Frances Raday is Special Rapporteur to the UN Human Rights Council’s Expert Group on Discrimination against Women, former Chair of the UN Working Group on Discrimination Against Women and Expert Member of the Committee for the Elimination of Discrimination Against Women (CEDAW). She is calling for a yes vote in the forthcoming Irish referendum on the Eighth Amendment to the Constitution.
The Eighth Amendment of the Irish Constitution, by making a symmetrical equivalence between the right to life of foetuses and women, results in the systematic violation of the human rights of women and girls.
Women’s and girls’ human rights include the rights to life, equality, dignity, autonomy, information and bodily integrity and respect for private life and the highest attainable standard of health, including sexual and reproductive health, without discrimination; as well as the right to freedom from torture and cruel, inhuman and degrading treatment.
Human rights accrue from birth
It has been settled, since the 1948 Universal Declaration of Human Rights as upheld in the International Covenant on Civil and Political Rights, that the human rights accorded under international human rights law are accorded to those who have been born: “All human beings are born free and equal in dignity and rights.” I would like to emphasise that, in international law, human rights accrue from birth. Human beings are “born” free and equal in dignity and rights, and records of the drafting processes leading to the adoption of the core human rights treaties clearly show that their drafters rejected claims that human rights should apply prenatally[1].
The World Health Organisation, the CEDAW Committee and the WG DAW have observed that highly restrictive abortion laws result in women obtaining illegal and unsafe abortions, and are a major cause of maternal mortality. The CEDAW Committee has also specifically recommended that the Northern Ireland legislation criminalising abortion should be amended.[2]
Contravention of women’s and girls rights
The Eighth Amendment, in acknowledging the constitutional right to life of the unborn and guaranteeing to defend and vindicate that right, with due regard to the equal right to life of the mother, makes a symmetrical equivalence between women and foetuses in contravention of women’s and girls’ international human rights.
The right of a woman or girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy, concerning intimate matters of physical and psychological integrity. The decision as to whether to continue a pregnancy or terminate it, is fundamentally and primarily the woman’s decision, as it may shape her whole future personal life as well as family life and has a crucial impact on women’s enjoyment of other human rights. Restriction of her autonomy in this respect should be strictly limited. Accordingly, the Working Group on discrimination against women has called for allowing women to terminate a pregnancy on request during the first trimester, when the foetus is not capable of independent existence outside the woman’s body, and also in cases when the life or health of the woman are at risk, of rape or unviability of the foetus and for girls under 16, as exceptions beyond the third trimester.
The Working Group has said that it is imperative to understand that at this stage, despite the intense efforts made by the fundamentalist lobbies to portray the zygote as a baby, it still consists of unindividualized cells, from which the embryo as well the placenta will develop.
Discrimination
Furthermore, the freedom to travel to secure the termination of a pregnancy outside the jurisdiction of Ireland does not rectify the violation of women’s and girls’ human rights by the prohibition of the medical procedure in Ireland. The need to travel for the medical services creates practical, bureaucratic and financial barriers in the access to safe abortion procedures and, is liable to impact women in poverty, migrant or refugee women, women with disabilities and other vulnerable groups of women in a discriminatory way.
The WHO has demonstrated that, in countries where induced termination of pregnancy is restricted by law and/or otherwise unavailable, safe termination of pregnancy is a privilege of the rich, while women with limited resources have little choice but to resort to unsafe providers and practices. It has reported that there are approximately 22 million unsafe terminations of pregnancy annually, resulting in 47,000 deaths. This results in severe discrimination against economically disadvantaged women.
Termination of pregnancy should be by qualified medical service providers in a safe environment. WHO data has clearly demonstrated that criminalizing termination of pregnancy does not reduce women’s resort to abortion procedures. Rather, it is likely to increase the number of women seeking clandestine and unsafe solutions. Countries where women gained the right to termination of pregnancy in the 1970s or 1980s and are provided with access to information and to all methods of contraception, have the lowest rates of termination of pregnancy. Ultimately, criminalization does grave harm to women’s health and human rights by stigmatizing a safe and needed medical procedure.[3]
Arbitrary Detention and Torture
Further, the Eighth Amendment, in some circumstances, may result in grave violation of the right to be free from arbitrary detention, and the right to freedom from torture or other cruel, inhuman and degrading treatment (both of which are absolute human rights).
The Committee against Torture[4] and the Special Rapporteur on torture and other cruel, inhuman or degrading punishment[5] found that highly restrictive abortion laws that prohibit abortions even in cases of incest, rape or foetal impairment or to safeguard the life or health of the woman violate women’s right to be free from torture and ill-treatment. In a number of cases, the Human Rights Committee[6] has, in Optional Protocol decisions, applied a classification of torture or other cruel, inhuman and degrading treatment to denial of access to legal abortion. And the CEDAW Committee in its General Comment 35 on gender-based violence has stated clearly that that criminalisation of abortion and denial or delay of safe abortion and post-abortion care are forms of gender-based violence that may in some circumstances amount to torture or cruel, inhuman or degrading treatment.
In the application of Irish law under the Eighth Amendment, cases which would give grounds for allegations of torture or cruel, inhuman and degrading treatment, are any cases where pregnant women and girls have been detained in psychiatric institutions although their distress was, according to psychiatric opinion, caused by pregnancy and not by a psychiatric disorder; have been subjected to forced feeding in response to refusal to eat; or have been refused access to legal abortion where the pregnancy resulted from rape, including in the case of pregnancies of girls under the age of eighteen.
A yes vote on 25 May to remove the Eighth Amendment is an essential step in order to prevent the violation of the human rights of the women and girls of Ireland.
