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Abstract
This article focuses on the striking expansion of international and
regional human rights standards and jurisprudence that support
womens human right to abortion. It summarises pertinent developments within the United Nations, European, Inter-American and
African human rights systems regarding abortion, as they relate to
womens 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 degrading treatment, and state procedural obligations to ensure womens
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 the
field.
* Senior Regional Manager Legal Adviser for Europe, Center for Reproductive Rights^International
Legal Program, 120 Wall Street, 14th Floor, New York, New York 10005.
** Attorney^Consultant, Center for Reproductive Rights^International Legal Program, 120 Wall
Street, 14th Floor, New York, New York 10005.
...........................................................................
Human Rights Law Review 8:2(2008), 249^294
Abortion as a Human
RightInternational and
Regional Standards
250
1. Overview
States Parties shall take all appropriate measures to . . . protect the reproductive rights of women by authorising medical abortion in cases of
sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the
mother or the foetus.6
The African Womens Protocol is the only legally binding human rights
instrument that explicitly addresses abortion as a human right and affirms
that womens reproductive rights are human rights.7 At present, 20 African
countries have ratified the Protocol,8 however, the Protocols 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
2
3
4
5
6
7
8
World Health Organization (WHO), Unsafe Abortion: Global and Regional Estimates of Incidence
of 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.
Cook, Dickens and Fathalla, Reproductive Health and Human Rights: Integrating Medicine,
Ethics and Law (Oxford: Oxford University Press, 2003) 26.
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 September
2007].
Res. AHG/RES.240 (XXXI). The African Womens Protocol entered into force on 25 November
2005 after ratification by 15 African states.
OAU Doc. CAB/LEG/76/3 Rev.5; 21 ILM 58 (1982).
Article 14.2(c), African Womens Protocol.
Article 14, African Womens Protocol.
African Commission on Human and Peoples Rights (ACHPR), List of countries which
have signed, Ratified/Acceded to the African Union Convention on Protocol to the
African Charter on Human and Peoples Rights on the Rights of Women in Africa, available at:
http://www.achpr.org/english/ratifications/ratification_women%20protocol.pdf [last accessed
7 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.
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 problem, human rights advocacy for abortion has gained greater momentum.
The most explicit pronouncement of womens 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 Womens 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:
251
Council of Europe Parliamentary Assembly, Resolution 1607 on access to safe and legal abortion 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].
womens right to safe, legal abortion. While these protections are less explicit
than the African Womens Protocol, their weight and importance is just the
same. In addition to the right to life and health, womens right to abortion is
bolstered by the broad constellation of human rights that support it, such as
rights to privacy, liberty, physical integrity and non-discrimination. In fact, it
is the evolution of human rights interpretations and applications, stemmed by
increased sophistication, womens empowerment and changing times, which
have given force to womens human right to abortion.
The recent ground-breaking pronouncement regarding womens 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 womens effective 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 contraception at a reasonable cost and of suitable nature, and compulsory ageappropriate and gender-sensitive sex and relationship education for young
people.9 The adoption of the Report is particularly significant in a region peppered 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 womens 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. Notably, a large share of the regional discussion
in this article is devoted to Europe, as there have been substantial developments in that region in response to tightening restrictions in law and practice
on womens 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 womens right
to abortion. Finally, the article touches upon criminalisation of women who
252
10
11
12
13
14
15
253
16
17
18
19
Vukovich, Key Actions for the Further Implementation of the Programme of Action of the
International Conference on Population and Development (Report of the Ad Hoc Committee
of 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].
In this article a significant portion of the analysis of treaty-monitoring bodies functions,
interpretations and jurisprudence, is derived from: Center for Reproductive Rights, Bringing
Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive
and Sexual Rights, 2002, available at: http://www.reproductiverights.org/pdf/pub_bo_tmb_
full.pdf [last accessed 2 October 2007].
Office Of The High Commissioner For Human Rights, Treaty Bodies, 14 February 2002, available at: http://www.unhchr.ch/pdf/leafletontreatybodies.pdf [last accessed 21 September
2007].
Much of the research on Concluding Observations from Treaty Monitoring Bodies comes from
Bringing Rights to Bear, supra n. 17.
the law by training and equipping health-care providers and taking other measures to safeguard womens health.16 While international consensus documents are non-binding, the statements contained in these documents are
persuasive and indicative of the world communitys growing support for reproductive 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 womens 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 Observations 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 written
decisions in such cases.
254
20
21
22
23
24
25
26
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].
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.
Inter-American Institute on Human Rights (IIHR) and Latin American and Caribbean
Committee for the Defense of Womens Rights (CLADEM) (eds), Proteccion Internacional de los
Derechos 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 American
Convention 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.
Supra n. 22 at 150.
ACHPR, African Commission on Human and Peoples Rights, Establishment ^ Information
Sheet No. 1 (African Commission-Information Sheet), available at: http://www.achpr.org/english/information_sheets/ACHPR%20 inf.%20sheet%20no.1.doc [last accessed 21 September
2007].
Article 62, African Charter.
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 the
Charters provisions.
255
complement the ACHPR by interpreting and applying the African Charter and
to give legally binding judgments in individual cases, which will, bolster
womens rights under the African Charter and its Womens Protocol.27 At present, 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 womens right to
abortion on request or for economic and social reasons, nor have they explicitly called for the legalisation of abortion on those grounds. The extent to
which womens right to abortion is currently protected under human rights
law generally hinges on whether a womans life or health is at risk, the pregnancy resulted from rape or incest or there is risk of foetal impairment.
In these contexts, significant progress has recently been made within international and regional human rights discourses requesting States Parties
to liberalise abortion laws and actualise womens right to safe abortion services. 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 womens 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 abortion 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 womans right to abortion, and
which can be used by advocates to promote womens right to abortion on request.
256
30
31
32
33
34
35
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].
999 UNTS 171, which entered into force on 23 March 1976.
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.
Ibid. at 129, para. 5.
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.
Ibid. at 181, para. 20.
257
36
37
38
39
40
41
42
43
44
45
46
47
48
illegal and unsafe abortions and high rates of maternal mortality.36 The HRC
has further noted that illegal abortions have serious harmful consequences
for womens lives, health37 and well-being.38
The HRC has expressed particular concern for restrictive abortion laws,
especially when womens 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,41 and confirmed that such legislation is incompatible with womens 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 HRCs 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 HRCs 2004 Concluding Observation to Poland expressed
deep concern regarding the State Partys restrictive abortion law that
258
259
60
61
62
63
64
65
66
67
68
69
111; Kyrgyzstan, 27 January 1999, A/54/38 at para. 136; Mongolia, 2 February 2001, A/56/38
at para. 273; Myanmar, 28 January 2000, A/55/38 at para. 129; Nepal, 1 July 1999, A/54/38 at
para. 147; Nicaragua, 31 July 2001, A/56/38 at paras 300^1; Peru, 8 July 1998, A/53/38/Rev.1
at 73 and 75, paras 300 and 339; Romania, 23 June 2000, A/55/38 at para. 314; and
Zimbabwe, 14 May 1998, A/53/38/Rev.1 at 16, para. 159.
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.
Concluding Observations of CEDAW regarding: Chile, 9 July 1999, A/54/38 at paras 209 and
228; Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at
para. 254; Lithuania, 16 June 2000, A/55/38 at para. 158; Ukraine, 9 May 1996, A/51/38 at
para. 287; and Georgia and Mongolia, supra n. 59.
Concluding Observations of CEDAW regarding; Burundi, 2 February 2001, A/56/38 at
para. 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 at
para. 208; Ireland, 1 July 1999, A/54/38 at para. 186; Kazakhstan, 2 February 2001, A/56/38
at paras 76 and 106; Lithuania, 16 June 2000, A/55/38 at para. 159; Mongolia, 2 February
2001, 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.
Concluding Observations of CEDAW regarding: Burkina Faso, 31 January 2000, A/55/38 at
para. 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 at
para. 119.
Chile, 25 August 2006, supra n. 62.
Ibid.
Burkina Faso, supra n. 63 at para. 276.
Concluding Observations of CEDAW regarding: Andorra, 31 July 2001, A/56/38 at para. 48;
Belize, 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 at
para. 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 the
Grenadines, 12 August 1997,A/52/38/Rev.1 at para. 148; and United Kingdom, 1 July 1999,
A/55/38 at para. 310.
Concluding Observations of CEDAW regarding; Belgium, 9 May 1996, A/51/38 at para. 181.
1249 UNTS 13, which entered into force on 2 September 1990.
framed the issue as a violation of womens 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 in
turn, contributes to high rates of maternal mortality.61 To this end, CEDAW
has recommended that States Parties increase access to family planning programmes 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
260
70
71
72
73
74
75
76
Committee on the Rights of the Child, General Comment No. 4; Adolescent health and development 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).
Ibid. Note, the CRC has also expressed concern within its Concluding Observations regarding
sex-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 recommended
States Parties implement existing legislation prohibiting such practices and taking additional
measures 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, 26
February 2004, CRC/C/15/Add.228 at para. 34. The CRC has not, however, addressed the complex intersection between curbing sex-selective abortion practices and promoting womens
abortion rights, or specifically, called for States Parties to safeguard womens abortion rights
when seeking to eradicate sex-selective abortion.
Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 at
para. 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.
Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 at
para. 30; and Guatemala, 9 July 2001, CRC/C/15/Add.154 at para. 40.
Chad, ibid.
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, 24
September 2001, E/C.12/1/Add.66 at para. 32; Panama, 24 September 2001, E/C.12/1/Add.64
at 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.
Concluding Observations of the CESCR regarding: Nepal, 24 September 2001, E/C.12/1/Add.66
at para. 55; and Poland, 19 December 2002, E/C.12/1/Add.82 at para. 51.
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 safe
abortion 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 concern 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
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80
81
Note that the European Commission on Human Rights (EComHR) interpreted this right as not
only requiring State Parties to prevent intentional killing, but to also take necessary affirmative 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 12
September 1991, which was declared inadmissible on technical grounds. While the ECtHR
now has the sole role of interpreting and applying the ECHR, prior Commission statements
and decisions are persuasive.
Krzyanowska-Mierzewska, How to Use the European Convention for the Protection of Human
Rights and Fundamental Freedoms in Matters of Reproductive Law: The Case Law of the European
Court of Human Rights, (Astra, 2004) at Part III.1, available at: http://www.astra.org.pl/astra_
guide.htm [last accessed 9 September 2007].
Tavares v France, supra n. 79.
European system
262
African system
83
84
85
Recently, the ECtHR referenced the Irish Supreme Court decision Attorney General v X, which
held a pregnant teenagers suicidal tendencies to be a real and substantial risk to life under
Irelands life exception to the constitutional abortion ban, in the case D. v Ireland, to assert
that Irelands Constitutional Court has the potential to develop the parameters of the Irish
abortion law, thus requiring the exhaustion of domestic remedies. See D. v Ireland (2006) 43
EHRR SE16 at paras 88^103. See also Attorney General v X [1992] 2 CMLR 277.
Article 14.2 (c), African Womens Protocol.
Ibid.
GA Res. 217A(III), 10 December 1948.
The African Womens Protocol is the only international human rights instrument to explicitly pronounce, in the text of the instrument, womens 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 womans 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 womens right to
access abortion in Africa.
263
86
87
88
89
90
91
92
93
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 application of human rights. This is confirmed by the fact that a proposed amendment 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 ICCPRs negotiation history indicates that an amendment 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 liberalise criminal abortion laws,88 a position that is discordant with any purported
right to life for foetuses.89
Along similar lines, the ICRCs travaux pre paratoires and its interpretation
by the CRC confirm, that the ICRCs protections concerning life begin at
birth.90 Arguments to the contrary have been made based on Paragraph 9 of
the ICRCs 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 recognises a states duty to promote a childs capacity to survive and thrive after
birth, by targeting the pregnant womans nutrition and health.
The ICRCs travaux actually confirm that the pre-natal language is not
intended to infringe on any womens right to access abortion. Notably, the
ICRCs 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 ICRCs
Working Group also confirmed the amendments limited nature when stating
264
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 preambles language is on the child, as defined
under the ICRC as every human being below the age of eighteen years[,] and
not 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 6s protections to foetuses.
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 procedural elements to the right to life (Article 2) under the ECHR. When foetal
rights claims have been asserted based on Article 2s 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 prevented 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 since
the 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
95
96
97
UN Commission on Human Rights, Report of the Working Group on a Draft Convention on the
Rights of the Child, E/CN.4/1989/48 (1989) at p. 10, as cited in LeBlanc, The Convention on the
Rights 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.
Article 1, ICRC.
Paton v United Kingdom (X v United Kingdom) (1980) 19 DR 244; (1981) 3 EHRR 48 at paras 7^
9 and 23.
Ibid. at paras 7^9 and 19.
265
98
99
100
101
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 womans right to life take
precedence 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
womans physical or mental health. This law struck a fair balance between
the womans interest and the states interest in protecting the foetus.99 Boso
highlights the ECtHRs tendency to analyse abortion from a view of health,
regardless of the nature of an applicants substantive claims. For example,
while Boso alleged that his partners abortion constituted an Article 2 violation, the ECtHR rejected the applicants claim based partially on the fact that
Italys 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 2s protections apply to foetuses, and in turn, avoided drawing any conclusion that may
adversely 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 mothers rights
and interests, it avoided explicitly confirming whether Article 2 applied to foetuses by noting that, there is no European consensus on the scientific and
legal definition of the beginning of life. 103
266
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 alleging 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 Courts view, the civil remedy available in French law was sufficient. The Vo decision is indicative of the ECtHRs
ambivalence regarding Article 2s 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 partners 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 extend
Article 2 protection to the embryos.108 Referring to the lack of any European consensus 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 ECtHRs extensive analysis and balancing
of the rights (under Article 8right 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 indicating, 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
267
Inter-American system
Contrary to the European human rights system, where protection of foetal
interests still remains unclear, the Inter-American system provides somewhat
more explicit guidance regarding right to life protections. For example, the
Inter-American Commission determined that Article 4 of the American
Convention113 did not preclude liberal abortion legislation in the Baby Boy
case.114 The Baby Boy case involved an American doctor who was prosecuted
for manslaughter after providing an abortion to a teenage girl at the girls and
her mothers request.115 A petition was submitted to the Inter-American
112 A case is pending before the Inter-American Commission on Human Rights challenging the
Costa Rican Supreme Courts 2000 ruling banning in vitro fertilisation, based on the contention that human life begins at conception, thus entitling embryos and foetuses to the same
legal protections as born individuals. Opponents of the decision are alleging that the
Supreme Court ruling violates a myriad of human rights such as the right to health, to form
a family, to privacy and to benefit from scientific progress, as recognised under international
law. The Inter-American Commissions ruling could have worldwide implications, impacting
not only in vitro fertilisation and the right to bear children, but also the legal status of contraception and abortion. See Case 12.361, Ana Victoria Villalobos et al. v Costa Rica, Report No.
25/04 (2004).
113 Article 4 reads,The right to life shall be protected by law and, in general, from the moment of
conception.
114 Case 2141, Baby Boy, 25/OEA/ser.L./V./II.54, Doc. 9 rev. 1 (1981).
115 Ibid. Criminal charges were initially brought against the doctor in the Baby Boy case in the
Massachusetts court system; however, the highest court eventually overturned the doctors
conviction.
268
269
the abortion context, by a treaty-monitoring body, aligns with the WHOs broad
conception of health, which includes mental health. Womens right to abortion
should be expanded to include abortion on request or for socio-economic reasons,
as denial of which may significantly affect womens mental or physical health.
(i) International human rights parameters ^ right to health
122 Article 12, ICESCR; Article 12, CEDAW; and Article 24, ICRC.
123 KL v Peru (1153/2003), CCPR/C/85/D/1153/2003 (2005); 13 IHRR 355 (2006).
124 Concluding Observations of the HRC regarding: El Salvador, 22 August 2003, CCPR/CO/78/
SLV at para. 14; Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; and Poland, 2 December
2004, CCPR/CO/82/POL at para. 8.
125 Concluding Observations of the HRC regarding: Gambia, 12 August 2004, CCPR/CO/75/GMB
at para. 17; 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); and
Poland, 29 July 1999, CCPR/C/79/Add.110 at para. 11.
126 Concluding Observations of the HRC regarding Mali, 16 April 2003, CCPR/CO/77/MLI at
para. 13.
127 KL v Peru, supra n. 123.
128 Ibid. at para. 2.2.
The ICESCR, ICEDAW and ICRC expressly confirm womens right to health and
treaty-monitoring bodies have interpreted and applied that right in the context
of abortion.122 The ICCPRs provisions do not expressly protect the right to
health, however, the HRC has recently handed down the decision in KL v Peru
that has addressed the intersections of health, privacy rights and the right
to be free from inhumane and degrading treatment, and called for a broad
reading of health exceptions under a states abortion law.123
270
271
As to Article 24 (special measures for minors), the HRC noted KLs special vulnerability as a minor girl, by recognising the unique barriers and susceptibility to rights violations that adolescents face when attempting to access
abortion.134 Finally, as to Article 2 (respect for and guarantee of human
rights), the HRC held that the state had a duty to provide legal and administrative mechanism to prevent or redress rights violations.135
The significance of KL is immense because it marks the first time a UN
human rights body held a government accountable for failing to ensure
access to abortion services to an individual. In sum, under KL, the HRC
requires a broad reading of statutory health exceptions to include issues of
mental health, the positive realisation of a right to access abortion for states
that permit abortions in circumstances of foetal impairment, necessary measures to guarantee adolescents access to reproductive health services, and
accessible, economically feasible procedures to appeal a doctors refusal to perform a legal abortion.
On a related note, the HRC has called upon Ireland, in its 2000 Concluding
Observations, (which was prior to the decision in KL) to ensure that women
are not compelled to continue with pregnancies where that is incompatible
with obligations arising under the ICCPR (Article 7) and General Comment
No. 28[,] on equality of rights between men and women.136 The Committee
expressed concern that women in Ireland could only obtain abortions
when the pregnant womans life was endangered, and did not include an
exception for pregnancies that resulted from rape.137 The Committee recommended that Ireland bring its abortion legislation in line with the Covenant
and its interpretations.138
272
141
142
143
144
145
146
147
June 2000, A/55/38 at para. 314; Russian Federation, 31 May 1995, A/50/38 at para. 523;
Slovakia, 30 June 1998, A/53/38/Rev.1 at para. 91; Ukraine, 9 May 1996, A/51/38 at para. 287;
and Vietnam, 31 July 2001, A/56/38 at para. 266.
Greece and Vietnam, supra n. 140.
Concluding Observations of CEDAW regarding: Cuba, 19 June 2000, A/55/38 at para. 257; and
Finland, 31 May 1995, A/50/38 at para. 378.
Concluding Observations of CEDAW regarding: Georgia, 1 July 1999, A/54/38 at para. 111;
Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at para. 254;
Lithuania, 16 June 2000, A/55/38 at para. 158; Mexico, 25 August 2006, CEDAW/C/MEX/CO/
6 at para. 32; Mongolia, 2 February 2001, A/56/38 at para. 273; and Ukraine, 9 May 1996, A/
51/38 at para. 287.
Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38 at para. 66;
Burundi, 2 February 2001, A/56/38 at para. 62; Cuba, 25 August 2006, CEDAW/C/CUB/CO/6
at para. 27; Former Yugoslav Republic of Macedonia, 3 February 2006, CEDAW/C/MKD/CO/3
at para. 31; Georgia, 1 July 1999, A/54/38 at para. 111; Kazakhstan, 2 February 2001, A/56/38
at para. 105; Kyrgyzstan, 27 January 1999, A/54/38 at para. 136; Republic of Moldova, 27
June 2000, A/55/38 at para. 109; Romania, 23 June 2000, A/55/38 at para. 314; Slovakia, 30
June 1998, A/53/38/Rev.1 at para. 91; and Uzbekistan, 2 February 2001, A/56/38 at para. 185.
Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38 at para. 73;
Burundi, 2 February 2001, A/56/38 at para. 62; Former Yugoslav Republic of Macedonia, 3
February 2006, CEDAW/C/MKD/CO/3 at para. 31; Georgia, 1 July 1999, A/54/38 at para. 112;
Greece, 1 February 1999, A/54/38 at para. 208; Kazakhstan, 2 February 2001, A/56/38 at
para. 106; Kyrgyzstan, 27 January 1999, A/54/38 at para. 137; Republic of Moldova, 27 June
2000, A/55/38 at para. 110; Romania, 23 June 2000, A/55/38 at para. 315; Slovakia, 30 June
1998, A/53/38/Rev.1 at para. 92; Uzbekistan, 2 February 2001, A/56/38 at para. 186; and
Vietnam, 31 July 2001, A/56/38 at para. 267.
Concluding Observations of CEDAW regarding Kyrgyzstan, 27 January 1999, A/54/38 at para.
137.
Concluding Observations of CEDAW regarding; Czech Republic, 14 May 1998, A/53/38 at para.
197; and Mauritius, 31 May 1995, A/50/38 at para. 196.
273
health, including the [countrys] very restrictive abortion laws and improve
family planning services and availability of contraception.148
CEDAW has also called upon States Parties to review legislation
criminalising abortion and potentially remove barriers restricting access
to safe abortion, connecting such barriers to womens right to health.149
For example, CEDAWs 2006 Concluding Observations to Mexico expressed
concern that abortion remained one of the leading causes of maternal mortality, despite legalisation of abortion in some contexts, due to lack of access to
safe abortion services and a wide range of contraception, including emergency
contraception.150 CEDAW recommended that Mexico increase access to reproductive health care and family planning services and address obstacles to
accessing those services, provide sex education targeting men and women,
and adolescent boys and girls, and harmonise federal and state abortion legislation.151 CEDAW also urged Mexico to implement a comprehensive strategy to
provide effective access to safe abortion in situations provided for under the
law, a wide range of contraceptives, including emergency contraception, and
campaigns to raise the awareness regarding unsafe abortions.152
274
154 Ibid.
155 Ibid.
156 Concluding Observations of the CRC regarding: Guatemala, 9 July 2001, CRC/C/15/Add.154 at
para. 40; Chad, 24 August 1999, CRC/C/15/Add.107 at para. 30; and Nicaragua, 24 August
1999, CRC/C/15/Add.108 at para. 35.
157 Concluding Observations of the CRC regarding China, 24 November 2005, CRC/C/CHN/CO/2
at paras 64^5.
158 Ibid. at para. 64.
159 Ibid. at para. 65.
160 Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at
para. 25; Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 32; Panama, 24 September
2001, E/C.12/1/Add.64 at 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.
161 Concluding Observations of the CESCR regarding: Bolivia, 21 May 2001, E/C.12/1/Add.60 at
para. 43; Mexico, 8 December 1999, E/C.12/1/Add.41 at para. 43; and Nepal, 24 September
2001, E/C.12/1/Add.66 at paras 33 and 55.
275
planning services and contraception.162 The CESCR has also expressed general
concern over the prevalence of abortion,163 especially among adolescent
girls,164 as a result of lack of access to contraception.165 Furthermore, the
CESCR has praised family planning policies that result in declines in abortion
rates,166 and it has recommended increased family planning programmes to
decrease the prevalence of abortion.167 Finally, the CESCR has commented on
States Parties failure to provide information on abortion168 and has recommended study and analysis of high abortion rates.169
Similar to the international human rights system, there have been significant
developments within regional human rights systems regarding womens
access to abortion as they intersect with womens right to health. One of the
foremost affirmations of such rights was in the ECtHRs landmark decision
Tysia c v Poland, where the ECtHR was asked whether the States failure
to apply the exception to Polands abortion law, which permits abortion for
health reasons, violated the ECHR.170
European system
The ECHR does not expressly guarantee any health or reproductive rights,171 or
any determined standard of medical care.172 Furthermore, the ECHR bodies
162 Concluding Observations of the CESCR regarding: Kuwait, 7 June 2004, E/C.12/1/Add.98 at
para. 43, Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 44; and Poland, 16 June 1998, E/
C.12/1/Add.26 at para. 12.
163 Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at
para. 25; Senegal, 31 August 2001, E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2004, E/
C.12/1/Add.99 at para. 22.
164 Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at
para. 25; and Spain, 7 June 2004, E/C.12/1/Add.99 at para. 22.
165 Concluding Observations of the CESCR regarding: Armenia, 8 December 1999, E/C.12/1/Add.3
at para. 15; and Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12.
166 Concluding Observations of the CESCR regarding: Russian Federation, 20 May 1997, E/C.12/1/
A dd.13 at para. 10.
167 Concluding Observations of the CESCR regarding: Armenia, 8 December 1999, E/C.12/1/
Add.39 at para. 19; Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 55; Panama, 24
September 2001, E/C.12/1/Add.64 at para. 37; Senegal, 24 September 2001, E/C.12/1/Add.62 at
para. 47; Spain, 7 June 2004, E/C.12/1/Add.99 at para. 40; and Ukraine, 24 September 2001,
E/C.12/1/A dd.65 at para. 31.
168 Concluding Observations of the CESCR regarding Switzerland, 7 December 1998, E/C.12/1/
Add.30 at para. 22.
169 Concluding Observations of the CESCR regarding; Mauritius, 28 December 1995, E/C.12/1995/
18 at para. 245; Poland, 19 December 2002, E/C.12/1/Add.82 at para. 51; and Spain, 7 June
2004, E/C.12/1/Add.99 at para. 40.
170 Tysia c v Poland (2007) 45 EHRR 42.
171 How to Use the European Convention, supra n. 80 at Part I (b)^(f).
172 Ibid. at Part III.1.
276
173
174
175
176
177
178
179
180
181
have carefully avoided stating whether abortion is protected under the ECHR,
and/or whether legal and safe abortion should or should not be available
under domestic law, . . . and if so, on what conditions.173 As it now stands, it
appears that Member States are free to determine the availability and legal
status of abortion.174 However, jurisprudence under the ECHR does indicate
that the ECtHR may show less deference to Member States in cases where
women cannot obtain abortions when their lives and/or health are at risk.
Health-related rights have been read into Articles 2 (right to life), 3 (freedom
from inhuman and degrading treatment) and 8 (right to respect for private
and family life) by ECHR bodies. With respect to Article 2, again, Member
States have an obligation to ensure procedures are in place to protect lives
when threatened.175 The EComHR has interpreted this to include hospital 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.176 With respect to Article 3, [f]ailure to afford adequate medical care may be also in breach of the prohibition of torture, inhuman or degrading treatment . . ..177 While a few complaints have been made
under Article 3 in the reproductive health care context, to date none has been
successful.178 Article 8 protects individuals from arbitrary interference
by public authorities. Article 8 also imposes a positive obligation on governments to adopt measures designed to secure respect for private life, even in
the sphere of relations between individuals.179 With respect to abortion, the
ECHR jurisprudence recognises that legislation regulating abortion falls
under the sphere of Article 8 and statutory abortion restrictions may constitute an interference with womens private lives.180
There is no recent case-law to the effect that non-availability of legal
and safe abortion can amount to a breach of Article 2, or Article 8 of the
ECHR.181 This is due to the fact that none of the cases filed challenging
the unavailability of abortion have moved beyond the admissibility stage. The
277
182
183
184
185
186
278
190
191
192
193
194
195
279
Inter-American system
On 10 December 2006, the Rapporteur on the Rights of Women of the
Inter-American Commission issued an unprecedented letter of concern to
Nicaraguas Minister of Foreign Affairs, declaring Nicaraguas recently passed
abortion ban contrary to international law, as it threatened womens human
rights and jeopardised womens health. The Rapporteur reiterated that therapeutic abortion has been internationally recognized as a specialized and necessary health service for women, its ultimate purpose being to save the life of the
mother when threatened during pregnancyand that denial of abortion services
endangers womens lives as well as their physical and psychological integrity.198
The Rapporteur also referenced prominent human rights bodies and representatives position that total abortion bans negatively impact women, to confirm
that [s]uch bans result in high rates of maternal mortality and therefore pose a
197 Ibid. at paras 55^61 and 144.
198 Organization of American States ^ Inter-American Commission on Human Rights, Letter to
Nicaragua Minister of Foreign Affairs, HE Norman Calderas Cardenal, 10 November 2006,
available at: http://www.reproductiverights.org/pdf/index_nicaragua_ english.pdf [last
accessed 22 September 2007].
280
public health problem.199 The Rapporteur then called upon the Nicaraguan government to take into account the above referenced human rights principles
when deciding whether to ratify the countrys abortion ban.200
The Rapporteurs 2006 statement to Nicaragua represents the first time a
human rights body representative has contacted a Member State on its own
accord to emphasise the human rights implications of a pending state action.
At present, the ratification of Nicaraguas ban is still pending on a decision by
the countrys Supreme Court.
The African Womens Protocol explicitly calls upon States Parties to [authorise]
medical abortion . . . [when] the continued pregnancy endangers the mental
and physical health of the mother.201 It is unclear whether the Protocols
health-related provision will be interpreted as separate mental or physical
health grounds or conjunctively, requiring endangerment to both physical
and mental health. Either way, the Protocol squarely frames abortion as an
issue of womens health.
Similar to the Protocols preservation of life grounds for abortion, the health
grounds includes mental and physical health, and merely requires a womens
health to be endanger[ed].202 As health is not merely the absence of disease,
but rather includes a more holistic sense of social well-being, as defined by
the WHO, the Protocols health grounds should be interpreted broadly.
D. Abortion for Women who have Suffered Rape or Incest
Other than the African Womens Protocol, no international or regional human
rights treaty explicitly confers the right to abortion on women who have suffered rape and/or incest. Nonetheless, treaty-monitoring bodies are addressing
the issue with greater frequency in Concluding Observations to States Parties,
thus bolstering the law in this context.
(i) International human rights parameters
International covenant on civil and political rights
The HRC has expressed concern regarding the criminalisation of abortion
when the pregnancy is the result of rape,203 and confirmed that such
199
200
201
202
203
Ibid.
Ibid.
Article 14.2 (c), African Womens Protocol.
Ibid.
Concluding Observations of the HRC regarding Gambia, 12 August 2004, CCPR/CO/75/GMB
at para. 17.
African system
281
204 Concluding Observations of the HRC regarding Peru, 15 November 2000, CCPR/CO/70/PER at
para. 20.
205 Concluding Observations of the HRC regarding Poland, 2 December 2004, CCPR/CO/82/POL
at para. 8.
206 Ibid.
207 Peru, supra n. 204.
208 Article 7, ICCPR.
209 HRC ^ General Comment No. 28, supra n. 34 at para. 11.
210 Concluding Observations of the HRC regarding Ireland, 24 July 2000, A/55/40 at para. 23.
211 Ibid. at para. 24.
212 Concluding Observations of CEDAW regarding; Ireland, 1 July 1999, A/54/38 at para. 185;
Mexico, 14 May 1998, A/53/38 at para. 399; Saint Vincent and the Grenadines, 12 August
1997, A/52/38/Rev.1 at para. 148; and Tunisia, 31 May 1995, A/50/38 at para. 246.
213 Concluding Observations of CEDAW regarding; Jordan, 27 January 2000, A/55/38 at para. 180;
Myanmar, 28 January 2000, A/55/38 at paras 129^130; Panama, 2 July 1998, A/55/38/Rev.1
at para. 201; and Venezuela, 12 August 1997, A/52/38/Rev.1 at para. 236.
legislation violates womens right to life under Article 6.204 For example, the
HRC in its 2004 Concluding Observations to Poland, expressed concern regarding the unavailability of abortion in practice even when the law permits it,
such as in cases where pregnancy resulted from rape.205 To address this, the
HRC recommended that Poland liberalise its legislation and practice on abortion.206 The HRC similarly recommended that Peru amend its restrictive criminal abortion law, because laws that subject women to criminal penalties for
terminating a pregnancy that results from rape are incompatible with the
rights under the ICCPR to equal enjoyment of rights (Article 3), life (Article 6)
and to be free from torture and from cruel, inhuman or degrading treatment
or punishment (Article 7).207
The HRC further addressed abortion in the context of rape, as a potential
violation of the prohibition on torture, cruel, inhuman or degrading treatment
or punishment,208 in General Comment No. 28 on equality of rights between
men and women. Under the General Comment States Parties are required to
report on whether they provide safe access to abortion for women who
become pregnant as a result of rape, to enable the HRC to assess their compliance with Article 7.209 The HRC also expressed concern regarding Irelands
abortion law, which restricts abortion to situations where a pregnant womans
life is in danger and does not permit the procedure for women becoming pregnant from rape.210 The HRC called upon Ireland to ensure that women are not
compelled to continue with pregnancies where that is incompatible with obligations arising underArticle 7 and General Comment No. 28.211
282
incest.214 In those situations, CEDAW has called for amendment of such legislation,215 and credited States Parties for decriminalising abortion in cases of serious malformation of the foetus or in circumstances of rape.216
International covenant on economic, social and cultural rights
283
is the result of rape. Nonetheless, due to the lack of case law under the ECHR in
this regard, it is unclear how the ECtHR would decide such a claim, especially
in countries where there is no explicit rape exception in the abortion law.
Inter-American system
223 Case 161-02, Paulina del Carmen Ramirez Jacinto v Mexico, Friendly Settlement, Report No. 21/
07 (2007).
224 Article 1, American Convention.
225 Article 8, American Convention.
226 Article 25, American Convention. See also Inter-American Convention on the Prevention,
Punishment and Eradication of Violence against Women Convention of Belem do Para 1994,
33 ILM 1534 (1994) (Convention of Belem do Para) at Article 4, which entered into force on
5 March 1995.
227 Article 11, American Convention; Article 4, Convention of Belem do Para; Article 12, UDHR;
and Article 17, ICCPR.
228 Article 7, American Convention; Article 9, ICCPR; and Article 3, UDHR.
229 Article 11, American Convention; Article 4, Convention of Belem do Para; Article 12, UDHR;
and Article 17, ICCPR.
230 Paulina, supra n. 223 at para. 16.
The Inter-American Commission was called upon to address the right to access
abortion for women who have been raped in Paulina Ramirez v Mexico.
In 2002, a petition was filed with the Inter-American Commission on behalf
of a 13-year-old girl who was raped and then denied an abortion due to state
health and justice authorities personal and religious beliefs, despite Mexicos
legal exception for pregnancies resulting from rape.223
The petition alleged that Mexico violated its obligation to respect and guarantee the rights under the American Convention224 due to its lack of judicial
guarantees225 and protection.226 Specifically, it alleged that the Mexican
state of Baja California lacked a clear procedure with respect to the rape
exception of its abortion law, and lacked a sufficient, expedient and effective
remedy permitting the timely guarantee of the right to a legal abortion.
These omissions arguably enabled public officials to act arbitrarily in cases of
rape and neglect their obligation to respect and guarantee the rights to physical and psychological integrity,227 liberty, informed consent,228 honour, dignity
and privacy.229
After almost two years of negotiations, the parties resolved the dispute
through a friendly settlement, before the Inter-American Commission rendered
a decision. In that settlement, the Mexican government conceded generally to
the above listed human rights violations and agreed to a number of groundbreaking reparations. For example, the government agreed to compensate
Paulina for legal, medical, cost of living, mental health and educational
expenses incurred by her and her son.230 The government also agreed to
assist her with professional development, provide a one-time payment for
moral damages, issue a public acknowledgment of responsibility and issue
284
African system
The African Womens Protocol explicitly articulates womens right to abortion
calling on States Parties to take all appropriate measures to . . . [authorise]
medical abortion in cases of sexual assault, rape, incest . . ..235 The Protocols
inclusion of sexual assault as a legal basis for abortion is particularly notable,
as sexual assault covers a broader range of sexual conduct, thus potentially
further expanding womens abortion rights. Nevertheless, until the African
Commission issues a report interpreting the Protocols provisions, perhaps in
response to a Member States biennial report regarding compliance with the
African Charter and the Protocol, or a case is brought before the African
Commission, the extent to which the African Womens Protocols provisions
will be interpreted and applied remains unclear.236
E. Abortion Based on Foetal Impairment
Similar to rape and incest, foetal impairment is increasingly being
recognised as a valid basis for abortion by international and regional
treaty-monitoring bodies. The HRC was specifically called upon to address
231 Ibid. Note that application of the guidelines regulating access to abortion in the context of
rape, is limited to the Mexican state of Baja California.
232 Ibid. at paras 20^3. The Inter-American Commissions 2007 Case Report indicates that while
the Baja California Government has essentially complied with the settlements provisions,
the Commission will continue to monitor the Governments compliance with its obligations
to assist Paulina with professional development and to lobby the legislature for legislative
change.
233 Ibid. at Annex ^ Official Journal ^ Public Acknowledgment of Responsibility.
234 Ibid. at para. 25.
235 Article 14.2(c), African Womens Protocol.
236 Ngwena, Paper presented to the Center for Reproductive Rights: Access to Abortion Services
and the Protocol to the African Charter on the Rights of Women in Africa: Opportunities
and Challenges, 23 August 2007 at 7 (document on file at the Center for Reproductive
Rights).
a decree regulating guidelines for access to abortion for women who have been
raped.231 To date, the government has complied with almost all of the
settlements provisions.232
The Paulina case marks the first time a Latin American government conceded that the absence of an appropriate body of regulations concerning abortion resulted in the violation of . . . human rights.233 The Inter-American
Commission expressed great appreciation to both parties for reaching a
friendly settlement which was compatible with the American Conventions
object and purpose, and stated: The achievements secured through the actions
and good disposition of the two parties . . . offer a significant example to be followed in other cases ^ both those that involve Mexico as well as other cases
from other regions and countries of the hemisphere.234
285
286
African system
Unlike other regional human rights systems, the African Womens Protocol is
the only human rights instrument that explicitly supports womens right to
access to abortion where the continued pregnancy endangers the . . . life
of . . . the foetus.248 A plain reading of the Protocols language appears to only
require access to abortion where there is threat of foetal mortality, as opposed
to simply foetal impairment. If that is the case, a woman carrying an impaired
foetus could potentially be forced to carry the pregnancy to term. However, as
242
243
244
245
246
The ECtHR in Ds case never reached the merits of the case because it found
that the applicant failed to exhaust domestic remedies.242 According to the
applicant, she never sought recourse within an Irish court as she believed her
efforts would have been futile because there was no prospect of success, there
was insufficient time to seek a constitutional remedy due to the imminency of
her pregnancy, initiating such litigation would have disclosed her identity and
stirred immense national and international attention, thus disrupting her ability to care for her minor children, and it was highly likely that High and
Supreme Court costs would be awarded against her.243
In rendering its decision, the ECtHR emphasised that the ECHRs exhaustion
of domestic remedies requirement enables Member States to prevent or decide
alleged violations of domestic law, thus rendering the ECHR complaint
mechanism subsidiary to national systems safeguarding human rights.244 In
dicta, the ECtHR explained that the issue of abortion in situations of fatal
foetal abnormality was novel in Ireland, and thus, a legal constitutional
remedy was in principle available to . . . [D] to obtain declaratory and mandatory orders with a view to obtaining a lawful abortion in Ireland.245 The
ECtHR appeared to disregard the overall dismal picture of access to abortion
in Ireland to come to this conclusion, by asserting that under Attorney
General v X246 the Supreme Court could have potentially developed the issue
of abortion in the context of foetal anomaly, court procedures could have
been used to protect Ds identity, and lack of financial resources did not absolve
applicants from attempting legal proceedings.247
287
the Protocol has not yet been tested, it is unclear how broadly this provision
will be interpreted.
F. Abortion for Socio-Economic Reasons and Upon Request
No international or regional treaty explicitly recognise womens right to abortion for socio-economic reasons or on request and no treaty-monitoring body
has interpreted any provision of any treaty to require as such. The right to
voluntary motherhood and thus the right to decide to obtain an abortion is
arguably integral to a constellation of other fundamental human rights such
as womens right to equality, life, health, security of person, private and family
life, freedom of religion, conscience and opinion, and freedom from slavery, torture and cruel, and inhuman and/or degrading treatment. Moreover, womens
right to self-determination falls under the overarching freedom in decisionmaking about private matters. Such provisions include protections of the right
to physical integrity, the right to decide freely and responsibly the number
and spacing of ones children and the right to privacy.
International treaties such as the ICCPR, ICESCR, ICEDAW and ICRC safeguard the above-listed rights and thus can be relied upon when attempting to
secure womens right to abortion on request or for socio-economic reasons.
Furthermore, Concluding Observations which recognise that restrictive
abortion laws could violate womens right to health and life, can also be
relied upon to support womens right to choose abortion on request or for
socio-economic reasons. Some assert that the African Womens Protocol is the
first human rights instrument to confirm that abortion is a health issue
that takes the form of a socio-economic right.249 If that is the case, States
Parties to the Protocol have an obligation to both decriminalise abortion and
incorporate abortion services within mainstream health services.250 Arguably,
this also requires States Parties to permit abortions based on social and economic grounds such as a womans economic resources, age, number of children
and/or marital status. If, however, the Protocol is not interpreted to recognise
socio-economic grounds for abortion, then the asserted socio-economic basis
can and should be subsumed under physical or mental health grounds.251
288
252 Concluding Observations of the HRC regarding: El Salvador, 22 August 2003, CCPR/CO/78/
SLV at para. 14; Kuwait, 19 July 2000, CCPR/CO/69/KWT, A/55/40 at para. 15; Lesotho, 8
April 1999, CCPR/C/79/Add.106 at para. 11; Poland, 29 July 1999, CCPR/C/79/Add.110 at para.
11; Senegal, 19 November 1997, CCPR/C/79/Add 82 at para. 12; and Venezuela, 26 April 2001,
CCPR/CO/71/VEN at para. 19.
253 Concluding Observations of the HRC regarding: Gambia, 12 August 2004, CCPR/CO/75/GMB
at para. 17; Peru, 15 November 2000, CCPR/CO/70/PER at para. 20; and Poland, 2 December
2004, CCPR/CO/82/POL at para. 8.
254 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at
para. 8; Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14; and Mauritius, 27 April
2005, CCPR/CO/83/MUS at para. 9.
255 Concluding Observations of the HRC regarding Guatemala, 27 August 2001, CCPR/CO/72/
GTM at para. 19.
256 Concluding Observations of the HRC regarding Mauritius, 27/04/2005, CCPR/CO/83/MUS at
para. 9.
257 Concluding Observations of the HRC regarding Poland, 2 December 2004, CCPR/CO/82/POL
at para. 8.
258 Concluding Observations of the HRC regarding: Guatemala, 27 August 2001, CCPR/CO/72/
GTM at para. 19; Kuwait, 19 July 2000, CCPR/CO/69/KWT, A/55/40 at para. 16; Lesotho, 8
April 1999, CCPR/C/79/Add.106 at para. 11; Trinidad and Tobago, 3 November 2000, CCPR/
CO/70/TTO at para 18; and United Republic of Tanzania, 18 August 1998, CCPR/C/79/Add.97
at para. 15.
259 Concluding Observations of the HRC regarding Mali, 16 April 2003, CCPR/CO/77/MLI at para.
14.
260 Concluding Observations of the HRC regarding: Gambia, 12 August 2004, CCPR/CO/75/GMB
at para. 17; and Peru, 15 November 2000, CCPR/CO/70/PER at para. 20.
261 Concluding Observations of the HRC regarding: Argentina, 3 November 2000, CCPR/CO/70/
ARG at para. 14; Chile, 30 March 1999, CCPR/C/79/Add.104 at para. 15; Costa Rica, 8 April
1999, CCPR/C/79/Add.107 at para. 11; Ecuador, 18 August 1998, CCPR/C/79/Add.92 at para.
11; Guatemala, 27 August 2001, CCPR/CO/72/GTM at para. 19; Kuwait, 19 July 2000, CCPR/
CO/69/KWT, A/55/40 at para. 16; Lesotho, 8 April 1999, CCPR/C/79/Add.106 at para. 11; Peru,
18 November 1996, CCPR/C/79/Add.72 at para. 22; Peru, 15 November 2000, CCPR/CO/70/
PER at para. 20; Trinidad and Tobago, 3 November 2000, CCPR/CO/70/TTO at para. 18;
United Republic of Tanzania, 18 August 1998, CCPR/C/79/Add.97 at para. 15; and Venezuela,
26 April 2001, CCPR/CO/71/VEN at para. 19.
the criminalisation leads women to obtain unsafe, clandestine abortions, placing their lives and health at risk. While this issue has not been addressed by
regional human rights bodies, UN treaty-monitoring bodies have expressed great
concern regarding rising maternal mortality rates due to unsafe abortion, and
recommended that States Parties overturn abortion bans or decriminalise the
procedure when womens lives or health are at risk, or when the pregnancy
results from rape or incest, or in cases of foetal impairment.
The HRC has expressed concern regarding laws that criminalise or severely
restrict abortion,252 even in circumstances of rape,253 or when the pregnant
womans life is in danger.254 The HRC has asserted that legislation criminalising255 or penalising256 abortion leads women to undertake life-threatening
abortions,257 and referred to such laws as a violation of the right to life.258
In those circumstances, the HRC has recommended that States Parties
review259 or amend criminal legislation to establish exceptions to the prohibition260 and punishment of abortion,261 or to bring abortion laws in line with
289
262 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at
para. 8; El Salvador, 22 August 2003, CCPR/CO/78/SLV at para. 14; and Madagascar, 11 May
2007, CCPR/C/MDG/CO/3 at para. 14.
263 Concluding Observations of the HRC regarding Argentina, 3 November 2000, CCPR/CO/70/
ARG at para. 14.
264 HRC - General Comment No. 28, supra n. 34 at para. 20. See also Article 17, ICCPR.
265 Concluding Observations of the CEDAW regarding: Andorra, 31 July 2001, A/56/38 at para. 48;
Chile, 9 July 1999, A/54/38 at para. 228; Cyprus, 9 May 1996, A/51/38 at para. 55; Ireland,
1 July 1999, A/54/38 at para. 185; Jordan, 27 January 2000, A/55/38 at para. 180;
Liechtenstein, 1 February 1999, A/54/38 at para. 169; Luxembourg, 12 August 1997, A/52/38/
Rev.1, Part II at para. 210; Nepal, 1 July 1999, A/54/38 at paras 139, 147; United Kingdom,
1 July 1999, A/55/38 at para. 309; and Zimbabwe, 14 May 1998, A/53/38 at para. 159.
266 Concluding Observations of CEDAW regarding Belize, 01 July 1999, A/54/38 at para. 56; and
Chile, 25 August 2006, CEDAW/C/CHI/CO/4 at para. 19.
267 Concluding Observations of CEDAW regarding Colombia, 5 February 1999, CEDAW/A/54/38/
Rev.1 at para. 393.
268 Concluding Observations of CEDAW regarding Colombia, 2 February 2007, CEDAW/C/COL/
CO/6 at para. 22.
269 CEDAW - General Rec, 24, supra n. 57 at para. 12(d).
the ICCPR.262 The HRC has also recently acknowledged the discriminatory, disproportionate impact of restrictive abortion laws on poor, rural women.263
In the HRCs General Comment No. 28 on the equality of rights between
men and women, it observed that states may fail to respect womens privacy,
as protected under Article 17 of the ICCPR, when they impose a legal duty
upon doctors and other health personnel to report cases of women who have
undergone abortion.264
CEDAW has also criticised laws that criminalise, penalise and/or impose
punishment for abortion,265 and often frames such laws as a violation of the
rights to life and health.266 For example, in CEDAWs 1999 Concluding
Observations to Colombia, it noted with great concern that abortion, which is
the second cause of maternal deaths in Colombia, is punishable as an illegal
act[,] and asserted that legal provisions on abortion constitute a violation of
the rights of women to health and life and of article 12 of the Convention.267
On a positive note, CEDAW subsequently recognised in 2007 Colombias efforts
to enhance womens health, including sexual and reproductive health, by liberalising its abortion law in cases of serious malformation of the foetus or in
cases for rape . . ..268
CEDAW also expressed concern over the link between protecting womens
right to privacy in health-care matters, and abortions and womens health.
For example, in CEDAWs General Recommendation No. 24 on women and
health, it expressed concern that lack of confidentiality of patients may deter
women from seeking advice and treatment and thereby adversely affect their
health and well-being. Women will be less willing, for that reason, to seek medical care for . . . contraception or for incomplete abortion and in cases where
they have suffered sexual and physical violence.269 The Committee further
stated that [w]hen possible, legislation criminalizing abortion should be
amended, in order to withdraw punitive measures imposed on women who
290
291
280 Concluding Observations of the CESCR regarding Kuwait, 7 June 2004, E/C.12/1/Add.98 at
para. 23.
281 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105
at para. 26; Kuwait, 7 June 2004, E/C.12/1/Add.98 at para. 23; Malta, 14 December 2004, E/
C.12/1/Add.101 at para. 43; Monaco, 13 June 2006, E/C.12/MCO/CO/1 at para. 15; and Nepal,
31 August 2001, E/C.12/1/Add.66 at paras 33 and 55.
282 GA Res. 39/46, 10 December 1984.
283 Concluding Observations of CAT regarding Chile, 14 June 2004, CAT/C/CR/32/5 at para. 6(j).
284 Ibid. at para. 7(m). CAT also recommended that Chile ensure immediate and unconditional
treatment of persons seeking emergency medical care, in line with World Health
Organization guidelines.
285 Open Letter from Human Rights Watch to the Nicaraguan Supreme Court, Amicus
Curiae Brief at 14, available at: http://hrw.org/pub/amicusbriefs/ nicaragua0807web.pdf [last
accessed 25 September 2007].
286 The Beijing Declaration and the Platform for Action, Fourth World Conference on Women,
Beijing, China, 4^15 September 1995, A/CONF.177/20 (1995) at para. 106(k).
292
293
294
295 Ipas, Nepal Celebrates One Year of Legal Abortion Services, 25 March 2004, available at
http://www.ipas.org/Library/News/News_Items/Nepal_celebrates_one_year_of_legal_abortion_
services.aspx [last accessed 25 September 2007].
296 Government of Nepal Ministry of Health and Population, World Health Organization and
Centre for Research on Environment Health and Population Activities, Unsafe Abortion:
Nepal Country Profile, July 2006. In February 2007, the Center for Reproductive Rights, the
Forum for Women, Law and Development and other concerned individuals filed a case with
the Supreme Court of Nepal calling on the government to rectify this situation and the resulting human rights violations: see Center for Reproductive Rights, Public Interest Litigation to
Secure Abortion Access in Nepal, Fact Sheet, 2007, available at: http://www.reproductive
rights.org/pdf/ww_nepal_abortion_factsheet07.pdf [last accessed 25 September 2007].
297 The Vatican is playing a formidable role in pressuring countries to limit womens access to
abortion. For example, when Amnesty Internationals campaign on violence against women
recognised that women must have access to safe and legal abortion services in cases of
unwanted pregnancy as a result of rape, sexual assault or incest, or when their life of
health is at risk, the Vatican accused the organisation of promoting abortion and urged
Catholics to stop donating to it: see, for example, BBC, Vatican Urges End to Amnesty Aid, 14
June 2007, available at: http://news.bbc.co.uk/2/hi/europe/6750887.stm [last accessed
6 February 2008].