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Sexual and Reproductive Rights

Fetal Rights

Nayeli Martínez Cruz - GFMER Coordinator for Mexico

Conflict between fetal rights and human rights

Fetal rights refer to legislation granting legal rights to the fetus. Human rights treaties in general reject the idea that life between conception and birth has legal rights, viewing that an unborn child is not yet a person whose rights can be protected, as is explained in a publication by the Center for Reproductive Right City and the University of New York on the claim of fetal rights. In addition, human right treaties recognize that women have the right to choose to end their pregnancy, particularly when the pregnancy affects the health of women. The right to voluntary motherhood and thus the decision to end a pregnancy is integral to a broad range of fundamental human rights, specifically, women’s rights to equality, life, health, security of person, private and family life, freedom of religion, conscience and opinion, and freedom from slavery, torture and cruel, inhuman or degrading treatment, all of which take precedence over claims to protection on behalf of the fetus.

Important agreements with regard to (absence of) fetal rights

  • Universal Declaration of Human Rights (1948). Article 1 of the Declaration says that all human beings “are born free and equal in dignity and rights”. The word “born” was used intentionally to exclude the fetus or any antenatal application of human rights. The right to freedom and equality refers to born persons only.
  • European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Article 2 states that “everyone’s right to life shall be protected by law”. The term ‘‘everyone’’ does not apply before birth and the Convention protect women’s fundamental right to have access to a safe abortion.
  • International Covenant on Civil and Political Rights (1966). Article 6 states that “every human being has the inherent right to life” but this does not apply to life before birth. An amendment was proposed and rejects that stated “the right to life is inherent in the human person from the moment of conception, this right shall be protected by law”.
  • American Convention of Human Rights (Pact of San Jose, Costa Rica, 1969). Article 4 states that “every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.” The Inter-American Commission, responsible for overseeing compliance with the Convention, has interpreted this by not granting rights to the fetus and by allowing permissive abortion laws.
  • Though the Convention of the Elimination of All Forms of Discrimination Against Women (1979) doesn’t explicitly protect the right to life or the right to abortion, its preamble reaffirms the Universal Declaration of Human Rights and thus excludes fetal rights. It also provides a foundation for reproductive rights as Article 16 guarantees women ‘‘the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights”.
  • The African Charter on Human and Peoples´ Rights (Banjul Charter, 1981) was the first international human rights instrument to explicitly articulate a right to abortion and that way excluded fetal rights. Article 14 stipulates that “state parties shall take all appropriate measures to (…) protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”
  • The Convention of the Rights of the Child (1989) does not recognize fetal rights. An argument to the contrary is erroneously built upon paragraph 9 of its preamble, which states: ‘‘Bearing in mind that, as indicated in the Declaration of the Rights of the Child, the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”. This refers to a state’s duty to promote a child’s capacity to survive and thrive after birth, through nutrition and health care for pregnant women.
  • International Conference of Population and Development (1994). Article 6 states that “all couples and individuals have the basic right to decide freely and responsibly the number and spacing of their children and to have the information, education and means to do so.” This treaty represented a significant step in the establishment of human rights from (and not before) birth.