Right to life and abortion

A few articles published in the wake of the International Commission of Jurists’ report have criticised the findings of the commission, accusing it, among other things of “redefining and reshaping human rights as part of gender mainstreaming”. In reality, this report simply echoes criticisms regarding the blanket ban on abortion levelled against Malta for at least a decade.

It is doubtful that procedures aimed at saving a pregnant woman’s life could be deemed to be arbitrary deprivations of the life of a foetus

The Criminal Code prohibits termination of pregnancy under pain of imprisonment and, for medical practitioners, perpetual interdiction from the profession, without exception. Even if an abortion is necessary to save a woman’s life, it is still prohibited by Maltese law. This was the ICJ’s concern with regards to Maltese legislation on abortion, a concern already expressed.

According to Tony Mifsud, no UN convention refers to a right to abortion, or contains language suggesting such a right. The relevant UN conventions do contain however a recognition of the right to life, a prohibition of torture or ill-treatment, the right to access to medical care and the right to equal enjoyment of the convention rights for those who are protected by these conventions.

According to the jurisprudence of the European Court of Human Rights as well as the Commission a foetus is not a person protected by the right to life (Vo v. France, Paton v. UK, H. v Norway) a view shared by the Human Rights Committee (Queenan v. Canada).

While it might be true that the ICJ’s interpretation of the relevant conventions is not authoritative or legally binding, the interpretation of the HRC of the International Covenant on Civil and Political Rights and ECHR is.

In fact, by becoming a party to these conventions and accepting the jurisdiction of the judicial bodies attached to them, Malta has recognised and accepted the authoritative nature of their interpretation of the treaty provisions.

Would this mean that a blanket ban on abortion is justifiable? A perusal of the relevant human rights conventions to which Malta is a party appears to answer this question in the negative.

The claim that the ICJ is redefining human rights is sorely mistaken. The same stand has been taken for years. In its concluding observations on Chile in 1999, the HRC held that “(t)he criminalisation of all abortions, without exception, raises serious issues… The State party is under a duty to take measures to ensure the right to life of all persons…” and recommended that Chilean law be amended so as to introduce exceptions to the general prohibition of all abortions.

The same conclusion was reached in relation to Peru, where its blanket ban on abortion was considered to “…not only mean that women are subject to inhumane treatment but (is) possibly also incompatible with Article 3 (equality of rights between men and women), Article 6 (right to life) and Article 7 (prohibition of torture and ill-treatment)”.

In a decision given in 2005 in K.N.L.H v. Peru, the HRC held that Peru had violated the applicant’s right not to be ill-treated due to a denial of a medically required abortion.

These recommendations and decisions are also noteworthy because the States in question are party to the American Convention on Human Rights, which is the only human rights treaty that explicitly extends its protection of the right to life to be applicable as from conception.

Let us agree however, for the sake of the argument, that a foetus enjoys the right to life. Would this mean that a blanket ban on abortion is justifiable? A perusal of the relevant human rights conventions to which Malta is a party appears to answer this question in the negative.

Article 6 of the ICCPR states that “(n)o one shall be arbitrarily deprived of his life”. The key word here is arbitrary, meaning that deprivation of life will only constitute a violation of the fundamental right to life if there is no legitimate reason behind it. Therefore, even if we agreed that the foetus enjoys the right to life, it does not mean that such enjoyment is subject to no limitation.

For the termination of the pregnancy to constitute a violation of the foetus’ right to life, it would have to be arbitrary, and it is doubtful that procedures aimed at saving a pregnant woman’s life could be deemed to be arbitrary deprivations of the life of a foetus.

As such, even agreeing that a foetus enjoys the right to life does not justify a blanket ban on abortion.

This view is accepted by the ECHR, according to which, even if it were accepted that the foetus has rights, its rights would not automatically override the rights and interests of the mother.

It appears therefore that criticisms against blanket bans on abortion are not a redefinition of human rights, but a reminder of what has been the consistent and accepted interpretation of the relevant human rights instruments for at least a decade.