Bench Memos

International Human-Rights Law and the Unborn Child

Is the unborn child protected by the great international declarations and conventions on human rights? Given the relentless pro-choice campaign to establish a human right to abortion, the question could hardly be more timely or more weighty.

In Human Rights and the Unborn Child, Rita Joseph argues cogently and clearly that an unborn child’s right to life is far more plausibly grounded in those instruments than is a right to abortion. She notes, however, that the unborn child’s rights have “been obscured for some decades now by the rise of a new pro-abortion ideology in the form of radical feminism,” which has conducted “a masterly campaign of ideological reinterpretation.” She is, moreover, witheringly critical of the reluctance of human-rights courts, particularly the Inter-American Commission and the European Court of Human Rights, to recognize the unborn child’s right to life.

Joseph concludes that “the human rights of the unborn child were recognized…in the foundation documents of modern international human rights law.” Her argument is impressive, demonstrating an informed grasp of the textual and contextual development of the relevant instruments. An instrument central to her case is the U.N. Declaration of the Rights of the Child (1959). A crucial paragraph in its preamble reads:

Whereas 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.

This Declaration confirms, she contends, international agreement that the Universal Declaration of Human Rights (1948) recognizes the rights of the unborn. She adds that the word “child” was understood in 1948 to include the child before birth. (She could have noted that the first definition of the word in the Oxford English Dictionary is the “unborn or newly born human being”). She recalls the historic legal prohibition on aborting any woman “with child” and the even longer Hippocratic prohibition on abortion, which was reaffirmed by the World Medical Association’s Declaration of Geneva only three months before the Universal Declaration: “I will maintain the utmost respect for human life from the time of conception, even under threat…”

This professional obligation was reiterated in 1968, only two years after the passage of the U.N. International Covenant on Civil and Political Rights, which explicitly provides that “Every human being has the inherent right to life” and that the death penalty shall not be carried out on pregnant women. Joseph’s conclusion that throughout the 30 year period from 1948, human rights were understood to apply to the unborn seems well-grounded. (She might, for good measure, have cited standard embryological texts across the same period confirming the contemporary understanding that the life of each human being begins at fertilization.)

No less important than the wording of the international instruments that explicitly or implicitly include the unborn child is their philosophical basis. As Joseph contends, their basis is not feminism, utilitarianism, or relativism, but natural law. Human rights are grounded in respect for human nature. According to Charles Malik, rapporteur to the Commission on Human Rights, which drafted the Universal Declaration: “The doctrine of natural law is woven…into the intent of the Declaration.” If rights were merely products of positive law, he wrote, they could change but if they “express my nature as a human being, then there is a certain compulsion about them: they are metaphysically prior to any positive law.”

Joseph also cites Johannes Morsink’s research into the drafting history of the Universal Declaration, which shows that the drafters held that human rights were “inherent and inalienable.” Morsink comments that when all prohibited discriminations are eliminated:

what we have left is just a human being without frills. And the Declaration says that the human rights it proclaims belong to these kinds of stripped down people, that is to everyone, without exception.

Joseph explains that the move towards recognition of universal and inalienable human rights was a direct response to the Nazis’ singling out groups of human beings for deadly discrimination, and that at no stage in the drafting history of the Universal Declaration was any attempt made to exclude any group of human beings.

Garnering further evidence for a protective interpretation, Joseph observes that the U.N. Committee on the Rights of the Child has not only called on states to introduce and strengthen “prenatal care for children” but has also explicitly condemned selective abortion (on the ground of sex, ethnic origin, social and cultural status, or disability) as a “serious violation” of the rights of the child. She adds that the U.N. Convention on the Rights of Persons with Disabilities (2007) provides that “every human being” has the right to life.

In light of all the above evidence, Joseph’s criticisms of human rights courts for failing to affirm the unborn child’s right to life are telling.

In conclusion, though not without its flaws (the analysis of judicial decisions could, for example, have been fuller and there is too much repetition) Human Rights and the Unborn Child is a valuable book. Human Rights judges in particular would do well to consult it.

John Keown is Rose F. Kennedy professor of Christian ethics at Georgetown University’s Kennedy Institute of Ethics.

John Keown DCL (Oxford) holds the Rose Kennedy Chair in the Kennedy Institute of Ethics at Georgetown University.

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