CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ ABORTION AND EUTHANASIA IN THE DRAFT HUMAN RIGHTS … on request is neither balanced with nor justified by any competing right guaranteed by those regimes”? 34 On the other hand, if we assume, again, that there exists “a right to abortion” in the above exceptional cases defined, for example, in the draft HRC’s General Comment, could not these exceptions, under extensive interpretation, cover, through the back door, also unrestricted access to abortion for socio-economic reasons and abortion on request? First, as regards cases of rape and incest, it seems that it is, as a rule, impossible to obtain a legal verification that a crime (rape, incest) was indeed committed, before the abortion is performed. Second, as regards the threat to pregnant women’s health, it should be pointed to the fact that “health” may, under certain interpretations, become a very general and vague category. 35 There are even voices, according to which “[w]omen’s right to abortion should be expanded to include abortion on request or for socio-economic reasons, as denial of which may singnificantly affect women’s mental or physical health”. 36 It seems to be clear that, under such dubious interpretations (according to which the denial of access to abortion for socio-economic reasons or on request could, per se , adversely affect pregnant woment’s mental or physical health), the criterion of a threat to pregnant woman’s health becomes reduced to absurdity and looses any real and empirical value. In this respect, the HRC’s draft General Comment requires that legal restrictions on abortion must not, inter alia , subject pregnant women to “physical or mental pain or suffering which violates article 7” of the ICCPR (on the prohibition of torture and cruel, inhuman or degrading treatment or punishment) and that States parties must provide safe access to abortion to protect life and “health” (without specification whether only physical, or also mental) of pregnant women, and “in situations in which carrying a pregnancy to term would cause the woman substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or when the foetus suffers from fatal impairment”. In addition, the HRC suggests in its draft commentary that states “may not regulate pregnancy or abortion in a manner that runs contrary to their duty to ensure that women do not have to undertake unsafe abortions” – and it does not seem to be clear which situations should be covered by this prohibition. 37 The European Court of Human Rights, whose jurisprudence on the issues connected with abortion is the most elaborate (although, at the same time, to some extent evasive), on several occassions declared that “[w]hile the Court has held that Article 8 cannot be interpreted as conferring a right to abortion, it has found that the prohibition of abortion when sought for reasons of health and/or wellbeing falls within the scope of the right to respect for one’s private life and accordingly of Article 8”. 38 However, in the case A., B., and 34 Gregor Puppinck, op. cit. sub 30, p. 35. For similar suggestion, see Tom Venzor, op. cit. sub 20, pp. 1143-4. 35 See Zampas, Gher, op. cit. sub 10, pp. 268-9 (“… a recent interpretation of health in the abortion context, by a treaty-monitoring body, aligns with the WHO’s broad conception of health, which includes mental health.”). The authors refer to the Constitution of the World Health Organizations of 22 July 1946, according to which “[h]ealth is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. 36 Zampas, Gher, op. cit. sub 10, pp. 268-9. 37 Although, in square brackets, the HRC adds: “[For example, they should not take measures such as criminalizing pregnancies by unmarried women or applying criminal sanctions against women undergoing abortion or against physicians assisting them in doing so, when taking such measures is expected to significantly increase resort to unsafe abortions.]”. 38 ECtHR, A., B. and C. v. Ireland, op. cit. sub 25, para. 214; ECtHR, P. and S. v. Poland, Application no. 57375/08, Judgment, 30 January 2013, para. 96.

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