CYIL 2015

PAVEL BUREŠ CYIL 6 ȍ2015Ȏ unborn child’s right to life 21 or surrogacy. 22 Other concepts can also be related to reproductive rights, or broadly to sexual and reproductive health (maternal mortality, family planning services and programmes, female genital mutilation, sexually transmitted infections etc.). Different scholars offer different views on how to define reproductive rights. However, they commonly approach reproductive rights in broad terminology: reproductive self determination, 23 (sexual and) reproductive health, 24 reproductive care 25 or reproductive choices. 26 For instance, Cook examines more than 17 separate rights; she includes these in four categories 27 forming the concept of reproductive self-determination. As a secondary means of protection, reproductive rights are also covered on the international level by norms of international criminal law related especially to the crime of genocide and crimes against humanity. 28 Human dignity is certainly a concept of the legal discourse, but it has a deeper rooting in many areas of human society – philosophy, ethics, morality etc. As human dignity exceeds all limits of state-based society, it is anchored in ius naturalis conceptions. “All human beings are born free and equal in dignity and rights.” 29 Human dignity is somewhat in the centre of human rights protection, as nearly all human rights spring from this concept. 30 As a concept of ius naturalis , strictly embedded in human nature, human dignity cannot be (or at least should not be) a subject of so-called democratic process. It is not a matter of debate and interpretation. 31 Human dignity is something that is “intrinsic 21 Vo v. France, (no. 53924/00), 8 July 2004. In the Factsheet on reproductive rights the Court uses the term ‘unborn child and right to life’. I am deliberately using the expression ‘unborn child’s right to life’. 22 Joint cases Mennesson and Others v. France and Labassee v. France (no. 65192/11) and (no. 65941/11), 26 June 2014. 23 COOK, Rebecca J. Human Rights and Reproductive Self-determination. 44 American University Law Review, 1994-1995, p. 975. 24 GABLE, Lance. Reproductive Health as Human Right. 60 Case Western Reserve Law Review, 2009–2010, p. 957. ZAMPAS, Christina, ANDINO-IBAŇEZ, Xiména. Conscientious Objection to Sexual and Reproductive Health Services: International Human Rights Standards and European Law and Practice. European Journal of Health Law 19 (2012) 231-256. 25 STORROW, Richard F. Travel into the Future of Reproductive Technology. 79 UMKC Law Review, 2010–2011, p. 295. 26 VALONGO, Alessia. Human Rights and Reproductive Choices in the Case-law of Italian and European Courts. European Journal of Health Law 21 (2014), p. 123-140. 27 Rights relating to reproductive security and sexuality, Rights relating to reproductive health, Rights relating to reproductive equality and Rights relating to reproductive decision making. 28 Eg. International Criminal Court Statute, Art. 6 and 7. 29 1948 Universal Declaration of Human Rights, Art. 1. 30 We speak about human rights which are strictly linked to the human person and which do not need a State-based environment (e.g. political rights). 31 VON GEUSAU, Alting. Human Dignity and the Law in Post-War Europe. Roots and Reality of an Ambiguous Concept. Wolf Legal Publishers, 2013, p. 40.

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