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According to merit: politics of abortion

Every Issue

Cite as: (2008) 82(12) LIJ, p.85

Women’s reproductive rights are glaringly missing from the various international statutes on rights.

While IVF is predominantly an issue for relatively wealthy women, the outcome of the case has broader implications for the rights of women to control their own fertility and for access to abortion services in Costa Rica and other countries.

The Universal Declaration of Human Rights and the subsequent International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were written predominantly by men.

It is probably as a consequence of this that there is no specific guarantee of reproductive rights. Instead they are cobbled together from a number of different rights including the rights to life and survival, liberty and security, the highest standard of health, the benefits of scientific progress, to marry and found a family, to receive and impart information, education, privacy and not to be discriminated against on the basis of sex.

This somewhat complex rights landscape is simply summarised: people should be empowered to control their own fertility and sexuality with maximum choice and minimum health problems by the provision of information and alternative services.1

Access to safe abortion is not a criminal issue, nor is it simply a health issue. Rather, it is a political issue related to women’s sexual self-determination.2

In Victoria, abortion changed from being a private right, available as medically required on an individual basis, to being politically recognised as a fundamental right in October this year. Following heated debate, in which almost every speaker spoke emotively of their personal family and birth experiences, the Abortion Law Reform Act 2008 was passed by both houses of Parliament.

But the fight for recognition of women’s right to control their own fertility as a fundamental platform for women’s freedom and equality remains under threat elsewhere, including in Costa Rica and, by association, many South American nations.

The threat is indirectly posed under cover of a prohibition on the use of IVF, a fertility treatment available only to those with the financial means to afford it.

By Presidential Decree 24029-S, IVF was authorised in Costa Rica in 1995. On the application of a member of the advisory committee of the Catholic Bishops Conference, this decree was annulled by the Constitutional Chamber in March 2000. The reason given was that life begins at conception and from that point is entitled to protection by law. As a result of the IVF process some embryos will perish and, accordingly, IVF places human life at too great a risk.

“The human embryo is a person from the moment of conception ... not an object ... not to be frozen ... [and that it is] not constitutionally legitimate to be exposed to a disproportionate risk of death.”3

Ten Costa Rican couples, together with their doctor and companies with a vested interest in IVF, submitted a complaint to the Washington, DC-based Inter-American Commission on Human Rights in January 2004. This was supported by an amicus curiae brief submitted by the Centre for Reproductive Rights in New York and another by the Allard K Lowenstein International Human Rights Clinic at Yale Law School.

The argument of the Catholic bishops was that where the rights of the mother and the embryo are in conflict, the right of the embryo should have supremacy because the conflicting rights of the mother arise neither as a matter of emergency medical treatment nor of disease but of human manipulation to artificially overcome a biological condition. The right to life for embryos implies a limit on the rights of others, “including couples seeking to have children and scientists seeking to experiment with embryos”.4

The case is still pending before the Inter-American Commission on Human Rights.

While IVF is predominantly an issue for relatively wealthy women, the outcome of the case has broader implications for the rights of women to control their own fertility and for access to abortion services in Costa Rica and other countries.

Women’s rights to control their own fertility and the competing right to life of an unborn child are ultimately at stake. The obvious sub-text is the corresponding right to an abortion.

If the abortion is neither an emergency procedure nor for the treatment of disease but rather to enable a woman to make decisions in relation to her own body and for the planning of her own family, the arguments proposed by the state of Costa Rica in relation to IVF would be equally applicable and the rights of the embryo to life should prevail.

In Australia a 1904 royal commission attributed declines in the birth rate to the “selfishness and pleasure seeking of women”.5

In 2008 similar attributions were made in relation to abortion and continue to be made about women who are seen to promote their careers ahead of their “responsibilities” to have and look after their family.

An historic victory for the right of women in Victoria to access safe abortion was heralded in 2008, but the fight for guarantee of women’s reproductive rights continues.

LIZ BISHOP is a lecturer in health and human rights, Department of Epidemiology and Preventive Medicine, Monash University. She is about to submit her SJD thesis investigating change in the position of women in the Victorian legal profession between 1996 and 2006.


1. ICPD Programme of Action, 1994, para 7.3.

2. Robyn Gregory, “Hardly her choice: a history of abortion law reform in Victoria”, Women Against Violence: An Australian Feminist Journal issue 19, 2007, 62-71.

3. Jurisprudence of the Constitutional Court, http://translate.google.com/translate?hl=en&sl=es&u http://www.poder-judicial.go.cr/salaconstitucional.

4. Report no 25/04, petition 12.361, Admissibility, Ana Victoria Sanchez Villalobos and Others, Costa Rica, March 11, 2004.

5. Note 2 above.

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