The question of whether or not the unborn child has any rights under the law has been, and still is, an area of conflict.A fundamental issue is whether the rights of the unborn child are protected by the Charter of the United Nations, including:
- There have been differing interpretations of whether the right to life applies to the unborn child.
- Explicit protection is extended to the unborn child in the International Covenant on Civil and Political Rights 1966
- The concept of person is one of the most difficult concepts to define.
- The foetus is not recognised in law until after it is born.
- In the USA the ftus is recognised as a victim with respect to violent crimes.
- the Universal Declaration of Human Rights 1948
- the International Covenant on Civil and Political Rights 1966
- the Convention on the Rights of the Child 1989
"There have been differing interpretations internationally of whether the right to life applies to the unborn child (Jayawickrama, 2002). The ICCPR (International Covenant on Civil and Political Rights) declares that 'every human being' has the inherent right to life, while in respect of other rights. The expressions used are 'everyone', 'every person, every child' - or 'every citizen.'"
This use of different terminology has raised the question whether 'every human being' also includes the unborn child."
"This use of different terminology has raised the question whether 'every human being' has a more expansive meaning than usually attributed to 'every person'; in particular, whether it also includes the unborn child."
"At the national level this is determined generally by policy rather than by law, and an overwhelming practical consideration in many jurisdictions has been the need to preserve laws that provide for abortion (Jayawickrama, 2002). There have been differing views internationally on whether the right to life includes the right to die."
National policy, rather than international law, seeks to "preserve laws that provide for abortion."
Counter-claim that the rights are protected
As the NZ Human Rights Commission acknowledges in the previous paragraph, national policy, rather than international law, seeks to "preserve laws that provide for abortion."
This view is challenged by doctors John Fleming and Michael Hains of Sydney, in their commentary entitled "What rights, if any, do the unborn have under international law?"
Here are their key points:
- According to the Vienna Convention on the Law of Treaties, the rule regarding the protection of life before birth could be considered as 'jus cogens' (final norm of general international law).
- According to Fleming and Hains: "The right to life of all human beings has the nature of an intransgressible norm already contained in the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and the Declaration of the Rights of the Child 1959. Under international law, the unborn child is protected, and it was not permissible at this late stage to attempt to allow a liberal abortion agenda under the Convention for the Rights of the Child.
- Explicit protection is extended to the unborn child in the International Covenant on Civil and Political Rights 1966, and in the Convention on the Prevention and Punishment of the Crime of Genocide 1948.
The Universal Declaration of Human Rights (1948) clearly states that everyone has the right to life, and that what is meant by everyone is 'every member of the human family' - that is all human beings.
"Some of those nations who opposed an understanding of the CRC's Preambular reference to 'the child, by reason of his physical and mental immaturity' needing 'special safeguards and care, including appropriate legal protection, before, as well as after birth,' as including abortion, did so on the basis of attitudes which violate explicit provisions of the Universal Declaration of Human Rights 1948, and the International Covenant on Civil and Political Rights 1966."
"That opposition was on the basis 'that an unborn child is not literally a person whose rights could already be protected, and that the main thrust of the Convention was deemed to promulgate the rights and freedoms of every human being after his birth, and to the age of 18 years.' These are mere assertions of opinion, opinion which is not universally shared in the way that the various human rights instruments are universally agreed. In fact it is opinion which is in conflict with universally agreed human rights instruments."
"Michael Meslin has shown that 'the concept of person is one of the most difficult concepts to define - even though it is always burdened with hopes and revendications. It is neither a simple fact, nor evident throughout history.'"
Concepts of personhood based upon science and philosophy abound. There is no agreed on point as to when it begins.
"The briefest of surveys of the literature provides ample evidence to support Meslin's contention. Concepts of personhood based upon science and philosophy abound. For some, personhood begins at syngamy. For others, it is 14 days after fertilisation, twelve weeks, 28-weeks, birth, three months after birth and so on."
"There is no agreement in science or philosophy about when personhood begins, or where it ends, or how it should be defined. The only agreement one finds is in the embryological text books, that human life begins at fertilisation. It is the fertilisation of a human egg by a human sperm that produces a member of the human species, the human family."
(Source: "What rights, if any, do the unborn have under international law?" 29 Aug. 2000)
The Royal Commission regarded the unborn child as "one of the weakest, the most vulnerable, and most defenceless forms of humanity, should receive protection."
The Royal Commission addresses the rights of the unborn child
The Royal Commission on Contraception, Sterilisation and Abortion regarded the unborn child as "one of the weakest, the most vulnerable, and most defenceless forms of humanity, should receive protection."
- It accepted the biological evidence establishing that life begins at conception.
- The Commission said that the child from implantation has a status which entitles it to preservation and protection.
- "The terms 'embryo' and 'fetus' do no more than mark those stages in a progressive development."
- The Commission said the right to life is a sacred principle of civilisation.
- "It is an indispensable guarantee of the individual worth of the persons within it. Its universal denial would fail to recognise the universal dignity of man."
The title to the Act (16th December, 1977) says: "An Act to specify the circumstances in which contraceptives and information relating to contraception may be supplied and given to young persons, to define the circumstances under which sterilisations may be undertaken, and to provide for the circumstances and procedures under which abortions may be authorised, after having full regard to the rights of the unborn child." [Emphasis added]
Successive Court judgements noted that Parliament did not specify what those "rights of the unborn child" were.
Successive Court judgements noted that Parliament did not specify what those "rights of the unborn child" were. Nor had Parliament spelt out who could speak for the unborn child. Since Parliament had not defined the rights and who could speak for the unborn child, the Court could not do so either.
The Dr Mel Wall case: Wall v Livingston
Early in 1982, Dr Mel Wall, a paediatrician at New Plymouth Hospital discovered that his 15-year old patient was pregnant. She was prepared to continue the pregnancy, but her own GP arranged an abortion. Dr Wall considered there was no justification for the abortion and went to Court to challenge the certifying consultants' authorisation.
- He testified that there were no medical or legal criteria that applied to the case. The certificate had been issued in "bad faith".
- Justice Speight ruled that Dr Wall had no "standing" in the case, and that in law the baby had no "standing" either. The differences between the doctors amounted to a difference of clinical opinion. The abortion was then carried out.
- Dr Wall appealed against the decision.
- The Court of Appeal dismissed the case, leaving no legal standing for the unborn child, and establishing immunity for certifying consultants.
A lawyer who was involved with the Wall v Livingston case, gave a clarification on the legal ruling:
"Justice Speight said that the Contraception, Sterilisation and Abortion Act 1977, and the Crimes Act 1961, consider the rights of the mother and also the rights of the unborn child 'which in the course of nature must mean the right to be born.'"
"The Court of Appeal agreed, but because those rights are not spelled out in either Act, it is left to the medical profession, i.e. two certifying consultants, to adjudicate those rights, i.e. a woman's 'right' to an abortion - and the child's 'right' to be born."
"The case was heard in 1982. Both Justice Speight and the Court of Appeal placed great emphasis on the ethical and professional standards of the medical profession to see that the legislation was properly followed, and that the judgment of that profession could rarely, if ever, be challenged. Such reliance on the medical profession has been proved to be without foundation."
"In my opinion, when reading the judgments, despite the obvious intention of Parliament, in reality, the only way in which the 'right' of an unborn child to be born can be realised, is to have a mother who does not want an abortion."
The Courts have taken the view in challenges to abortion, that the ftus is not recognised in law until it is born.
A NZ Family Court decision recognised a ftus a few weeks before birth as having some rights. The mother was 15 and pregnant. There was evidence that her boyfriend had been violent towards her.
Judge Inglis Q.C. took the view that the Children, Young Persons and their Families Act 1989, was just not limited to children once they were born, but also applied to children about to be born.
Judge Inglis Q.C. took the view that the Children, Young Persons and their Families Act 1989, was just not limited to children once they were born, but also applied to children about to be born. A restraining order was granted against the father to protect the unborn child.
In May 2004, a junior Ruby League player was sentenced to 18 months imprisonment for kicking his pregnant girlfriend in the stomach to kill their unborn baby.
In March, 2004, President Bush signed into law the Unborn Victims of Violence Act, which made it a felony to kill or harm an unborn child, during the commission of a crime on the mother. The Act recognised that there were two victims of the crime. Abortion-rights groups opposed the Act, seeing it as a Trojan Horse to give statutory rights to the ftus.
The Unborn Victims of Violence Act recognizes that when a criminal attacks a pregnant woman, and injures or kills both her and her unborn child, he has claimed two human victims. If a "child in utero" is injured or killed during the commission of certain federal crimes of violence, then the assailant may be charged with a second offense on behalf of the second victim, the unborn child.
Prior to enactment of this law, an unborn child was not recognized as a victim with respect to violent crimes and the felon could only be charged with harm done to the mother.