CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ ABORTION AND EUTHANASIA IN THE DRAFT HUMAN RIGHTS … Court mentioned that “[t]he woman’s right to respect for her private life [under Article 8 of the Convention] must be weighed against other competing rights and freedoms invoked including those of the unborn child”, 25 and that “it would be equally legitimate for a State to choose to consider the unborn to be a person” under the Convention “and to aim to protect that life”. 26 Thus, Douwe Korff concluded (already in 2006) that “[i]t is clear that in the recent case-law, unborn life is given a measures of protection under the Convention, even if much is left to the discretion of the State Parties to the Convention in this respect.”. 27 Is there any “right to abortion” under international law? The text of the HRC’s draft General Comment concerning the regulation of abortion and “safe access” to it uses peremptory wording (“must”, “may not”), and, thus, as it seems, implies that the HRC recognizes the existence of a right to abortion under ICCPR, at least in certain situations mentioned in the draft General Comment. 28 Is such recognition of a right to abortion correct? And should this alleged right cover only narrowly defined and infrequent cases of the threat to life and health of pregnant women, cases of rape and incest and cases of fatal impairment of the foetus? Or, on the other hand, could such alleged right cover also abortion for so-called socio-economic reasons and abortion on request (demand), i. e. cases which represent the vast majority of abortions performed? And how could such a right be reconciled with rights and interests of an unborn child? It is to be noted that some of the so-called “pro-choice” initiatives promote the creation, or even existence, of an unlimited “human right” (right under international law) to “a safe and legal abortion”, including also right to abortion for socio-economic reasons and abortion on request (on demand). 29 The proponents of such right to unrestricted access to abortion allege, i. a. , that “a constellation of human rights, including the rights to privacy, liberty, physical integrity, non-discrimination and health, support the notion that abortion on request is a human right”. However, even some of these proponents admit that “no international or the status of the unborn children (foetuses) to the status of newborn babies and argue that both foetuses and newborns are only “potential persons”, i. e. “neither of them is a ‘person’ in the sense of ‘subject of a moral right to life‘” (and, therefore, “after-birth abortion” should, according to the proponents of these theories, be permissible in cases where abortion is permissible); GIUBILINI, Alberto, MINERVA, Francesca. After-birth abortion: why should the baby live?, Journal of Medical Ethics , 2013; 39; pp. 261-263. See further similar theories of one of prominent contemporary moral philosophers, SINGER, Peter. Practical Ethics , Cambridge University Press, NY, 1980 (Third Edition 2011), pp. 151-2. 25 ECtHR, A., B. and C. v. Ireland, Grand Chamber, Application no. 25579/05, Judgment, 16 December 2010, para. 213. 26 Ibid., para. 222. 27 KORFF, Douwe.The right to life, A guide to implementation of Article 2 of the European Convention onHuman Rights, Human rights handbooks, No. 8, Council of Europe, 2006; available at https://rm.coe.int/168007ff4e (visited on 9 June 2018), p. 15. See further Zampas, Gher, op. cit. sub 10, pp. 266-7 (according to them the Court, 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 life and interests are protected by national law”, even in cases when “a State determined life commenced at conception”). 28 In situations of the threat to life and health of pregnant women; situations when carrying a pregnancy to term would cause the woman substantial pain or suffering; situations where the pregnancy is the result of rape or incest or when the foetus suffers from fatal impairment. 29 See e.g. Zampas, Gher, op. cit. sub 10, pp. 251 and 255; Center for Reproductive Rights, Safe and Legal Abortion is a Woman’s Human Right, Briefing Paper, October 2011, available at https://www.reproductiverights.org/ sites/crr.civicactions.net/files/documents/pub_fac_safeab_10.11.pdf (visited on 6 June 2018). V.

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