When it comes to the contentious subject of abortion, both the pro-choice and the pro-life groups invoke what they say is the trump card in favour of their point of view – the human rights card. The pro-choice group says it is the expecting mother’s right to terminate her pregnancy while the pro-lifers insist that abortion goes against the unborn child’s right to life. But are there really any rights attached to abortion or is the human rights card being used frivolously in the attempt to strengthen the arguments on both sides?
Let’s start with the pro-choice side. Does a woman really have a right to terminate her pregnancy? A look at the European Convention of Human Rights reveals that none of the rights it speaks about fits within the parameters of the pro-choice argument. There is of course Article 14, which states that the rights of the Convention shall be safeguarded against any discrimination. However, can we truly extend its meaning to cover the pro-choice argument?
Then there is the Convention on the Elimination of All Forms of Discrimination Against Women. Article 10(h) speaks of “access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning”.
Article 11(1)(f) is about “the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction”. Article 11(2) is a sub-article dedicated to pregnancy and states that “in order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, states parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them”.
Article 12(1) goes on to state: “state parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning”. However, as one can clearly see, these articles do not answer any questions about abortion.
The pro-life group, on the other hand, argues that it goes against the right to life of the unborn child if he/she is aborted. But can the right to life be extended to foetuses? Or is that right solely reserved for people who have already been born? No clarity emerges from Article 1 of the European Convention on Human Rights, which states that everyone has the right to life and thus should be protected by law. No specific mention of the unborn there.
The United Nations Convention on the Rights of the Child defines the term “child” as “every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”. While the upper age limit is defined, it is not clear when the status of a child starts. The question remains: does the term “child” apply from the moment of birth or from the moment of conception?
This ambivalence is deliberate. When the UN Convention was drafted, abortion was legal in many states so had the child been defined as starting from conception it would have rendered abortion illegal. However, since there were countries, especially in South America, that were in favour of the moment-of-conception definition, it was left up to the particular state to define it further. For instance, upon ratification of the Convention Argentina lodged a declaration stating that a child includes every human being from the moment of conception.
In Maltese legislation, an unborn child is protected within the Domestic Violence Act. Furthermore, the Commissioner for Children Act in Article 9(h) talks of promoting “special care and protection, including adequate legal protection, for children both before and after birth”.
However, would it not be more appropriate if the terms “person” or “child” were more clearly defined, thus eliminating any ambivalence?
Dr Mangion is a lawyer and a published author with a special interest in family and child law.