Introduction
Occasionally, for political, religious, health or feminist reasons, the debate on the abortion issues is disclosed, the debate of this social scourge that is present in every society. Legally or illegally abortions are performed everywhere. Fortunately, in many societies, the act of voluntary termination of pregnancy is guaranteed by law and this has cut to a considerable extent the way of illegal and criminal abortions with fatal consequences for women’s health. According to the World Health Organisation, every year in the world, an estimated 40-50 million women faced with an unplanned pregnancy decide to have an abortion. [1] This amount of abortions seems to be the cause that has reopened the public debate on the attitude of law, rule, religion, morality and the right of women to abortion.
The problems of abortion have been at any time part of an open debate across the world. Polyvalent discussions have become even more intensive whether we look at them by an ethical, religious or a legal point of view. Yet, despite the very long time that was devoted to the discussion and the decision making regarding abortion issues, they are still difficult to be solved to the end, because in the essence is an issue that lies in the public suspension between those who appreciate the advantages of political values in relation with the natural claims of moral and religious assessment. So again, there is great disagreement over the issue of the moral permissibility of abortion.
Definition
Abortion is the termination of a pregnancy by the removal or expulsion of a fetus or embryo from the uterus, resulting in or caused by its death. An abortion can occur spontaneously due to complications during pregnancy or can be induced, in humans and other species. In the context of human pregnancies, an abortion induced to preserve the health of the gravid (pregnant female) is termed a therapeutic abortion, while an abortion induced for any other reasons is termed an elective abortion. The term abortion most commonly refers to the induced abortion of a human pregnancy, while spontaneous abortions are usually termed miscarriages. [2]
History
Methods of abortion have been documented for thousands of years. Some may be surprised to learn that Hippocrates, whose oath is famous for its wording “… I will not give a woman a pessary to cause an abortion”, also reportedly described methods to terminate a pregnancy for medical indications in his Corpus Hipocraticum. In the 2008 debate on safe and legal access to abortion at the Parliamentary Assembly of the Council of Europe, Ms. Curdova of the Czech Republic noted that: “The 20th century scientist, George Devereux, after examining 350 primitive, ancient societies, concluded that abortion was a universal phenomenon and that it was impossible to find or create a social structure in which it would not exist. [3]
The understanding of a woman’s human right to decide when and if to have children has evolved and grown over the past 40 years. At the international level, governments recognized the right to make childbearing decisions at the first global meeting on human rights, as articulated in the 1968 Proclamation of Teheran. [4] The 1979 Convention on the Elemination of all Forms of Discrimination Against Women (CEDAW) [5] , was the first international human rights treaty to explicitly mention family planning. At the 1994 International Conference on Population and Development, 179 governments agreed that free and informed decision making about pregnancy and childbirth is a basic right [6] . In 1999, the UN General Assembly agreed that, “where abortion is not against the law, health system should train and equip health-service providers and should take other measures to ensure that such abortion is safe and accessible”. [7] 8
Abortion debate
The abortion debate refers to discussion and controversy surrounding the moral and legal status of abortion. The two main groups involved in the abortion debate are the pro-choice movement and the pro-life movement. Each movement has, with varying results, sought to influence public opinion to attain legal support for its position. [9]
Pro-choice describes the political and ethical view that a woman should have the choice to continue or terminate a pregnancy. This entails the guarantee of reproductive rights, including access to sexual education, to safe and legal abortion, and to contraception and fertility treatments. Pro-choice advocates argue that whether or not to continue with a pregnancy is inviolable personal choice, as it involves a woman’s body, personal health and future. They believe that both parents’ and children’s lives are better when abortions are legal, thus preventing women from going to desperate lengths to obtain illegal abortions. More broadly, pro-choice advocates frame their beliefs in terms of individual liberty, reproductive freedom and reproductive rights. [10]
Pro-choice individuals rarely consider themselves pro-abortion, because they consider abortion an issue of bodily autonomy, and find forced abortion to be as legally and morally indefensible as the outlawing of abortion. Indeed, some who are pro-choice consider themselves opposed to some or all abortions on a moral basis, but believe that abortions would happen in any case and that legal abortion under medically controlled conditions is preferable to illegal back-alley abortion without proper medical supervision. [11]
A comprehensive global study of abortion has concluded that abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it. Moreover, the researchers found that abortion was safe in countries where it was legal, but dangerous in countries where it was outlawed and performed clandestinely. Globally, abortion accounts for 13 percent of women’s deaths during pregnancy and childbirth, and there are 31 abortions for every 100 live births, the study said. [12]
On the other hand, pro-life describes the political and ethical opposition to elective abortion, and support for its legal prohibition or restriction. Those involved in the pro-life movement generally maintain that human fetuses and, in most cases, embryos are persons, and therefore have a right to life. Pro-life individuals generally believe that human life should be valued either from fertilization or implantation until natural death. The contemporary pro-life movement is typically associated with Christian morality, and has influenced certain strains of bioethical utilitarianism. From that viewpoint, any action which destroys an embryo or fetus kills a person. Any deliberate destruction of human life is considered ethically or morally wrong and is not considered to be mitigated by any benefits to others, as such benefits are coming at the expense of the life of a person. In some cases, this belief extends to opposing abortion of fetuses that would almost certainly expire within a short time after birth. [13]
So, the problem discussed, has to do with the debate if the conception of the right of choice in the context of political justice and the right of the woman to abortion should be dominant by leaving aside the issue of the moral status of the conceived fetus.
The liberal orientation of developed societies (countries) as well as of the developing ones is unable to find a middle way to make a partition between the right of women according to the concept of political justice and the strict moral and religious conceptions to damage the fetus to the extent when he’s not a baby yet.
The discussion is made upon the basis of the liberal society principles founded on tolerance and civilization, on the sovereign and the equal civil right of the women to choose for themselves, to decide if they want to abort or not, and not being forbidden of their choice because the government is biased towards moral and religion.
Certainly, everywhere where the law banning abortion has been abolished there have been major cultural, ideological, medicinal and sexual battles to achieve and realize this difficult right for women. Abortion, regardless its cost, should be assessed as one of the pillars of the sexual revolution, which has as a basic aim the detachment of the sexual relationship from the child birth as a mechanical consequence of the intimate relation.
Modern times require that the developing societies change the masquilist idea which traditionally saw women as men’s property. Time asks for the right of women to control themselves and independently their sexuality, to have unlimited possibilities for protective measures and tools to prevent unwanted pregnancies, to have full right on the reproduction decision.
Countries that keep abortion legal keep abortion safe and consequently, ensure the safety of women who choose to end their pregnancies. Due to the fact that abortion is not legal in every country, an estimated 68.000 women worldwide die each year from unsafe abortions. [14]
Abortion seen under International Human Rights Instruments
Women’s right to comprehensive reproductive health services, including abortion, is rooted in international human rights standards guaranteeing the right to life, health, privacy, and non-discrimination. These rights are violated when governments make abortion services inaccessible to the women who need them. Under international law, governments can be held accountable for highly restrictive abortion laws and for failure to ensure access to abortion when it is legal. Governments also bear responsibility for high rates of death and injury among women forced to resort to unsafe abortion. So, it is government duties to ease restrictions and ensure access to safe services. [15]
The international Human Rights Instruments where this women’s right is rooted are the following ones: Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), International Covenant on Civil and Political Rights (ICCPR), International Covenant of Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of all Forms of Racial Discrimination (ICERD).
Article 12 of CEDAW protects women’s right to health and requires states parties to eliminate discrimination in the area of health care, including reproductive health care such as family planning services. [16] Article 16 of the same Convention protects women’s right to decide on the number and spacing of their children and to have access to information and the means to do so. [17]
In its General Recommendation 24, the CEDAW Committee states that it is the duty of states parties to “respect, protect and fulfil women’s rights to health care”. The Committee recognizes the importance of women’s right to health during pregnancy and childbirth as it is closely linked to their right to life. To make health services more readily available, and thereby prevent maternal mortality, the Committee explicitly requires that impediments to women’s access to lifesaving health services (such as high fees, spousal authorization, or punitive provisions imposed on women who undergo abortion) be removed. The Recommendation explicitly says: “It is discriminatory for a State Party to refuse to provide legally for the performance of certain reproductive health services for women”. [18]
Article 6 of ICCPR recognizes every person’s right to life. [19] Article 7 establishes the right to be free from torture and from cruel, inhuman, or degrading treatment or punishment. [20] Article 9 establishes that all people have the right to liberty and security of person. [21]
In its General Comment 28, the Human Right Committee calls upon states, when reporting on women’s enjoyment of article 6 on the right to life, to “give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions”. [22]
The Committee also elaborates on the equality provisions in articles 2 and 3 of ICCPR. It provides examples to reinforce their applicability in various situations and requires state parties to take steps to enable every person to enjoy the rights granted under ICCPR. [23]
In cases where a legal duty is imposed upon doctors to report women who have undergone abortion, the Committee explicitly links abortion to women’s equality in exercising their right to privacy. The Committee asks countries to report on laws and public or private actions that interfere with women’s equal enjoyment on the right to privacy, and to take measures to eliminate such interference. [24]
Article 12 of ICESCR protects the right to the highest attainable standard of physical and mental health. Article 12(2) (a) of the Covenant requires states parties to take necessary steps to reduce the stillbirth rate and infant mortality rate and to provide for the healthy development of the child. [25]
In its General Comment 14, the Committee on Economic, Social and Cultural Rights, interprets article 12(2) (a) of ICESCR as establishing a right to maternal child and reproductive health, which requires states parties to implement measures to accomplish the following: “improve child and maternal health, sexual and reproductive health services, including access to family planning, pre and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information”. While abortion is not mentioned it would necessarily be a part of comprehensive reproductive health and family planning services, as would emergency services that might be required for post-abortion care. [26]
In General Comment 16, the Committee indicates that ensuring equal enjoyment of article 12 “requires at a minimum the removal of legal and other obstacles that prevent man and women for accessing and benefiting from health care on a basis of equality. This includes, inter alia, the removal of legal restrictions on reproductive health provisions.” [27]
Article 5(b) of ICERD links the right to be free from racial discrimination to the enjoyment of the right to security of person and the right to protection from violence and bodily harm. Article 5(e) links the right to be free from racial discrimination to the enjoyment of a number of economic, social and cultural rights, including the right to health. [28]
In its General Recommendation 25, the Committee on the Elimination of Racial Discrimination specifically recognizes that some forms of racial discrimination may be experienced only by women and may be directed at women because of their gender. In this recommendation, the Committee states that it will take gender into account when evaluating and monitoring racial discrimination against women and how such discrimination affects the exercise of all other rights. This would include the rights to health and to life, which are implicated in the case of women and abortion. [29]
CASE LAW
Karen Noelia Lantoy Huaman was a 17 year old Peruvian girl who in March 2001 became pregnant with an anencephalic fetus. Doctors confirmed that the pregnancy, if continued, would put into risk Karen Llantoy’s life and also confirmed that her baby would die if she carried the pregnancy to term. Even though Peru permits abortion when a woman’s life or health is at risk, the public hospital denied Karen Llantoy’s request for an abortion, claiming that there was no explicit right to abortion in cases of severe fetal impairment. As expected, the baby died four days after birth and Karen Llantoy became severely depressed, requiring psychiatric treatment. It was in October 2005 that the Human Rights Committee handed down the landmark K.L. v. Peru decision holding the Peruvian government accountable for failing to ensure access to abortion services to an individual. In considering an individual complaint submitted on Karen Llantoy’s behalf under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), the Committee found Peru in violation of the Covenant articles. Respectively violation of article 2 (respect for and guarantee of rights) In conjunction with article 7, 17 and 24, lack of adequate legal remedy. Violation of article 7 (freedom from torture, cruel, inhumane or degrading treatment), not enabling the author to benefit from a therapeutic abortion caused severe pain and distress, particularly bearing in mind the author’s status as a minor). Violation of article 17 (right to privacy), the refusal to act in accordance with the author’s wish to terminate her pregnancy was not justified in the circumstances of the case. At last violation of article 24 (special measures for minors), during and after pregnancy, the author did not receive medical and psychological support necessary in the specific circumstances of her case. Peru violated the above mentioned articled for denying access to a therapeutic abortion permitted by its own domestic law. The Human Right Committee ordered the State to provide Karen Llantoy with an effective remedy, including compensation, and to take steps to prevent the future occurrence of similar violations. [30]
Conclusions
The right to abortion despite being contrary to the fundamentalist principles of the Christian religion and morality is a human right which favours women. The right to use contraception and to undergo safe abortion are two things that cannot be discussed because they are known achievements of the cultural battle related to the emancipation of the women.
If we think to stop safe and legal abortion, then we must be sure that what we have done is opening the doors to illegal abortion in our society. The right of women to choose whether or not an abortion is as a matter of fact an aspect of natural reproductive rights. If sexual education, preventive medical care and access to contraceptives would be more possible, then surely fewer women will have unwanted pregnancies. Consequently, the need to undergo an abortion will probably decrease.