Is killing Unborn Babies a Human Right? - By Averthanus L. D’Souza

GOA, Dec. 18, 2009, 16.30 Hrs (Averthanus L. D’Souza):

An interesting case has come into prominence in Europe very recently. Three Irish women who had to go to Britain to procure the termination of their pregnancies are filing a suit before the European Court of Human Rights challenging the Irish Constitution, which protects all human life from the moment of conception. Their contention is that the lack of abortion facilities in Ireland breaches the human rights of women to terminate their pregnancies.

There are two distinct legal problems involved in this case. One, whether the women have a right to terminate their pregnancies; and two, whether the European Court of Human Rights can overturn the Constitution of one of its member States.

The Irish Constitution guarantees to its citizens the right to life, from the moment of conception till the time of natural death. Consistent with this basic principle, any services which are intended to terminate human life at any stage are banned, except in special circumstances duly provided by law. There are no “abortion clinics” in Ireland where women can obtain elective abortions. Those who want to have abortions usually travel to Britain, where such services are available.

The present case presents not only a legal challenge, but also a challenge to the cultural and moral values which have defined European civilization and tradition. This case comes just two months after Ireland became a signatory to the Treaty of Lisbon. The Lisbon Treaty came into operation on December 1st 2009. The Republic of Ireland signed the Treaty hesitatingly only after receiving assurances that it’s Constitution would be respected and protected, and that no actions of the European Union would in any way infringe upon the rights guaranteed to it’s citizens by the Irish Constitution.

The case filed by the three Irish women poses a direct challenge to the Irish Constitution, and it will be interesting to see how the European Court of Human Rights will deal with this matter. The decision of the European Court of Human Rights will have very far-reaching consequences, not only for the members of the European Union, but also for other countries which are not part of the European Union.

It is commonly understood that the Treaty on European Union and the Treaty establishing the European Community which have been updated by the Treaty of Lisbon do not, in any way, infringe upon the sovereign rights of the member states of the E.U. All the institutions of the E.U. whether political, economic or social are only set up with the explicit consent of the member States. There are no “overriding powers” given to the E.U. A cursory reading of the terms of the Treaty of Lisbon reveals that what undergirds the Treaty are the principles of Subsidiarity and Proportionality (Article 3 b). In the common man’s language, this means that the E.U. pledges itself not to override the laws, structures, or institutions of its Member States. In fact, it explicitly avers that the E.U. will only act in those areas on which the Member States have authorized it to act. Article 2 A, section 5 reads: “In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonization of Member States laws or regulations.”

To the (legally) untrained mind of a layman it appears that the claim of the three Irish women that the non-availability of abortion services in Ireland constitutes a violation of their ‘human rights’ is not only legally untenable, but is also ethically specious.

The ethico-cultural dimension.
Keeping aside the legal conundrum for the jurists to unravel, it is important that we consider the ethical and social implications of the claim that women have a right to arbitrarily terminate their pregnancies, and that, therefore, the State has a duty to provide them with all the facilities required for this purpose.

The vast majority of medical opinion holds that a human embryo or foetus is a distinct human person. This should be obvious to anyone with common sense. A human foetus is not a cat or a dog or a mouse – it is human, and will eventually develop into a fully recognizable human being. Therefore the act of destroying a human foetus is clearly an act of destroying a human being. The second consideration is also clear. The embryo or the foetus is a distinct being, and not a “part” of a woman’s body. The woman only hosts the foetus until it is time for it to develop on its own. Nature has provided all (female) mammals with wombs to enable the embryos to develop into foetuses and then to grow into fully developed individuals who can survive outside the womb. Even outside the womb, the infants have to be nurtured and taken care of until such time as they are able to take care of themselves. The common sense understanding of the process is that a mother is “entrusted” with the well-being of her child till the child becomes an adult and can take care of herself/himself. Without getting involved in any technical debates, it is obvious that an unborn baby is a human person with rights and privileges like any other human person. These rights and privileges have to be respected and protected – first of all by the parents themselves, and specially the mother, and then, also by society.

Any society which has permitted the killing of unborn babies has violated it’s fundamental responsibility to protect the lives of it’s citizens, specially those who are the weakest and therefore the most vulnerable. Once a society opens its doors to the murder of innocent children – for that is what abortion really is - there is no limit to which it can proceed with permitting the murder of other citizens. The inexorable logic of permitting murder is that that society is doomed to become a society which condones, and even actively promotes, the murder of the elderly, who are considered to be a drag on society, of the physically disabled, the mentally challenged and the economically disprivileged. Human history, even in the very recent past, has shown that societies can become brutal and oppressive and murderous. Such dehumanized societies can find all kinds of reasons to eliminate large sections of its citizens: either reasons of physical or mental deficiencies, or reasons of race, or reasons of ethnicity, or of colour of the skin, or language.

The problem starts with the basic disrespect for human life. Humankind has not yet learned that all life is sacred, specially human life, which represents the pinnacle of evolution. We are confronted with serious contradictions in our own behavior. We form societies to protect animals and trees, turtles and whales and dolphins, but at the same time we condone – nay, even actively propagate, the murder of human beings at any stage of their development – from within the womb to old age. Modern society has found a devious way to cloak the grim reality of murder by cloaking it under euphemisms such as “the medical termination of pregnancy”, the movement of “death with dignity,” the “right to die,” and other stupid excuses such as “ethnic cleansing” or “eugenics.” However we might seek to escape the stark reality, murder remains murder – under any form or description. We seem to have forgotten that no human authority has given us life, and, consequently, no human authority – whether a pregnant woman, a doctor or the State, can destroy life, except under very exceptional circumstances, and under due process of law.

In his Rosenthal Lectures given at the Northwestern University School of Law in 1960, Lord Radcliffe reminds us: “Suddenly the old question, The law of God or the law of man?, which in times of less stress and in communities of lower tension seems only an echo of a “battle long ago,” became once more a dreadful reality. It is because of those experiences, which have been added to the imaginative inheritance of European history, that so many men have begun again to ask whether the law itself must not teach that it and all its demands, no matter with what formal legality they may be clothed, are subject to the overriding veto of a law of Nature or a law of God.”