions of English law requiring the embryos

to be destroyed once her partner withdrew his consent to their continued storage

violated the embryos’ right to life, contrary to Article 2 of the Convention.

Affirming its decision in Vo v France, the ECtHR further declined to extendArticle 2 protection to the embryos.108Referring to the lack of any European con-

sensus on the scientific and legal definition of when human life begins, the

ECtHR again deferred to the state.109 In that regard, it recalled English law

under which ’an embryo does not have independent rights or interests and

cannot claim ^ or have claimed on its behalf ^ a right to life under Article 2 [of

the Convention]’.110 In addition, in the ECtHR’s extensive analysis and balancing

of the rights (under Article 8çright to private and family life) of the applicant to

preserve the embryos and the rights of her partner to have them destroyed, the

ECtHR did not include any ‘embryonic interests’ in this balancing test, thus indi-cating, that the ECHR does not require protection of such arguable interests.111

While there have been few embryonic right to life claims, analogous to

claims of foetal rights, they may be asserted by abortion opponents to diminish

104 Vo v France, supra n. 102 at para. 48.105 Ibid. at paras 84, 89 and 92^3.106 Hewson, supra n.101 at 372. Note, the ECtHR’s failure to take a bright-line stance on Article 2

arguably opens the door for anti-abortion advocates to rely upon the ECtHR’s consistent defer-ence to States Parties to assert that if the tables were turned, and a State determined life

commenced at conception, the ECtHR would have to employ similar deference.107 Evans v United Kingdom (2008) 46 EHRR 728.108 Ibid. at paras 54^56.109 Ibid. at para. 54.110 Ibid.111 Ibid. at paras 71^92.

266 HRLR 8 (2008), 249^294



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women’s right to abortion.112 Historically, issues of embryonic interests have

arisen within assisted reproductive technologies debates. Embryonic and

foetal rights start to overlap, however, in the in vitro fertilisation context.

Some abortion opponents maintain that dismissal of fertilised ova duringthe in vitro process is equivalent to aborting a foetus, and thus, should be

prohibited as a potential right to life violation. Nevertheless, claims of embryo-

nic rights are even more tenuous than those of foetal rights because

foetal rights claims have been denied thus far, and embryos are the biological

precursor to foetuses. Moreover, debates surrounding assisted reproductive

technologies in many instances do not raise the competing interests of preg-

nant women, an issue posed by foetal rights claims and in situations of

abortions.

While the ECtHR’s decisions in Vo and Evans were ultimately favourable

towards Member States liberal abortion laws, it does, by deferring the decisions

to states on whether or not foetal life should be protected, potentially leave

the door open for such deference when foetal lif