The right to life is the most important of all

Rita Joseph

July 27, 2007

CHILDREN at risk of abortion are to be deprived of the protection of the law if Victorian Government Labor MP Candy Broad is successful in her private member’s bill to decriminalise abortion.

Such an attack on laws that protect unborn children contravenes the 1948 Universal Declaration of Human Rights, which recognised the child before birth as having human rights to be protected by the rule of law. The International Court of Justice has proclaimed that the principles contained in the declaration are now considered to be legally binding on states both as customary international law and as fundamental principles of humanity.

The concept of legal protection for the child before birth has a long tradition established and maintained with consistency and unbroken continuity throughout the entire body of international human rights and humanitarian foundation instruments.

The UN General Assembly on November 20, 1959 reaffirmed unanimously and explicitly the Universal Declaration’s “recognition” of the rights of the child before birth. The concept of formal universal recognition of the child before birth as a legitimate subject of inherent and inalienable human rights, including entitlement to legal protection, is critical. The nature of inherent and inalienable human rights means they can never be denied by courts of law or legislatures.

In every premeditated abortion, deprivation of life is the intended outcome for the child. Despite the current ideologically driven campaign to decriminalise abortion, arbitrary deprivation of life, under modern international human rights law, is still strictly prohibited. “No one may be deprived of their life arbitrarily,” says Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR).

States that have ratified the ICCPR must at all times take positive steps to effectively protect the right to life, a legal duty that is equally applicable to the child before birth as to the child after birth. That the right to life is inalienable means that at no time are states permitted to engage in or condone the arbitrary taking of a human life.

Candy Broad’s bill seeks explicitly to disenfranchise children at risk of abortion from human rights protection. Such a limitation of or exception from an inalienable right, the right to life, is inadmissible under the provisions of the ICCPR.

Article 4 of the ICCPR stipulates that no government can detract from the right to life, not even in times of “public emergency”.Article 50 of the ICCPR states that “the provisions of the present covenant shall extend to all parts of federal states without any limitations or exceptions”.

The Commonwealth of Australia has acceded to the ICCPR. Therefore Broad’s bill is inadmissible under international human rights law. She has introduced invalid limitations and exceptions to the right to life. Her bill contravenes Article 6 of the ICCPR, which protects the right to life of all members of the human family and was understood right from its first draft to include the unborn child.

The unborn child’s right to life is especially protected under Article 6(5) of the ICCPR. The explanatory notes written at the time the covenant was negotiated state this explicitly: “The principal reason for providing in paragraph 4, now Article 6(5), of the original text that the death sentence should not be carried out on pregnant women was to save the life of an unborn child.” The state, to protect the child’s inherent right to life, must prohibit and prevent the death penalty for the unborn child’s mother. Just so, the logical imperative of the corollary of this directive requires that the state, also “to save the life of an unborn child”, must prohibit and prevent use of abortion or use of any other form of death penalty imposed on an unborn child.

The ICCPR recognises in Article 6(5) that the pregnant woman does indeed carry within her womb another human being who is entitled, by virtue of the child’s immaturity, to special protection from the death sentence.

This article, prohibiting execution of pregnant women, acknowledges that the child, from the state’s first knowledge of that child’s existence, is to be protected.

Broad’s bill also contravenes the Convention on the Rights of the Child (Articles 3, 9, 18, 20, 21, 37 and 40), which requires that the “best interests of the child” principle be applied to each and every “proposed or existing law or policy or administrative action or court decision directly or indirectly affecting the well-being of children”.

The bill also violates the indivisibility principle, which requires human rights protection of both the mother and her unborn child; and prohibits the individual state from abandoning laws that protect the unborn child on the grounds that it has a priority obligation to protect “the abortion choice” of the child’s mother.

Human rights documents specifically condemn “choices” that entail lethal damage to the child’s health and development. Abortion “choices” as human rights violations by adults in positions of power over children in positions of dependency

are logically incompatible with protection of the child before birth.

When the indivisibility principle is applied, the individual state’s misperceived duty to provide expectant mothers with abortion “services” cannot be performed at the neglect of the more fundamental duty to uphold the rights of their children to “special safeguards and care including appropriate legal protection before as well as after birth”. The right to life is “the supreme right” and “basic to all human rights”.

Rita Joseph is a researcher who has long campaigned for the rights of the child.

~~~~

A vote to kill

Andrew Bolt

July 25, 2007 12:00am

I THOUGHT killing baby Jessica with an injection into her beating heart was so wrong that good people would cry, “enough”.

Surely we’d make sure such a cruelty could never happen again?

Wrong. Instead, Labor MP Candy Broad last week put up a private member’s Bill that her supporters boast will let doctors kill children just like Jessica without any risk of prosecution.

* Andrew Bolt: Howard must quit

Indeed, this is the only solid reason any of them give for backing it.

Jessica was still in the womb, but just a month from term when a prominent Melbourne specialist told her mother that ultrasound tests showed she might be a dwarf.

The baby otherwise seemed healthy, but her mother was deeply superstitious and highly emotional.

She insisted that under her traditions giving birth to a dwarf would bring bad luck and she threatened to kill herself if her child was not destroyed.

Her specialist agreed to abort her child. But at 32 weeks, Jessica was able to live outside the womb, and so first had to be killed.

She was – with a needle to her heart.

How deformed was she really? According to evidence presented in Federal Parliament, a nurse at the birth of the killed child noted: “On delivery, the baby doesn’t look small.”

Yes, it seems possible that Jessica had not only been healthy, but “normal” too.

Yet she’d been killed, just a month before term, when she would have been saved by our laws against murder.

True, Broad, a former minister, did not mention Jessica in introducing her Bill, which mirrors the state Labor Party’s official policy but faces the opposition of Premier Steve Bracks.

Nor did she discuss late-term abortions generally – the abortion each year in Victoria of as many as 100 babies big and healthy enough to live outside the womb. And be adopted.

Instead, Broad insisted her Bill to decriminalise abortion in Victoria would actually change nothing at all, so go back to sleep.

“The Bill would neither alter the number of abortions performed or the way in which services are regulated,” she told Parliament.

Indeed, “current practice will continue”.

Really? But if Broad’s Bill will change nothing, why bother with it at all?

Broad burbled through a few explanations last week that suggest to me that she is not being entirely frank.

Although abortion is still illegal under the Crimes Act, the 1969 ruling of Justice Clifford Menhennitt of the Supreme Court allowed abortions if a doctor agreed that giving birth would harm the mother’s physical or psychological health.

This now-routine formality has made abortions so legally acceptable that 20,000 Victorian women each year have one – and with taxpayers’ support.

That’s a lot. Yet Broad still claimed the Crimes Act, with its technical ban on abortions, was “a significant barrier to accessibility”.

Broad’s other arguments were even weaker. For instance, she said abortion’s “uncertain legal status creates an atmosphere whereby it is acceptable to harass women and doctors”.

More piffle. In fact, the vast majority of Victorians would think it contemptible to heckle women and doctors at abortion clinics.

So if Broad’s excuses for her Bill are mere fluff, what might her real reasons be?

Listen to her noisiest backers. Listen to Dr Leslie Cannold, president of Reproductive Choice Australia, who said Broad’s Bill must pass to stop “anti-choice crusaders” from using the Crimes Act to prosecute abortionists.

But which abortionist has faced possible legal action in this state in the past couple of decades?

Cannold could cite only one – the doctor who killed baby Jessica, and who in fact was never charged with anything after a long and largely secretive inquiry.

Listen also to obstetrician Dr Desiree Yap, of the Association for the Legal Right to Abortion, who on 3AW likewise argued that abortion had to be decriminalised to protect abortionists.

She, too, cited just one case where a Victorian doctor might have faced charges. Again, it was the doctor who killed baby Jessica.

And Sunday Age columnist Terry Lane referred to the very same case this week, saying the Crimes Act had to be changed so that some “Catholic zealot” couldn’t “persecute” someone like Jessica’s mother “for trying to do the best for herself and her family”.

Broad’s three backers have blown the whistle.

Hers is not a Bill that changes nothing about abortion other than its image.

This is a Bill that its supporters hope and believe will give doctors more freedom to kill healthy, kicking, grimacing, thumb-sucking babies who are just a couple more weeks from birth – and to kill them for no better reason than a mother’s wild superstition.

If our politicians are happy to have such killings in our hospitals, then they should vote for Broad’s Bill.

But for heaven’s sake, let’s have them at least speak frankly about what they intend to do, and about the children they will allow to be so freely destroyed.

Let’s have them admit that this is in fact a vote to kill Jessica, and unlucky children just like her.

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