Appendix D - Human rights and abortion

Introduction

  1. D.1 Many of the submissions received by the commission applied a human rights perspective to the question of abortion law reform. People mainly talked about the right to life, freedom from discrimination, and respect for privacy.
  2. D.2 The abortion debate has the capacity to conflate two important sets of considerations that inform people’s views about human rights. The first of these relates to ethical issues concerning abortion, including the moral status of the fetus and the freedom of action of the mother. These are discussed in Appendix B. The second involves the question of when legal personhood begins. This is discussed in Appendix C.
  3. D.3 In this Appendix, we set out information about domestic human rights instruments, including the Victorian Charter of Human Rights and Responsibilities Act 2006. Australia’s obligations under international human rights instruments are reviewed and implications for abortion law reform considered. Relevant case law from Australian and other jurisdictions is discussed, along with statements from United Nations human rights committees.

Current Victorian Law

Charter of Human Rights and Responsibilities

  1. D.4 The Charterof Human Rights and Responsibilities Act established a legislative framework for the protection and promotion of human rights in Victoria. The charter includes a series of rights based largely upon the International Covenant on Civil and Political Rights 1966 (ICCPR). Australia ratified this treaty in 1980.
  2. D.5 The human rights potentially engaged by abortion include the right to life, privacy, and security of the person.1 The Charter contains a section which specifically provides that it has no operation for current and future Victorian law concerning abortion and child destruction. This provision is intended to encompass statute law, judicial interpretation of statute law and the common law. Section 48 states: ‘(N)othing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2’.2
  3. D.6 The Charter, therefore, has no effect upon the law of abortion in Victoria, and the rights contained in the Charter are not applicable in abortion cases.

Other Domestic Human Rights Protections

  1. D.7 Australia’s Constitutiondoes not contain a Bill of Rights;3 however, it does explicitly protect some human rights and has been found to contain some implied rights.4 None of those rights are of direct relevance to abortion law reform.
  2. D.8 At a domestic level, several human rights are recognised or protected, to varying degrees, by common law principles. These include the right not to incriminate one’s self, the onus on the prosecution to prove a criminal offence, and principles of natural justice.5
  3. D.9 The Australian Parliament has incorporated some aspects of international human rights instruments, such as the ICCPR, into domestic legislation. An example is the Disability Discrimination Act 1992.6

International Human Rights Framework

General Principles

  1. D.10 International human rights are entitlements that belong to every human being. They are protected by international human rights treaties and long established principles of international law.7 In Australia, human rights treaties do not create rights enforceable by individuals in domestic courts until they are incorporated directly into domestic law.8
  2. D.11 The Universal Declaration of Human Rights (UDHR) sets out human rights as ‘a common standard of achievement for all peoples and all nations’.9 It is regarded as ‘the modern genesis of international human rights law’.10
  3. D.12 Australia has ratified several international treaties that aim to identify and protect human rights. These include the ICCPR; the International Covenant on Economic, Social and Cultural Rights (CESCR); the Convention on the Rights of the Child (CRC); and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).11
  4. D.13 People need to be aware of international human rights standards ‘because those norms … establish legal obligations for the government …’12 Ratifying a treaty requires a government13 to implement in good faith all the obligations in the treaty. Some obligations require immediate implementation; others are to be implemented by ‘progressive realisation’.14 Domestic laws are subject to scrutiny by the relevant UN human rights committees.15

International Human Rights Potentially Engaged

  1. D.14 In this appendix we examine the rights potentially engaged by any law that regulates abortion.

Right to Life

  1. D.15 The right to life has been described as ‘the supreme right’.16 It is guaranteed in major international human rights instruments, including the UDHR and the ICCPR. It is duplicated in many national bills of rights and in regional human rights instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms.
  2. D.16 The right to life is often invoked to support opposing claims about abortion. Some people argue that the right to life applies to both the fetus and the woman. This argument featured heavily in our consultations. The Catholic Archbishop of Melbourne, Denis J Hart, stated in his submission:

Declaring that unborn children are not legal persons does not change the reality that they are human beings endowed with a rational nature and inherent inviolable worth. They are natural persons in virtue of their rational human nature and also subjects of basic human rights.17

  1. D.17 Others say the scope of the right is limited to people after birth.18 Responding to the argument that the right to life applies to the fetus, the Castan Centre for Human Rights Law stated:

Such an interpretation of the Covenant is not apparent from its wording and not supported by the Human Rights Committee’s findings and conclusions. It is also contrary to the wording and jurisprudence of other key international human rights treaties.19

  1. D.18 These are hotly contested principles within the context of the abortion debate. However, decisions of the domestic courts and international human rights bodies provide guidance about the legal status of the fetus.

Does the Fetus have a Right to Life under International Law?

Article 3—Universal Declaration of Human Rights

  1. D.19 Article 3 of the UDHR states that ‘everyone has the right to life’. It does not specifically mention the fetus and it does not define ‘everyone’.
  2. D.20 When the Commission on Human Rights was drafting this provision, several proposals to provide explicit protection for the fetus from the moment of conception were put forward. Although debated, these did not go to a vote, and were not included in the final text.20
  3. D.21 Some commentators, including Fleming and Harris, argue that the UDHR nevertheless provides protection for the fetus because the term ‘everyone’ includes ‘every member of the human family, that is, all human beings’.21 They argue:

there is no agreed basis for dividing up the human family into persons and non-persons, but there is agreement from science that from fertilisation we all share a common humanity, that we are all members of the ‘human family’.22

  1. D.22 Similar arguments were put forward in submissions to the commission.23 Joseph Santamaria wrote: ‘the unborn child or foetus is no less a human individual than someone who has been born’.24
  2. D.23 The debate about the scope of the term ‘everyone’ and its specific application to the fetus also applies to other human rights instruments to which Australia is a party, including the ICCPR.

Articles 6 (1) and 6(5)—International Covenant on Civil and Political Rights

  1. D.24 The right to life is protected by Article 6(1) of the ICCPR. This right is absolute and cannot be derogated. It is generally recognised that Article 6 is not applicable before birth.25
  2. D.25 During preparatory debates on the ICCPR, proposals to include the words ‘from the moment of conception’ were rejected.26 Since then, the right of every ‘human being’ has generally been seen to apply from birth. This is not to say there is no ethical interest in the fetus, but rather the rights arising under the treaty do not attach until birth. As noted by Liberty Victoria, this is consistent with the general approach domestic law takes to fetal rights.27
  3. D.26 Article 6(5) of the ICCPR contains a prohibition on the death penalty for pregnant women. Rita Joseph argues the principal reason for this prohibition is to ‘protect the child’s inherent right to life’. She draws a corollary between the death penalty and abortion, which she considers a ‘form of death penalty imposed on the unborn child’.28
  4. D.27 The Castan Centre for Human Rights Law submitted that Article 6(5) was drafted to protect pregnant women in countries that have not abolished the death penalty.29 They argued that human rights law does not recognise abortion as a form of the death penalty.30

Convention on the Rights of the Child

  1. D.28 There are various provisions in the CRC that relate to the right to life. These include the preamble, Article 1 defining a child as aged up to 18 years, and Article 6, the right to life.
  2. D.29 The preamble to the convention states: ‘[T]he child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth …’
  3. D.30 Abortion opponents cite this preamble31 to support their argument that international human rights protection applies to the fetus. For example, the Catholic Justice Agency states ‘unquestionably those who developed, and those who adopted this Declaration … had an understanding of a “child” which included the unborn child’.32
  4. D.31 Some also argue that Australia did not make a reservation on the preamble to protect current abortion laws, and so this represents Australia’s acceptance that the CRC provides protection to the fetus.33 However, a preamble alone does not create an obligation and so a reservation would not be appropriate.34
  5. D.32 Examination of the debate over the wording of the preamble suggests that the preamble does not establish a positive obligation to extend rights to the fetus. For the preamble to equate to such recognition, it would have to revise the usual legal understanding of the term child. The drafters rejected such a revision. Former Chairperson of the United Nations Committee on Economic, Social, and Cultural Rights, Professor Phillip Alston,35 concludes:

[W]hile the pre-ambular paragraph can be considered to form one part of the basis for the interpretation of the treaty, there is no obvious reason why the preamble would be resorted to in order to interpret what would otherwise be a natural and ordinary meaning of the term ’child’ in international law. In international law, at least, there is no precedent for interpreting that term, or others such as ’human being’ or ’human person’ as including a fetus.36

  1. D.33 Alston points out that even if the preamble were binding, one needs to look at the wording, which includes ‘appropriate legal protection, before and after birth’. He argues there is neither an explicit nor implicit assumption that this includes an absolute right to life: ‘What is “appropriate” in that regard is for each state to determine for itself’.37
  2. D.34 It is also important to note that the operative part of the convention applies exclusively to children from birth up to 18 years (articles 1 and 6). If such a major revision of the definition of a child were envisaged then those articles would have included a clear statement to that effect.38
  3. D.35 Some States have chosen to go down the path of either specifically protecting the fetus in domestic law39 or making a reservation against Article 1 of the CRC.40 Australia has not opted for either of these alternatives.

Right to Life, Fetal Rights, and Abortion Cases

  1. D.36 The Castan Centre for Human Rights Law notes

liberal abortion laws in France, Austria and the Netherlands have been subject to domestic challenges on the basis of alleged inconsistency with the right to life in article 2 of the European Convention. These challenges have all been unsuccessful.41

  1. D.37 Courts in the UK, Canada, and South Africa have also held that fetuses are not protected by right to life guarantees in human rights instruments because they lack legal personhood.42
  2. D.38 These courts, in common with Australian courts,43 have held that fetuses do not have legally enforceable rights until they are born alive. Examples include: Burton v Islington Health Authority,44 and Paton v British Pregnancy Advisory Service Trustees.45
  3. D.39 In Paton v British Pregnancy Advisory Service Trustees the European Commission discussed the definition of ‘everyone’ and the right to life and said that all of the limitations contained in Article 2 ‘by their nature concern persons already born and cannot be applied to the fetus’.46 The commission found that a termination at 10 weeks on physical and mental health grounds did not breach the right to life article.
  4. D.40 In Vo v France, after reviewing previous decisions, the European Court of Human Rights found that the unborn child is ‘not regarded as a “person” directly protected by Article 2 of the Convention, and that if the unborn child does have a “right” to “life”, it is implicitly limited by the mother’s rights and interests’.47

Freedom from Discrimination and Right to Equality before the Law

  1. D.41 ‘Non-discrimination is a fundamental principle of international human rights law.’48 Prohibitions on sex and disability discrimination are therefore included in the ICCPR and the CESCR. CEDAW defines what constitutes discrimination against women and establishes an agenda for action by States to end such discrimination.49

Prohibitions on Discrimination in the ICCPR and CESCR

  1. D.42 Article 2 of the ICCPR and CESCR are general non-discrimination articles.50
  2. D.43 Article 26 of the ICCPR establishes the right to equality before the law.51 Equality principles include positive rights, as well as the freedom from discrimination.
  3. D.44 The CESCR rights are particularly relevant to abortion, especially the right to health, including reproductive health.52Reproductive rights are illuminated further in CEDAW.
  4. D.45 It should also be noted that specific age discrimination rights arise from the CESCR and CRC.53 For example, mature adolescents suffer unjust discrimination when they are not able to obtain reproductive health counselling and services with the same confidentiality as adults.54

Definition of Discrimination

  1. D.46 Article 1 of CEDAW defines sex discrimination as: ‘Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women … of human rights and fundamental freedoms’.55 Non-discrimination does not simply mean equal treatment. It also requires that different cases be treated according to those differences, recognising that discrimination may be multi-layered and intersectional.
  2. D.47 Substantive equality means that differentiation must not be arbitrary. Therefore one must look to see if men and women are treated differently, and if so, why. Duxbury and Ward note that one example would be if laws criminalised abortion in all cases.56 In this scenario, women making reproductive decisions would face criminal sanctions, while men exercising their rights over the number and spacing of children, or seeking a medical procedure,57 would not face criminal penalties.58

Right to Equality—Transformative Equality, Autonomy, Women as Moral Agents

  1. D.48 Some people argue that ‘women’s reproductive autonomy is inextricably linked with their ability to enjoy a range of human rights’.59 Cook and Howard argue that ‘transformative’ equality requires that women are able to make their own reproductive decisions with dignity, free from stigma and stereotypes.60 From this perspective, equality is not consistent with either forced abortion or compelling women to continue with a pregnancy. Instead:

[T]ransformative equality requires rethinking unintended pregnancy from the perspective of the woman affected, recognizing and remedying the disadvantages women face in making decisions to terminate or continue pregnancy, and removing barriers faced in seeking services.61

  1. D.49 This approach places abortion within a spectrum of health and support services to which women should have access. It views women as competent and conscientious decision makers in their own lives.62 Liberty Victoria, among others, put forward this position in its submission.63 It argued that women, in common with men, possess ethical agency, that is, the capacity to make and execute decisions about their own life.64

Right to Health

  1. D.50 Article 12(1) of the CESCR recognises the right of ‘everyone to the enjoyment of the highest attainable standard of physical and mental health’.65 This right, in common with all other obligations under the convention, is to be ‘progressively’ realised, in recognition of resource capacity and constraints.

Are Reproductive Health Rights Guaranteed by International Law?

  1. D.51 The right to health, including reproductive health, is central to human rights protection and promotion.66 The Beijing Platform for Action, arising from the United Nations Fourth World Conference on Women held in 1995, observed that the ‘ability of women to control their own fertility forms an important basis for the enjoyment of other rights’.67
  2. D.52 The United Nations Committee on Economic, Social and Cultural Rights has issued General Comments68 on access to reproductive health services.69 To fulfil the obligations, health services need to be available, accessible, acceptable, and adequate. Cook and Dickens suggest that laws and policies that unreasonably restrict safe abortion services would be unlikely to meet this standard.70

Rights under CEDAW

  1. D.53 Australia ratified CEDAW in 1983. CEDAW is the only human rights treaty which specifically affirms the reproductive rights of women. In addition to its general non-discrimination provisions, several articles relate directly to reproductive rights. These include:
  • Article 5, which examines maternity as a social function71
  • Article 12(1) regarding elimination of discrimination against women in health care, including equality in access to health services relating to family planning
  • Article 14, which contains the right to adequate health services, including family planning for rural women
  • Article 16(1)(e), which affirms on the basis of equality with men ‘the right to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights’.
  1. D.54 CEDAW obliges governments to achieve formal and substantive equality through elimination of direct and indirect discrimination. The particular needs of women with disabilities are also addressed.72
  2. D.55 The CEDAW Committee has made general recommendations regarding reproductive rights. These include recommendations that State parties take measures to prevent coercion in reproduction and to ensure women are not forced to seek unsafe abortion because of lack of appropriate services.73 Central to the reproductive rights enshrined in CEDAW is the corresponding right of a pregnant woman to choose to continue with a pregnancy.74
  3. D.56 The committee has explained the reasoning behind women’s autonomy regarding the numbers and spacing of children. It requires ‘all health services to be consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and
    choice …’75
  4. D.57 General Recommendation 24 explains in some detail the positive obligation to ensure, on a basis of equality between men and women, access to reproductive health care services.76 This includes refraining from criminalising medical procedures only needed by women.77
  5. D.58 The CEDAW Committee has criticised legal systems where abortion is subject to spousal, parent, or partner approval.78 Governments may risk noncompliance when abortion provision is subject to excessively burdensome requirements.79

Right to Privacy

  1. D.59 Privacy rights arise from traditional concerns about State interference with individual liberty. ‘Any interference with privacy must be proportional to the end sought and be necessary in the circumstance of any given case.’80

International Instruments

  1. D.60 Article 17 of the ICCPR protects the right to privacy. While Article 17 has not been interpreted specifically on the issue of abortion, a similar right contained in Article 8 of the European convention has been subject to judicial consideration.81 In the most recent case, Tysiaogonc v Poland,82 the European Court of Human Rights found a breach of Article 8 when a woman was denied an abortion within the lawful grounds for abortion in Poland. The European Commission previously held that not every restriction on abortion constitutes an interference with the right.83
  2. D.61 The UN Human Rights Committee has confirmed that privacy includes autonomy over one’s body.84 The committee has specifically identified requirements for compulsory reporting of identifiable abortion information to authorities by medical practitioners as breaches of privacy.85
  3. D.62 Privacy includes freedom from interference and a positive right.86 Thus, ‘the law must promote rather than hinder the right to privacy of a woman, including her right to a realm of protection in respect of her body’.87
  4. D.63 The central question is, therefore, whether and when it is appropriate for the State to intervene in the private decision of a woman to have an abortion.
  5. D.64 Some people argue that the State has no role beyond regulating the health system to ensure medical standards. This view assumes that reproductive decisions are best made by ‘the person whose conscience is most directly connected to the choice and who has the greatest stake in it’.88
  6. D.65 A majority of the people participating in this reference who were in favour of decriminalisation took this position. It was summed up by Reproductive Choice Australia in its submission:

[G]ranting women the right to decide in law does not deny that abortion is one of a number of medical procedures that also have moral implications. Instead it simply rejects the claim that anyone other than the woman … (is) better placed than the woman herself to negotiate the moral aspects of the decision well.

  1. D.66 Another view is that the legitimate role of government is to set the standards of justification ‘that a woman is expected to interpret and define for herself as an exercise of personal responsibility’89 and beyond which it is reasonable for the law to intervene. This approach has loomed large in the US.90
  2. D.67 Others argue that the State has a clear role in setting moral standards, protecting the fetus, and regulating women’s decisions by prohibiting abortion because the right to privacy is a qualified right.91
  3. D.68 Australian courts, have suggested there are limits to which the law should intrude upon a woman’s autonomy in pursuit of moral and religious aims.92

Right to Liberty and Security of the Person

International Instruments

  1. D.69 Everyone has the right to liberty and security of person under Article 9(1) of the ICCPR. Generally, liberty has been treated as freedom from physical restraint, such as detention, while security of the person has been connected with freedom from interference with bodily integrity.93

International Cases

  1. D.70 Article 9’s equivalent in the Canadian Charter of Rights and Freedoms has been found to be contravened by criminal laws restricting access to abortion. These laws contained requirements of designated facilities and therapeutic committees to approve abortion.94
  2. D.71 In Morgentaler95 the Supreme Court of Canada struck down such provisions for failing to conform with principles of fundamental justice. Chief Justice Dickson stated:

[F]orcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.96

  1. D.72 In her concurring decision, Justice Wilson explicitly stated that requiring a woman to obtain a certificate from the therapeutic abortion committee violated the woman’s right to liberty by ‘deciding for her something that she has the right to decide for herself’.97 She went on to state that ‘liberty does not require the state to approve the personal decisions made by its citizens; it does, however, require the state to protect them’.98
  2. D.73 The case of Morgentaler has not been directly followed in any other jurisdiction but the Columbian Constitutional Court recently stated: ‘[A] woman’s right to dignity prohibits her treatment as a mere instrument for reproduction. Her consent is essential to the fundamental life changing decision of giving birth to another person’.99

Australian Law

  1. D.74 The principle of autonomy is a basic feature of modern health law.100 The concept of bodily integrity is central to self-determination.101 This concerns a ‘person’s interest and right, derived from the value of autonomy, in reflectively making significant personal choices’.102
  2. D.75 While Australian courts have not dealt directly with Morgentaler, there have been several cases where paternal applications for an injunction to prevent a proposed abortion have been refused as an unreasonable interference with the woman’s ‘liberty of action’. Thus, in Australian law, a husband or partner cannot legally stop a woman from proceeding with an abortion.103

Freedom of Thought, Conscience, and Religion

  1. D.76 This freedom is recognised in the UDHR and the ICCPR. It is ‘far-reaching and profound’,104 encompassing freedom of thought on all matters. The right includes a freedom to hold a belief and to manifest that belief in public and in private.105 It is recognised to include both freedom of, and freedom from, religion.
  2. D.77 This freedom arises when medical practitioners refuse to perform an abortion due to religious or moral beliefs. It is expressed in medical ethics codes but with some limitations, for example life saving interventions, and a requirement that alternative care be available.106
  3. D.78 The CEDAW Committee has recommended: ‘if health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers’.107
  4. D.79 Some health care organisations make a claim for protection of conscientious objection to providing abortion, or other reproductive health services, for the organisation as a whole. This argument was strongly put in submissions from the Ambrose Centre for Religious Liberty, along with several Catholic organisations and individual submissions,108 but human rights are generally regarded as residing in individuals rather than organisations.109
  5. D.80 We consider conscience clauses in more detail in Chapter 8.

Freedom of Expression

  1. D.81 This well-known human right is contained in Article 19 of the ICCPR and other major human rights instruments. It includes the right to receive information, including medical information.110
  2. D.82 A detailed review of freedom of expression is not possible here; however the freedom does touch on abortion law in two ways. First, some people claim this freedom and an associated right to freedom of conscience in the context of protesting outside abortion clinics. This was discussed in detail in Chapter 8.
  3. D.83 Freedom of expression also relates to abortion in the context of women having access to information about abortion services.111 This in turn relates to the operation of any proposed conscience clause and the obligation to make an effective referral. This was discussed in Chapter 8.
  4. D.84 Freedom of expression is usually read widely by the courts. In a recent United Kingdom case, the High Court held that a woman who sent pamphlets containing images of aborted 21-week old fetuses to three pharmacists selling the morning-after pill could not manifest her religious beliefs (or freedom of expression) over the rights of people who did not wish to receive the material.112

Freedom from Cruel and Degrading Treatment

  1. D.85 Various human rights instruments contain a right to freedom from cruel and degrading treatment.113 It is a non-derogating right, also protected by customary international law.
  2. D.86 In the European case of H v Norway114the applicant argued that during an abortion no measures were taken to prevent pain to a fetus of 14 weeks gestation, amounting to a violation of the (fetal) right to freedom from cruel and degrading treatment. The European Commission rejected this argument on the basis that there was no material evidence of fetal pain upon which to base it.
  3. D.87 The Human Rights Committee considered the issue in 2003.115 A Peruvian woman argued that her freedom from cruel and degrading treatment had been violated when she was refused an abortion after discovering that the fetus had anencephaly.116 The committee found that the Peruvian prohibition on abortion in these circumstances did amount to foreseeable, cruel and degrading treatment.117

Special Protection for Mothers before and after Childbirth

  1. D.88 Article 10 of the CESCR provides that special protection should be accorded to mothers during a reasonable period before and after childbirth. This includes practical assistance such as paid maternity leave and adequate income support through the social security system. This article is aimed at protecting the mother, rather than affording specific rights to the fetus.

Right to Found a Family

  1. D.89 Article 23 (2) of the ICCPR (the right to marry and found a family) has been interpreted by the Human Rights Committee to prohibit coercive methods of family planning.118 There is a similar provision in the European Convention.119 However, in European law ‘it is firmly established that Article 12 does not create an absolute right to procreate descendents’.120 This suggests that a husband or partner cannot force a woman to continue with a pregnancy.

Conclusions

  1. D.90 We have discussed how human rights law treats the issue of abortion. We have examined the various treaties, general comments of UN committees and leading cases to identify what impact, if any, international law has on domestic abortion laws.
  2. D.91 In summary, the Charter of Human Rights and Responsibilities has no specific application to the law of abortion or child destruction in Victoria. Charter rights cannot be relied upon in legal cases about abortion in Victoria.
  3. D.92 International human rights law does not preclude abortion, and does not establish a right to life of the fetus.121 Nor does it guarantee a right to provision of abortion services beyond the general right to health which can be realised progressively.122

Footnotes

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