Abortion and Eugenics Before the European Court of Human Rights

The European Court of Human Rights (ECHR) currently has before it an unprecedented number of cases relating to abortion. Because the principles established by the Court in its case law are binding on the 47 member states, the next few months will be decisive for the respect of human life and dignity. The European Center for Law and Justice (ECLJ), which intervenes as a third party in many of these cases[1], wishes to draw attention to these very important cases.

Among the cases that the European Court must now judge on, there is the case of a Polish mother who complained of difficulties in obtaining permission for her minor daughter to have an abortion[2]. There is also the case of a woman who died during pregnancy, (allegedly) due to conscientious objection exercised by doctors[3]. In another case, a woman who became sterile following an abortion complained of not having been properly informed of the risks[4]. In two other cases before the Court, the women who gave birth to children with disabilities complain of not being able to have abortions[5]. Finally, on a related topic, the Court also has before it a case involving a ban by the Italian legislature of pre-implantation diagnosis[6].

The ECLJ submitted its written observations on 2 April in the case of Anita KR?ZMANE against Latvia in which a mother complains of not having been able to abort her Down’s syndrome daughter. She alleges in particular that her doctor had breached an obligation to prescribe a screening test for Down’s syndrome. Pretending the existence of a direct causal link between the absence of testing and the birth of her daughter with Down’s syndrome, the applicant claims to have suffered a violation of her right to respect for private life, a private life which includes – according to the applicant – the right to decide to have an abortion. In summary, it is a question of whether or not eugenics has become a human right.

This claim — which attempts to make eugenics a human right — may seem crazy. However it did not immediately shock the Court, otherwise the application would have been rejected for not complying with the eligibility criteria, or for abuse of rights because, under the Convention, “no one may use the rights guaranteed by the Convention in order to seek the abolition or restriction of those rights” (art. 17). There is no doubt that the KR?ZMANE case and other cases now pending before the court are used strategically to try to advance the “rights” to abortion and eugenics. Eugenics, like abortion, is in danger of becoming a social normality; those who still see the inhumanity of these practices are becoming increasingly rare. In fact, postmodernism creates the inhumanity of post-humanity, and eugenics is one of the instruments of this post-humanity which aims at surpassing the human nature.

To assist the Court — which is faced with the danger and complexity of these cases — the ECLJ attempted to emphasize in its written observations the situation and stigmatization of people with disabilities. It also endeavors to highlight the true foundations and requirements of human rights and bioethics, with regard to respect for human life, the purpose of medicine and the prohibition of eugenics.

In the coming months, the European Court will have responsibility for defining, for the 47 member states, much of the legal framework of abortion and family issues such as eugenics and conscientious objection. This legal framework will bear the moral prestige of the Court. This responsibility is significant because the Court is conducted at developing these jurisprudential rules largely outside the framework of the Convention, as abortion and eugenics are contrary to the Convention, as it was conceived, written and intended by its authors. Indeed, there is no doubt that in 1950, just after the Second World War, the drafters of the Convention condemned those practices as inhumane, and it was inconceivable to them that some would one day claim that they are human rights.

Faced with a society that largely tends to deny the value and humanity of preborn life in favor of ending or exploiting it, the Court interpreted the European Convention on Human Rights in a manner that tolerates the practice of abortion while expressly denying the existence of an alleged right to abortion[7]. While some “bioethical” authorities lobby for the legalization of “postnatal abortion”[8], the Court would fail in its mission by leaving the unborn child completely unprotected.

For the ECLJ, it is clear that the Court (which received from the Member States its duty of guaranteeing the fundamental rights of “all people”), should set limits to those practices, particularly with regard to late abortion (after the viability threshold) and selective abortion based on the characteristics of the child, including genetic characteristics (the sex and health status of the child). In its observations, the ECLJ has shown that the international law and the European Convention protecting prenatal human life do not create a right to abortion, but, instead the State has the positive obligation to protect life, including prenatal life. Even when a state permits abortion, it remains subject, in respect of the Convention, to the positive obligation to protect life and preserve the rights and competing interests. The State must thus, for example, prevent such stigmatization of people with disabilities and their families, protect the freedom of parents to not abort, make effective the prohibition of eugenics and genetic discrimination, respect the therapeutic purpose of prenatal diagnosis, respect the right to conscientious objection by medical personnel, etc.

These coming months will be decisive for the respect of human life and dignity. The Court will also have to rule on cases concerning euthanasia[9] and “surrogate mothers”[10]. The European Court of Human Rights has its roots in modern and humanist culture. Such applications invite the Court to sever these ties and to embrace the illusion of post-modernity, and with it, inhumanity. The danger is serious, because a “Court of Human Rights” that would recognize and protect abortion, eugenics, euthanasia and the practice of surrogacy would simply become inhumane.

[1] The ECLJ intervenes in the cases of P. and S. v. Poland, No. 57375/08, Kruzmane v. Latvia, No. 33011/08, and Costa and Pavan v. Italy, No. 54270/10 and previously intervened before the Grand Chamber in the cases of A, B. and C. v. Ireland, and S. H. v. Austria

[2] P. and S. v. Poland, No. 57375/08

[3] Z v. Poland, No. 46132/08

[4] Csoma v. Romania, No. 8759/05

[5] Kruzmane v. Latvia, No. 33011/08 ; Ozçakmak v. Turkey, No. 24573/08

[6] Costa and Pavan v. Italy, No. 54270/10

[7] In the Grand Chamber case of A. B. and C. v. Ireland

[8] Alberto GIUBILINI et Francesca MINERVA, “After-birth abortion: why should the baby live?”, inJournal of Medical Ethics, doi:10.1136/medethics-2011-100411.

[9] Cases of Koch v. Germany, No. 497and Gross v. Switzerland, No. 67810/10

[10] Cases of Mennesson and Others v. France, No. 65192/11 and Labassee and Others v. France, No. 65941/11

Grégor Puppinck, Ph.D., Director General of the European Center for Law and Justice, a Non-Governmental Organization in Strasbourg, which took part into the case Lautsi v. Italy. The author is expert at the Council of Europe and takes part in the Committee of Experts on the reform of the Court.

This article courtesy of  Turtle Bay and Beyond and is used with permission.