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Motion 312: An ignorant affront to global human rights standards

By Joyce Arthur

April 6, 2012


As published on Rabble.ca

1. International and regional standards on the right to life

The CRR report analyzes right-to-life protections in various international and regional treaties, including the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and six others. These treaties do not define when life begins, but authoritative interpretations have clarified that right-to-life protections do not apply before birth because of the potential for negating human rights protections for women. Treaty-monitoring bodies have consistently stressed the importance of protecting women's rights, calling on states to remove barriers such as the denial of safe and legal abortions, and to ensure that the rights of pregnant women are given priority over an interest in prenatal life.

Only one treaty has an apparent protection for life from conception, which anti-choice activists often cite. Article 4 of the American Convention on Human Rights (ACHR) states: "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." However, the bodies that interpret and monitor compliance with this Convention have ruled that this protection is not absolute, must not be interpreted restrictively so as to deny women's fundamental rights, and does not preclude a liberal abortion law. Canada has not ratified the ACHR in any case, but it has signed or ratified the four international treaties listed in the CRR report.

Woodworth pretends that abortion is somehow peripheral to his motion, but prenatal legal protections are the core foundation and trigger for anti-abortion laws. His motion serves no purpose unless he plans to use it as a vehicle to help re-criminalize abortion. Indeed, he's been forced to admit that if he succeeds in giving fetuses human rights protections, it would impact abortion laws. But no global human rights treaty supports prenatal right-to-life protections or legal restrictions on abortion because of the conflict with and negative impact on women's rights. Moreover, it's been conclusively shown that laws against abortion do nothing to stop or reduce abortions. A study by the World Health Organization found that overall abortion rates in the world are similar, regardless of whether abortion is illegal in a country or not. Abortion is a fact of life, an essential treatment that only women need, and which half of all women will resort to at some point in their lives. But where it's illegal, it's usually unsafe and takes a deadly toll on women's lives and health.

2. High courts reject recognition of a prenatal right to life

Landmark court decisions from at least five countries (U.S., Slovakia, Colombia, South Africa, and Nepal) have concluded that the right to life and other constitutional rights accrue only at birth. The courts acknowledged that recognizing a prenatal right to life could result in an unjustified conflict between the rights of the pregnant woman and her fetus, and that women's rights and health must take precedence. The Supreme Court of Nepal said: "It is not possible to put the mother's life at risk to protect the fetus." The U.S. Supreme Court has described the negative mental and physical health consequences associated with carrying an unwanted pregnancy to term. Further, high courts have made a distinction between valuing prenatal life and protecting it legally, concluding that no prenatal right to life exists, and that any effort to protect fetal interests must be consistent with women's fundamental rights.

Woodworth, even though he is a lawyer himself, has managed to introduce a motion that if successful, would put Canada on a collision course with global high court jurisprudence on the issue of prenatal legal protections (including Canada's own case law on the issue). He insists that it is inappropriate to use a "400-year-old law" defining personhood at birth, even though modern legal precedents around the world uphold exactly that dividing line. His entire campaign overlooks the troubling human rights conflicts that would arise between women and fetuses if the latter had competing rights. Indeed, he refuses to acknowledge that women even have anything to do with his motion, as if they are passive receptacles with no rights of their own. But the evidence is overwhelming that laws protecting the fetus endanger the health and lives of women, as well as their fetuses and children.

3. Striking a balance: Women's rights and an interest in prenatal life

Women are protected from discrimination under human rights laws, so any prenatal protections must not discriminate against women. Very few countries actually have explicit constitutional or legislative protections for embryos and fetuses -- Ireland, Costa Rica, Nicaragua, and Kenya are examples. Even so, some of those countries allow abortion when the life or health of the woman is in danger. But the serious violations of women's fundamental rights in countries such as Nicaragua and Ireland are well known. Pregnant Nicaraguan women with complications have been left to die without treatment, and thousands of Irish women must travel outside the country each year to get an abortion.

The CRR report lists a number of proven measures that governments can take to promote prenatal, infant, and child survival while respecting women's human rights. Without exception, they involve helping pregnant women directly, not bypassing them to protect the right-to-life of fetuses. The measures include: providing information and means for women to determine the number and spacing of their pregnancies, promoting access to adequate nutrition and nutritional supplements for pregnant women, increasing access to emergency obstetric care and skilled birth attendants, reducing maternal mortality, improving access to interventions for preventing HIV transmission, and addressing underlying social conditions that contribute to high-risk pregnancy, such as domestic violence.

Woodworth's narrow-minded fetus focus has left him no room to figure out that the best way to protect fetuses is by helping pregnant women -- including making sure they can exercise their full human rights without discrimination. Fetuses do not need their own legal protection and in fact are better off when pregnant women are respected as the sole rights-bearers.

4. Women's rights jeopardized by prenatal protections

The CRR report tells the stories of eight women whose rights were violated because of legal protections for fetuses and strict laws against abortion (in Poland, Peru, Philippines, Moldova, El Salvador, Costa Rica, and Honduras). Pregnant women sometimes die -- along with their fetuses -- because doctors refuse to provide life-saving or emergency treatment in case it harms the fetus. Other women are left permanently injured or in deteriorated health due to delayed or no medical care, and some may be treated harshly or even jailed for having a miscarriage or inducing a desperate self-abortion. These are the kinds of things that happen when laws prioritize prenatal life over women's fundamental human rights. Countries that do so jeopardize women's lives and health, violate their rights to liberty and personal security, and subject them to cruel, inhuman, or degrading treatment.

Woodworth's motion epitomizes this same utter disregard for women, as well as their children. Fetal protection and anti-abortion laws don't save that many fetuses, so their main effect is to punish women just for being women and getting pregnant. As for women compelled to carry high-risk or unwanted pregnancies to term, it's difficult to understand why "pro-life" policies and laws force women to risk their lives and health to have babies -- often killing both of them in the process -- or compel women to sacrifice their own consciences and liberty to have children they don't want and can't care for -- children who will be at high-risk for a life of poverty or ill health. Woodworth is following the "pro-life" blueprint by advancing a motion that values the "human rights" of fetuses over the rights and lives of both women and children -- a destructive anti-life endeavour.

5. The law defines legal personhood, not human life

One of the main roles of the judiciary is to accord rights and protections within a legal system. The courts should not engage in moral or religious discourse. Specifically, "legal personhood" is a separate issue from ethical or religious perspectives on when life begins. Throughout the world, the rights and entitlements associated with legal personhood virtually always start at birth. The legal consequences of recognizing prenatal personhood can be far-ranging and unintended, and lead to human rights violations. For example, freedom of religion and conscience are violated when people who believe that life begins at birth, or that women's lives are more sacred than fetal lives, are prohibited from acting according to their religious or philosophical views. Prenatal protections open the door to criminal investigations of women who suffer miscarriages or engage in any action that could harm the fetus, such as drinking alcohol or driving without a seatbelt. Women undergoing in vitro fertilization could be required to implant all fertilized eggs, leading to higher rates of multiple pregnancies that jeopardize the health of women and their fetuses. Consequences could become even more bizarre and unworkable, such as fetuses needing conception certificates, pregnant women having to apply for social insurance numbers and passports for their fetus, confusion around inheritance laws and the born-alive rule, and countless other examples.

Woodworth seems blind to these types of risks, the worst of which I've already raised in relation to his motion. Further, despite Woodworth's 30 years as a practicing lawyer, his motion suffers from the exact problem the CRR report raises -- the fundamental confusion between the social and legal construction of personhood, and what a human being is from a biological perspective. By conflating these two different things, Woodworth aims to plant that same confusion in the mind of the public. The danger is that this could lead to fetal protection laws that actually undermine the rights of born human beings and the welfare of fetuses.

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Motion 312 is ill-considered and dangerous, with a goal that is in near-total opposition to global human rights treaties, high court precedents, laws and experience. Ultimately, the motion signals a profound disrespect towards women and a desire to return them to a subordinate role at the expense of their freedom and even lives. The attitude behind the motion is exemplified by these quotes from two international advocates for women's rights:

"The 'war on the womb' is not just about the bizarre notion that a blastocyst should be considered a human being ... It is the radical Christian version of the burka -- designed to keep women in their place, subservient to men." -- Elizabeth Cornwell, Executive Director, Richard Dawkins Foundation for Reason and Science (US).

"Women are not dying because of diseases we cannot treat. They are dying because societies have yet to make the decision that their lives are worth saving." -- Mahmoud Fathalla, Former President of the International Federation of Gynaecology and Obstetrics, 1997.

Joyce Arthur is the founder and Executive Director of Canada's national pro-choice group, the Abortion Rights Coalition of Canada (ARCC), which protects the legal right to abortion on request and works to improve access to quality abortion services.