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Opinion
Beginners’ rights under international law

By Daniel Avila
Posted: 9/26/2008

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“When do babies get human rights?” Reverend Rick Warren posed this question to presidential candidates Barack Obama and John McCain during a recent forum. The media scrum that followed has touched on almost every aspect of the topic -- including considerations of science, religion and personal opinion -- but has omitted any discussion of what the reverend’s question directly referenced -- the issue of human rights.

The concept of human rights was thrust onto the world stage 60 years ago, leading to the formation of the United Nations.

Initially conceived as a post-war tool only for ensuring international security, the United Nations was founded on a charter that embraced the goal of promoting universal human rights. It makes sense, then, to examine what the United Nations has had to say about when human rights begin.

The numerous declarations, covenants and treaties produced under the auspices of the United Nations provide a firm though not yet fully realized basis for claiming human rights protections for all, regardless of birth or developmental status.

The United Nation’s seminal document, the Universal Declaration of Human Rights, was drafted by “an extraordinary group of men and women who rose to the challenge of a unique historical moment,” according to Mary Ann Glendon, in her book on the document’s creation, “A World Made New.” Glendon notes that the drafting committee took as one of its “leading ideas” the proposition “that every human being has a right to be treated like every other human being.”

The Universal Declaration, ratified in 1948, recognizes in its preamble “the inherent dignity” and “the equal inalienable rights of all members of the human family.” Article 1 seemingly divides the born from the unborn by asserting that “All human beings are born free and equal in dignity and rights,” but Article 2 states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as... birth or other status.

Similarly, the declaration’s Article 3 holds that “Everyone has the right to life, liberty and security of person.” Article 6 posits that “Everyone has the right to recognition everywhere as a person before the law.” Article 7 proclaims that “All are equal before the law and are entitled without any discrimination to equal protection of the law.”

The U.N. Declaration of the Rights of the Child, adopted in 1959, announces that “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.” It also asserts that the child “shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and post-natal care.”

Two additional U.N. declarations approved in 2005 recognize the existence of international human rights in the context of bioethics research. The Declaration on Human Cloning denounces “all forms” of cloning research resulting in the creation or destruction of human embryos as “incompatible with human dignity and the protection of human life.”

The Universal Declaration on Bioethics and Human Rights instructs “that all human beings, without distinction, should benefit from the same high ethical standards in medicine and life science research.” Further, “[t]he interests and welfare of the individual should have priority over the sole interest of science or society.” Thus, human beings “who do not have the capacity to consent,” clearly identified by the bioethics declaration as “persons,” have the fundamental right to be protected from all harmful research, including experiments intended to benefit others.

Unfortunately, these declarations, and their ringing endorsement of a right to life for all humans, are not binding legal instruments. They are intended to express international ideals which the nations aspire to achieve. The nations can only commit themselves to carrying out specific legal duties by creating special international agreements called conventions. Conventions acquire the force of law in the countries that ratify them.

The human rights conventions have been crafted in such a way so as to preserve the international ideal recognizing the unborn as individuals with rights, but without expressly dictating that nations must prohibit abortion. Countermeasures to create an international right to abortion so far have failed. Nations remain free to protect the lives of all human beings.

Attempts to add other amendments agreeing that conception is the point where human life begins have also not succeeded, with one exception. The exception is the American Convention on Human Rights, ratified in 1978 by most countries on the American continent, but not including Canada or the United States. That convention asserts that “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

To date, 35 countries prohibit all abortions, 34 countries allow abortion only to save the life of the mother, 34 countries have exceptions for the mother’s life or physical health, 23 countries recognize an additional exception for mental health, 14 countries grant further access for socioeconomic grounds and 56 countries allow abortion on demand. See www.reproductiverights.org.

As shown by the experience with the U.N. conventions and by the international data on abortion laws, there is a gap between aspiration and practice. But there is progress, as indicated by the fact that a substantial majority of countries limit abortion altogether or allow for only very narrow exceptions.

The U.N. declarations provide the necessary framework for future advances. They remain a source of hope and inspiration. The declarations point the way to greater international protections because they insist as a matter of principle that babies get human rights from the beginning of their embryonic existence as human beings.

Daniel Avila is the Associate Director for Policy & Research of the Massachusetts Catholic Conference.