The Human Rights Committee, a mostly unknown but influential UN committee that records and reviews the implementation of the UN treaty on civil and political rights has published a draft opinion on the “right to life” in international law that assigns to mothers the right to abort their children.
What is surprising in “General Comment 36”, as the draft report is known, is the complete absence of any protections for children in the womb, despite a flurry of pro-life concern ahead of its release.
The draft states, “the Covenant does not explicitly refer to the rights of unborn children, including to their right to life.” It concludes therefore that, “the Committee cannot assume that article 6 imposes on State parties an obligation to recognize the right to life of unborn children.”
It goes on to say that if countries wish to protect life in the womb they “may” only do so if they guarantee women the right to abort their children in cases of rape, incest, and when their child in utero is disabled.
The draft also asserts a positive obligation of States to allow “therapeutic” abortion— even though many medical experts do not think abortion is ever necessary to save a mother’s life. It says not to allow abortion in these circumstances amounts to cruel, inhuman, or degrading treatment, which is prohibited by the Convention.
The draft further insists that, in any case, countries may not regulate abortion too strictly.
It says states may not “apply criminal sanctions against women undergoing abortion or against physicians assisting them in doing so,” and must not prescribe “excessively burdensome or humiliating requirements for seeking permission to undergo abortion, including the introduction of lengthy mandatory waiting periods before a legal abortion can be carried out.”
The claims about the “right to abort” in the draft are not unprecedented. They consolidate previous UN recommendations in the past two decades. But they have never been expressed so categorically.
Such interpretations of UN treaties are illegitimate and gross misstatements of binding international law according to the San Jose Articles, a document prepared and signed by experts in international law and global health.
The San Jose Articles says UN treaties should be used to expand protections for children in the womb, not take them away. They directly undercut the claim of a positive obligation to permit abortion, and they call into question the integrity of UN experts and their methods of interpreting treaties.
“No United Nations treaty can accurately be cited as establishing or recognizing a right to abortion,” the articles state, pointing to the complete absence of any reference to abortion also in the treaty in question.
While the articles acknowledge the lack of a positive obligation to protect life in the womb, as the draft comment notes, they point to a provision in the UN treaty on civil and political rights prohibiting the application of the death penalty to pregnant mothers, implying that innocent children in the womb indeed have a right to life independently of their mother and should not be held accountable for the crimes of their mother. The draft comment does not explain this discrepancy.
Moreover, the San Jose Articles point out that when the UN treaty on civil and political rights was ratified the majority of countries in the world forbade abortion in most or all circumstances. Also this is not taken into account in the draft.
The committee will discuss the draft prepared by a subgroup of the 18-member committee at its next session later this month, before it is opened up for comment.