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International Human Rights Instruments and Abortion

Abortion, per se, is not mentioned in any of the major international (U.N.) human rights documents. Neither is the act of abortion -- the termination of the life of a developing being before it is born -- specifically mentioned by any other terminology. However, the right to life, upon which objections to abortion are based, is, of course, mentioned prominently. "The right to life is undoubtedly the most fundamental of all rights." 1. Also, the rights or needs of those that are still in the womb are mentioned, probably most directly in the Covenant on the Rights of the Child, which states, "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." The rights of women, including those that are pregnant, are, of course, also included, most prominently in the Convention on the Elimination of All Forms of Discrimination against Women.

Also we may have reference to the basic definition of human rights, which is, according to Miriam-Webster, "rights regarded as belonging fundamentally to all persons", and, according to the U.N. Office of the High Commissioner for Human Rights, "rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status". None of these human rights instruments gives an exact definition of the term "human rights", but the Universal Declaration of Human Rights hints very clearly at the above definitions when it states, "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". In other words, human rights are simply those rights that all human beings possess simply by virtue of being human beings -- no other condition or qualification required. If you are a human being you have them. They may not be respected or upheld, but they are yours even if they are violated over and over.

In 1948, the United Nations promulgated the Universal Declaration of Human Rights (UDHR), the first international document to attempt to lay out the concept of human rights. Since then, numerous other documents have been created and brought into force by the United Nations and by regional human rights systems. According to the U.N. Office of the High Commissioner for Human Rights, there are ten primary human rights instruments of the United Nations, each with a monitoring body charged with enforcing its application. These ten documents are:

The first two of these covenants/conventions essentially expand upon and codify the rights delineated in the UDHR. The next three prohibit a certain type of action. The remaining five afford protections to certain groups of people.

In addition, there are three major regional human rights systems: the Council of Europe, the Organization of American States, and the Organization of African Unity/the African Union. Asia, as yet, has no major system of human rights promulgation and oversight. Each of the three regional systems has its primary human rights instruments which operate in conjunction with those of the United Nations, each with its respective oversight body.

I will examine and discuss each of the United Nations instruments as well as those of the three major regional systems to try to come up with a comprehensive assessment of what human rights documents have to say that applies to the subject of abortion.

International/U.N. Human Rights Instruments:

The Universal Declaration of Human Rights is simply a declaration; it does not carry the weight of law. However, it is the principles of the UDHR that are carried over into the other documents that do carry legal weight. It should be noted that each instrument is binding only on those countries that have ratified it, and the various instruments have different levels of support (i.e., different numbers of countries that have ratified each one). Also, a country will often ratify an instrument while applying "reservations", stating that it does not accept certain provisions of the instrument. It is an imperfect system, but that is not the subject of this essay. This assessment is simply an attempt to determine what the various instruments do in fact say in regards to the topic at hand.

Universal Declaration of Human Rights (UDHR)

Article 3 of the Universal Declaration of Human Rights states, "Everyone has the right to life, liberty and security of person."

The UDHR further states, in Article 2, in what amounts to the definition of "human rights", often referred to as a non-discrimination clause, that "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." It is unclear here what is meant by distinction by birth. A literal interpretation would be that one cannot discriminate on the basis of whether one has yet been born. The Committee on Economic, Social and Cultural Rights, however, defines discrimination on the basis of birth in this way: "Distinctions must therefore not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons. The prohibited ground of birth also includes descent, especially on the basis of caste and analogous systems of inherited status. States parties should take steps, for instance, to prevent, prohibit and eliminate discriminatory practices directed against members of descent-based communities and act against dissemination of ideas of superiority and inferiority on the basis of descent." Whether or not distinction by birth refers to whether a person is born or not, one can still not discriminate on the basis of "other status". It is clear that the rights contained in the UDHR are for "everyone" and cannot be denied based on any status; one cannot negate the rights, including the right to live, entitled to a human being simply based on his or her status of still living in the womb.

Article 6 states, "Everyone has the right to recognition everywhere as a person before the law". Article 7 continues, "All are equal before the law and are entitled without any discrimination to equal protection of the law". In the United States, where the author lives, the "right" to an abortion is based on the 1973 Supreme Court decision Roe vs. Wade, which was based in large part on the determination by the Court that "the word 'person,' as used in the Fourteenth Amendment [of the U.S. Constitution], does not include the unborn". This is in clear contradiction to the Article 6 of the UDHR.

There is nothing in the UDHR which states any kind of right to have an abortion, terminate a pregnancy, control one's reproduction, or any other such right, although a person might try to argue that "security of person" would allow a pregnant person to be free of interference in regards to her pregnancy. Article 12, which guarantees "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence", might also be used this way, arguing that prohibiting abortion would be interference with a pregnant person's privacy. Article 22 says that everyone is entitled to "social and cultural rights indispensable for his dignity and the free development of his personality", and so a person (either the mother or father) might argue that continuing the life of the developing child would infringe on such development. Article 25 states, "All children, whether born in or out of wedlock, shall enjoy the same social protection", which could be seen to imply that children who are not yet born (either in or out of wedlock) do not "enjoy the same social protection". Of course, if it is determined that the developing human being in the womb is indeed a human being entitled to the rights contained in the UDHR, then these arguments become mute.

There is one argument that could perhaps more plausibly be made to substantiate the contention that the rights contained in the UDHR do not pertain to those who are still in the womb. That is the wording of the very first article which states that "All human beings are born free and equal in dignity and rights". This could be taken to suggest that the term "Everyone" which is used in delineating the subsequent rights does not pertain to those who have not yet been born. The statement does not, however, state that these "dignity and rights" do not pertain to preborn humans, nor does it state that this condition of being born is to be the definition or reservation applied to the term "Everyone" in the following articles. Indeed, the other half of the first article continues, stating, "They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood". If being "endowed with reason and conscience" is a criteria for inclusion in the rights contained herein (i.e., is a characteristic which serves as a reservation upon the term "Everyone"), then it would be difficult to argue that a child one day or one month after birth is endowed with such abilities. It would certainly be difficult to argue that such abilities suddenly come into being at the point of birth. The ability of reason and conscience could hardly be seen to be significantly different in a human being the day after it is born than it was the day before it was born.

The right to life is clear in the UDHR and is said to belong to "Everyone", "without distinction of any kind". Nowhere in the UDHR is there any kind of clear statement of any right to end the life of the developing human being. Indeed, and as will be seen with each of the U.N. instruments below, there is no statement that there is some point, birth or otherwise, prior to which human rights do not apply. Such a statement would, of course, be in clear contradiction to the principle that these rights apply to everyone "without distinction of any kind".

International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights essentially expands upon the civil and political rights in articles 3 through 21 of the UDHR and codifies them into enforceable law. Hence, the right to life is codified in Article 6(1) of the ICCPR: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life". Note that the right to life in this case is guaranteed to "every human being". Article 6 of the UDHR, guaranteeing everyone recognition before the law as a person, is codified as Article 16 of the ICCPR: "Everyone shall have the right to recognition everywhere as a person before the law". Article 7 of the UDHR is Article 26 in the ICCPR: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

This Covenant starts off in the preamble by declaring "the inherent dignity and of the equal and inalienable rights of all members of the human family". Article 2(1) states that the right contained in the ICCPR apply to "all individuals within [each state's] territory and subject to its jurisdiction ... without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". Hence, as per the basic definition of human rights, these rights belong to everyone, without exception. There is nothing to exclude those living in the womb.

Article 24(1) states, "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State". The word child is not defined, but one can only presume that the word refers to a human being prior to some particular point at which he or she is no longer considered a child. If the human being in the womb is a "child", then the article applies.

Article 6(5) states, "Sentence of death ... shall not be carried out on pregnant women", which would seem to recognize the right of the preborn child not to be killed for the crimes of its mother, since the death sentence would then be allowed once she is no longer pregnant.

There are a couple of statements that one might attempt to use to justify a "right" to an abortion. Article 3 states, "The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant". There are some who might argue that this entitles women to "not be pregnant" as men are not pregnant. Article 8(3)(a) states, "(a) No one shall be required to perform forced or compulsory labour". Once again, there are those who would try to argue that not allowing abortions equates to "forced motherhood", which, in turn, equates to forced labor. However, there is no wording anywhere in the covenant making any reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion.

The important thing to note is, as with the UDHR, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The The International Covenant on Economic, Social and Cultural Rights expands upon the economic, social and cultural rights in articles 22 through 27 of the UDHR and codifies them into enforceable law. Like the ICCPR, it starts off with a preamble recognizing "the inherent dignity and of the equal and inalienable rights of all members of the human family", and, in keeping with the definition of human rights, instructs its signers to "guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". Hence, as with the ICCPR, and as per the basic definition of human rights, these rights belong to everyone, without exception. There is nothing to exclude those still living in the womb.

Article 10(3) states, "Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions" (my italics). Once again, no discrimination for any condition, which would include age, stage of development, state of dependence, etc.

Article 12(2)(a) could be used by either side on this question: "The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right [enjoyment of the highest attainable standard of physical and mental health] shall include those necessary for The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child." Those in favor of abortion could argue that abortions reduce the number of stillbirths and infant mortalities if the number of infant mortalities is defined as being fatalities after birth, as it is generally computed. Those who oppose abortion would, of course, argue that every abortion represents an infant mortality.

As with the ICCPR, there is no wording in the ICESCR making any reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion. And once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, once again, refers to "recognition of the equal and inalienable rights of all members of the human family" in its preamble. The CAT, however, addresses the treatment of prisoners, and does not in any way address the matter of abortion.

Those who oppose abortion might, of course, argue that killing a child amounts to cruel, inhuman or degrading treatment, even as those who support abortion might argue that "forcing" a woman to go through with a pregnancy amounts to the same. There is, however, no wording in the CAT making any reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion.

Once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT)

According to Article 1, the objective of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment "is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment". The protocol therefore does not touch on abortion or any related subject.

International Convention for the Protection of All Persons from Enforced Disappearance (CPED)

The International Convention for the Protection of All Persons from Enforced Disappearance states, "No one shall be subjected to enforced disappearance". One might be led to think of the destruction of the human fetus/embryo as having made it "disappear". However, the definition of "enforced disappearance" is given in Article 2 as "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law". This definition would not seem to apply to abortions.

Once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW)

Article 1(1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states that the provisions of the ICMW apply to all migrant workers "without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status". Once again, there is no exclusion for those still living in the womb.

Article 9 guarantees the right to life of all members of all families of migrant workers: "The right to life of migrant workers and members of their families shall be protected by law". Article 24 assures, "Every migrant worker and every member of his or her family shall have the right to recognition everywhere as a person before the law". Therefore, if the being developing in the womb of a migrant worker or member of a migrant worker's family is a member of that family, then the right to life applies.

As with the other covenants, there is no wording in the ICMW making any specific reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion. Once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

The International Convention on the Elimination of All Forms of Racial Discrimination does not mention the right to life, but Article 5(b) calls upon states to guarantee "The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution". Certainly those who oppose abortion would consider abortion to constitute violence and bodily harm against the one being aborted. Some in the U.S. at least will also argue abortion to be racially discriminating, due to a higher rate of abortions among minorities.

Once again, there is no wording in ICERD making any reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion. And once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child is the most widely accepted of all international human rights treaties, having been ratified by every member of the U.N. except Somalia and the United States of America. It is also the U.N. human rights treaty which speaks directly about preborn human beings.

Once again, the rights contained herein are delineated "without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status" (Article 2(1)). The preamble refers to "the inherent dignity and of the equal and inalienable rights of all members of the human family" (my italics). Nothing here excludes the preborn.

The CRC gives a clear definition of "child": "For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier" (Article 1). If there is any doubt as to whether this definition includes those in the womb, one has only to read in the preamble, "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" (my italics). Clearly "child", for the purposes of this convention, includes the one still living in the womb.

These rights include the right to life: "States Parties recognize that every child has the inherent right to life" (Article 6(1)). Article 6(2) goes on to state, "States Parties shall ensure to the maximum extent possible the survival and development of the child". They are also to take measures "to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child" (Article 19(1)). The only right that is specifically reserved as "from birth" is the right to a name in Article 7. All other rights are stated independently of the consideration of whether the child has been born.

Article 24 states that states shall take measures "[t]o diminish infant and child mortality", which, as already stated, could potentially be used by either side in the abortion debate. The same article also instructs that states shall develop "family planning education and services". "Family planning" is often assumed to include the right to abortion, but it would seem that the rest of this document clarifies that this is not the case here.

Again, there is no wording in this convention making any reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion. And once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply. Instead this document affirms the child's need for protection "before as well as after birth".

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

The Convention on the Elimination of All Forms of Discrimination against Women, of all the international instruments, is the one that contains language which might potentially be used to support a right to abort a developing human.

In referring to the UDHR, the preamble states that "everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind". No exception is made prior to any stage of development.

CEDAW states that women are entitled to information (Article 10(h)) and services (Articles 12(1) and 14(2)(b)), including those of family planning. As noted previously, the terms "family planning" frequently connotes the acceptance of abortion as a means of family planning, although this is not necessarily the case. It clearly does not in the CRC.

The language in the CEDAW which might seem to most directly support a right to an abortion is stated in Article 16(1): "States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women... The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights". This might seem to condone the use of abortion as a means to decide "number and spacing" of children. However, the article says only that men and women should have the same rights in this regard. If it were to be interpreted that a woman may use abortion to control the spacing or number of her children, then it would fall that men have the same right. Therefore, a man could insist on an abortion if he did not wish to have a child at that time. It is doubtful that even the most ardent supporters of abortion would wish to interpret this clause in this manner.

Indeed, in referring to family education, Article 5(b) states that "the interest of the children is the primordial consideration in all cases." Article 16(1)(d) states "in all cases the interests of the children shall be paramount" when dealing with potential discrimination in the "rights and responsibilities of parents". Even though this document is primarily about women's rights, it makes clear that one cannot simply abrogate the rights of children to accomplish its purposes.

There are several rules aimed at protecting the rights of the woman who is pregnant: preventing "dismissal on the grounds of pregnancy or of maternity leave" (Article 11(2)(a)), granting of maternity leave (Article 2(b)), and ensuring the "development of a network of child-care facilities" (Article 2(c)). There is no clause that clearly states a pregnant woman's right to become "unpregnant".

Once again, it should be noted that all rights contained in this document are guaranteed to everyone "without distinction of any kind", which would include any distinction of age, stage of development or state of dependence. There is no wording in the CEDAW making any direct reference to abortion, termination of pregnancy, reproductive rights, or other similar language. The document does refer to a woman's right to decide the number and spacing of children, but only to the extent of ensuring equality between men's and women's rights. And once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which rights do not apply. A woman is entitled to the rights contained therein at all stages of her life.

Convention on the Rights of Persons with Disabilities (CRPD)

Although the Convention on the Rights of Persons with Disabilities might not seem to have much application to abortion, there are actually a number of clauses that could be seen to be applicable.

Several clauses in the CRPD focus specifically on children, such as, "Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child" (preamble), "States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children" (Article 7(1)), and "In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration" (Article 7(2)). Read in conjunction with the CRC, which states (once again) that its protections apply "before as well as after birth", these statements clearly apply to unborn children with disabilities. Article 8(1)(b) specifically mentions discrimination based on age: "To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life." Disabled children are not to be discriminated against based on age.

The right to life is affirmed in Article 10: "States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others." Article 16(1) protects disabled persons "from all forms of exploitation, violence and abuse". You cannot take away a person's right to life, or allow violence and abuse against them because they are disabled, any more than because they are young. It should be noted that one of the situations in which those who support abortion will argue most vehemently in favor of it is in those cases where the child will be born with disabling conditions. A child's disabilities do not render his or her rights mute.

Like CEDAW, Article 23(1)(b) refers to "The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided." This could be seen as an even stronger statement in support of a right to abortion than the similar statement in CEDAW, since it does not have the same language stating that this is on "a basis of equality of men and women". However, it does refer to "persons" with disabilities, which clearly includes men as well as women, so once again one would have to conclude that if this denotes a right to terminate the life of a developing child, then men have the same right as do women, a contention that not many would support. Later, the same article, in regards to responsibility toward children, states that "in all cases the best interests of the child shall be paramount." If indeed a human being living in the womb is a child, as affirmed by the CRC, then killing that child could hardly be seen as being in its "best interests".

Article 25(a) states that persons with disabilities are entitled to the same health care as other people, "including in the area of sexual and reproductive health". The term "reproductive health" is often understood to include a right to abortion, but this is not stated here.

There is no wording in the convention making any reference to abortion, termination of pregnancy, reproductive "choice", or other similar language. As with CEDAW, the document does refer to the right to decide the number and spacing of children, but whether this encompasses a right to terminate the life of a child that is already developing is not clear. Once again, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Conclusion: There is no wording in any of the above covenants/conventions making any reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion. The CRC clearly, states, however, that all children are entitled to their rights, including before birth. CEDAW and CRPD refer to the right to decide "the number and spacing" of children. To interpret those clauses as a right to terminate the life of the developing child, however, is problematic at best. There is no statement anywhere in any of these documents that states or implies that there is some point, birth or otherwise, prior to which the human rights contained therein do not apply. As pointed out before, such a statement would be in clear contradiction to the principle that these rights apply to everyone "without distinction of any kind".

Regional Human Rights Instruments:

The three regional systems – Europe, The Americas, and Africa – each have a number of major human rights instruments that have been adopted. As with the U.N. system, not every country has adopted every convention, and countries sometimes attach reservations to their ratification. The major human rights instruments from the three systems are discussed below.

Council of Europe

As opposed to the U.N. system, where the High Commissioner for Human Rights specifically identifies 10 primary human rights instruments, the European system does not identify a specific set of treaties that are considered "primary" instruments. There are a wide range of treaties covering many topics, and different sources will list different ones as being the most important. For the European system, I used the list of treaties at humanrights.ch, plus the one treaty that is not listed there but is listed in the Wikipedia list, the Charter of Fundamental Human Rights of the European Union.

Charter of Fundamental Rights of the European Union

The The Charter of Fundamental Rights of the European Union states clearly that "Everyone has the right to life" (Article 2(1)). It goes on to grant that "Everyone has the right to respect for his or her physical and mental integrity" (Article 3(1)) and that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment" (Article 4). If a preborn human being is included in "everyone", then abortion clearly violates these articles. Article 21(1) goes on to state, "Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited." Note the use of "age" as one of the specific criteria upon which discrimination is not allowed. Rights cannot be denied because one is too young.

Article 6 states, "Everyone has the right to liberty and security of person." This might be used by either side in the abortion debate: pro-abortionists to claim that the right to liberty is assured to all women, including pregnant ones, and their liberty cannot be taken away by "forcing" motherhood on them, and anti-abortionists who would claim that the security of the person in the womb is violated by killing it.

Article 7 states, "Everyone has the right to respect for his or her private and family life, home and communications." Support for abortion is often postulated on the premise of the right to privacy of women who are pregnant, and therefore the right to be free of intrusion into their decisions to abort. Other articles that might be used by those supporting abortion include Article 5(2), "No one shall be required to perform forced or compulsory labour," and Article 23, "Equality between women and men must be ensured in all areas, including employment, work and pay." The argument could be made that "forcing" motherhood on a women who is pregnant amounts to forced or compulsory labor, or that in order for equality to be ensure between men and women, women need to be allowed to "not be pregnant" if they do not wish to be, even as men are not pregnant. Also, Article 35 assures that "Everyone has the right of access to preventive health care and the right to benefit from medical treatment..." Since abortion is seen by abortion supporters to be health care, they might use this article in support of it.

On the other hand, Article 24(2) states, "In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration." If the preborn human counts as a child, then killing him or her could hardly be in his or her "best interest".

As with the U.N. documents, there is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Convention of Human Rights (ECHR)

The European Convention on Human Rights again confirms the right to life: "Everyone's right to life shall be protected by law" (Article 2(1)). Again also, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment" (Article 3). Again we have our "Prohibition of Discrimination" (Article 14): " The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". This time it does not specifically mention age, but does state "or other status", which would include age, stage of development or state of dependence.

Again, the clause, "Everyone has the right to liberty and security of person," (Article 5(1)) could be claimed by those arguing either side.

And once again, the clauses, "No one shall be required to perform forced or compulsory labour," (Article 4(2)) and, "Everyone has the right to respect for his private and family life, his home and his correspondence," (Article 8(1)) might be used to argue in favor of a right to an abortion.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Social Charter

The European Social Charter says nothing clearly or specifically related to abortion. It does call for "special protection against physical and moral dangers to which children and young persons are exposed" (Article 7(10)). If those in the womb are children or young persons, then obviously they are exposed to extreme danger in abortions.

Once again, there is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Revised European Social Charter

The Revised European Social Charter is, as the name implies, the European Social Charter, discussed in the previous section, with changes that were added to update it in 1996. The revised charter does have additional language that could be applicable to abortion.

Article 17(1)(b) says that states are to "protect children and young persons against negligence, violence or exploitation". Again, if preborn humans are children or young persons, then they are obviously to be protected against being killed.

This revision also includes a non-discrimination statement (Article E): " The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status." As per the definition of human rights, they apply to all human beings without exception. If the preborn human is indeed a human being, then the protections herein apply.

Once again, there is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Although the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment might seem to apply here, since either the killing of a child or "forcing" a woman to have a child could be seen as inhuman or degrading, this convention applies specifically to people being held in detention, and focuses mainly on allowing visits to ensure prisoners are being treated humanely. Thus the convention has no application to the subject at hand.

However, it is still worth pointing out that, once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Framework Convention for the Protection of National Minorities

The Framework Convention for the Protection of National Minorities essentially guarantees that minorities have the same rights as others. There is no statement pertaining to life before birth, or to pregnancy, the right to life, privacy or any subject that might be applicable to abortion.

Again, we will just point out that there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Charter for Regional or Minority Languages

The European Charter for Regional or Minority Languages essentially guarantees that minority languages will be respected and that people will be able to use their minority language to interact with the state. Once again, there is no statement pertaining to life before birth, or to pregnancy, the right to life, privacy or any subject that might be applicable to abortion.

Once again, there is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Convention of the Exercise of Children's Rights

Unlike the U.N.'s Convention on the Rights of the Child, the European Convention of the Exercise of Children's Rights does not specifically say anything about applying "before as well as after birth". Of course, there is conversely no statement that the convention doesn't apply before birth. Article 1(1) states, "This Convention shall apply to children who have not reached the age of 18 years". Hence, it sets the upper limit of being a "child". It does not state any minimum age prior to which the convention does not apply. This would seem to clearly indicate that there is no point prior to which a human being is not a "child".

The convention says nothing specific in regards to abortion. Those who wish to maintain that abortion is allowable might perhaps point out that much of the convention talks about allowing a child to understand his or her situation in a legal setting and express his or her viewpoint. A child is "to receive all relevant information" and "to be consulted and express his or her own views" (Article 3). "[I]f the child is considered by internal law as having sufficient understanding..." (Article 10(1)(a)). Therefore, it could be argued that the convention is only directed at children who are already born. However, this interpretation would also exclude children who are only a year or two old, who would not meet this criteria. The phrase "best interests of the child" is used in various places throughout the document. Clearly killing a child would not be in his or her best interest.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse

Article 2 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse contains a non-discrimination clause, ensuring that the rights therein "shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, state of health, disability or other status." Once again, one cannot discriminate on the basis of "any status". That would have to include age, stage of development, or state of independence. "Child" is, once again, defined as "any person under the age of 18 years" (Article 3(a)). There is no minimum age required to be defined as a child.

There is nothing specific about abortion in the document. Interestingly, even though the convention deals specifically with sexual exploitation, and children are defined up through the age of 17, pregnancy is not mentioned anywhere in this document. This is a curious exclusion considering that this definition obviously includes girls who are old enough to get pregnant! If there were going to be an affirmation of a right to have an abortion, this document would seem a likely place to include it.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Convention on Human Rights and Biomedicine

The European Convention on Human Rights and Biomedicine doesn't deal with abortion specifically, but does deal with the closely related topic of biomedical research, which often includes experimentation on human embryos.

Article 16(ii) requires that for any person upon whom medical research is done, "the risks which may be incurred by that person are not disproportionate to the potential benefits of the research". If the preborn human is a "person", then clearly any medical research that would result in its death would be disallowed. Article 17 deals specifically with "persons not able to consent to research", which would obviously include those in the embryonic or fetal stages of life. It disallows research unless "the results of the research have the potential to produce real and direct benefit to his or her health".

Article 10(1) states, "Everyone has the right to respect for private life in relation to information about his or her health". The right to privacy, again, is often stated as a reason not to interfere with woman's decision to have an abortion. Although not dealing specifically with abortion in this document, one could try to argue that principle carries over to that situation.

It is, however, Article 18 that deals specifically with human embryos. Article 18(1) states, "Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo." This would seem to imply that the embryo has rights. Ensuring "adequate protection" would seem to include not killing it. If the embryo has rights in this situation, it would seem logical to extend those same rights in the situation of abortion.

Although many of these documents have non-discrimination clauses that would require their protections to apply to human beings at all stages of their lives, this is the one document among the European conventions that does seem to convey rights to the human specifically at the embryonic stage. Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Convention on the Legal Status of Migrant Workers

The European Convention on the Legal Status of Migrant Workers does not contain any clause or statement pertaining to life before birth, or to pregnancy, the right to life, privacy or any subject that might be applicable to abortion.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Convention on the Participation of Foreigners in Public Life at Local Level

The preamble to the European Convention on the Participation of Foreigners in Public Life at Local Level refers to "the universal and indivisible nature of human rights and fundamental freedoms based on the dignity of all human beings". If the preborn are human beings, then rights apply. Other than that statement, the document contains no clause or statement pertaining to life before birth, or to pregnancy, the right to life, privacy or any subject that might be applicable to abortion.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

European Convention on Nationality

As with the other conventions, the European Convention on Nationality says nothing specifically about abortion. There are a few statements, however, that might be seen to apply to the subject.

First of all, "child", again, is defined as "every person below the age of 18 years..." (Article 2(c)). Once again, no minimum age or development is required to be a child.

This is the document that does actually designate at least one right as beginning at birth. According to Article 6 a child's nationality is acquired at birth. This is the only European human rights document that specifically refers to any right only applying once the child is born.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language. The right to a nationality does not apply until birth.

Council of Europe Convention on Action against Trafficking in Human Beings

The Council of Europe Convention on Action against Trafficking in Human Beings is a document where one might expect to find some mention of abortion, if it is going to occur, since trafficking of women will lead to unwanted pregnancies.

Article 3 contains the non-discrimination principle again: "The implementation of the provisions of this Convention by Parties, in particular the enjoyment of measures to protect and promote the rights of victims, shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". Similarly, Article 6(d) refers to "the dignity and integrity of every human being". No one is to be excluded from its protections. "Child" is defined in Article 4(d) as "any person under eighteen years of age"; once again, no minimum age or development is stated as being required.

More than once when discussing children the document refers to the "best interests of the child". If the preborn human is a child, then its best interests must be upheld.

Article 12(1)(b) provides for "access to emergency medical treatment;" and Article 12(3) for "necessary medical or other assistance to victims". Those in favor of abortion would perhaps interpret this to include providing for abortions.

As with the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, pregnancy is not mentioned anywhere in this document. Again, this is a curious exclusion given that trafficking in human beings frequently involves trafficking women for sexual use, which, of course, results in pregnancies. Once again, if there were going to be an affirmation of a right to have an abortion, this documents would seem a likely place to include it.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention)

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence is another document where we might expect to find a right to abortion if there is such a right, since violence against women can often involve sexual violence. The definition of "violence against women" in Article 3(a) includes "all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women." (Article 36 covers "Sexual violence, including rape".)

The non-discrimination clause is included in Article 4(3): "The implementation of the provisions of this Convention by the Parties, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status." The protections afforded women in this document cannot be denied because a person is under a certain age or prior to a certain stage of development.

It is interesting to note that Article 3(f) states that "women" includes girls under the age of 18. (No such definition occurs in CEDAW.) Hence, underage girls are entitled to the same rights as women over 18. Those who oppose abortion would contend, then, that preborn girls are therefore protected against violence, the same as adult women.

In Article 4(2) parties commit to "prohibiting discrimination against women" and "abolishing laws and practices which discriminate against women". Some may argue that laws proscribing abortion discriminate against women and are therefore prohibited.

This convention is the one convention among these primary European human rights instruments that does specifically mention abortion, although only in regard to forced abortions. Article 39 states: "Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised ... performing an abortion on a woman without her prior and informed consent". This could be seen to imply that abortion is otherwise okay, that is, when the women does consent to the abortion.

In spite of the previous paragraph, there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply. If the preborn human being is a "woman", since that word includes girls under 18 years old, then the protections in the convention apply, and the implication from Article 39 would clearly be invalid (although it could still be allowed to abort male fetuses, since they are not covered by the convention).

Conclusion: There is only one place in any of the primary European human rights conventions that refers to abortion, and that only inasmuch as to prohibit abortions without the pregnant woman's consent. Otherwise, there is no mention of a right to have an abortion, even in those documents that specifically deal with sexual exploitation and human trafficking. A non-discrimination clause is used in many of the documents, affirming that the rights contained therein are applicable to all without discrimination. There is no statement anywhere in any of these documents that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply. As pointed out before, such a statement would be in clear contradiction to the principle that these rights apply to everyone "without distinction of any kind".

Organization of American States

We examine the eleven primary American human rights instruments listed at the OAS website.

American Declaration of the Rights and Duties of Man

The preamble to the American Declaration of the Rights and Duties of Man states, "All men are born free and equal, in dignity and in rights." This could suggest to some that rights do not apply until birth. However, a similar line of thinking could suggest that these rights apply only to men, and not to women, since the statement refers specifically to "men".

The right to life is guaranteed in Article I: "Every human being has the right to life, liberty and the security of his person." Article II goes on to ensure that "All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor." If the preborn human is a human being, then he or she has the right to life, and one cannot discriminate against him or her based on any factor.

Article VII states, "All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid." Some would argue that children in the womb have the same right to special protection as those outside the womb, while others might argue that providing women with care and aid during pregnancy includes the right to have an abortion.

Article XV states, "Every person has the right to leisure time, to wholesome recreation, and to the opportunity for advantageous use of his free time to his spiritual, cultural and physical benefit." Perhaps some might argue that a woman may need to have the right to have an abortion in order to take advantage of this opportunity.

Once again, there is no wording in the declaration making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

American Convention on Human Rights

The American Convention on Human Rights is more explicit in upholding the right to life of preborn humans than any other major human rights document. Article 4(1) clearly states, "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception". Aborting the child in the womb clearly violates its right to life.

The non-discrimination clause is found in Article 1(1): "The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition."

Article 1(2) states that for the purposes of this Convention, "person" refers to "every human being". Existing inside the womb is not sufficient to be considered a "non-person". Article 24 goes on to say, "All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law". One cannot discriminate against anyone simply on the basis of the fact that that person is still living inside his or her mother's body.

Article 3 states, "Every person has the right to recognition as a person before the law," and Article 5(1) states, "Every person has the right to have his physical, mental, and moral integrity respected." You cannot violate a person's physical integrity or deny someone "personhood" just because that person still lives inside the womb.

Article 4(5) states, "Capital punishment shall not be ... applied to pregnant women." This would imply recognition of the rights of preborn humans, since, once the woman is no longer pregnant, capital punishment would once again be allowed. The clause, therefore, protects the life of the human in the womb.

Those who argue in favor of abortion might argue that Article 6(2), "No one shall be required to perform forced or compulsory labor", entitles a woman to have an abortion to avoid "forced motherhood". The right to privacy is upheld in Article 11(2): "No one may be the object of arbitrary or abusive interference with his private life..." Some would argue that prohibiting abortion is undue interference with private life. They might also argue that prohibiting abortions would interfere with the personal liberty guaranteed in Article 7(1): "Every person has the right to personal liberty and security". They could also argue that the clause in Article 17(5), "The law shall recognize equal rights for children born out of wedlock and those born in wedlock," implies that rights only apply starting at birth. These arguments could hardly be held to be valid, though, in light of the explicit protection of life "from the moment of conception" already mentioned.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply. Indeed, in this particular document, it is clear that rights apply "from the moment of conception".

Inter-American Convention to Prevent and Punish Torture

The Inter-American Convention to Prevent and Punish Torture does not address abortion, as it has to do mainly with the treatment of prisoners.

Those who oppose abortion might try to argue that tearing the developing human body apart during an abortion is torture. However, Article 2 defines torture for the purposes of the convention as "any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose." This definition would seem to exclude abortion.

There is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol of San Salvador)

The nondiscrimination clause in the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights is contained in Article 3: "The State Parties to this Protocol undertake to guarantee the exercise of the rights set forth herein without discrimination of any kind for reasons related to race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition." Rights cannot be negated because a human being still lives inside his or her mother's womb. Article 16 states, "Every child, whatever his parentage, has the right to the protection that his status as a minor requires from his family, society and the State". "Every child" would include those living in the womb.

It should probably be noted that Article 6(2) states, "The States Parties also undertake to implement and strengthen programs that help to ensure suitable family care, so that women may enjoy a real opportunity to exercise the right to work." Help for women with children to pursue employment is commanded. A right to not give birth is not.

Article 15(3) states, "The States Parties hereby undertake to accord adequate protection to the family unit and in particular: (a) To provide special care and assistance to mothers during a reasonable period before and after childbirth..." Some might argue on the basis of this clause that preborn children do not have rights, since the instrument recognizes the rights of the mother, but does not mention the rights of the child.

Once again, there is no wording in the protocol making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Protocol to the American Convention on Human Rights to Abolish the Death Penalty

The preamble to the Protocol to the American Convention on Human Rights to Abolish the Death Penalty states that "everyone has the inalienable right to respect for his life, a right that cannot be suspended for any reason". It therefore cannot be suspended due to the fact that the person still lives in the womb.

Whereas this instrument deals specifically with the death penalty, those who oppose abortion would say that the death penalty should not be applied to preborn children. However, the protocol is concerned with treatment of criminals, and does not address abortion in any way.

Once again, there is no wording in the protocol making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women

Article 4 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women states, "Every woman has the right to the recognition, enjoyment, exercise and protection of all human rights and freedoms embodied in regional and international human rights instruments. These rights include, among others: a. The right to have her life respected; b. The right to have her physical, mental and moral integrity respected; c. The right to personal liberty and security...." This could conceivably be used to argue either way -- that a woman's right to life should be respected at all stages of life, including in the womb, or that her right to personal liberty allows her to have an abortion.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Inter-American Convention on Forced Disappearance of Persons

Those who oppose abortion might try to argue that abortion constitutes the forced disappearance of the preborn child. However, the Inter-American Convention on Forced Disappearance of Persons defines forced disappearance as "the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees." This would seem to clearly not be dealing with abortion.

Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities

The Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities contains no statements that apply to abortion. Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Inter-American Democratic Charter

The Inter-American Democratic Charter also contains no statements that apply to abortion. Once again, there is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Declaration of Principles on Freedom of Expression

The Declaration of Principles on Freedom of Expression also contains no statements that apply to abortion. Once again, there is no wording in the declaration making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas

Principal II of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas contains the nondiscrimination clause: " Under no circumstances shall persons deprived of liberty be discriminated against for reasons of race, ethnic origin, nationality, color, sex, age, language, religion, political or other opinion, national or social origin, economic status, birth, physical, mental, or sensory disability, gender, sexual orientation, or any other social condition."

Principle X states, "Women and girls deprived of liberty shall be entitled to access to specialized medical care that ... adequately meets their reproductive health needs." The term "reproductive health" is often used in the context of abortion. The statement continues, though, "In particular, they shall have access to gynecological and pediatric care, before, during, and after giving birth," but says nothing about preventing birth.

Once again, there is no wording in the document making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Conclusion: There is no wording in these instruments making any reference to abortion, termination of pregnancy, reproductive rights, or other similar language, or in any way referencing the practice of abortion. There is no statement anywhere in any of these documents that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply. Instead, the American Convention on Human Rights states that all lives will be respected and protected by law "from the moment of conception".

Organization of African Unity/the African Union

We examine the seven human rights instruments at the African Commission on Human and People's Rights website.

African Charter on Democracy, Elections and Governance

The African Charter on Democracy, Elections and Governance pertains specifically to governance and to the promotion of democracy. It does not speak specifically of abortion or of the rights of preborn humans. It does mention women's or gender rights in several places, such as, Article 3(6), "Promotion of gender equality in public and private institutions," Article 29(2), "State Parties shall create the necessary conditions for full and active participation of women in the decision-making processes and structures at all levels as a fundamental element in the promotion and exercise of a democratic culture," and Article 29(3), "State Parties shall take all possible measures to encourage the full and active participation of women in the electoral process and ensure gender parity in representation at all levels, including legislatures." It might be argued by some that in order for women to engage in full and active participation they need to be free to not have children, and that abortion should be allowed to that end.

Article 8 states "State Parties shall eliminate all forms of discrimination, especially those based on political opinion, gender, ethnic, religious and racial grounds as well as any other form of intolerance. State Parties shall adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups." These statements could potentially be used by either side in the abortion debate.

Once again, there is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Constitutive Act of the African Union

The Constitutive Act of the African Union sets up the basic structure of the African Union. Hence, it does not refer to specific human rights. It does state in Article 4, "The Union shall function in accordance with the following principles" ... Promotion of gender equality", which some might argue requires abortion to be allowed in order for women to be "equal" with men.

Once again, there is no wording in this act making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

African Charter on Human and Peoples' Rights

The African Charter on Human and Peoples' Rights contains the nondiscrimination clause in Article 2: "Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status." Article 3 goes on to say, "Every individual shall be equal before the law," and, "Every individual shall be entitled to equal protection of the law".

Article 4 contains the right to life: "Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right." Article 5 goes on to guarantee that "Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited."

Article 6 states "Every individual shall have the right to liberty and to the security of his person". Some might argue that the right to liberty affords women the right to not be pregnant, and therefore the right to abortion, while others might argue that abortion endangers the security of the person in the womb. Similarly Article 18(3) might be used by either side: "The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions."

Once again, there is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa is the one major international or regional human rights instrument that specifically mentions abortion.

First of all, Article 1(b) defines women as "persons of female gender, including girls". The rights defined here in are not limited by a female person not yet being old enough to be a "woman". Article 4(1) then states, "Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited." If the definition of woman extends all the way back to the prenatal period, then it is clearly not allowable to kill her.

Article 4 states, "States Parties shall take appropriate and effective measures to: ... ensure that, in those countries where the death penalty still exists, not to carry out death sentences on pregnant or nursing women". This would seem to imply that rights pertain to the child in the womb, since once the child is no longer dependent on the woman, the death penalty could be carried out. In Article 7, regarding divorce, it states, "In any case, the interests of the children shall be given paramount importance". Although this instrument pertains mainly to women's rights, it is clear that the rights of children cannot be subjugated to them. (Although probably not applicable to the present discussion, it is interesting to note that Article 6 states that "the minimum age of marriage for women shall be 18 years".)

Article 3 states, "Every woman shall have the right to respect as a person and to the free development of her personality". Some might argue that free development of a woman's personality might require that she be able to choose to not carry a child to term.

Article 14 is the one that speaks specifically of abortion. First of all, Article 14(1) states, "States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes: " the right to control their fertility; the right to decide whether to have children, the number of children and the spacing of children; ... [and] the right to have family planning education". The right to decide the number and spacing of children is generally perceived as allowing a woman to have an abortion.

Article 14(2) is the article that specifically states a right to an abortion: "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". Although clearly stating a right to an abortion, it is interesting to note that this article allows killing the fetus where continued pregnancy endangers the life of the fetus!

As opposed to all the other international or regional human rights instruments, this one specifically makes reference to abortion, and grants a right to have one. However, it should still be noted that nowhere in this document, or any other international or regional human rights instrument, does it state that there is any point in a person's physical development prior to which human rights do not apply.

The African Charter on the Rights and Welfare of the Child

The The African Charter on the Rights and Welfare of the Child, unlike the CRC, does not contain the phrase "before as well as after birth". The similar statement in the preamble reads: "the child, due to the needs of his physical and mental development requires particular care with regard to health, physical, mental, moral and social development and requires legal protection in conditions of freedom, dignity and security". However, Article 2 states, "For the purposes of this Charter, a child means every human being below the age of 18 years". A human being in the womb is below the age of 18.

The nondiscrimination clause is found in Article 3: "Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status." Once again, one cannot discriminate on the basis of any status; that would include age, stage of development or state of dependence.

The right to life is found in Article 5: "Every child has an inherent right to life. This right shall be protected by law." It goes on to state, "State Parties to the present Charter shall ensure, to the maximum extent possible, the survival, protection and development of the child." One cannot kill a child, born or unborn. Article 4(1) states, "In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration". Killing a child can hardly be in his or her best interest. Article 14(1) states, "Every child shall have the right to enjoy the best attainable state of physical, mental and spiritual health." Killing the child clearly violates this provision.

This instrument, though, does elaborate two rights which do not apply until birth. Article 6(1) states, "Every child shall have the right from his birth to a name", and that "a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth he is not granted nationality by any other State in accordance with its laws".

Article 11(6) states, "State Parties to the present Charter shall take all appropriate measures to ensure that children who become pregnant before completing their education shall have an opportunity to continue their education on the basis of their individual ability." Some might argue that this grants a right to abortion to children who become pregnant so that they can meet this goal.

Article 14(2) states, "State Parties to the present Charter... shall take measures: to reduce infant and child mortality rate". This article might be interpreted as either allowing or proscribing abortion, depending on how one defines infant and child mortality, but given the definition above of any human being under 18 years of age, it would seem clear that this should proscribe abortion.

Article 20(1) states, "Parents or other persons responsible for the child shall have the primary responsibility for the upbringing and development the child and shall have the duty: to ensure that the best interests of the child are their basic concern at all times...." Killing a child (that is, any human being under 18 years of age) is clearly not in its best interests.

There is no wording in the charter making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply, except for the two specific rights of having a name and nationality.

AU Convention Governing Specific Aspects of Refugee Problems in Africa

The AU Convention Governing Specific Aspects of Refugee Problems in Africa deals with the rights of those who are fleeing persecution, and makes no mention of anything related to abortion. Once again, there is no wording in the convention making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights

Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights deals mainly with the structure and organization of the African Court on Human and People's Rights, and does not deal with specific rights of people. Once again, there is no wording in the protocol making any reference specifically to abortion, termination of pregnancy, reproductive "choice", or other similar language, and there is no statement anywhere in this document that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply.

Conclusion:The African Union is the one human rights system that does specifically mention abortion, granting the right to have one in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. However, the African Charter on the Rights and Welfare of the Child guarantees the rights of children, with child being defined as any human being below the age of 18, which would include those in the womb. Other than a few specific exceptions, such as the right to a name and nationality, there is no statement anywhere in any of these documents that states or implies that there is some point, birth or otherwise, prior to which the rights contained therein do not apply. As pointed out before, such a statement would be in clear contradiction to the principle that these rights apply to everyone "without distinction of any kind".

Conclusion

In spite of frequent claims that laws prohibiting abortion are out of step with international human rights norms, there is no international (U.N.) human rights instrument that provides any right to have an abortion. The document that comes closest to this is the Convention on the Elimination of All Forms of Discrimination against Women, which states that women have the right to decide the number and spacing of their children. However, this document only provides that they have this right to the same extent as men do. The Covenant on the Rights of the Child, on the other hand, states specifically that the child is entitled to "special safeguards and care, including appropriate legal protection, before as well as after birth". Nondiscrimination statements are typical in these instruments, stating that human rights are applied "without distinction of any kind" and cannot be abridged on the basis of any status, and that would have to include age, stage of development and state of dependence. All human beings are entitled to human rights – period.

Regional human rights instruments are somewhat more specific, and do reference abortion. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa states that women have a right to have an abortion. The American covenant on human rights, on the other hand, states that the right to life is to be respected and protected "from the moment of conception".

What is perhaps most important to note is that there is no statement anywhere in any of these documents, including the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, that states that there is some point, birth or otherwise, prior to which the rights contained therein do not apply. Such a statement would be in clear contradiction to the principle that these rights apply to everyone "without distinction of any kind".

Citations

1Textbook on International Human Rights, 5th Edition, Rhona K. M. Smith, Oxford University Press, Oxford, 2012, p.217



"First they came for the Jews and I did not speak out -- because I was not a Jew. Then they came for the Communists and I did not speak out -- because I was not a Communist. Then they came for the trade unionists and I did not speak out -- because I was not a trade unionist. Then they came for me -- and there was no one left to speak out for me." -Pastor Niemoeller (Nazi victim)

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