Submission to the OHCHR, Public Hearing on Article 6, Right to Life, Geneva, 14 July 2015

Marge Berer, Coordinator, International Campaign for Women’s Right to Safe Abortion

Founding Editor, Reproductive Health Matters

London, UK

Discussion by the OHCHR and other human rights bodies of “the right to life” deserves ongoing, serious consideration, given that the right to life of so many people is egregiously violated in so many countries and so often.

The list of organisations who made submissions is therefore depressing reading, as the majority are anti-abortion organisations, whose agenda is well known. Your discussion does not deserve to be hijacked by the right to life of embryos, their concern for which contrasts sharply with the absence of concern for the lives of living children at risk, let alone the lives of women, including women who may already be mothers or who may later become mothers.

As a supporter of women’s right to safe abortion, I felt the need to make a submission to this public hearing, because so many groups in the anti-abortion movement have done so. However, I urge you not to spend your time debating whether the right to life begins at conception or birth, which has been hashed and rehashed interminably without the possibility of resolution. I also urge you not to attempt to find a “balanced” stance, because it is not possible. To support this point, I am attaching a paper I published in Reproductive Health Matters in 2005 by Rhonda Copelon¹ et al, entitled “Human rights begin at birth”,² which covers the main arguments and examines the human rights literature on the subject up to that point. While further human rights literature contains many more recent comments and analyses, the crux issues remain the same: either you support women’s right of autonomy over their own bodies or you sacrifice it and require women to carry every pregnancy they may get to term – which is a form of slavery or colonisation, making women into a vessel.

When the Convention on the Rights of the Child was ratified, someone in the anti-abortion movement approached the CRC Committee and asked for a pronouncement on whether the Convention included a fetal right to life. They were told in no uncertain terms that human rights begin at birth. To me, that is the beginning and the end of the conversation.³

The abstract of the Copelon et al article says: “In the Universal Declaration of Human Rights, the foundation of human rights, the text and negotiating history of the ‘‘right to life’’ explicitly premises human rights on birth. Likewise, other international and regional human rights treaties, as drafted and/or subsequently interpreted, clearly reject claims that human rights should attach from conception or any time before birth. They also recognise that women’s right to life and other human rights are at stake where restrictive abortion laws are in place. This paper reviews the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Inter-American Human Rights Agreements and African Charter on Human and People’s Rights in this regard. No one has the right to subordinate another in the way that unwanted pregnancy subordinates a woman by requiring her to risk her own health and life to save her own child. Thus, the long-standing insistence of women upon voluntary motherhood is a demand for minimal control over one’s destiny as a human being. From a human rights perspective, to depart from voluntary motherhood would impose upon women an extreme form of discrimination and forced labour.”¹

Thus, I urge you to spend your time developing a comment(s) that will advance the right to life of those who are already alive and whose lives are at serious risk.

Some new, unresolved issues as regards pregnant women’s right to life

Having invited you not to address the issue of when rights begin, I nevertheless do want to raise several areas in which pregnant women’s right to life have been threatened, which have arisen in the past few years ‒ in Ireland, the USA and parts of Central America, as a direct result of Catholic “health policy”.

The first is to do with women with wanted pregnancies who develop a life-threatening condition during the pregnancy, which can at least partially be alleviated by terminating the pregnancy. Catholic health policy has been used to delay treatment unless and until there is no longer a fetal heartbeat, even if the fetus is not viable, before taking steps to protect the woman’s life by terminating the pregnancy. I have written a paper about about a case in Ireland in 2012 in which a woman who was 17 weeks pregnant and who had an inevitable miscarriage was kept waiting for a termination until there was no longer a fetal heartbeat, but by then, as her cervix was open, she had developed uterine sepsis, which killed her.⁴ My research for this paper found a number of similar cases, all posited on official Catholic policy.⁵

There have also been several cases in Central America, Ireland and Poland in which pregnant women with terminal illnesses or at risk of blindness as in Poland were denied a termination, or treatment was delayed, in one case in Costa Rica to delay the progression of cancer, because it might have harmed or killed the fetus. These cases are well known and a number of human rights bodies, e.g. the European Court and the CEDAW Committee, have made comments on them, I mention this as they form part of an increasing trend in Catholic health care.⁶

A new Catholic policy that emerged in 2014, again in Ireland, was when a young asylum seeker discovered she was pregnant following rape in her country of origin and sought an abortion ‒ this was one of the first cases to be assessed following approval of the country’s revised abortion law. Following the refusal, she threatened suicide, a ground under the new law made abortion legal, though only with the agreement of three doctors. Of the three doctors in her case, two agreed but one refused, and the abortion was denied. The young woman was pretty much imprisoned in a hospital on the grounds of stopping her from committing suicide, and kept there until she was 26 weeks pregnant, at which time she was pressured (I would say coerced) to have a caesarean section so as to make it possible for the premature infant to survive. It did survive with intensive care, and she abandoned the baby in the hospital when she was finally allowed to leave. While this case is not directly about her right to life, it is indicative of a new Catholic policy that does affect the right to life, as follows.

A third case was that of a pregnant woman who was in a fatal accident and who was kept on life support by the Catholic hospital even though she was brain dead, in the hope of delivering a live but premature baby. In this case, the partner and her parents went to the High Court to ask that life support was turned off, which the Court approved, to the great relief of everyone concerned except the Church.⁷

A fourth case is that of a nurse who was given a death sentence in September 2014 in Kenya for assisting a woman with abortion complications five years previously, who came to his clinic bleeding after a botched illegal abortion. The woman died and he was blamed. The case is currently being appealed by the National Nurses Association of Kenya and a group of reproductive rights lawyers,⁸ supported by many other human rights and safe abortion advocacy NGOs.

A fifth case is that of a Paraguayan girl who was sexually abused for two years by her stepfather and at the age of ten years became pregnant. Her mother took her to the hospital because she was complaining of stomach ache, and it was discovered that she was very pregnant. Her mother requested an abortion but it was refused. Although the mother had reported her partner for the sexual abuse, the police had done nothing. When the abortion was refused, the mother was arrested and taken into custody, supposedly for colluding in the sexual abuse. The girl was hospitalised against her mother’s wishes, supposedly to ensure that the pregnancy was not putting her life at risk. An international campaign ensued, calling for the child to be allowed to have an abortion, supported by a number of Latin American regional human rights and other bodies, and many civil society organisations, as it has been determined by WHO that small children are at a high risk of death from such a pregnancy going to term, for obvious reasons. The authorities in Paraguay have refused to listen to demands that an abortion be permitted. Instead, they said that if it began to appear her life was at risk as the pregnancy progressed, they would do a caesarean section, again in order to ensure that the baby would survive as well as the girl.^9,10 Thus, a new Catholic health policy of substituting caesarean section for inducing an abortion appears to have emerged though written evidence does not seem to exist as yet.

As Dr Christian Fiala, an obstetrician‒gynaecologist and director of the Gyn-Med Clinic in Vienna, has said in relation to such cases: you cannot tell if a woman’s life was at risk until she dies. This is hardly an acceptable way to ensure the right to life.

Conclusion

These cases need more research, but they indicate a worrying trend in which the Catholic church is seeking new ways to violate women’s rights. A comment from you in regard to women’s right to life, abortion as treatment and other life-saving treatment, and protection of women’s health in such cases would be welcome. The Catholic “policies” concerned, in my vie, are an attempt to implement the 8th amendment of the Irish Constitution, which calls for equal regard to the life of the woman and the fetus. I believe this is both impossible in practice and unethical. The bottom line in all these cases has been that it is the woman’s life that is sacrificed when there has to be a choice between her life and that of the fetus. I believe the woman’s life must in all instances come first.

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References

¹ Rhonda Copelon was Professor of Law and Director, International Women’s Human Rights Law Clinic (IWHR), City University of New York (CUNY) School of Law, New York, USA until her death.

² Rhonda Copelon, Christina Zampas, Elizabeth Brusie, Jacqueline deVore. Human rights begin at birth: international law and the claim of fetal rights. Reproductive Health Matters 2005;13(26):120–29.

³ I apologise that I am unable to supply a reference for this.

⁴ Marge Berer. Termination of pregnancy as emergency obstetric care: the interpretation of Catholic health policy and the consequences for pregnant women. An analysis of the death of Savita Halappanavar in Ireland and similar cases. Reproductive Health Matters 2013;21(41):9–17. (attached)

⁵ See: www.catholicbishops.ie/2012/11/19/statement-standingcommittee-irish-catholic-bishops-conference-equalinalienable-life-mother-unborn-child/. Also: Ethical and Religious Directives for Catholic Health Care Services. United States Conference of Catholic Bishops. 5th ed., 2009. p.26. And: www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifthedition-2009.pdf.

⁶ I can supply references if required.

⁷ The newest Irish case: the High Court’s decision. December 2014. Posted on the listserve of the International Campaign for Women’s Right to Safe Abortion. (attached)

⁸ Kenya: nurses appeal death sentence over abortion. The Star, 24 October 2104. http://allafrica.com/stories/201410270228.html.

⁹ Children and parents protest in Paraguay in the case of the 10-year-old girl refused an abortion by the state. 11 May 2015. Posted on the listserve of the International Campaign for Women’s Right to Safe Abortion. (attached)

¹⁰ Paraguay march poised to draw record crowd after 10-year-old denied abortion. http://www.theguardian.com/world/2015/may/28/paraguay-abortion-child-rape-protest.