By Stefano Gennarini, J.D. | July 28, 2017
NEW YORK, July 28 (C-Fam) The Human Rights Committee, one of the oldest and better-known UN committees, is considering excluding the unborn child from the “right to life” in international law.
The change under consideration says, “State parties must provide safe access to abortion to protect the life and health of pregnant women, and in situations when carrying a pregnancy to term would cause a woman substantial pain or suffering, most notably when the pregnancy is the result of rape or incest, or when the fetus suffers from fatal impairment.” The draft also considers restrictions on abortion as a form of cruel, inhuman, and degrading treatment.
Though excluding the unborn child, the committee speaks highly of the right to life, saying it “inheres in every human being” and “should not be interpreted narrowly.” It described the right to life as “most precious” and the “supreme right from which no derogation is permitted.” But the comments also says euthanasia does not violate the right to life if carried out on terminally ill patients.
A diverse range of pro-life groups from around the world stormed the committee in 2015 when it first became clear it would consider excluding the unborn child from the right to life. The pro-life concern was so overwhelming compared to the response of abortion groups that the UN secretariat extended the comment period to allow Planned Parenthood and other umbrella abortion groups to add further interventions.
International experts on health and law have criticized UN committees before on the issue of abortion including in the San Jose Articles. Fifty scholars pointed out that no UN treaty mentions abortion and no UN treaty can be fairly interpreted to include a right to abortion under any circumstance.
The Articles note that while no UN treaties includes specific positive obligations of states with regard to protection of children in the womb, international law creates a presumption in favor of protecting life in the womb because it prohibits the application of the death penalty to pregnant women and the Convention on the Rights of the Child explicitly protects children “before birth.”
Recent scholarship on the meaning of the treaty when it was negotiated also contradicts the committee’s current draft. Writing in the Tulane Journal of International and Comparative Law, Thomas Finegan narrates how the framers of the convention rejected attempts both to establish positive obligations in regard to abortion or the protection of life before birth.
The Human Rights Committee reviews reports of state parties on implementation of the International Covenant on Civil and Political Rights, one of the UN human rights treaties to which the United States is a party. The draft comment is a reversal of two comments from the 1980s on the right to life that did not mention abortion at all.
While the committee’s comments and recommendations are neither binding nor authoritative, the committee may indirectly influence the interpretation of the treaty through UN agencies and organizations that rely on them, as well as judges. The committee’s non-binding views would likely be cited when the U.S. Supreme Court addresses abortion again.