Fundamental right to life

In a recent article in The Times (April 10), it was noted that the International Commission of Jurists’ March report on Malta echoes the criticism regarding “the blanket ban on abortion levelled against Malta for over a decade”.

How can one rationally hold an unborn foetus to be human at the later stages but not also recognise this in the first weeks as well?

The author quotes international case-law in support of the mother’s rights when there is risk to her life or health, and to the effect that in Europe “a foetus is not a person protected by the right to life”. Although the American Convention of Human Rights extends the right to life to the unborn child from the moment of conception, the Human Rights Committee of the International Covenant on Civil and Political Rights (ICCPR) still held that the mother had the right to an abortion in certain exceptional cases.

UN conventions do contain a recognition of the right to life, but article 6 of the ICCPR states that nobody “shall be arbitrarily deprived of his life”. The author holds that “it is doubtful that procedures aimed at saving a pregnant woman’s life could be deemed to be arbitrary deprivation of the life of a foetus”.

As readers will be aware, case-law, statute law and conventions are not necessarily definitive: they can change. So much so that the process of recognition of rights starts with some person or group strongly stating that such and such a practice must change and giving strong substantive reasons for it. This is, for instance, the process by which laws have changed to strike out discrimination on various different grounds.

This is the point where law and ethics cross, with ethical reflection often saying the law as it stands ought to be different. Here the human conscience and mind come in. These are perhaps the most intriguing issues of philosophy of law, where conventions, statutes and case-law are not taken for granted but subjected to stringent critique.

The fact that European case law at present says that the foetus is not a human being protected by the right to life flies in the face of scientific reality. As Oxford philosopher of law John Finnis points out, “two cells, each with only 23 chromosomes, unite and more or less immediately fuse to become a new cell, with 46 chromosomes providing a unique genetic constitution (not the father’s, not the mother’s...) which thenceforth throughout its life, however long, will substantially determine the new individual’s make-up.

This new cell is the first stage in a dynamic integrated system...”, so that a complex cascade of processes is set in motion and develops as a continuum until birth.

So instead of limiting the right to life to the mother – and denying it to the unborn child – the first rational step, based on scientific facts, must be to recognise that the unborn child too has a right to life. If, and insofar as, a legal system continues to ignore this, it is denying a fundamental human right to tiny human beings, and ‘pro-life’ persons or groups are right in raising their voice against this ethical abuse, until such time as the law does justice also to the unborn child.

There is another point to be considered. Even in countries where abortion is allowed, the law usually limits the time during the weeks of pregnancy beyond which an abortion may not take place. Is this not an implicit recognition that, at say 78 months, the foetus is human and should not be killed? Since, as seen above, the unborn child has developed as a continuum since conception, how can one rationally hold an unborn foetus to be human at the later stages, but not also recognise this in the first weeks as well?

So, going beyond legal conventions and case-law, reason demands that, as a matter of natural justice, the right to life of the unborn child be fully recognised.

It is not a matter of merely agreeing “for the sake of argument, that a foetus enjoys the right to life”. That the foetus has a right to life must be recognised and taken as the starting point. It is only when this is an undisputed premise even at law that one can rationally assess the situation.

It is, to say the least, unquestionably one-sided to consider the right to life as only belonging to the pregnant woman. If and insofar as international legal conventions and case-law take this line, they need to be challenged.

In truth, certain international legal conventions and the content of certain judgments badly need to be altered so as to humanely protect tiny human life at its inception. The law in Malta, by contrast, fortunately already recognises the right to life of the unborn child. That does not need to change.

Fr Soler is a member of the Society of Jesus.