Abortion As A Human Rights: International And Regional Standards

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Abortion as a Human Rights: International and Regional Standards Jaime Todd-Gher

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Human Rights Law Review 8:2 ß The Author [2008]. Published by Oxford University Press. All rights reserved. For Permissions, please email: [email protected] doi:10.1093/hrlr/ngn008 .......................................................................

Abortion as a Human RightçInternational and Regional Standards Christina Zampas* and Jaime M. Gher**

Abstract This article focuses on the striking expansion of international and regional human rights standards and jurisprudence that support women’s human right to abortion. It summarises pertinent developments within the United Nations, European, Inter-American and African human rights systems regarding abortion, as they relate to women’s rights to life and health, in situations of rape, incest or foetal impairment, and for abortion based on social and economic reasons and on request. In doing so, the article touches on charged issues such as maternal mortality, prohibitions of therapeutic abortion as infringing on the right to be free from cruel, inhuman and degrading treatment, and state procedural obligations to ensure women’s right to access legal abortion. Finally, the article addresses the growing recognition by international human rights bodies that criminalisation of abortion leads women to obtain unsafe abortions, threatening their lives and health, and recent national-level developments in the field.

* Senior Regional Manager Legal Adviser for Europe, Center for Reproductive Rights^International Legal Program, 120 Wall Street, 14th Floor, New York, New York 10005. ** Attorney^Consultant, Center for Reproductive Rights^International Legal Program, 120 Wall Street, 14th Floor, New York, New York 10005.

........................................................................... Human Rights Law Review 8:2(2008), 249^294

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1. Overview Every year, at least 70,000 women die from complications related to unsafe abortions.1 It is further estimated that unsafe abortions account for 13% of all maternal deaths worldwide and, in some countries, it accounts for 60% of maternal deaths.2 Research indicates that there is a strong correlation between abortion legality and abortion safety,3 and thus women living in countries with restrictive abortion laws often resort to unsafe, clandestine abortions, jeopardising their lives and health. As unsafe abortion is increasingly considered a major public health problem, human rights advocacy for abortion has gained greater momentum. The most explicit pronouncement of women’s right to access abortion in the text of a human rights treaty is found in the Protocol on the Rights of Women in Africa (African Women’s Protocol), adopted by the African Union on 11 July 2003.4 Intended to fill the gaps of the African Charter on Human and Peoples’ Rights 1981 (African Charter),5 the Protocol explicitly states: 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.6 The African Women’s Protocol is the only legally binding human rights instrument that explicitly addresses abortion as a human right and affirms that women’s reproductive rights are human rights.7 At present, 20 African countries have ratified the Protocol,8 however, the Protocol’s reach is limited to the African region and its efficacy has yet to be tested. Nevertheless, there are other international and regional human rights protections that support 1 2 3 4 5 6 7 8

World Health Organization (WHO), Unsafe Abortion: Global and Regional Estimates of Incidence of and Mortality due to Unsafe Abortion with a Listing of Available Country Data, 3rd edn (Geneva: WHO, 1997), WHO/RHT/MSM/97.16 at 3^14. Cook, Dickens and Fathalla, Reproductive Health and Human Rights: Integrating Medicine, Ethics and Law (Oxford: Oxford University Press, 2003) 26. Alan Guttmacher Institute, ‘Abortion in Context: United States and Worldwide’, May 1999, available at: http://www.guttmacher.org/pubs/ib_0599.html [last accessed 17 September 2007]. Res. AHG/RES.240 (XXXI). The African Women’s Protocol entered into force on 25 November 2005 after ratification by 15 African states. OAU Doc. CAB/LEG/76/3 Rev.5; 21 ILM 58 (1982). Article 14.2(c), African Women’s Protocol. Article 14, African Women’s Protocol. African Commission on Human and Peoples’ Rights (ACHPR), List of countries which have signed, Ratified/Acceded to the African Union Convention on Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, available at: http://www.achpr.org/english/ratifications/ratification_women%20protocol.pdf [last accessed 7 September 2007]. Ratifying countries are: Benin, Burkina Faso, Cape Verde, Comoros, Djibouti, Gambia, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Namibia, Nigeria, Rwanda, South Africa, Senegal, Seychelles, Togo and Zambia.

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women’s right to safe, legal abortion. While these protections are less explicit than the African Women’s Protocol, their weight and importance is just the same. In addition to the right to life and health, women’s right to abortion is bolstered by the broad constellation of human rights that support it, such as rights to privacy, liberty, physical integrity and non-discrimination. In fact, it is the evolution of human rights interpretations and applications, stemmed by increased sophistication, women’s empowerment and changing times, which have given force to women’s human right to abortion. The recent ground-breaking pronouncement regarding women’s right to abortion issued on 16 April 2008 by the Parliamentary Assembly of the Council of Europe, representing 47 European states whose mission is, in part, to protect and promote human rights and democracy in Europe, reflects such evolution and sophistication. A majority of the parliamentarians adopted a report issued by the Committee on Equal Opportunities for Women and Men entitled ‘Access to Safe and Legal Abortion in Europe’ (the Report). The Report calls upon Member States to decriminalise abortion, guarantee women’s effective exercise of their right to safe and legal abortion, remove restrictions that hinder de jure and de facto access to abortion, and adopt evidence-based sexual and reproductive health strategies and policies, such as access to contraception at a reasonable cost and of suitable nature, and compulsory ageappropriate and gender-sensitive sex and relationship education for young people.9 The adoption of the Report is particularly significant in a region peppered with stark differences within the levels of sexual and reproductive health laws and policies. While not legally binding, it is the most progressive pronouncement on the right to abortion by any international or regional human rights system. This article summarises pertinent developments within the United Nations (UN), European, Inter-American and African human rights systems regarding abortion, as they relate to women’s rights to life and health, in situations of rape, incest or foetal impairment, and for abortion based on social and economic reasons and on request. Notably, a large share of the regional discussion in this article is devoted to Europe, as there have been substantial developments in that region in response to tightening restrictions in law and practice on women’s access to abortion. The discussion is organised according to the above-listed categories, which generally mirror the varying categories to which countries permit abortion, so as to limit repetition. The article accounts for the significant overlap between the implicated rights and highlights gaps in protection for women’s right to abortion. Finally, the article touches upon criminalisation of women who 9

Council of Europe Parliamentary Assembly, Resolution 1607 on access to safe and legal abortion in Europe, 15th sitting, 16 April 2008, available at: http://assembly.coe.int/ Main.asp?link=/Documents/AdoptedText/ta08/ERES1607.htm [last accessed 8 May 2008].

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undergo illegal abortions as an independent human rights violation and recent legal successes expanding the right to abortion at the regional and national levels.

2. Scope of Women’s Right to Abortion within International and Regional Human Rights Law Promotion of women’s reproductive rights has recently gained momentum, in large part, due to the 1994 International Conference on Population and Development (ICPD), held in Cairo, and the 1995 Fourth World UN Conference on Women, held in Beijing.10 Commentators consider that ‘[t]hese two conferences led to the recognition that the protection of reproductive and sexual health is a matter of social justice, and that the realization of such health can be addressed through the improved application of human rights contained in existing national constitutions and regional and international human rights treaties’.11 The consensus statements created at these conferences touch on women’s right to abortion, and thus provide additional support for the notion that women’s reproductive rights are human rights. With regard to women’s right to health, the 1994 ICPD Programme of Action calls upon governments to contemplate the consequences of unsafe abortion on women’s health, and urges state governments and relevant intergovernmental and non-governmental organisations to strengthen their commitment to women’s health, directly address unsafe abortion as a major public health concern and reduce the incidence of abortion through expanded and improved family-planning services.12 The Programme of Action also affirms that women faced with unwanted pregnancies should have expedient access to reliable information and compassionate counselling.13 Notably, the ICPD Programme of Action confirms that where abortion is legal, the procedure should be accessible and safe.14 While it does not explicitly call for legalisation of abortion worldwide, the ICPD Programme of Action confirms that ‘women should have access to quality services for the management of abortion-related complications, and [p]ost-abortion counselling, education and family-planning services should be offered promptly, which will also help to avoid repeat abortions’.15 During the five year review of the ICPD Programme of Action’s implementation, country delegates called on health systems to increase women’s access to services where abortion is not against 10 11 12 13 14 15

Cook, Dickens and Fathalla, supra n. 2 at 148. Ibid. at 148^9. Report of the International Conference on Population and Development, Cairo, 5^13 September 1994, A/CONF.171/13/Rev.1 (1995), Chapter VIII C. Women’s Health and Safe Motherhood at para. 8.25. Ibid. Ibid. Ibid.

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the law by training and equipping health-care providers and taking other measures to safeguard women’s health.16 While international consensus documents are non-binding, the statements contained in these documents are persuasive and indicative of the world community’s growing support for reproductive rights, and are often used to support legislative and policy reform, as well as interpretations of national and international law. Treaty-monitoring bodies’ interpretations and jurisprudence have also played a large role in advancing women’s reproductive rights.17 The UN treaty-monitoring system acts to ensure state compliance with international treaty obligations.18 Each of the major international human rights treaties establishes a Committee to monitor compliance with it. The Committees issue ‘General Comments’ or ‘General Recommendations’ on an as-needed basis, to elaborate on the treaties’ broadly worded human rights guarantees and to help states understand their obligations under various treaty provisions. The Committees also facilitate a ‘country reporting’ process. This process requires states to report periodically on their efforts to respect, protect and fulfil the human rights enshrined in a particular treaty. Following dialogues with government representatives, Committee members issue Concluding Observations to the reporting government. Concluding Observations provide a mechanism through which Committees apply the overall human rights standards developed in General Comments and General Recommendations. Although Committees are not judicial bodies and their Concluding Observations are not legally binding, the increasingly comprehensive quality of the Concluding Observations on the subject of reproductive rights has enormous potential to influence national laws and policies. When taken together and analysed, the Committees’ General Comments and Concluding Observations may be considered a type of jurisprudence or collective work guiding the development and application of human rights both at the national level and at the international level.19 Some Committees also have a mandate to examine individual complaints of human rights violations and issue written decisions in such cases. 16

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Vukovich, Key Actions for the Further Implementation of the Programme of Action of the International Conference on Population and Development (Report of the Ad Hoc Committee of the Whole of the Twenty-First Special Session of the General Assembly), 1 July 1999, A/S-21/5/Add.1 at para. 63(iii), available at: www.un.org/popin/unpopcom/32ndsess/gass/ 215a1e.pdf [last accessed 21 September 2007]. In this article a significant portion of the analysis of treaty-monitoring bodies’ functions, interpretations and jurisprudence, is derived from: Center for Reproductive Rights, ‘Bringing Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights’, 2002, available at: http://www.reproductiverights.org/pdf/pub_bo_tmb_ full.pdf [last accessed 2 October 2007]. Office Of The High Commissioner For Human Rights, ‘Treaty Bodies’, 14 February 2002, available at: http://www.unhchr.ch/pdf/leafletontreatybodies.pdf [last accessed 21 September 2007]. Much of the research on Concluding Observations from Treaty Monitoring Bodies comes from ‘Bringing Rights to Bear’, supra n. 17.

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Similar to the UN system, regional human rights systems monitor states’ compliance with regional human rights treaties. The Council of Europe adopted the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR)20 in 1950, which in turn created the European Court of Human Rights (ECtHR). The ECtHR is authorised to hear interstate complaints and alleged individual human rights violations under the ECHR. Similarly, the Inter-American Commission on Human Rights (Inter-American Commission) was created in 1959 to be the primary human rights organ of the Organization of American States.21 With the adoption of the American Convention on Human Rights (American Convention) in 1969, the Inter-American Commission was granted the legal authority to issue recommendations regarding alleged American Convention violations.22 The American Convention also created the Inter-American Court on Human Rights (Inter-American Court), to interpret the Convention and hear individual cases following their consideration by the Inter-American Commission and give legally binding judgments in those cases.23 Finally, the African Commission on Human and Peoples’ Rights (ACHPR) was established under the African Charter on Human and Peoples’ Rights (African Charter), which was adopted in 1981, by the Organisation of African Unity (now the African Union).24 The ACHPR ensures the protection and promotion of human rights throughout Africa. Under the African Charter, States Parties are called upon to submit, on a biennial basis, a report on the measures they have taken to give effect to the rights and freedoms recognised and guaranteed by Charter.25 The ACHPR then issues corresponding reports evaluating the Member States’ compliance with the African Charter. The African Charter also created a ‘communication procedure,’ through which the Commission can be petitioned to assess alleged violations.26 More recently, the African Court on Human and Peoples’ Rights was created to 20 21 22

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ETS No. 5. See Council of Europe, ‘About the Council of Europe’, available at: http:// www.coe.int/T/e/Com/about_coe/ [last accessed 21 September 2007]. Declaration of Santiago, Final Act of the Fifth meeting of Consultation of Foreign Minister, Res. VI, OEA/SER.C/11.5 (1959) at 10^11. Inter-American Institute on Human Rights (IIHR) and Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM) (eds), Proteccio¤n Internacional de los Derechos Humanos de las Mujeres, Papers from the proceedings of a conference held in San Jose, Costa Rica, April 1997 (Portada de la Editorial Farben, 1997) at 150. See also American Convention on Human Rights 1969, OAS Treaty Series No. 36, OEA/Ser.L.V/II.23, doc. 21, rev. 6 (American Convention), which entered into force on 18 July 1978. Supra n. 22 at 150. ACHPR, ‘African Commission on Human and Peoples’ Rights, Establishment ^ Information Sheet No. 1’ (African Commission-Information Sheet), available at: http://www.achpr.org/english/information_sheets/ACHPR%20 inf.%20sheet%20no.1.doc [last accessed 21 September 2007]. Article 62, African Charter. African Commission ^ Information Sheet, supra n. 24. A communication can also be made by a State Party that reasonably believes that another State Party has violated any of the Charter’s provisions.

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complement the ACHPR by interpreting and applying the African Charter and to give legally binding judgments in individual cases, which will, bolster women’s rights under the African Charter and its Women’s Protocol.27 At present, there is not a regional human rights monitoring system in Asia. Despite progress made by treaty-monitoring bodies regarding reproductive rights, to date no such body has explicitly recognised women’s right to abortion on request or for economic and social reasons, nor have they explicitly called for the legalisation of abortion on those grounds. The extent to which women’s right to abortion is currently protected under human rights law generally hinges on whether a woman’s life or health is at risk, the pregnancy resulted from rape or incest or there is risk of foetal impairment. In these contexts, significant progress has recently been made within international and regional human rights discourses requesting States Parties to liberalise abortion laws and actualise women’s right to safe abortion services. The recognition by treaty-monitoring bodies that restrictive abortion laws may force women to seek illegal, and hence, unsafe abortions which threaten their lives, can be used by advocates to support abortion on request or for socio-economic reasons. Notwithstanding protection for women’s right to abortion in the above-listed contexts, a constellation of human rights, including the rights to privacy, liberty, physical integrity, non-discrimination and health, support the notion that abortion on request is a human right. While international and regional human rights treaties and treaty-monitoring bodies have yet to directly address the issue of abortion on request, there is strong textual and interpretive support for the above-listed related rights which have been used by national legislatures and courts around the world to guarantee a woman’s right to abortion, and which can be used by advocates to promote women’s right to abortion on request. A. Abortion to Save a Woman’s Life (i) International human rights parametersçthe woman’s right to life Some pregnancies and their related complications can place women’s lives at grave risk. It is estimated that at least 70,000 women worldwide die each year as a consequence of unsafe abortion, and 5.3 million suffer temporary or permanent disability.28 Restrictive or criminal abortion legislation also jeopardises women’s lives by compelling women to obtain dangerous clandestine abortions. While there has been a worldwide trend towards liberalising restrictive abortion laws,29 maternal mortality and morbidity due to unsafe abortion 27 28 29

Beyani, ‘A Human Rights Court for Africa’, (2005) 15 Interights Bulletin 1. WHO, supra n. 1. Center for Reproductive Rights, ‘The World’s Abortion Laws’, available at: http://www. reproductiverights.org/pub_fac_abortion_laws.html [last accessed 30 August 2007].

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continues to be a major public health concern. At present, Chile, El Salvador and Nicaragua have legislation eliminating all exceptions to the countries’ abortion prohibitions, even when a woman’s life is at risk, thus giving women no recourse when their lives are imperilled during pregnancy.30 Furthermore, a persistent foetal rights movement has emerged asserting that foetuses are entitled to a right to life at the expense of women’s human rights. Advocates can rely upon the below discussed international and regional human rights treaty provisions and their interpretations, to reject foetal rights claims and to ultimately safeguard women’s right to access abortion. International covenant on civil and political rights The International Covenant on Civil and Political Rights 1966 (ICCPR)31 provides an explicit pronouncement of the right to life. Article 6(1) of the ICCPR states that: ‘Every human being has the inherent right to life.’ The Human Rights Committee (HRC), the ICCPR’s interpretive body, emphasises in General Comment No. 6 (right to life), that the inherent right to life should not be understood in a restrictive manner.32 General Comment No. 6 requires States Parties to take positive measures to ensure the right to life, particularly measures to increase life expectancy.33 Additionally, the HRC’s General Comment No. 28 on equality of rights between men and women, asks States Parties, when reporting on the right to life protected by Article 6, to ‘give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions’.34 General Comment No. 28 also considers laws or policies where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion, a potential violation of the right to life (Article 6) and the right torture or to cruel, inhuman or degrading treatment or punishment (Article 7).35 The HRC’s Concluding Observations also provide strong support for women’s right to access abortion and, in particular circumstances, impose duties on States Parties to take affirmative steps to realise women’s right to life in the context of abortion. For example, the Committee has made the link between

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IPAS, ‘Abortion ban saga continues in Nicaragua’, 22 November 2006, available at: http:// www.ipas.org/Library/News/News_Items/Abortion_ban_saga_continues_in_Nicaragua.aspxht= [last accessed 25 September 2007]. 999 UNTS 171, which entered into force on 23 March 1976. HRC, General Comment No. 6: Article 6 (Right to life), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev. 7 (2004) (Compilation of General Comments) at 128. Ibid. at 129, para. 5. HRC, General Comment No. 28: Article 3 (Equality of rights between men and women), in Compilation of General Comments supra n. 32 at 179, para. 10. Ibid. at 181, para. 20.

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illegal and unsafe abortions and high rates of maternal mortality.36 The HRC has further noted that illegal abortions have serious harmful consequences for women’s lives, health37 and well-being.38 The HRC has expressed particular concern for restrictive abortion laws, especially when women’s lives are at risk.39 More specifically, the HRC has expressed concern regarding the criminalisation of abortion,40 even when the pregnancy is the result of rape,41 and confirmed that such legislation is incompatible with women’s right to life under Article 6.42 In that regard, the HRC has recommended that States Parties adopt measures to guarantee the right to life for women who decide to terminate their pregnancies,43 including ensuring the accessibility of health services and emergency obstetric care.44 In the HRC’s 1998 Concluding Observations to Ecuador, it linked the high rate of suicide among adolescent girls and the restrictions on abortion to find this to be incompatible with adolescents’ right to life, and recommended that the State Party adopt all legislative and other measures, including increasing access to adequate health and education facilities, to address the problem.45 The HRC has also called upon States Parties to amend restrictive abortion laws to help women avoid unwanted pregnancies and unsafe abortions,46 and to bring laws in line with the ICCPR,47 specifically Article 6 (right to life).48 For example, the HRC’s 2004 Concluding Observation to Poland expressed deep concern regarding the State Party’s restrictive abortion law that 36

37 38 39 40 41 42 43 44 45 46 47 48

Concluding Observations of the HRC regarding: Chile, 30 March 1999, CCPR/C/79/Add.104 at para. 15; Colombia, 1 April 1997, CCPR/C/79/Add.76 at para. 24; Ecuador, 18 August 1998, CCPR/C/79/Add.92 at para. 11; Guatemala, 27 August 2001, CCPR/CO/72/GTM at para. 19; Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; Mongolia, 25 May 2000, CCPR/C/79/ Add.120 at para. 8(b); Peru, 15 November 2000, CCPR/CO/70/PER at para. 20; Poland, 29 July 1999, CCPR/C/79/Add.110 at para. 11; and United Republic of Tanzania, 18 August 1998, CCPR/C/79/Add.97 at para. 15. Concluding Observations of the HRC regarding: Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8. Concluding Observations of the HRC regarding El Salvador, 22 August 2003, CCPR/CO/78/SLV at para. 14. Concluding Observations of the HRC regarding; Chile, 18 May 2007, CCPR/C/CHL/CO/5 at para. 8; and Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14. Concluding Observations of the HRC regarding: Mauritius, 27 April 2005, CCPR/CO/83.MUS at para. 9; and Venezuela, 26 April 2001, CCPR/CO/71/VEN at para. 19. Concluding Observations of the HRC regarding Gambia, 12 August 2004, CCPR/CO/75/GMB at para. 17. Peru, supra n. 36 at para. 20. Venezuela, supra n. 40. Mali, supra n. 36. Ecuador, supra. n. 36. For further discussion of the threat of suicide as a potential risk to life and thus a viable exception to abortion prohibitions, see infra section 2(A)(ii) European System. Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at para. 8; El Salvador, 22 August 2003, CCPR/CO/78/SLV at para. 14; Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8. Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at para. 8; and Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14. Chile and El Salvador, supra n. 46.

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‘. . . incite[s] women to seek unsafe, illegal abortions, with attendant risks to their life and health’.49 The HRC focussed on the lack of accessibility of abortion in Poland, even when the law permits it, due to lack of information and the use of conscientious objection by medical practitioners, and advised Poland to liberalise its legislation and practice on abortion.50 To reduce the rate of abortion and address the prevalence of unsafe abortion, the HRC has recommended increased access to family planning services51 and education.52 The HRC has also expressly referenced States Parties’ duty to protect all persons’ lives, including women who decide to terminate their pregnancies.53 For example, the HRC recommended that Chile amend its ban on abortion to include exceptions.54 The Committee similarly recommended that Guatemala provide the necessary information and resources to guarantee women’s right to life, and incorporate additional exceptions to the country’s abortion law that only permits abortion where a woman’s life is at risk.55

Convention on the elimination of all forms of discrimination against women The International Convention on the Elimination of all Forms of Discrimination Against Women 1979 (ICEDAW) does not explicitly confer the right to life; however, the Committee on the Elimination of Discrimination Against Women (CEDAW) has addressed how issues concerning abortion impact women’s health and life, and, ultimately, women’s equality.56 For example, CEDAW has recognised the inextricable link between women’s right to health during pregnancy and childbirth, and their right to life in its General Recommendation No. 24 on women and health.57 CEDAW explained that provision of reproductive health services is essential to women’s equality and that ‘it is discriminatory for a State Party to refuse to provide legally for the performance of certain reproductive health services for women.’58 With respect to abortion, CEDAW has given considerable attention to the issue of maternal mortality as a result of unsafe abortions,59 and explicitly 49 50 51 52 53 54 55 56 57 58 59

Poland, supra n. 46. Ibid. Chile and Guatemala, supra n. 36. Ecuador, supra n. 36. Chile and Guatemala, supra n. 36. Chile, supra n. 36. Guatemala, supra n. 36. 1249 UNTS 13. Committee on the Elimination of Discrimination Against Women, General Recommendation 24: Article 12 of the Convention (Women and Health), in Compilation of General Comments supra n. 32 at 280, para. 27 (CEDAW ^ General Rec. 24). Ibid. at 276, para. 11. Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38/Rev.1 at 10, para. 73; Belize, 1 July 1999, A/54/38 at para. 56; Burundi, 2 February 2001, A/56/38 at para. 61; Colombia, 4 February 1999, A/54/38 at para. 393; Georgia, 1 July 1999, A/54/38 at para.

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framed the issue as a violation of women’s right to life.60 For example, CEDAW consistently makes the important point that lack of access to contraceptive methods and family planning services, as well as restrictive abortion laws, tend to correspond with the high prevalence of unsafe abortions, which in turn, contributes to high rates of maternal mortality.61 To this end, CEDAW has recommended that States Parties increase access to family planning programmes and services,62 especially to reduce the number of unsafe abortions63 and maternal mortality rates.64 CEDAW has also recommended making a range of contraceptives and family planning methods more affordable65 and providing social security coverage for abortion procedures.66 Finally, CEDAW has asked States Parties to review legislation making abortion illegal67 and has praised States Parties for amending their restrictive legislation.68 Convention on the rights of the child Article 6 of the International Convention on the Rights of the Child 1989 (ICRC), protects children’s right to life and survival.69 The Committee on the

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111; Kyrgyzstan, 27 January 1999, A/54/38 at para. 136; Mongolia, 2 February 2001, A/56/38 at para. 273; Myanmar, 28 January 2000, A/55/38 at para. 129; Nepal, 1 July 1999, A/54/38 at para. 147; Nicaragua, 31 July 2001, A/56/38 at paras 300^1; Peru, 8 July 1998, A/53/38/Rev.1 at 73 and 75, paras 300 and 339; Romania, 23 June 2000, A/55/38 at para. 314; and Zimbabwe, 14 May 1998, A/53/38/Rev.1 at 16, para. 159. Concluding Observations of CEDAW regarding; Belize, 1 July 1999, A/54/38 at para. 56; Colombia, 5 February 1999, A/54/38 at para. 393; and Dominican Republic, 14 May 1998, A/53/38 at para. 337. Concluding Observations of CEDAW regarding: Chile, 9 July 1999, A/54/38 at paras 209 and 228; Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at para. 254; Lithuania, 16 June 2000, A/55/38 at para. 158; Ukraine, 9 May 1996, A/51/38 at para. 287; and Georgia and Mongolia, supra n. 59. Concluding Observations of CEDAW regarding; Burundi, 2 February 2001, A/56/38 at para. 62; Chile, 9 July 1999, A/54/38 at para. 229; Chile, 25 August 2006, CEDAW/C/CHI/CO/ at para. 20; Georgia, 1 July 1999, A/54/38 at para. 112; Greece, 1 February 1999, A/54/38 at para. 208; Ireland, 1 July 1999, A/54/38 at para. 186; Kazakhstan, 2 February 2001, A/56/38 at paras 76 and 106; Lithuania, 16 June 2000, A/55/38 at para. 159; Mongolia, 2 February 2001, A/56/38 at para. 274; Nicaragua, 31 July 2001, A/56/38 at para. 301; and Slovenia, 12 August 1997, A/52/38/Rev.1 at para. 119. Concluding Observations of CEDAW regarding: Burkina Faso, 31 January 2000, A/55/38 at para. 275; Luxembourg, 12 August 1997, A/52/38/Rev.1, Part II at para. 221; Myanmar, 28 January 2000, A/55/38 at para. 130; and Slovenia, 12 August 1997, A/52/38/Rev.1 at para. 119. Chile, 25 August 2006, supra n. 62. Ibid. Burkina Faso, supra n. 63 at para. 276. Concluding Observations of CEDAW regarding: Andorra, 31 July 2001, A/56/38 at para. 48; Belize, 1 July 1999, A/54/38 at para. 57; Cameroon, 26 June 2000, A/55/38 at para. 60; Chile, 25 August 2006, CEDAW/C/CHI/CO/4 at paras 19-20; Colombia, 4 February 1999, A/54/38 at para. 394; Ireland, 1 July 1999, A/54/38 at para. 186; Jordan, 27 January 2000, A/55/38 at para. 181; Nepal, 1 July 1999, A/54/38 at paras 139 and 148; Panama, 2 July 1998, A/55/38/ Rev.1 at para. 201; Peru, 8 July 1998, A/53/38/Rev.1 at para. 340; Saint Vincent and the Grenadines, 12 August 1997,A/52/38/Rev.1 at para. 148; and United Kingdom, 1 July 1999, A/55/38 at para. 310. Concluding Observations of CEDAW regarding; Belgium, 9 May 1996, A/51/38 at para. 181. 1249 UNTS 13, which entered into force on 2 September 1990.

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Rights of the Child (CRC) has expressed repeated concern over adolescent girls’ access to safe abortion services and the need for states parties ‘ to . . . provide access to sexual and reproductive health services, including . . . safe abortion services’.70 The CRC has also urged States Parties to provide safe abortion services where abortion is not against the law, in its General Comment No. 4 on adolescent health and development.71 Further, the CRC has linked unsafe abortion to high maternal mortality rates,72 and expressed concern over the impact of punitive legislation on maternal mortality.73 In that regard, the CRC has specifically recommended that a state party undertake a study of the negative impact of early pregnancy and illegal abortion.74 International covenant on economic, social and cultural rights The International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) does not explicitly confer the right to life, but the Committee on Economic, Social and Cultural Rights (CESCR) has repeatedly expressed concern regarding the relationship between high rates of maternal mortality and illegal, unsafe, clandestine abortions.75 The CESCR has thus called upon States Parties to take remedial measures to address the problems of unwanted pregnancies, clandestine abortions and high maternal mortality rates,76 and

70 71

72 73 74 75

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Committee on the Rights of the Child, General Comment No. 4; Adolescent health and development in the context of the Convention on the Rights of the Child, in Compilation of General Comments, supra n. 32 at 328, para. 27 (CRC ^ General Comment No. 4). Ibid. Note, the CRC has also expressed concern within its Concluding Observations regarding sex-selective abortions and female infanticide: see China, 24 November 2005, CRC/C/CHN/ CO/2 at para. 28; India, 26 February 2004, CRC/C/15/Add.228 at para. 33, and recommended States Parties implement existing legislation prohibiting such practices and taking additional measures such as imposing sanctions to end such practices. See Concluding Observations of the CRC regarding: China, 24 November 2005, CRC/C/CHN/CO/2 at para. 29; and India, 26 February 2004, CRC/C/15/Add.228 at para. 34. The CRC has not, however, addressed the complex intersection between curbing sex-selective abortion practices and promoting women’s abortion rights, or specifically, called for States Parties to safeguard women’s abortion rights when seeking to eradicate sex-selective abortion. Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 at para. 30; Colombia, 16 October 2000, CRC/C/15/Add.137 at para. 48; Guatemala, 9 July 2001, CRC/C/15/Add.154 at para. 40; and Nicaragua, 24 August 1999, CRC/C/15/Add.108 at para. 35. Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 at para. 30; and Guatemala, 9 July 2001, CRC/C/15/Add.154 at para. 40. Chad, ibid. 993 UNTS 3, which entered into force on 23 January 1976. See Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 25; Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 32; Panama, 24 September 2001, E/C.12/1/Add.64 at para. 20; Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12; Senegal, 24 September 2001, E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2003, E/C.12/1/Add.99 at para. 22. Concluding Observations of the CESCR regarding: Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 55; and Poland, 19 December 2002, E/C.12/1/Add.82 at para. 51.

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to permit or consider permitting abortion for therapeutic reasons,77 and when pregnancies are life threatening or a result of rape or incest.78 (ii) Regional human rights parametersçthe woman’s right to life In addition to international human rights obligations, advocates can rely on regional human rights parameters to advocate on behalf of women’s right to access abortion.

European system The right to life protections under Article 2 of the European Convention on Human Rights (ECHR)79 confer both substantive and procedural obligations. As to the substantive obligations, Article 2 requires Member States to avoid taking actions to intentionally deprive individuals’ lives. As to the procedural obligations, Article 2 requires Member States to provide an effective official investigation when an individual dies due to acts by state agents,80 and in the context of health care, requires medical institutions to have regulations for the protection of patients’ lives and an effective system to determine the cause of death which occurs in a hospital and which may pose civil and/or criminal liability.81 Thus, even if the ECtHR finds no substantive violation for a loss of life, it may find a procedural violation. At present, the ECtHR has not heard a case where a woman was denied an abortion when her life was under threat based on application of a Member States’ abortion law. The ECtHR has also 77 78 79

Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105 at para. 53; Malta, 14 December 2004, E/C.12/1/Add.101 at para. 41; and Monaco, 13 June 2006, E/C.12/MCO/CO/1 at para. 23. Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105 at para. 53; Malta, 14 December 2004, E/C.12/1/Add.101 at para. 41; Monaco, 13 June 2006, E/ C.12/MCO/CO/1 at para. 23; and Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 55. Article 2 of the ECHR provides: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

80

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Note that the European Commission on Human Rights (EComHR) interpreted this right as not only requiring State Parties to prevent intentional killing, but to also take necessary affirmative measures to protect life against unintentional loss. See Cook, Dickens, and Fathalla, supra n. 2 at 161, citing Tavares v France, Application No. 16593/90, EComHR, Report of 12 September 1991, which was declared inadmissible on technical grounds. While the ECtHR now has the sole role of interpreting and applying the ECHR, prior Commission statements and decisions are persuasive. Krzyanowska-Mierzewska, How to Use the European Convention for the Protection of Human Rights and Fundamental Freedoms in Matters of Reproductive Law: The Case Law of the European Court of Human Rights, (Astra, 2004) at Part III.1, available at: http://www.astra.org.pl/astra_ guide.htm [last accessed 9 September 2007]. Tavares v France, supra n. 79.

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never confirmed whether threat of suicide is equivalent to a threat to life, in the context of reviewing a Member States’ abortion law.82 Protections under Article 2 of the ECHR will be addressed at greater length, under the sections addressing claims of foetal rights and abortion to preserve a woman’s health.

African system The African Women’s Protocol is the only international human rights instrument to explicitly pronounce, in the text of the instrument, women’s right to access abortion when pregnancy ‘endangers the . . . life of the mother or the foetus’.83 While some African states permit abortion to save a woman’s life, the Protocol calls upon ratifying States to take a step further and extend the right to women whose lives are ‘endanger[ed]’ by pregnancy.84 This permissive, unqualified language represents a significant expansion of women’s right to access abortion in Africa.

B. Foetal ClaimsçRight to Life In some instances, those opposing abortion have attempted to co-opt right to life protections set forth within international and regional human rights law to assert that foetuses are similarly accorded a right to life. These assertions are incompatible with women’s fundamental human rights to life, health and autonomy, by imposing involuntary motherhood on to women and, in essence, requiring women to jeopardise their own lives for the lives of their future children. Nevertheless, as demonstrated subsequently, such contentions have been defeated on various occasions within both international and regional human rights forums. (i) International human rights parameters Historical analyses of the Universal Declaration of Human Rights 1948 (UDHR),85 ICCPR and ICRCçthe major international human rights treaties conferring the right to lifeçconfirm that that right does not extend to foetuses. As the first pronouncement of the right to life, Article 3 of the UDHR 82

83 84 85

Recently, the ECtHR referenced the Irish Supreme Court decision Attorney General v X, which held a pregnant teenager’s suicidal tendencies to be a real and substantial risk to life under Ireland’s life exception to the constitutional abortion ban, in the case D. v Ireland, to assert that Ireland’s Constitutional Court has the potential to develop the parameters of the Irish abortion law, thus requiring the exhaustion of domestic remedies. See D. v Ireland (2006) 43 EHRR SE16 at paras 88^103. See also Attorney General v X [1992] 2 CMLR 277. Article 14.2 (c), African Women’s Protocol. Ibid. GA Res. 217A(III), 10 December 1948.

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specifically limits that right to those who have been ‘born’. In fact, the term ‘born’ was intentionally used to exclude the foetus or any other antenatal application of human rights. This is confirmed by the fact that a proposed amendment to remove the term and protect the right to life from the moment of conception, was denied.86 Therefore, in the context of abortion, the UDHR limits the right to life to women and girls. Similar to the UDHR, the ICCPR rejects the proposition that the right to life attaches before birth. The ICCPR’s negotiation history indicates that an amendment was proposed and rejected which stated: ‘the right to life is inherent in the human person from the moment of conception, this right shall be protected by the law’.87 The HRC has also repeatedly called upon States Parties to liberalise criminal abortion laws,88 a position that is discordant with any purported right to life for foetuses.89 Along similar lines, the ICRC’s travaux pre¤ paratoires and its interpretation by the CRC confirm, that the ICRC’s protections concerning life begin at birth.90 Arguments to the contrary have been made based on Paragraph 9 of the ICRC’s preamble which states: ‘Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘‘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’’’.91 At most, this language recognises a state’s duty to promote a child’s capacity to survive and thrive after birth, by targeting the pregnant woman’s nutrition and health. The ICRC’s travaux actually confirm that the pre-natal language is not intended to infringe on any women’s right to access abortion. Notably, the ICRC’s initial draft did not contain the ‘before as well as after birth’ language, which was subsequently added as an amendment proposed by The Holy See.92 When proposing the amendment, The Holy See clarified that ‘the purpose of the amendment was not to preclude the possibility of abortion’.93 The ICRC’s Working Group also confirmed the amendment’s limited nature when stating 86 87

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89 90 91 92 93

GA OR 3rd Comm., A/PV/99 (1948) at 110^124. GA OR Annex, 12th session (1957), Agenda Item 33 at 96, A/C.3/L.654 at para. 113. The Commission on Human Rights ultimately voted to adopt Article 6, which has no reference to conception, by a vote of 55 to nil, with 17 abstentions: see GAOR, 12th Session, Agenda Item 33, A/3764 (1957) at 119(q). Concluding Observations of the HRC regarding: Argentina, CCPR/CO/70/ARG (2000) at para. 14; Costa Rica, CCPR/C/79/Add.107 (1999) at para. 11; United Republic of Tanzania, CCPR/C/ 79/Add.97 (1998) at para. 15; Venezuela, CCPR/CO/71/VEN (2001) at para. 19; and Poland, CCPR/CO/82/POL (2004) at para. 8. Concluding Observations of the HRC regarding: Ecuador, 18 August 1998, CCPR/C/79/Add.92 at para. 11; Mongolia, 25 April 2000, CCPR/C/79/Add.120 at para. 8(b); and Poland, 29 July 1999, CCPR/C/79/Add.110 at para. 11. CRC, supra n. 69. Ibid. at Preamble, para. 9. Commission on Human Rights, Question of a Convention on the Rights of a Child: Report of the Working Group, 10 March 1980, E/CN.4/L/1542. Ibid.

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that ‘the Working Group [does] ‘‘not intend to prejudice the interpretation of Article 1 or any other provision of the Convention by States Parties’’’.94 Therefore, the focus of the preamble’s language is on the ‘child’, as defined under the ICRC as ‘every human being below the age of eighteen years[,]’ and not a foetus.95 Finally, the CRC implies within its Concluding Observations, that the definition of a ‘child’, for the purposes of the ICRC, does not include a foetus. As such, the CRC has never applied Article 6’s protections to foetuses. (ii) Regional human rights parameters Foetal rights to life have also been vetted within the regional human rights systems, through cases brought before the EHRC and the Inter-American Commission.

European system Foetal claims to the right to life brought to the European human rights system have largely been ineffective. As noted before, there are substantive and procedural elements to the right to life (Article 2) under the ECHR. When foetal rights claims have been asserted based on Article 2’s substantive protections, the ECHR bodies repeatedly conclude that foetuses do not enjoy an absolute right to life. For example, the European Commission of Human Rights (EComHR) confirmed in Paton v United Kingdom, that the use of the term ‘everyone’ in Article 2, protecting the right to life, does not include foetuses, although it left open the question whether the ‘right to life’ in Article 2 might cover the ‘life’ of the foetus, with implied limitations.96 The husband-applicant in Paton asserted that his pregnant wife should be prevented from aborting the foetus based on the foetus’ right life under Article 2. The EComHR dismissed the complaint and confirmed that a foetus’ potential right to life did not outweigh the interests of the pregnant woman since the foetus is intimately connected with and cannot be isolated from, the life of the pregnant woman.97 The EComHR went on to say that: ‘If Article 2 were held to cover the foetus and its protections under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy 94

95 96 97

UN Commission on Human Rights, Report of the Working Group on a Draft Convention on the Rights of the Child, E/CN.4/1989/48 (1989) at p. 10, as cited in LeBlanc, The Convention on the Rights of the Child: United Nations Lawmaking on Human Rights (Lincoln: University of Nebraska Press, 1995) 69 (quoted in Ibegbu, Rights of the Unborn in International Law (Lewiston NY: E Mellen Press, 2000) at 145 and 146^7. Article 1, ICRC. Paton v United Kingdom (X v United Kingdom) (1980) 19 DR 244; (1981) 3 EHRR 48 at paras 7^ 9 and 23. Ibid. at paras 7^9 and 19.

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would involve a serious risk to the life of the pregnant women[,]’and this would mean that the ‘unborn life’ of the foetus would be more regarded as of higher value than the life of the pregnant woman.98 By making this statement, the EComHR implied that the rights and interests of the woman’s right to life take precedence over the interests of the foetus. A similar claim was brought in Boso v Italy, when the ECtHR found that the contested abortion was not in breach of Article 2. It was performed under Italian law which permitted an abortion in the first 12 weeks to protect the woman’s physical or mental health. This law struck a fair balance between the woman’s interest and the state’s interest in protecting the foetus.99 Boso highlights the ECtHR’s tendency to analyse abortion from a view of health, regardless of the nature of an applicant’s substantive claims. For example, while Boso alleged that his partner’s abortion constituted an Article 2 violation, the ECtHR rejected the applicant’s claim based partially on the fact that Italy’s abortion law protects the health of pregnant women.100 Notably, each of the abortion laws at issue in these cases were fairly liberal. It is unclear whether the ECtHR would accord similar deference to Member States with more restrictive abortion laws. While the ECtHR has affirmed that foetuses do not enjoy an absolute right to life, the Court has failed to unequivocally state whether Article 2’s protections apply to foetuses, and in turn, avoided drawing any conclusion that may adversely affect Member States’ abortion laws.101 The ECtHR was asked for the first time, in Vo v France, to squarely determine whether foetuses enjoy the right to life under Article 2.102 While the ECtHR reaffirmed its jurisprudence on abortion laws which recognise that ‘the unborn child is not regarded as a ‘‘person’’ directly protected by Article 2 of the Convention’, and that if the unborn do have a ‘‘‘right’’ to ‘‘life’’, it is implicitly limited by the mother’s rights and interests’, it avoided explicitly confirming whether Article 2 applied to foetuses by noting that, there is no European consensus on the scientific and legal definition of the beginning of life’. 103 98 99 100 101

Ibid. at para. 19. Boso v Italy 2002-VII 99. Ibid. Hewson, ‘Dancing on the Head of a Pin? Foetal Life and the European Convention’, (2005) 13 Feminist Legal Studies 363 at 372. 102 Vo v France (2005) 40 EHRR 12 at para. 80. 103 Ibid. at paras 80 and 82. See also Gre¤goire Loiseau,‘Histoire d’une vie vole¤e: le foetus n’est pas une personne’, Droit et patrumone, November 2001, chron. Droits des personnes, p. 99, summarising the 2001 case. The Cour de Cassation confirmed that a ‘human being’ is a biological concept in France, and ‘human beings’are understood to exist from the beginning of life, generally considered as conception, although there is no firm agreement on when life begins. On the other hand, the term ‘person’ is a legal term that is attached to a legal category whose rights takes effect and are perfected by birth, although in certain circumstances the rights acquired at birth will be retroactive to conception. The decision was based on the distinction made in French law between the concepts of ‘human being’ and ‘person’, which scholars assert is deeply founded in principles of French civil law: ibid.

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The applicant in Vo argued that her foetus was denied the right to life based on medical negligence which led to her unanticipated therapeutic abortion. After unsuccessfully pursuing a criminal prosecution against the negligent doctor within the French court system,Vo filed a petition with the ECtHR alleging that France, in refusing to treat the foetus as a person and thus, prosecute the doctor for unintentional homicide, violated her foetus’ Article 2 right to life.104 The ECtHR ultimately declined to treat the foetus as a ‘person’ or require a homicide prosecution, by deferring the issue to France, in line with the margin of appreciation doctrine.105 In the Court’s view, the civil remedy available in French law was sufficient. The Vo decision is indicative of the ECtHR’s ambivalence regarding Article 2’s application to foetal life and reluctance to pose challenges to Member States’ abortion laws.106 More recently, the ECtHR was asked to consider, in Evans v United Kingdom, whether embryos are entitled to Article 2 right to life protections under the ECHR.107 The applicant in Evans complained of a violation of rights under Articles 2, 8 and 14 of the EHRC based on her partner’s withdrawal of consent for use of embryos they had created and frozen for future implantation. Specifically, she claimed that the provisions of English law requiring the embryos to be destroyed once her partner withdrew his consent to their continued storage violated the embryos’ right to life, contrary to Article 2 of the Convention. Affirming its decision in Vo v France, the ECtHR further declined to extend Article 2 protection to the embryos.108 Referring to the lack of any European consensus on the scientific and legal definition of when human life begins, the ECtHR again deferred to the state.109 In that regard, it recalled English law under which ’an embryo does not have independent rights or interests and cannot claim ^ or have claimed on its behalf ^ a right to life under Article 2 [of the Convention]’.110 In addition, in the ECtHR’s extensive analysis and balancing of the rights (under Article 8çright to private and family life) of the applicant to preserve the embryos and the rights of her partner to have them destroyed, the ECtHR did not include any ‘embryonic interests’ in this balancing test, thus indicating, that the ECHR does not require protection of such arguable interests.111 While there have been few embryonic right to life claims, analogous to claims of foetal rights, they may be asserted by abortion opponents to diminish 104 Vo v France, supra n. 102 at para. 48. 105 Ibid. at paras 84, 89 and 92^3. 106 Hewson, supra n. 101 at 372. Note, the ECtHR’s failure to take a bright-line stance on Article 2 arguably opens the door for anti-abortion advocates to rely upon the ECtHR’s consistent deference to States Parties to assert that if the tables were turned, and a State determined life commenced at conception, the ECtHR would have to employ similar deference. 107 Evans v United Kingdom (2008) 46 EHRR 728. 108 Ibid. at paras 54^56. 109 Ibid. at para. 54. 110 Ibid. 111 Ibid. at paras 71^92.

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women’s right to abortion.112 Historically, issues of embryonic interests have arisen within assisted reproductive technologies debates. Embryonic and foetal rights start to overlap, however, in the in vitro fertilisation context. Some abortion opponents maintain that dismissal of fertilised ova during the in vitro process is equivalent to aborting a foetus, and thus, should be prohibited as a potential right to life violation. Nevertheless, claims of embryonic rights are even more tenuous than those of foetal rights because foetal rights claims have been denied thus far, and embryos are the biological precursor to foetuses. Moreover, debates surrounding assisted reproductive technologies in many instances do not raise the competing interests of pregnant women, an issue posed by foetal rights claims and in situations of abortions. While the ECtHR’s decisions in Vo and Evans were ultimately favourable towards Member States liberal abortion laws, it does, by deferring the decisions to states on whether or not foetal life should be protected, potentially leave the door open for such deference when foetal life and interests are protected by national law. However, the ECtHR, in keeping in line with its case law, should limit any such interests with the pregnant woman’s rights and interests, should they be in conflict.

Inter-American system Contrary to the European human rights system, where protection of foetal interests still remains unclear, the Inter-American system provides somewhat more explicit guidance regarding ‘right to life’ protections. For example, the Inter-American Commission determined that Article 4 of the American Convention113 did not preclude liberal abortion legislation in the Baby Boy case.114 The Baby Boy case involved an American doctor who was prosecuted for manslaughter after providing an abortion to a teenage girl at the girl’s and her mother’s request.115 A petition was submitted to the Inter-American 112 A case is pending before the Inter-American Commission on Human Rights challenging the Costa Rican Supreme Court’s 2000 ruling banning in vitro fertilisation, based on the contention that human life begins at conception, thus entitling embryos and foetuses to the same legal protections as born individuals. Opponents of the decision are alleging that the Supreme Court ruling violates a myriad of human rights such as the right to health, to form a family, to privacy and to benefit from scientific progress, as recognised under international law. The Inter-American Commission’s ruling could have worldwide implications, impacting not only in vitro fertilisation and the right to bear children, but also the legal status of contraception and abortion. See Case 12.361, Ana Victoria Villalobos et al. v Costa Rica, Report No. 25/04 (2004). 113 Article 4 reads,‘The right to life shall be protected by law and, in general, from the moment of conception.’ 114 Case 2141, Baby Boy, 25/OEA/ser.L./V./II.54, Doc. 9 rev. 1 (1981). 115 Ibid. Criminal charges were initially brought against the doctor in the Baby Boy case in the Massachusetts’ court system; however, the highest court eventually overturned the doctor’s conviction.

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Commission on behalf of the aborted foetus, referred to as ‘Baby Boy’, alleging violations of the American Declaration of Rights and Duties of Man 1948 (American Declaration).116 Article 1 of the American Declaration protects the right to life without reference to the ‘moment of conception’,117 however, Article 4 of the American Convention, which does make such reference, was used as an interpretative tool in the case. The Inter-American Commission rejected the petitioners’ claims and noted that an absolute protection of the ‘right to life’ conflicted with most states’ abortion and death penalty laws.118 The Commission also found that, unlike the American Convention, the Declaration’s travaux pre¤ paratoires revealed that a number of States were opposed to protecting life from the moment of conception, and language to that effect had been removed, thus qualifying any right to life protections under the American Declaration.119

C. Abortion to Preserve a Woman’s Health Similar to the right to life, some international and regional human rights instruments protect women’s right to health. The WHO defines ‘health’ as ‘a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity’.120 While this is not a guarantee of perfect health, it imposes an obligation on governments to provide adequate healthcare and conditions conducive to enjoying good health. In the abortion context, the right to health can be interpreted as requiring governments to take positive measures to avoid women’s exposure to the health risks of unsafe abortion and to ensure pregnant women’s access to abortion when their health is at risk.121 Such measures arguably include removing legal restrictions on abortion and ensuring access to high-quality abortion services. Notably, convention bodies consistently interpret treaty-based health protections as intricately connected within individuals’ right to life, especially in discussions of maternal mortality. As a whole, treaty-monitoring bodies’ have not precisely defined women’s health protections in this context. However, a recent interpretation of health in 116 O.A.S.Res.XXX, 9th International Conference of American States (1948), OEA/Ser.L/II.82 doc.6ev.1 at 17 (1992), Article 1. The petitioner sought recourse under the American Declaration, as the United States is not a party to the American Convention. The American Declaration is technically not a legally binding agreement under international law; however, it is a source of legal obligations for OAS Member States and has legal ramifications for those Member States that have not yet ratified the American Convention. 117 Ibid. 118 Baby Boy, supra n. 114 at para. 18. 119 Article 4, American Convention. 120 WHO, ‘Constitution of the World Health Organization’, signed 22 July 1946, OR Wld Hlth Org., 2, 100, which entered into force on 7 April 1948, at the preamble. 121 Report of the International Conference on Population and Development, supra n. 12.

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the abortion context, by a treaty-monitoring body, aligns with the WHO’s broad conception of health, which includes mental health. Women’s right to abortion should be expanded to include abortion on request or for socio-economic reasons, as denial of which may significantly affect women’s mental or physical health. (i) International human rights parameters ^ right to health The ICESCR, ICEDAW and ICRC expressly confirm women’s right to health and treaty-monitoring bodies have interpreted and applied that right in the context of abortion.122 The ICCPR’s provisions do not expressly protect the right to health, however, the HRC has recently handed down the decision in KL v Peru that has addressed the intersections of health, privacy rights and the right to be free from inhumane and degrading treatment, and called for a broad reading of health exceptions under a state’s abortion law.123

International covenant on civil and political rights In the context of abortion, the HRC has linked women’s right to life to conditions of health,124 and emphasised connections between unsafe abortions and high rates of maternal mortality.125 The Committee has specifically addressed the effect of restrictive abortion laws on women’s health.126 For example, the HRC recently reviewed Peru’s restrictive abortion law in KL v Peru.127 The case of KL involved a 17-year-old Peruvian girl who was pregnant with an anencephalic foetus. Doctors confirmed that her foetus would likely be born without major portions of its brain leading to stillbirth or death, which posed risks to KL’s life if the pregnancy continued.128 A social worker advised KL to get an abortion as continuing the pregnancy would ‘. . . prolong the distress and emotional instability of . . . [KL] and her family[,]’ and a psychiatrist concluded that ‘. . . the so-called principle of the welfare of the unborn child has caused serious harm to the mother, . . . [which] has substantially . . . [triggered]

122 Article 12, ICESCR; Article 12, CEDAW; and Article 24, ICRC. 123 KL v Peru (1153/2003), CCPR/C/85/D/1153/2003 (2005); 13 IHRR 355 (2006). 124 Concluding Observations of the HRC regarding: El Salvador, 22 August 2003, CCPR/CO/78/ SLV at para. 14; Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8. 125 Concluding Observations of the HRC regarding: Gambia, 12 August 2004, CCPR/CO/75/GMB at para. 17; Guatemala, 27 August 2001, CCPR/CO/72/GTM at para. 19; Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; Mongolia, 25 May 2000, CCPR/C/79/Add.120 at para. 8(b); and Poland, 29 July 1999, CCPR/C/79/Add.110 at para. 11. 126 Concluding Observations of the HRC regarding Mali, 16 April 2003, CCPR/CO/77/MLI at para. 13. 127 KL v Peru, supra n. 123. 128 Ibid. at para. 2.2.

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the symptoms of depression’, severely impacting KL’s development and future mental health.129 While abortion is illegal in Peru, there is a limited exception for women’s life or health. Despite this legal exception and medical recommendations to terminate the girl’s pregnancy, Peru’s state hospitals ultimately denied KL’s request for an abortion because they claimed it fell outside the health and life exceptions, as there is no explicit right to abortion in cases of severe foetal impairment. KL was forced to carry her pregnancy to term and gave birth to an anencephalic girl. After she was forced to breastfeed the baby for four days, the baby, as medically expected, died and KL became severely depressed, requiring psychiatric treatment. Thereafter, three non-governmental organisations collectively submitted an individual complaint to the HRC on KL’s behalf.130 The individual complaint alleged that state authorities’ denial of KL’s legal right to therapeutic abortion violated Article 2 (respect for and guarantee of rights), Article 3 (equality and non-discrimination), Article 6 (right to life), Article 7 (freedom from torture and cruel, inhuman and degrading treatment), Article 17 (right to privacy), Article 24 (special measures for minors) and Article 26 (equal protection of the law) of the ICCPR. The HRC ultimately held Peru in breach of its ICCPR obligations under Articles 2, 7, 17 and 24, for denying access to a therapeutic abortion permitted by its own domestic law, but deemed KL’s Article 3 claim to be unsubstantiated and found it unnecessary to make an Article 6 finding based on the finding of an Article 7 violation.131 With respect to Article 7, the HRC reasoned that KL’s depression and emotional distress were foreseeable and the State’s omission in ‘ not enabling . . . [KL] to benefit from a therapeutic abortion was . . . the cause of the suffering she experienced’.132 It followed that a state’s obligation to respect the right protected under Article 7 requires it to guarantee women’s access to abortion in cases where pregnancy threatens her physical and mental health, including due to severe foetal impairment. Notably, the HRC’s finding of an Article 7 violation did not depend on the lawfulness of the procedure, which thus opened the possibility for both the legal and practically inaccessibility of a therapeutic abortion. With respect to Article 17, the HRC relied on the WHO’s holistic definition of health to read mental health into Peru’s health exception, and found that since KL was legally entitled to an abortion, ‘ the refusal to act in accordance with the author’s decision to terminate her pregnancy was not justified’.133 Infringing on KL’s rights in this regard, in turn, violated her right to privacy. 129 Ibid. at paras 2.4 and 2.5. 130 The organisations were: Peruvian organisation Estudio para la Defensa de los Derechos de la Mujer (DEMUS); the Latin American and Caribbean Committee on the Defense of Women’s Rights (CLADEM); and the United States organisation the Center for Reproductive Rights. 131 KL v Peru, supra n. 123 at paras 6.3 and 6.6. 132 Ibid. at para. 6.3. 133 Ibid. at para. 6.4.

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As to Article 24 (special measures for minors), the HRC noted KL’s ‘special vulnerability’ as a minor girl, by recognising the unique barriers and susceptibility to rights violations that adolescents face when attempting to access abortion.134 Finally, as to Article 2 (respect for and guarantee of human rights), the HRC held that the state had a duty to provide legal and administrative mechanism to prevent or redress rights violations.135 The significance of KL is immense because it marks the first time a UN human rights body held a government accountable for failing to ensure access to abortion services to an individual. In sum, under KL, the HRC requires a broad reading of statutory health exceptions to include issues of mental health, the positive realisation of a right to access abortion for states that permit abortions in circumstances of foetal impairment, necessary measures to guarantee adolescents’ access to reproductive health services, and accessible, economically feasible procedures to appeal a doctor’s refusal to perform a legal abortion. On a related note, the HRC has called upon Ireland, in its 2000 Concluding Observations, (which was prior to the decision in KL) to ‘ensure that women are not compelled to continue with pregnancies where that is incompatible with obligations arising under the ICCPR (Article 7) and General Comment No. 28[,]’ on equality of rights between men and women.136 The Committee expressed concern that women in Ireland could only obtain abortions when the pregnant woman’s life was endangered, and did not include an exception for pregnancies that resulted from rape.137 The Committee recommended that Ireland bring its abortion legislation in line with the Covenant and its interpretations.138

Convention on the elimination of all forms of discrimination against women Article 12 of ICEDAW sets forth women’s right to health.139 CEDAW has addressed in its Concluding Observations the intersections between abortion and women’s right to health and other rights related to marriage and family life. For example, it has raised general concerns over high rates of abortion,140 134 Ibid. at para. 6.5. 135 Ibid. at para. 9. 136 Concluding Observations of the HRC regarding Ireland, 29 March 2000, CCPR/C/21/Rev.1/ Add.10 at para. 24. 137 Ibid. at para. 23. 138 Ibid. at para. 24. 139 Article 12(1), ICEDAW. 140 Concluding Observations of CEDAW regarding: Chile, 9 July 1999, A/54/38 at para. 209; Czech Republic, 14 May 1998, A/53/38 at para. 197; Georgia, 1 July 1999, A/54/38 at para. 111; Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at para. 254; Namibia, 12 August 1997, A/52/38/Rev.1, Part II at para. 111; Lithuania, 16 June 2000, A/55/ 38 at para. 158; Republic of Korea, 8 July 1998, A/55/38/Rev.1 at para. 382(c); Romania, 23

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particularly among adolescents,141 and has praised efforts by States Parties to reduce abortion rates.142 CEDAW has expressed particular concern regarding lack of access to contraceptive methods and family planning services, which lead to unsafe abortions and rising rates of maternal mortality.143 CEDAW has also expressed concern about the reliance on abortion as a primary means of family planning.144 In that regard, CEDAW has recommended that contraception and family planning services be freely available and accessible145 and that States Parties ensure that abortion is not perceived as a family planning method.146 CEDAW has also expressed a particular concern in cases where contraceptive methods are freely available but the rate of abortion remains very high.147 Notably, CEDAW has never expressly acknowledged that access to safe, legal abortion is always needed as a back up method of family planning when methods of contraception fail. CEDAW has recently shown a greater willingness to raise issues related to abortion and direct States Parties to take affirmative measures to safeguard women’s reproductive rights. For example, based on concern over Ireland’s extremely restrictive abortion laws, the Committee has urged Ireland on two occasions to ‘facilitate a national dialogue on women’s right to reproductive

141 142 143

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June 2000, A/55/38 at para. 314; Russian Federation, 31 May 1995, A/50/38 at para. 523; Slovakia, 30 June 1998, A/53/38/Rev.1 at para. 91; Ukraine, 9 May 1996, A/51/38 at para. 287; and Vietnam, 31 July 2001, A/56/38 at para. 266. Greece and Vietnam, supra n. 140. Concluding Observations of CEDAW regarding: Cuba, 19 June 2000, A/55/38 at para. 257; and Finland, 31 May 1995, A/50/38 at para. 378. Concluding Observations of CEDAW regarding: Georgia, 1 July 1999, A/54/38 at para. 111; Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at para. 254; Lithuania, 16 June 2000, A/55/38 at para. 158; Mexico, 25 August 2006, CEDAW/C/MEX/CO/ 6 at para. 32; Mongolia, 2 February 2001, A/56/38 at para. 273; and Ukraine, 9 May 1996, A/ 51/38 at para. 287. Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38 at para. 66; Burundi, 2 February 2001, A/56/38 at para. 62; Cuba, 25 August 2006, CEDAW/C/CUB/CO/6 at para. 27; Former Yugoslav Republic of Macedonia, 3 February 2006, CEDAW/C/MKD/CO/3 at para. 31; Georgia, 1 July 1999, A/54/38 at para. 111; Kazakhstan, 2 February 2001, A/56/38 at para. 105; Kyrgyzstan, 27 January 1999, A/54/38 at para. 136; Republic of Moldova, 27 June 2000, A/55/38 at para. 109; Romania, 23 June 2000, A/55/38 at para. 314; Slovakia, 30 June 1998, A/53/38/Rev.1 at para. 91; and Uzbekistan, 2 February 2001, A/56/38 at para. 185. Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38 at para. 73; Burundi, 2 February 2001, A/56/38 at para. 62; Former Yugoslav Republic of Macedonia, 3 February 2006, CEDAW/C/MKD/CO/3 at para. 31; Georgia, 1 July 1999, A/54/38 at para. 112; Greece, 1 February 1999, A/54/38 at para. 208; Kazakhstan, 2 February 2001, A/56/38 at para. 106; Kyrgyzstan, 27 January 1999, A/54/38 at para. 137; Republic of Moldova, 27 June 2000, A/55/38 at para. 110; Romania, 23 June 2000, A/55/38 at para. 315; Slovakia, 30 June 1998, A/53/38/Rev.1 at para. 92; Uzbekistan, 2 February 2001, A/56/38 at para. 186; and Vietnam, 31 July 2001, A/56/38 at para. 267. Concluding Observations of CEDAW regarding Kyrgyzstan, 27 January 1999, A/54/38 at para. 137. Concluding Observations of CEDAW regarding; Czech Republic, 14 May 1998, A/53/38 at para. 197; and Mauritius, 31 May 1995, A/50/38 at para. 196.

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health, including the [country’s] very restrictive abortion laws’ and improve family planning services and availability of contraception.148 CEDAW has also called upon States Parties to review legislation criminalising abortion and potentially remove barriers restricting access to safe abortion, connecting such barriers to women’s right to health.149 For example, CEDAW’s 2006 Concluding Observations to Mexico expressed concern that abortion remained one of the leading causes of maternal mortality, despite legalisation of abortion in some contexts, due to lack of access to safe abortion services and a wide range of contraception, including emergency contraception.150 CEDAW recommended that Mexico increase access to reproductive health care and family planning services and address obstacles to accessing those services, provide sex education targeting men and women, and adolescent boys and girls, and harmonise federal and state abortion legislation.151 CEDAW also urged Mexico to implement a comprehensive strategy to provide effective access to safe abortion in situations provided for under the law, a wide range of contraceptives, including emergency contraception, and campaigns to raise the awareness regarding unsafe abortions.152 Convention on the rights of the child Article 24 of the ICRC guarantees children’s right to the highest attainable standard of health and places responsibility on State Parties to ensure proper health care for mothers, children and families. The CRC expanded upon Article 24’s protections in General Comment No. 4 (adolescent health and development), which emphasises the significant health risks faced by adolescents due to unwanted pregnancies and unsafe abortions.153 The CRC has called upon States Parties to ‘take measures to reduce maternal morbidity and mortality in 148 Concluding Observations of CEDAW regarding: Ireland, 22 July 2005, CEDAW/A/60/38 paras 359^405, 397. See also Ireland, 25 June 1999, CEDAW/A/54/38 at paras 161^201. 149 Concluding Observations of CEDAW regarding; Andorra, 31 July 2001, A/56/38 at para. 48; Argentina, 23 July 1997, A/52/38 Rev.1, Part II at para. 319; Belize, 1 July 1999, A/54/38 at para. 57; Burkina Faso, 31 January 2000, A/55/38 at para. 276; Cameroon, 26 June 2000, A/ 55/38 at para. 60; Chile, 9 July 1999, A/54/38 at para. 229; Chile, 31 May 1995, A/50/38 at para. 158; Chile, 25 August 2006, CEDAW/C/CHI/CO/4 at paras 19^20; Colombia, 4 February 1999, A/54/38 at para. 394; Dominican Republic, 14 May 1998, A/53/38 at para. 349; Ireland, 1 July 1999, A/54/38 at para. 186; Jordan, 27 January 2000, A/55/38 at para. 181; Mauritius, 31 May 1995, A/50/38 at para. 196; Mexico, 14 May 1998, A/53/38 at para. 408; Namibia, 12 August 1997, A/52/38/Rev.1, Part II at para. 127; Nepal, 1 July 1999, A/54/38 at paras 139 and 148; Panama, 2 July 1998, A/55/38/Rev.1 at para. 201; Paraguay, 9 May 1996, A/51/38 at para. 131; Peru, 8 July 1998, A/53/38/Rev.1 at para. 340; Peru, 31 May 1995, A/50/38 at paras 446 and 447; Saint Vincent and the Grenadines, 12 August 1997, A/52/38/Rev.1 at para. 148; United Kingdom, 1 July 1999, A/55/38 at para. 310; and Zimbabwe, 14 May 1998, A/53/38 at para. 159. 150 Concluding Observations of CEDAW regarding Mexico, 25 August 2006, CEDAW/C/MEX/CO/6 at para. 32. 151 Ibid. at para. 33. 152 Ibid. 153 CRC ^ General Comment No. 4, supra n. 70.

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adolescent girls, particularly caused by early pregnancy and unsafe abortion practices, and to support adolescent parents’.154 Notably, the CRC has urged States Parties to provide safe abortion services where abortion is not against the law.155 Further, the CRC has recognised that safe abortion is part of adolescent girls’ right to adequate health under Article 24, noting that ‘high maternal mortality rates, due largely to high incidence of illegal abortion’ contribute significantly to inadequate local health standards for children.156 The CRC recently addressed adolescent health in the context of abortion in its 2005 Concluding Observation to China.157 The CRC expressed concern regarding the high incidence of teenage pregnancies and abortions in the Hong Kong Special Administrative Regions.158 The Committee recommended that China ‘pay close attention to adolescent health and . . . health services, taking into account . . . General Comment No. 4’ and ‘strengthen its efforts to promote adolescent health, including by providing sexual and reproductive health education in schools, and to introduce school health services, including youth-sensitive and confidential counselling and care’.159 International covenant on economic, social and cultural rights Article 12(1) of the ICESCR confirms the right to the ‘enjoyment of the highest attainable standard of physical and mental health’ and Article 12(2)(a) specifically requires States Parties to reduce the stillborn birth-rate and infant mortality. The CESCR has repeatedly expressed deep concern in its Concluding Observations over the relationship between high rates of maternal mortality and illegal, unsafe, clandestine abortions.160 The CESCR has thus recommended that States Parties increase education on reproductive and sexual health,161 as well as implement programmes to increase access to family

154 Ibid. 155 Ibid. 156 Concluding Observations of the CRC regarding: Guatemala, 9 July 2001, CRC/C/15/Add.154 at para. 40; Chad, 24 August 1999, CRC/C/15/Add.107 at para. 30; and Nicaragua, 24 August 1999, CRC/C/15/Add.108 at para. 35. 157 Concluding Observations of the CRC regarding China, 24 November 2005, CRC/C/CHN/CO/2 at paras 64^5. 158 Ibid. at para. 64. 159 Ibid. at para. 65. 160 Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 25; Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 32; Panama, 24 September 2001, E/C.12/1/Add.64 at para. 20; Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12; Senegal, 24 September 2001, E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2003, E/C.12/1/Add.99 at para. 22. 161 Concluding Observations of the CESCR regarding: Bolivia, 21 May 2001, E/C.12/1/Add.60 at para. 43; Mexico, 8 December 1999, E/C.12/1/Add.41 at para. 43; and Nepal, 24 September 2001, E/C.12/1/Add.66 at paras 33 and 55.

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planning services and contraception.162 The CESCR has also expressed general concern over the prevalence of abortion,163 especially among adolescent girls,164 as a result of lack of access to contraception.165 Furthermore, the CESCR has praised family planning policies that result in declines in abortion rates,166 and it has recommended increased family planning programmes to decrease the prevalence of abortion.167 Finally, the CESCR has commented on States Parties’ failure to provide information on abortion168 and has recommended study and analysis of high abortion rates.169 (ii) Regional human rights parameters ^ the woman’s right to health Similar to the international human rights system, there have been significant developments within regional human rights systems regarding women’s access to abortion as they intersect with women’s right to health. One of the foremost affirmations of such rights was in the ECtHR’s landmark decision Tysia˜ c v Poland, where the ECtHR was asked whether the State’s failure to apply the exception to Poland’s abortion law, which permits abortion for health reasons, violated the ECHR.170

European system The ECHR does not expressly guarantee any health or reproductive rights,171 or any determined standard of medical care.172 Furthermore, the ECHR bodies 162 Concluding Observations of the CESCR regarding: Kuwait, 7 June 2004, E/C.12/1/Add.98 at para. 43, Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 44; and Poland, 16 June 1998, E/ C.12/1/Add.26 at para. 12. 163 Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 25; Senegal, 31 August 2001, E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2004, E/ C.12/1/Add.99 at para. 22. 164 Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 25; and Spain, 7 June 2004, E/C.12/1/Add.99 at para. 22. 165 Concluding Observations of the CESCR regarding: Armenia, 8 December 1999, E/C.12/1/Add.3 at para. 15; and Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12. 166 Concluding Observations of the CESCR regarding: Russian Federation, 20 May 1997, E/C.12/1/ A dd.13 at para. 10. 167 Concluding Observations of the CESCR regarding: Armenia, 8 December 1999, E/C.12/1/ Add.39 at para. 19; Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 55; Panama, 24 September 2001, E/C.12/1/Add.64 at para. 37; Senegal, 24 September 2001, E/C.12/1/Add.62 at para. 47; Spain, 7 June 2004, E/C.12/1/Add.99 at para. 40; and Ukraine, 24 September 2001, E/C.12/1/A dd.65 at para. 31. 168 Concluding Observations of the CESCR regarding Switzerland, 7 December 1998, E/C.12/1/ Add.30 at para. 22. 169 Concluding Observations of the CESCR regarding; Mauritius, 28 December 1995, E/C.12/1995/ 18 at para. 245; Poland, 19 December 2002, E/C.12/1/Add.82 at para. 51; and Spain, 7 June 2004, E/C.12/1/Add.99 at para. 40. 170 Tysia˜ c v Poland (2007) 45 EHRR 42. 171 How to Use the European Convention, supra n. 80 at Part I (b)^(f). 172 Ibid. at Part III.1.

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have carefully avoided stating whether abortion is protected under the ECHR, and/or whether ‘legal and safe abortion should or should not be available under domestic law, . . . and if so, on what conditions’.173 As it now stands, it appears that Member States are free to determine the availability and legal status of abortion.174 However, jurisprudence under the ECHR does indicate that the ECtHR may show less deference to Member States in cases where women cannot obtain abortions when their lives and/or health are at risk. Health-related rights have been read into Articles 2 (right to life), 3 (freedom from inhuman and degrading treatment) and 8 (right to respect for private and family life) by ECHR bodies. With respect to Article 2, again, Member States have an obligation to ensure procedures are in place to protect lives when threatened.175 The EComHR has interpreted this to include hospital regulations for the protection of patients’ lives and an effective system to determine the cause of death which occurs in a hospital and which may pose civil and/or criminal liability.176 With respect to Article 3, ‘[f]ailure to afford adequate medical care may be also in breach of the prohibition of torture, inhuman or degrading treatment . . .’.177 While a few complaints have been made under Article 3 in the reproductive health care context, to date none has been successful.178 Article 8 protects individuals from arbitrary interference by public authorities. Article 8 also imposes a positive obligation on governments to adopt measures designed to secure respect for private life, even in the sphere of relations between individuals.179 With respect to abortion, the ECHR jurisprudence recognises that legislation regulating abortion falls under the sphere of Article 8 and statutory abortion restrictions may constitute an interference with women’s private lives.180 There is ‘no recent case-law to the effect that non-availability of legal and safe abortion can amount to a breach of Article 2, or Article 8 of the ECHR’.181 This is due to the fact that none of the cases filed challenging the unavailability of abortion have moved beyond the admissibility stage. The 173 174 175 176 177

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Ibid. at Part III.7. Ibid. Article 2, ECHR. Tavares v France, supra n. 79. How to Use the European Convention, supra n. 80, (see also Ireland v United Kingdom A 25 (1978); (1979^1980) 2 EHRR 25 at para. 162, where the ECtHR stated ‘. . . ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 . . .. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc’. Ibid. at Part III.3, stating: ‘Treatment is degrading if the person concerned has undergone humiliation or debasement attaining a minimum level of severity.’ The assessment must be done on a case-by-case basis. Note, however, the author asserts that no such Article 3 complaints have been successful in the context of reproductive rights. Ibid. at Part III.1. See also M.C. v Bulgaria (2005) 40 EHRR 20. Bru«ggemann and Scheuten v Federal Republic Germany (1977) 10 DR 100 at para. 100. See also Tysia˜ c v Poland, supra n. 170 at paras 105^115. How to Use the European Convention, supra n. 80 at Part III.7.

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only decision on the merits which addressed a challenge to a Member States’ restrictive abortion law is the 1977 case of Bru«ggemann and Scheuten v Federal Republic of Germany.182 The applicants in Bru«ggemann asserted that a German statute criminalising abortion after the 12th week of pregnancy violated their privacy interests under Article 8. The EComHR affirmed the privacy interests at stake by stating that, ‘[w]henever a woman is pregnant her private life becomes closely connected with the developing foetus[,]’183 but held that not every restriction on termination of unwanted pregnancies constitutes an interference with a woman’s privacy rights under Article 8(1).184 In rendering this decision, the EComHR relied upon the German statute’s exception for women’s health or life, implying that an absolute abortion ban that does not make exceptions for the health or life of pregnant woman may very well be an impermissible interference of privacy rights under Article 8.185 Since Bru«ggemann, the ECtHR has recognised, in some circumstances, pregnant women’s right to terminate their pregnancies under Article 8, but only in cases where abortion was legally permissible under the Member States law. For example, Paton v United Kingdom, R.H. v Norway and Boso v Italy, involved claims by ‘fathers’ that Article 8 granted them rights regarding the foetus when the women sought to terminate their pregnancies. In each of these cases the claim was denied and it was confirmed that women’s pregnancyrelated privacy rights trumped the ‘fathers’’ purported ECHR rights because a pregnant woman is, ‘the person primarily concerned by the pregnancy and its continuation or termination’.186 In March 2007, the ECtHR decided for the first time in Tysia˜ c v Poland, that Article 8 procedural obligations require Poland to ‘ provide a comprehensive legal framework regulating disputes between pregnant women and doctors as to the need to terminate pregnancy in cases of a threat to a woman’s health’.187 The applicant, Alicja Tysia˜ c, was a Polish woman who nearly went blind when forced to continue a pregnancy that threatened her health. Suffering from a severe eye condition, Tysia˜c sought to terminate her pregnancy after three doctors confirmed the pregnancy and pending delivery threatened her eyesight.188 While Polish law permits abortion for health reasons, the doctors refused to give Tysia˜ c the requisite health certificate to terminate her pregnancy.189 Tysia˜c sought further medical advice and received a certificate confirming the dangers pregnancy posed to her health, but she 182 183 184 185 186

Bru«ggemann and Scheuten v Germany, supra n. 180. Ibid. at 18 at para. 59. Ibid. at 19 at para. 61. Ibid. at 19 at para. 62 Paton v United Kingdom, supra n. 96; R.H. v Norway Application No. 17004/90, Admissibility decision of 19 May 1992, at para. 4; and Boso v Italy, supra n. 99. 187 Tysia˜ c v Poland, supra n. 171 at para. 80. 188 Ibid. at paras 8^9. 189 Ibid. at para. 9.

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was denied permission to abort the foetus.190 As predicted, Tysia˜c’s eyesight greatly deteriorated after delivery.191 Tysia˜ c initially filed a criminal complaint against state authorities, but was unsuccessful. She then filed a petition with the ECtHR alleging that the government violated Articles 3, 8, 13 and 14 of the ECHR by denying her abortion and thus failing to apply Poland’s abortion law.192 With respect to Article 3 (freedom from inhuman and degrading treatment), the ECtHR found, with little explanation, that the facts alleged did not amount to an Article 3 violation. Rather, the ECtHR deemed Tysia˜c’s complaints more appropriately examined under Article 8.193 With respect to Article 8 (private life), Tysia˜c argued that her rights had been ‘violated both substantively, by failing to provide her with a legal abortion, and . . . [procedurally,] . . . by the absence of a comprehensive legal framework to guarantee her rights by appropriate procedural means’.194 Notably, the ECtHR did not address the alleged substantive violation of Article 8, although it recognised that she ‘suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy and upcoming delivery for her health’. The ECtHR did decide that Poland violated its positive obligation to establish an effective procedure through which Tysia˜c could have appealed her doctors’ refusal to grant her abortion request and capable of determining whether the conditions for obtaining a lawful abortion had been met in her case. In other words, where Polish law accords women the right to legal abortion, the government must establish procedures enabling women to exercise that right. The ECtHR noted some of the key components of such a procedure, which include: (i) a guarantee that a pregnant woman has the right to be heard in person and have her views considered; (ii) a body to hear the woman’s appeal; (iii) that the body reviewing her appeal should issue written grounds for its decision; and, finally, (iv) that the government recognise that ‘the time factor is of critical importance’ in decisions involving abortion and therefore the hearing and appeals process should ensure that such decisions are timely. 195 As to Tysia˜c’s Article 13 (right to an effective remedy) claim, the ECtHR found that Poland’s positive obligations under Article 13 overlapped with those under Article 8, and thus there were no outstanding issues to merit a separate Article 13 violation.196 Finally, the ECtHR declined to examine 190 191 192 193 194 195

Ibid. at paras 10^13. Ibid. at paras 16^17. Ibid. at para. 3. Ibid. at para. 66. Ibid. at para. 76. Ibid. at para. 118. The ECtHR prescribed some of the key components of such a procedure: it should guarantee to a pregnant woman the right to be heard in person and have her views considered; the body reviewing her appeal should issue written grounds for its decision; and, recognising ‘the time factor is of critical importance’ in decisions involving abortion, the procedure should ensure that such decisions are timely. 196 Ibid. at para. 135.

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Tysia˜ c’s Article 14 (prohibition of discrimination) claim based on its previous finding of an Article 8 violation.197 Tysia˜ c is significant because it confirms that women’s right to access legal abortion may not be illusory. The ECtHR’s Article 8 analysis holds states to their procedural obligation to make abortion practically available where it is legally available. However, the Tysia˜ c decision may indicate the ECtHR’s unwillingness to address substantive violations of abortion rights, even when there is a legal basis for abortion, and propensity to rely on procedural violations to remedy the wrong. It may also indicate the ECtHR’s unwillingness to decide substantive violations when there are arguably undecided medical issues in a case, even when state action has caused the applicant ‘severe distress’. As to the discrimination claim, the decision exemplifies the ECtHR’s overarching unwillingness to address human rights issues generally and women’s human rights issues specifically as a form of discrimination against women. As the ECtHR has never decided a case challenging a State Party’s restrictive abortion law on the merits, other than in Bru«ggemann, to hold that abortion should be available, it is unclear how the ECtHR would decide a petition directly contesting the merits of an abortion law. The case law does somewhat indicate, however, that regardless of the substantive claims sought, the ECtHR has looked at abortion-related claims from a perspective of health of the pregnant woman. In that regard, it may behoove advocates to frame the right to access abortion claims in the context of women’s health, when submitting such claims to the ECtHR.

Inter-American system On 10 December 2006, the Rapporteur on the Rights of Women of the Inter-American Commission issued an unprecedented letter of concern to Nicaragua’s Minister of Foreign Affairs, declaring Nicaragua’s recently passed abortion ban contrary to international law, as it threatened women’s human rights and jeopardised women’s health. The Rapporteur reiterated that ‘therapeutic abortion has been internationally recognized as a specialized and necessary health service for women, its ultimate purpose being to save the life of the mother when threatened during pregnancy’and that denial of abortion services endangers women’s lives as well as their physical and psychological integrity.198 The Rapporteur also referenced prominent human rights bodies and representatives’ position that total abortion bans negatively impact women, to confirm that ‘[s]uch bans result in high rates of maternal mortality and therefore pose a 197 Ibid. at paras 55^61 and 144. 198 Organization of American States ^ Inter-American Commission on Human Rights, Letter to Nicaragua Minister of Foreign Affairs, HE Norman Calderas Cardenal, 10 November 2006, available at: http://www.reproductiverights.org/pdf/index_nicaragua_ english.pdf [last accessed 22 September 2007].

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public health problem’.199 The Rapporteur then called upon the Nicaraguan government to take into account the above referenced human rights principles when deciding whether to ratify the country’s abortion ban.200 The Rapporteur’s 2006 statement to Nicaragua represents the first time a human rights body representative has contacted a Member State on its own accord to emphasise the human rights implications of a pending state action. At present, the ratification of Nicaragua’s ban is still pending on a decision by the country’s Supreme Court. African system The African Women’s Protocol explicitly calls upon States Parties to ‘[authorise] medical abortion . . . [when] the continued pregnancy endangers the mental and physical health of the mother’.201 It is unclear whether the Protocol’s health-related provision will be interpreted as separate mental or physical health grounds or conjunctively, requiring endangerment to both physical and mental health. Either way, the Protocol squarely frames abortion as an issue of women’s health. Similar to the Protocol’s preservation of life grounds for abortion, the health grounds includes mental and physical health, and merely requires a women’s health to be ‘endanger[ed]’.202 As health is not merely the absence of disease, but rather includes a more holistic sense of social well-being, as defined by the WHO, the Protocol’s health grounds should be interpreted broadly. D. Abortion for Women who have Suffered Rape or Incest Other than the African Women’s Protocol, no international or regional human rights treaty explicitly confers the right to abortion on women who have suffered rape and/or incest. Nonetheless, treaty-monitoring bodies are addressing the issue with greater frequency in Concluding Observations to States Parties, thus bolstering the law in this context. (i) International human rights parameters International covenant on civil and political rights The HRC has expressed concern regarding the criminalisation of abortion when the pregnancy is the result of rape,203 and confirmed that such 199 200 201 202 203

Ibid. Ibid. Article 14.2 (c), African Women’s Protocol. Ibid. Concluding Observations of the HRC regarding Gambia, 12 August 2004, CCPR/CO/75/GMB at para. 17.

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legislation violates women’s right to life under Article 6.204 For example, the HRC in its 2004 Concluding Observations to Poland, expressed concern regarding the unavailability of abortion in practice even when the law permits it, such as in cases where pregnancy resulted from rape.205 To address this, the HRC recommended that Poland liberalise its legislation and practice on abortion.206 The HRC similarly recommended that Peru amend its restrictive criminal abortion law, because laws that subject women to criminal penalties for terminating a pregnancy that results from rape are incompatible with the rights under the ICCPR to equal enjoyment of rights (Article 3), life (Article 6) and to be free from torture and from cruel, inhuman or degrading treatment or punishment (Article 7).207 The HRC further addressed abortion in the context of rape, as a potential violation of the prohibition on torture, cruel, inhuman or degrading treatment or punishment,208 in General Comment No. 28 on equality of rights between men and women. Under the General Comment States Parties are required to report on whether they provide safe access to abortion for women who become pregnant as a result of rape, to enable the HRC to assess their compliance with Article 7.209 The HRC also expressed concern regarding Ireland’s abortion law, which restricts abortion to situations where a pregnant woman’s life is in danger and does not permit the procedure for women becoming pregnant from rape.210 The HRC called upon Ireland to ‘ensure that women are not compelled to continue with pregnancies where that is incompatible with obligations arising under’Article 7 and General Comment No. 28.211 Convention on the elimination of all forms of discrimination against women CEDAW has raised general concerns regarding the accessibility of safe abortion,212 particularly in cases of rape.213 It has also expressed concern regarding laws criminalising abortion when the pregnancy resulted from rape or

204 Concluding Observations of the HRC regarding Peru, 15 November 2000, CCPR/CO/70/PER at para. 20. 205 Concluding Observations of the HRC regarding Poland, 2 December 2004, CCPR/CO/82/POL at para. 8. 206 Ibid. 207 Peru, supra n. 204. 208 Article 7, ICCPR. 209 HRC ^ General Comment No. 28, supra n. 34 at para. 11. 210 Concluding Observations of the HRC regarding Ireland, 24 July 2000, A/55/40 at para. 23. 211 Ibid. at para. 24. 212 Concluding Observations of CEDAW regarding; Ireland, 1 July 1999, A/54/38 at para. 185; Mexico, 14 May 1998, A/53/38 at para. 399; Saint Vincent and the Grenadines, 12 August 1997, A/52/38/Rev.1 at para. 148; and Tunisia, 31 May 1995, A/50/38 at para. 246. 213 Concluding Observations of CEDAW regarding; Jordan, 27 January 2000, A/55/38 at para. 180; Myanmar, 28 January 2000, A/55/38 at paras 129^130; Panama, 2 July 1998, A/55/38/Rev.1 at para. 201; and Venezuela, 12 August 1997, A/52/38/Rev.1 at para. 236.

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incest.214 In those situations, CEDAW has called for amendment of such legislation,215 and credited States Parties for decriminalising abortion in cases of serious malformation of the foetus or in circumstances of rape.216 International covenant on economic, social and cultural rights The CESCR expressed concern in its 2006 Concluding Observation to Mexico regarding obstruction of access to legal abortion after rape such as ‘misinformation, lack of clear guidelines, abusive behaviour directed at rape victims by public prosecutors and health personnel’,217 and regarding legal impediments to abortion in cases of incest.218 As a solution, the CESCR recommended that Mexico ensure and monitor full access of rape victims to legal abortion, implementation of a reproductive health services and education programme to ensure full access to everyone, especially in rural and indigenous communities.219 The CESCR has also linked restrictive abortion laws or the criminalisation of abortion, to the problem of unsafe abortion and high rates of maternal mortality,220 and called for States Parties to legalise abortion when a pregnancy is life threatening or the result of rape or incest.221 (ii) Regional human rights parameters European system The ECtHR has not yet decided a case regarding women’s right to abortion for pregnancies resulting from rape or incest. However, since Member States have the positive obligation to prevent ill-treatment, including rape, and to provide effective remedies in such cases where it occurs,222 it is arguable that such remedies should include the right to access abortion in cases where pregnancy 214 Concluding Observations of CEDAW regarding Nepal, 25/06/1999, CEDAW/A/54/38 at para. 147. 215 Ibid. at para. 148. 216 Concluding Observations of CEDAW regarding Colombia, 2 February 2007, CEDAW/C/COL/ CO/6 at para. 22. 217 Concluding Observations of the CESCR regarding Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 25. 218 Ibid. 219 Ibid. 220 Concluding Observations of the CESCR regarding: Bolivia, 21 May 2001, E/C.12/1/Add.60 at para. 43; Nepal, 24 September 2001, E/C.12/1/Add.66 at paras 32 and 55; Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12; Poland, 19 December 2002, E/C.12/1/Add.82 at para. 29; and Senegal, 24 September 2001, E/C.12/1/Add.62 at paras 26 and 47. 221 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105 at para. 53; Kuwait, 7 June 2004, E/C.12/1/Add.98 at para. 43; Malta, 14 December 2004, E/ C.12/1/Add.101 at para. 41; Monaco, 13 June 2006, E/C.12/MCO/CO/1 at para. 23; and Nepal, 24 September 2001, E/C.12/1/Add.66 at paras 33 and 55. 222 M.C. v Bulgaria, supra n. 180.

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is the result of rape. Nonetheless, due to the lack of case law under the ECHR in this regard, it is unclear how the ECtHR would decide such a claim, especially in countries where there is no explicit rape exception in the abortion law.

Inter-American system The Inter-American Commission was called upon to address the right to access abortion for women who have been raped in Paulina Ramirez v Mexico. In 2002, a petition was filed with the Inter-American Commission on behalf of a 13-year-old girl who was raped and then denied an abortion due to state health and justice authorities’ personal and religious beliefs, despite Mexico’s legal exception for pregnancies resulting from rape.223 The petition alleged that Mexico violated its obligation to respect and guarantee the rights under the American Convention224 due to its lack of judicial guarantees225 and protection.226 Specifically, it alleged that the Mexican state of Baja California lacked a clear procedure with respect to the rape exception of its abortion law, and lacked a sufficient, expedient and effective remedy permitting the timely guarantee of the right to a legal abortion. These omissions arguably enabled public officials to act arbitrarily in cases of rape and neglect their obligation to respect and guarantee the rights to physical and psychological integrity,227 liberty, informed consent,228 honour, dignity and privacy.229 After almost two years of negotiations, the parties resolved the dispute through a friendly settlement, before the Inter-American Commission rendered a decision. In that settlement, the Mexican government conceded generally to the above listed human rights violations and agreed to a number of groundbreaking reparations. For example, the government agreed to compensate Paulina for legal, medical, cost of living, mental health and educational expenses incurred by her and her son.230 The government also agreed to assist her with professional development, provide a one-time payment for moral damages, issue a public acknowledgment of responsibility and issue 223 Case 161-02, Paulina del Carmen Ramirez Jacinto v Mexico, Friendly Settlement, Report No. 21/ 07 (2007). 224 Article 1, American Convention. 225 Article 8, American Convention. 226 Article 25, American Convention. See also Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women ‘Convention of Belem do Para’ 1994, 33 ILM 1534 (1994) (Convention of Belem do Para) at Article 4, which entered into force on 5 March 1995. 227 Article 11, American Convention; Article 4, Convention of Belem do Para; Article 12, UDHR; and Article 17, ICCPR. 228 Article 7, American Convention; Article 9, ICCPR; and Article 3, UDHR. 229 Article 11, American Convention; Article 4, Convention of Belem do Para; Article 12, UDHR; and Article 17, ICCPR. 230 Paulina, supra n. 223 at para. 16.

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a decree regulating guidelines for access to abortion for women who have been raped.231 To date, the government has complied with almost all of the settlement’s provisions.232 The Paulina case marks the first time a Latin American government conceded that ‘the absence of an appropriate body of regulations concerning abortion resulted in the violation of . . . human rights’.233 The Inter-American Commission expressed great appreciation to both parties for reaching a friendly settlement which was compatible with the American Convention’s object and purpose, and stated: ‘The achievements secured through the actions and good disposition of the two parties . . . offer a significant example to be followed in other cases ^ both those that involve Mexico as well as other cases from other regions and countries of the hemisphere.’234 African system The African Women’s Protocol explicitly articulates women’s right to abortion calling on States Parties to ‘take all appropriate measures to . . . [authorise] medical abortion in cases of sexual assault, rape, incest . . .’.235 The Protocol’s inclusion of sexual assault as a legal basis for abortion is particularly notable, as sexual assault covers a broader range of sexual conduct, thus potentially further expanding women’s abortion rights. Nevertheless, until the African Commission issues a report interpreting the Protocol’s provisions, perhaps in response to a Member State’s biennial report regarding compliance with the African Charter and the Protocol, or a case is brought before the African Commission, the extent to which the African Women’s Protocol’s provisions will be interpreted and applied remains unclear.236 E. Abortion Based on Foetal Impairment Similar to rape and incest, foetal impairment is increasingly being recognised as a valid basis for abortion by international and regional treaty-monitoring bodies. The HRC was specifically called upon to address 231 Ibid. Note that application of the guidelines regulating access to abortion in the context of rape, is limited to the Mexican state of Baja California. 232 Ibid. at paras 20^3. The Inter-American Commission’s 2007 Case Report indicates that while the Baja California Government has essentially complied with the settlement’s provisions, the Commission will continue to monitor the Government’s compliance with its obligations to assist Paulina with professional development and to lobby the legislature for legislative change. 233 Ibid. at Annex ^ Official Journal ^ Public Acknowledgment of Responsibility. 234 Ibid. at para. 25. 235 Article 14.2(c), African Women’s Protocol. 236 Ngwena, Paper presented to the Center for Reproductive Rights: Access to Abortion Services and the Protocol to the African Charter on the Rights of Women in Africa: Opportunities and Challenges, 23 August 2007 at 7 (document on file at the Center for Reproductive Rights).

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rights violations based on a denial of abortion of a fatally impaired foetus in KL v Peru. (i) International human rights parameters No treaty-monitoring body has directly addressed in Concluding Observations or General Recommendations, abortion in the context of foetal impairments. However this issue has been raised in analyses of women’s rights to health and to be free from inhuman and degrading treatment. For example, in KL v Peru the HRC deemed Peru’s denial of a therapeutic abortion to a girl pregnant with a fatally impaired foetus, a violation of the ICCPR’s Article 7 prohibiting inhuman and degrading treatment.237 The Committee’s decision hinged on the fact that carrying an impaired foetus caused KL immense mental distress that was foreseeable and preventable.238 Thus, while at present, foetal impairment is not recognised as an independent basis for abortion, other than in the African Women’s Protocol, the HRC in KL articulated the important intersections between foetal impairment, women’s mental and physical health and rights to privacy and to be free from inhuman and degrading treatment. In turn, KL opened the door for more expansive discussions of foetal impairment as an independent basis for abortion. (ii) Regional human rights parameters European system The ECtHR has yet to confirm women’s right to access abortion in the context of foetal impairment. In 2005, the issue was brought to the ECtHR in D. v Ireland, by an Irish woman pregnant with twins diagnosed with a fatal foetal condition.239 While she was ‘devastated by the loss of her twins and dismayed by the prospect of carrying the pregnancy to term’ D travelled to the United Kingdom to obtain an abortion, as Irish law does not permit abortion in instances of foetal impairment.240 The applicant subsequently filed an application to the ECtHR asserting that Ireland’s ban on abortion, unless performed to save a woman’s life, infringed on her rights under Articles 3 (prohibition of inhuman and degrading treatment), 8 (respect for private life) and 14 (principle of non-discrimination) of the ECHR.241 237 238 239 240 241

KL v Peru, supra n. 123 at para. 6.3. Ibid. D. v Ireland, supra n. 82 at para. 3. Ibid. at para. 4. Ibid. at para. 62. The applicant also argued, at paras 59 and 62, that Ireland’s Regulation of Information Act, which prohibits providers from fully discussing abortion with their patients or making referrals for abortion services outside the country when requested, infringed Article 10 (freedom of expression) because her obstetrician in Ireland was prohibited from referring her to a hospital abroad for termination.

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The ECtHR in D’s case never reached the merits of the case because it found that the applicant failed to exhaust domestic remedies.242 According to the applicant, she never sought recourse within an Irish court as she believed her efforts would have been futile because there was no prospect of success, there was insufficient time to seek a constitutional remedy due to the imminency of her pregnancy, initiating such litigation would have disclosed her identity and stirred immense national and international attention, thus disrupting her ability to care for her minor children, and it was ‘highly likely’ that High and Supreme Court costs would be awarded against her.243 In rendering its decision, the ECtHR emphasised that the ECHR’s exhaustion of domestic remedies requirement enables Member States to prevent or decide alleged violations of domestic law, thus rendering the ECHR complaint mechanism subsidiary to national systems safeguarding human rights.244 In dicta, the ECtHR explained that the issue of abortion in situations of fatal foetal abnormality was novel in Ireland, and thus, ‘a legal constitutional remedy was in principle available to . . . [D] to obtain declaratory and mandatory orders with a view to obtaining a lawful abortion in Ireland’.245 The ECtHR appeared to disregard the overall dismal picture of access to abortion in Ireland to come to this conclusion, by asserting that under Attorney General v X246 the Supreme Court could have potentially developed the issue of abortion in the context of foetal anomaly, court procedures could have been used to protect D’s identity, and lack of financial resources did not absolve applicants from attempting legal proceedings.247

African system Unlike other regional human rights systems, the African Women’s Protocol is the only human rights instrument that explicitly supports women’s right to access to abortion where ‘the continued pregnancy endangers the . . . life of . . . the foetus’.248 A plain reading of the Protocol’s language appears to only require access to abortion where there is threat of foetal mortality, as opposed to simply foetal impairment. If that is the case, a woman carrying an impaired foetus could potentially be forced to carry the pregnancy to term. However, as

242 243 244 245 246

Ibid. at para. 62. See also Article 35(1), ECHR. Ibid. at para. 80. Ibid. at para. 83, citing Selmouni v France 1999-V 151; (2000) 29 EHRR 403 at paras 74^7. Ibid. at para. 92. Attorney General v X, supra n. 82, concerning a 14-year-old girl who became pregnant as a result of being raped and consequently became suicidal. The Supreme Court held that being suicidal constituted a real and substantial risk to life, as distinct from health, which could only be averted by termination of pregnancy. 247 D. v Ireland, supra n. 82 at paras 88^102. 248 Article 14.2(c), African Women’s Protocol.

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the Protocol has not yet been tested, it is unclear how broadly this provision will be interpreted. F. Abortion for Socio-Economic Reasons and Upon Request No international or regional treaty explicitly recognise women’s right to abortion for socio-economic reasons or on request and no treaty-monitoring body has interpreted any provision of any treaty to require as such. The right to voluntary motherhood and thus the right to decide to obtain an abortion is arguably integral to a constellation of other fundamental human rights such as women’s right to equality, life, health, security of person, private and family life, freedom of religion, conscience and opinion, and freedom from slavery, torture and cruel, and inhuman and/or degrading treatment. Moreover, women’s right to self-determination falls under the overarching freedom in decisionmaking about private matters. Such provisions include protections of the right to physical integrity, the right to decide freely and responsibly the number and spacing of one’s children and the right to privacy. International treaties such as the ICCPR, ICESCR, ICEDAW and ICRC safeguard the above-listed rights and thus can be relied upon when attempting to secure women’s right to abortion on request or for socio-economic reasons. Furthermore, Concluding Observations which recognise that restrictive abortion laws could violate women’s right to health and life, can also be relied upon to support women’s right to choose abortion on request or for socio-economic reasons. Some assert that the African Women’s Protocol is the first human rights instrument to confirm that abortion is a ‘health issue that takes the form of a socio-economic right’.249 If that is the case, States Parties to the Protocol have an obligation to both decriminalise abortion and incorporate abortion services within mainstream health services.250 Arguably, this also requires States Parties to permit abortions based on social and economic grounds such as a woman’s economic resources, age, number of children and/or marital status. If, however, the Protocol is not interpreted to recognise socio-economic grounds for abortion, then the asserted socio-economic basis can and should be subsumed under physical or mental health grounds.251

3. Punishment of Women who Undergo Illegal Abortions A. International Human Rights Parameters In recent years, laws that criminalise or penalise abortion have come under fire within the human rights community. There is an increasing awareness that 249 Ngwena, supra n. 36 at 3. 250 Ibid. 251 Ibid. at 9.

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the criminalisation leads women to obtain unsafe, clandestine abortions, placing their lives and health at risk. While this issue has not been addressed by regional human rights bodies, UN treaty-monitoring bodies have expressed great concern regarding rising maternal mortality rates due to unsafe abortion, and recommended that States Parties overturn abortion bans or decriminalise the procedure when women’s lives or health are at risk, or when the pregnancy results from rape or incest, or in cases of foetal impairment. The HRC has expressed concern regarding laws that criminalise or severely restrict abortion,252 even in circumstances of rape,253 or when the pregnant woman’s life is in danger.254 The HRC has asserted that legislation criminalising255 or penalising256 abortion leads women to undertake life-threatening abortions,257 and referred to such laws as a violation of the right to life.258 In those circumstances, the HRC has recommended that States Parties review259 or amend criminal legislation to establish exceptions to the prohibition260 and punishment of abortion,261 or to bring abortion laws in line with

252 Concluding Observations of the HRC regarding: El Salvador, 22 August 2003, CCPR/CO/78/ SLV at para. 14; Kuwait, 19 July 2000, CCPR/CO/69/KWT, A/55/40 at para. 15; Lesotho, 8 April 1999, CCPR/C/79/Add.106 at para. 11; Poland, 29 July 1999, CCPR/C/79/Add.110 at para. 11; Senegal, 19 November 1997, CCPR/C/79/Add 82 at para. 12; and Venezuela, 26 April 2001, CCPR/CO/71/VEN at para. 19. 253 Concluding Observations of the HRC regarding: Gambia, 12 August 2004, CCPR/CO/75/GMB at para. 17; Peru, 15 November 2000, CCPR/CO/70/PER at para. 20; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8. 254 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at para. 8; Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14; and Mauritius, 27 April 2005, CCPR/CO/83/MUS at para. 9. 255 Concluding Observations of the HRC regarding Guatemala, 27 August 2001, CCPR/CO/72/ GTM at para. 19. 256 Concluding Observations of the HRC regarding Mauritius, 27/04/2005, CCPR/CO/83/MUS at para. 9. 257 Concluding Observations of the HRC regarding Poland, 2 December 2004, CCPR/CO/82/POL at para. 8. 258 Concluding Observations of the HRC regarding: Guatemala, 27 August 2001, CCPR/CO/72/ GTM at para. 19; Kuwait, 19 July 2000, CCPR/CO/69/KWT, A/55/40 at para. 16; Lesotho, 8 April 1999, CCPR/C/79/Add.106 at para. 11; Trinidad and Tobago, 3 November 2000, CCPR/ CO/70/TTO at para 18; and United Republic of Tanzania, 18 August 1998, CCPR/C/79/Add.97 at para. 15. 259 Concluding Observations of the HRC regarding Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14. 260 Concluding Observations of the HRC regarding: Gambia, 12 August 2004, CCPR/CO/75/GMB at para. 17; and Peru, 15 November 2000, CCPR/CO/70/PER at para. 20. 261 Concluding Observations of the HRC regarding: Argentina, 3 November 2000, CCPR/CO/70/ ARG at para. 14; Chile, 30 March 1999, CCPR/C/79/Add.104 at para. 15; Costa Rica, 8 April 1999, CCPR/C/79/Add.107 at para. 11; Ecuador, 18 August 1998, CCPR/C/79/Add.92 at para. 11; Guatemala, 27 August 2001, CCPR/CO/72/GTM at para. 19; Kuwait, 19 July 2000, CCPR/ CO/69/KWT, A/55/40 at para. 16; Lesotho, 8 April 1999, CCPR/C/79/Add.106 at para. 11; Peru, 18 November 1996, CCPR/C/79/Add.72 at para. 22; Peru, 15 November 2000, CCPR/CO/70/ PER at para. 20; Trinidad and Tobago, 3 November 2000, CCPR/CO/70/TTO at para. 18; United Republic of Tanzania, 18 August 1998, CCPR/C/79/Add.97 at para. 15; and Venezuela, 26 April 2001, CCPR/CO/71/VEN at para. 19.

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the ICCPR.262 The HRC has also recently acknowledged the discriminatory, disproportionate impact of restrictive abortion laws on poor, rural women.263 In the HRC’s General Comment No. 28 on the equality of rights between men and women, it observed that states may fail to respect women’s privacy, as protected under Article 17 of the ICCPR, when they ‘impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion’.264 CEDAW has also criticised laws that criminalise, penalise and/or impose punishment for abortion,265 and often frames such laws as a violation of the rights to life and health.266 For example, in CEDAW’s 1999 Concluding Observations to Colombia, it noted with great concern ‘that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act[,]’ and asserted that ‘legal provisions on abortion constitute a violation of the rights of women to health and life and of article 12 of the Convention’.267 On a positive note, CEDAW subsequently recognised in 2007 Colombia’s efforts to enhance women’s health, including sexual and reproductive health, by liberalising its abortion law in cases of ‘serious malformation of the foetus or in cases for rape . . .’.268 CEDAW also expressed concern over the link between protecting women’s right to privacy in health-care matters, and abortions and women’s health. For example, in CEDAW’s General Recommendation No. 24 on women and health, it expressed concern that lack of confidentiality of patients ‘may deter women from seeking advice and treatment and thereby adversely affect their health and well-being. Women will be less willing, for that reason, to seek medical care for . . . contraception or for incomplete abortion and in cases where they have suffered sexual and physical violence’.269 The Committee further stated that ‘[w]hen possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who 262 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at para. 8; El Salvador, 22 August 2003, CCPR/CO/78/SLV at para. 14; and Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14. 263 Concluding Observations of the HRC regarding Argentina, 3 November 2000, CCPR/CO/70/ ARG at para. 14. 264 HRC - General Comment No. 28, supra n. 34 at para. 20. See also Article 17, ICCPR. 265 Concluding Observations of the CEDAW regarding: Andorra, 31 July 2001, A/56/38 at para. 48; Chile, 9 July 1999, A/54/38 at para. 228; Cyprus, 9 May 1996, A/51/38 at para. 55; Ireland, 1 July 1999, A/54/38 at para. 185; Jordan, 27 January 2000, A/55/38 at para. 180; Liechtenstein, 1 February 1999, A/54/38 at para. 169; Luxembourg, 12 August 1997, A/52/38/ Rev.1, Part II at para. 210; Nepal, 1 July 1999, A/54/38 at paras 139, 147; United Kingdom, 1 July 1999, A/55/38 at para. 309; and Zimbabwe, 14 May 1998, A/53/38 at para. 159. 266 Concluding Observations of CEDAW regarding Belize, 01 July 1999, A/54/38 at para. 56; and Chile, 25 August 2006, CEDAW/C/CHI/CO/4 at para. 19. 267 Concluding Observations of CEDAW regarding Colombia, 5 February 1999, CEDAW/A/54/38/ Rev.1 at para. 393. 268 Concluding Observations of CEDAW regarding Colombia, 2 February 2007, CEDAW/C/COL/ CO/6 at para. 22. 269 CEDAW - General Rec, 24, supra n. 57 at para. 12(d).

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undergo abortion’.270 CEDAW has specifically called upon States Parties to review legislation making abortion illegal271 and praised States Parties for amending their restrictive legislation.272 CEDAW has also examined the discriminatory effects of legislation making abortion illegal. For example, the CEDAW has noted the disparate impact on asylum seekers.273 In CEDAW’s recent Concluding Observations to Chile, it expressed concern that ‘abortion under all circumstances remains a punishable offence under Chilean law, which may lead women to seek unsafe, illegal abortions, with consequent risks to their life and health, and that clandestine abortions are a major cause of maternal mortality’.274 In that regard, CEDAW recommended that Chile consider reviewing abortion laws to remove ‘punitive provisions imposed on women who undergo abortion and provide them with access to quality services for the management of complications arising from unsafe abortion and to reduce maternal mortality rates, in accordance with general recommendation 24, . . . and the Beijing Declaration and Platform of Action’.275 The CRC has expressed concern over punitive abortion legislation276 and has occasionally suggested that a State Party review its practices under existing abortion legislation.277 The CESCR has recognised that restrictive abortion laws or the criminalisation of abortion contribute to the problem of unsafe abortion and high rates of maternal mortality.278 The CESCR has expressed concern to States Parties with complete abortion bans,279 or criminal abortion laws that only permit

270 Ibid. at para. 31(c). 271 Concluding Observations of CEDAW regarding: Andorra, 31 July 2001, A/56/38 at para. 48; Belize, 01 July 1999, A/54/38 at para. 57; Burkina Faso, 31 January 2000, A/55/38 at para. 276; Cameroon, 26 June 2000, A/55/38 at para. 60; Ireland, 1 July 1999, A/54/38 at para. 186; Jordan, 27 January 2000, A/55/38 at para. 181; Namibia, 12 August 1997, A/52/38/Rev.1, Part II at para. 127; Nepal, 1 July 1999, A/54/38 at paras 139 and 148; and United Kingdom, 1 July 1999, A/55/38 at para. 310. 272 Concluding Observations of CEDAW regarding Belgium, 9 May 1996, A/51/38 at para. 181. 273 Concluding Observations of CEDAW regarding Ireland, 1 July 1999, A/54/38 at para. 185. 274 Concluding Observations of CEDAW regarding Chile, 25 August 2006, CEDAW/C/CHI/CO/4 at para. 19. 275 Ibid. at para. 20. 276 Concluding Observations of the CRC regarding: Armenia, 24 February 2000, CRC/C/15/ Add.119 at para. 38; Chad, 24 August 1999, CRC/C/15/A dd.107 at para. 30; Kyrgyzstan, 9 August 2000, CRC/C/15/Add.127 at para. 45; and Palau, 21 February 2001, CRC/C/15/Add. 149 at para. 46. 277 Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 at para. 30; and Palau, 21 February 2001, CRC/C/15/Add.149 at para. 47. 278 Concluding Observations of the CESCR regarding: Bolivia, 21 May 2001, E/C.12/1/Add.60 at para. 43; Mauritius, 31 May 1994, E/C.12/1994/8 at para. 15; Nepal, 24 September 2001, E/ C.12/1/Add.66 at paras 32 and 55; Poland, 19 December 2002, E/C.12/1/Add.82 at para. 29; and Senegal, 24 September 2001, E/C.12/1/Add.62 at paras 26 and 47. 279 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105 at para. 26; Malta, 14 Decemeber 2004, E/C.12/1/Add.101 at para. 41; and Monaco, 13 June 2006, E/C.12/MCO/CO/1 at para. 15.

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abortion to preserve a women’s health.280 Similar to other treaty-monitoring bodies, the CESCR has asked States Parties to legalise abortion when a pregnancy is life-threatening or the result of rape or incest.281 On a related note, the Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the oversight body for the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (ICAT),282 recently issued a Concluding Observation to Chile expressing concern that ‘life-saving medical care for women suffering complications after illegal abortions is administered only on condition that they provide information on those performing such abortions[,]’ and that such confessions are then used against women and third-parties in legal proceedings, in violation of the ICAT.283 CAT called upon Chile to stop the practice of extracting such confessions for prosecution purposes, investigate convictions where coerced statements were obtained and admitted into evidence, and ‘take remedial measures including nullifying convictions which are not in conformity with the Convention’.284 In addition to the human rights issues addressed by treaty-monitoring bodies, criminalising or penalising abortion can amount to a violation of women’s right to liberty under Article 9(1) of the ICCPR, which states that: ‘No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.’ Imposing punishment for abortion is arguably incompatible with the woman’s right to liberty because a woman can be deprived of her liberty for simply having sought health services, ‘an action that forms part of her right to enjoy the highest attainable physical and mental health’.285 It also leads women to seek unsafe, clandestine abortions. Criminal abortion laws were also addressed at the 1995 Fourth World Conference on Women. During that conference, the international community reiterated the tenets of the ICPD Programme of Action and urged governments to ‘consider reviewing laws containing punitive measures against women who have undergone illegal abortions’.286 Moreover, the Beijing Platform for Action 280 Concluding Observations of the CESCR regarding Kuwait, 7 June 2004, E/C.12/1/Add.98 at para. 23. 281 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105 at para. 26; Kuwait, 7 June 2004, E/C.12/1/Add.98 at para. 23; Malta, 14 December 2004, E/ C.12/1/Add.101 at para. 43; Monaco, 13 June 2006, E/C.12/MCO/CO/1 at para. 15; and Nepal, 31 August 2001, E/C.12/1/Add.66 at paras 33 and 55. 282 GA Res. 39/46, 10 December 1984. 283 Concluding Observations of CAT regarding Chile, 14 June 2004, CAT/C/CR/32/5 at para. 6(j). 284 Ibid. at para. 7(m). CAT also recommended that Chile ensure immediate and unconditional treatment of persons seeking emergency medical care, in line with World Health Organization guidelines. 285 Open Letter from Human Rights Watch to the Nicaraguan Supreme Court, Amicus Curiae Brief at 14, available at: http://hrw.org/pub/amicusbriefs/ nicaragua0807web.pdf [last accessed 25 September 2007]. 286 The Beijing Declaration and the Platform for Action, Fourth World Conference on Women, Beijing, China, 4^15 September 1995, A/CONF.177/20 (1995) at para. 106(k).

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urges governments to ‘understand and better address the determinants and consequences of . . . abortion’.287

4. Recent Advancements in Women’s Right to Abortion While international and regional human rights standards regarding women’s right to abortion are incomplete, advocates should remain hopeful that human rights advocacy is catalysing change at the national level around the world. Below are a few recent examples of the progress that has been made towards full recognition of abortion as a human right. There have been particularly notable advancements within Latin America. For example, following the landmark Paulina settlement and the KL v Peru decision, Mexico City’s legislature voted on 24 April 2007, to legalise abortion in the first trimester.288 This was a groundbreaking decision for the region where a woman’s request for abortion in the first trimester is only legal in Cuba, Puerto Rico and Guyana, and where Chile, El Salvador and Nicaragua explicitly prohibit abortion without even allowing exceptions for a woman’s life or health. On a related note, in May of 2006, Colombia’s highest court ruled that abortion must be permitted when a pregnancy threatens a woman’s life or health, in cases of rape, incest and in cases where the foetus has malformations incompatible with life outside the womb.289 Until that time, Colombia had criminalised abortion in all circumstances. The Constitutional Court decision was notable for referencing Colombia’s various treaty obligations related to women’s reproductive rights, and for making the significant statement that: ‘women’s sexual and reproductive rights have finally been recognized as human rights, and, as such, they have become part of constitutional rights, which are the fundamental basis of all democratic states’.290 287 Ibid. at para. 109(i). 288 Center for Reproductive Rights, ‘The Center for Reproductive Rights Commends Mexico City for New Law Legalizing Abortion in First Trimester: Vote Follows Important Decisions Acknowledging Reproductive Rights As Human Rights’, Press Release, April 2007, available at: http://www.reproductiverights.org/pr_07_0424MexAbortion.html [last accessed 7 September 2007]. 289 Center for Reproductive Rights, ‘Landmark Decision by Colombia’s Highest Court Liberalize One of the World’s Most Restrictive Abortion Laws: Colombia’s Constitution Requires Government to Allow for Abortion in Some Cases’, Press Release, May 2006, available at: http://www.reproductiverights.org/pr_06_0511colombia.html [last accessed 7 September 2007]. 290 Constitutional Court, Ruling C-355/2006, Presiding Judges: Jaime Araujo Renteria and Clara Ines Vargas Hernandez, Concurring Opinion: Manuel Jose Cepeda Espinosa, Dissenting opinion: Rodrigo Escobar Gil, Marco Gerado Monroy Cabra and Alvaro Tafur Galvis. Colombia’s Constitutional Court further stated that: ‘Sexual and reproductive rights also emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity’s advancement towards social justice.’

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The European region has experienced both advancements and set-backs over the last few years, with respect to women’s right to access abortion. On a positive note, within the Council of Europe, the Parliamentary Assembly passed a resolution recommending that Member States ensure access to safe and legal abortions in their countries, and the ECtHR in Vo v France signalled its reluctance to apply ECHR protections to foetuses.291 At the national level, in March of 2007, the Portuguese parliament voted to reform its abortion law,292 which had criminalised the procedure except when a woman’s life or health was at risk and in cases of rape, incest or foetal impairment.293 The amended law now legalises abortion on request during the first 10 weeks of pregnancy. This was a significant advancement for the mainly Roman Catholic country that had one of Europe’s strictest abortion laws. The same month, the ECtHR in Tysia˜ c v Poland held Poland to its procedural obligations under Article 8 (right to privacy) to establish effective procedures to facilitate women’s exercise of their legal right to abortion.294 The ECtHR declined, however, to find a substantive violation of the applicant’s ECHR rights, signalling the ECtHR’s unwillingness to tackle controversial issues related to abortion. The African region has experienced the most significant legally binding pronouncement of women’s human rights with the ratification of the African Women’s Protocol which provides textual guarantees of women’s reproductive rights and a quasi-judicial procedure to enforce those rights. While the effectiveness of the Protocol has yet to be tested, it undoubtedly signifies the winds of change in a region where women’s reproductive capacities has led to high rates of maternal mortality, discrimination and great mistreatment. In Asia, Nepal took a bold step five years ago to legalise abortion on broad grounds. In March of 2002, the country went from having one of the most restrictive abortion laws in the world, where women were imprisoned for abortion-related crimes, to amend its civil code to allow for abortion upon 291 Vo v France, supra n. 102 at para. 85. 292 Women on Waves, ‘‘‘Yes’’ to Legalize Abortion in Portugal’, Press Release, 10 April 2007, available at: http://www.womenonwaves.org/article-1020.1745-en.html [last accessed 25 September 2007]. 293 BBC News, ‘Portugal Abortion Law Put to Test’, available at: http://news.bbc.co.uk/2/hi/ europe/6309139.stm [last accessed 25 September 2007]. For a significant judicial pronouncement in Europe, see Family Planning Association of Northern Ireland v Minister for Health Social Services and Public Safety [2005] NI 188, where in October 2004 the Northern Ireland Court of Appeal held that the Department of Health, Social Services and Public Safety of Northern Ireland failed to perform its statutory duties to provide women seeking to undergo lawful abortion with the health and personal services to which they are entitled. Specifically, the Court found that the Department had failed to provide guidelines on local availability of legal abortion services and failed to investigate whether women were receiving satisfactory abortion related services. As a result, health care practitioners were confused on the status of abortion in Northern Ireland and fearful of being held liable for potentially breaking the law. Consequently, women were being denied services that they were legally entitled to receive, and denied post-abortion care after having undergone abortions in Britain. 294 Tysia˜ c v Poland, supra n. 170 at paras 80 and 125^130.

294

HRLR 8 (2008), 249^294

request for up to 12 weeks of pregnancy, and up to 18 weeks for rape, to save the life or health of the pregnant woman, and in cases of severe foetal abnormality.295 On the down side, the right to legal abortion services is still not a reality for many women because the Nepalese government has neglected to fully implement its own law. In fact, in a 2006 report, the government conceded that women are still dying from unsafe abortions.296 Overall, there appears to be a global trend toward liberalising restrictive abortion laws. Europe, however, the region with historically the most liberal abortion laws, may be moving in the opposite direction. There seems to be a contrary movement towards restricting countries’ abortion laws, particularly in heavily Catholic countries.297 The lesson here is that women’s right to access abortion is always at risk, regardless of the current status of the law, and thus, reproductive rights advocates must continue to zealously promote and safeguard women’s reproductive rights, and international and regional human rights law can be a strong basis for doing so.

295 Ipas, ‘Nepal Celebrates One Year of Legal Abortion Services’, 25 March 2004, available at http://www.ipas.org/Library/News/News_Items/Nepal_celebrates_one_year_of_legal_abortion_ services.aspx [last accessed 25 September 2007]. 296 Government of Nepal Ministry of Health and Population, World Health Organization and Centre for Research on Environment Health and Population Activities, ‘Unsafe Abortion: Nepal Country Profile’, July 2006. In February 2007, the Center for Reproductive Rights, the Forum for Women, Law and Development and other concerned individuals filed a case with the Supreme Court of Nepal calling on the government to rectify this situation and the resulting human rights violations: see Center for Reproductive Rights, ‘Public Interest Litigation to Secure Abortion Access in Nepal’, Fact Sheet, 2007, available at: http://www.reproductive rights.org/pdf/ww_nepal_abortion_factsheet07.pdf [last accessed 25 September 2007]. 297 The Vatican is playing a formidable role in pressuring countries to limit women’s access to abortion. For example, when Amnesty International’s campaign on violence against women recognised that women must have access to safe and legal abortion services in cases of unwanted pregnancy as a result of rape, sexual assault or incest, or when their life of health is at risk, the Vatican accused the organisation of promoting abortion and urged Catholics to stop donating to it: see, for example, BBC, ‘Vatican Urges End to Amnesty Aid’, 14 June 2007, available at: http://news.bbc.co.uk/2/hi/europe/6750887.stm [last accessed 6 February 2008].

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