Abortion As A Human Rights International And Regional Standards

Human Rights Law Review 8:2 ß The Author [2008]. Published by Oxford University Press.
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doi:10.1093/hrlr/ngn008
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Abortion as a Human
RightçInternational and
Regional Standards
Christina Zampas* and Jaime M. Gher**
Abstract
This article focuses on the striking expansion of international and
regional human rights standards and jurisprudence that support
women’s human right to abortion. It summarises pertinent develop-
ments within the United Nations, European, Inter-American and
African human rights systems regarding abortion, as they relate to
women’s rights to life and health, in situations of rape, incest or foetal
impairment, and for abortion based on social and economic reasons
and on request. In doing so, the article touches on charged issues
such as maternal mortality, prohibitions of therapeutic abortion as
infringing on the right to be free from cruel, inhuman and degrad-
ing treatment, and state procedural obligations to ensure women’s
right to access legal abortion. Finally, the article addresses the growing
recognition by international human rights bodies that criminalisation
of abortion leads women to obtain unsafe abortions, threatening
their lives and health, and recent national-level developments in the
field.
* Senior Regional Manager Legal Adviser for Europe, Center for Reproductive Rights^International
Legal Program, 120 Wall Street, 14th Floor, New York, New York 10005.
** Attorney^Consultant, Center for Reproductive Rights^International Legal Program, 120 Wall
Street, 14th Floor, New York, New York 10005.
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Human Rights Law Review 8:2(2008), 249^294

1. Overview
Every year, at least 70,000 women die from complications related to unsafe
abortions.1
It is further estimated that unsafe abortions account for 13% of
all maternal deaths worldwide and, in some countries, it accounts for 60%
of maternal deaths.2
Research indicates that there is a strong correlation
between abortion legality and abortion safety,3
and thus women living in
countries with restrictive abortion laws often resort to unsafe, clandestine
abortions, jeopardising their lives and health.
As unsafe abortion is increasingly considered a major public health pro-
blem, human rights advocacy for abortion has gained greater momentum.
The most explicit pronouncement of women’s right to access abortion in
the text of a human rights treaty is found in the Protocol on the Rights of
Women in Africa (African Women’s Protocol), adopted by the African Union
on 11 July 2003.4
Intended to fill the gaps of the African Charter on Human
and Peoples’ Rights 1981 (African Charter),5
the Protocol explicitly states:
States Parties shall take all appropriate measures to . . .protect the repro-
ductive rights of women by authorising medical abortion in cases of
sexual assault, rape, incest, and where the continued pregnancy endan-
gers the mental and physical health of the mother or the life of the
mother or the foetus.6
The African Women’s Protocol is the only legally binding human rights
instrument that explicitly addresses abortion as a human right and affirms
that women’s reproductive rights are human rights.7
At present, 20 African
countries have ratified the Protocol,8
however, the Protocol’s reach is limited
to the African region and its efficacy has yet to be tested. Nevertheless, there
are other international and regional human rights protections that support
1 World Health Organization (WHO), Unsafe Abortion: Global and Regional Estimates of Incidence
of and Mortality due to Unsafe Abortion with a Listing of Available Country Data, 3rd edn
(Geneva: WHO, 1997),WHO/RHT/MSM/97.16 at 3^14.
2 Cook, Dickens and Fathalla, Reproductive Health and Human Rights: Integrating Medicine,
Ethics and Law (Oxford: Oxford University Press, 2003) 26.
3 Alan Guttmacher Institute, ‘
Abortion in Context: United States and Worldwide’, May 1999,
available at: http://www.guttmacher.org/pubs/ib_0599.html [last accessed 17 September
2007].
4 Res. AHG/RES.240 (XXXI). The African Women’s Protocol entered into force on 25 November
2005 after ratification by 15 African states.
5 OAU Doc. CAB/LEG/76/3 Rev.5; 21 ILM 58 (1982).
6 Article 14.2(c), African Women’s Protocol.
7 Article 14, African Women’s Protocol.
8 African Commission on Human and Peoples’ Rights (ACHPR), List of countries which
have signed, Ratified/Acceded to the African Union Convention on Protocol to the
African Charter on Human and People’s Rights on the Rights of Women in Africa, available at:
http://www.achpr.org/english/ratifications/ratification_women%20protocol.pdf [last accessed
7 September 2007]. Ratifying countries are: Benin, Burkina Faso, Cape Verde, Comoros,
Djibouti, Gambia, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Namibia, Nigeria,
Rwanda, South Africa, Senegal, Seychelles,Togo and Zambia.
250 HRLR 8 (2008), 249^294

women’s right to safe, legal abortion. While these protections are less explicit
than the African Women’s Protocol, their weight and importance is just the
same. In addition to the right to life and health, women’s right to abortion is
bolstered by the broad constellation of human rights that support it, such as
rights to privacy, liberty, physical integrity and non-discrimination. In fact, it
is the evolution of human rights interpretations and applications, stemmed by
increased sophistication, women’s empowerment and changing times, which
have given force to women’s human right to abortion.
The recent ground-breaking pronouncement regarding women’s right to
abortion issued on 16 April 2008 by the Parliamentary Assembly of the
Council of Europe, representing 47 European states whose mission is, in part,
to protect and promote human rights and democracy in Europe, reflects such
evolution and sophistication. A majority of the parliamentarians adopted a
report issued by the Committee on Equal Opportunities for Women and Men
entitled ‘
Access to Safe and Legal Abortion in Europe’ (the Report). The Report
calls upon Member States to decriminalise abortion, guarantee women’s effec-
tive exercise of their right to safe and legal abortion, remove restrictions that
hinder de jure and de facto access to abortion, and adopt evidence-based
sexual and reproductive health strategies and policies, such as access to con-
traception at a reasonable cost and of suitable nature, and compulsory age-
appropriate and gender-sensitive sex and relationship education for young
people.9
The adoption of the Report is particularly significant in a region pep-
pered with stark differences within the levels of sexual and reproductive
health laws and policies. While not legally binding, it is the most progressive
pronouncement on the right to abortion by any international or regional
human rights system.
This article summarises pertinent developments within the United Nations
(UN), European, Inter-American and African human rights systems regarding
abortion, as they relate to women’s rights to life and health, in situations of
rape, incest or foetal impairment, and for abortion based on social and eco-
nomic reasons and on request. Notably, a large share of the regional discussion
in this article is devoted to Europe, as there have been substantial develop-
ments in that region in response to tightening restrictions in law and practice
on women’s access to abortion.
The discussion is organised according to the above-listed categories, which
generally mirror the varying categories to which countries permit abortion, so
as to limit repetition. The article accounts for the significant overlap between
the implicated rights and highlights gaps in protection for women’s right
to abortion. Finally, the article touches upon criminalisation of women who
9 Council of Europe Parliamentary Assembly, Resolution 1607 on access to safe and legal abor-
tion in Europe, 15th sitting, 16 April 2008, available at: http://assembly.coe.int/
Main.asp?link=/Documents/AdoptedText/ta08/ERES1607.htm [last accessed 8 May 2008].
Abortion as a human right 251

undergo illegal abortions as an independent human rights violation and recent
legalsuccesses expanding the righttoabortionatthe regionaland nationallevels.
2. Scope of Women’s Right to Abortion within
International and Regional Human Rights Law
Promotion of women’s reproductive rights has recently gained momentum,
in large part, due to the 1994 International Conference on Population and
Development (ICPD), held in Cairo, and the 1995 Fourth World UN Conference
on Women, held in Beijing.10
Commentators consider that ‘[t]hese two confer-
ences led to the recognition that the protection of reproductive and sexual
health is a matter of social justice, and that the realization of such health can
be addressed through the improved application of human rights contained
in existing national constitutions and regional and international human
rights treaties’.11
The consensus statements created at these conferences touch
on women’s right to abortion, and thus provide additional support for the
notion that women’s reproductive rights are human rights.
With regard to women’s right to health, the 1994 ICPD Programme of
Action calls upon governments to contemplate the consequences of unsafe
abortion on women’s health, and urges state governments and relevant inter-
governmental and non-governmental organisations to strengthen their com-
mitment to women’s health, directly address unsafe abortion as a major public
health concern and reduce the incidence of abortion through expanded and
improved family-planning services.12
The Programme of Action also affirms
that women faced with unwanted pregnancies should have expedient access
to reliable information and compassionate counselling.13
Notably, the ICPD Programme of Action confirms that where abortion is
legal, the procedure should be accessible and safe.14
While it does not explicitly
call for legalisation of abortion worldwide, the ICPD Programme of Action con-
firms that ‘women should have access to quality services for the management
of abortion-related complications, and [p]ost-abortion counselling, education
and family-planning services should be offered promptly, which will also help
to avoid repeat abortions’.15
During the five year review of the ICPD
Programme of Action’s implementation, country delegates called on health sys-
tems to increase women’s access to services where abortion is not against
10 Cook, Dickens and Fathalla, supra n. 2 at 148.
11 Ibid. at 148^9.
12 Report of the International Conference on Population and Development, Cairo, 5^13
September 1994, A/CONF.171/13/Rev.1 (1995), Chapter VIII C. Women’s Health and Safe
Motherhood at para. 8.25.
13 Ibid.
14 Ibid.
15 Ibid.
252 HRLR 8 (2008), 249^294

the law by training and equipping health-care providers and taking other mea-
sures to safeguard women’s health.16
While international consensus docu-
ments are non-binding, the statements contained in these documents are
persuasive and indicative of the world community’s growing support for repro-
ductive rights, and are often used to support legislative and policy reform, as
well as interpretations of national and international law.
Treaty-monitoring bodies’ interpretations and jurisprudence have also
played a large role in advancing women’s reproductive rights.17
The UN
treaty-monitoring system acts to ensure state compliance with international
treaty obligations.18
Each of the major international human rights treaties
establishes a Committee to monitor compliance with it. The Committees issue
‘General Comments’ or ‘General Recommendations’ on an as-needed basis,
to elaborate on the treaties’ broadly worded human rights guarantees and
to help states understand their obligations under various treaty provisions.
The Committees also facilitate a ‘country reporting’ process. This process
requires states to report periodically on their efforts to respect, protect and
fulfil the human rights enshrined in a particular treaty. Following dialogues
with government representatives, Committee members issue Concluding
Observations to the reporting government. Concluding Observations provide
a mechanism through which Committees apply the overall human rights
standards developed in General Comments and General Recommendations.
Although Committees are not judicial bodies and their Concluding Observa-
tions are not legally binding, the increasingly comprehensive quality of the
Concluding Observations on the subject of reproductive rights has
enormous potential to influence national laws and policies. When taken
together and analysed, the Committees’ General Comments and Concluding
Observations may be considered a type of jurisprudence or collective work
guiding the development and application of human rights both at the national
level and at the international level.19
Some Committees also have a mandate
to examine individual complaints of human rights violations and issue written
decisions in such cases.
16 Vukovich, Key Actions for the Further Implementation of the Programme of Action of the
International Conference on Population and Development (Report of the Ad Hoc Committee
of the Whole of the Twenty-First Special Session of the General Assembly), 1 July 1999,
A/S-21/5/Add.1 at para. 63(iii), available at: www.un.org/popin/unpopcom/32ndsess/gass/
215a1e.pdf [last accessed 21 September 2007].
17 In this article a significant portion of the analysis of treaty-monitoring bodies’ functions,
interpretations and jurisprudence, is derived from: Center for Reproductive Rights, ‘Bringing
Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive
and Sexual Rights’, 2002, available at: http://www.reproductiverights.org/pdf/pub_bo_tmb_
full.pdf [last accessed 2 October 2007].
18 Office Of The High Commissioner For Human Rights,‘Treaty Bodies’, 14 February 2002, avail-
able at: http://www.unhchr.ch/pdf/leafletontreatybodies.pdf [last accessed 21 September
2007].
19 Much of the research on Concluding Observations from Treaty Monitoring Bodies comes from
‘Bringing Rights to Bear’, supra n. 17.

Similar to the UN system, regional human rights systems monitor states’
compliance with regional human rights treaties. The Council of Europe
adopted the European Convention on the Protection of Human Rights and
Fundamental Freedoms (ECHR)20
in 1950, which in turn created the
European Court of Human Rights (ECtHR). The ECtHR is authorised to hear
interstate complaints and alleged individual human rights violations under
the ECHR. Similarly, the Inter-American Commission on Human Rights
(Inter-American Commission) was created in 1959 to be the primary human
rights organ of the Organization of American States.21
With the adoption of
the American Convention on Human Rights (American Convention) in 1969,
the Inter-American Commission was granted the legal authority to issue
recommendations regarding alleged American Convention violations.22
The
American Convention also created the Inter-American Court on Human
Rights (Inter-American Court), to interpret the Convention and hear individual
cases following their consideration by the Inter-American Commission and
give legally binding judgments in those cases.23
Finally, the African Commission on Human and Peoples’ Rights (ACHPR)
was established under the African Charter on Human and Peoples’ Rights
(African Charter), which was adopted in 1981, by the Organisation of African
Unity (now the African Union).24
The ACHPR ensures the protection and
promotion of human rights throughout Africa. Under the African Charter,
States Parties are called upon to submit, on a biennial basis, a report on the
measures they have taken to give effect to the rights and freedoms recognised
and guaranteed by Charter.25
The ACHPR then issues corresponding reports
evaluating the Member States’ compliance with the African Charter.
The African Charter also created a ‘communication procedure,’ through
which the Commission can be petitioned to assess alleged violations.26
More
recently, the African Court on Human and Peoples’ Rights was created to
20 ETS No. 5. See Council of Europe, ‘
About the Council of Europe’, available at: http://
www.coe.int/T/e/Com/about_coe/ [last accessed 21 September 2007].
21 Declaration of Santiago, Final Act of the Fifth meeting of Consultation of Foreign Minister,
Res.VI, OEA/SER.C/11.5 (1959) at 10^11.
22 Inter-American Institute on Human Rights (IIHR) and Latin American and Caribbean
Committee for the Defense of Women’s Rights (CLADEM) (eds), Proteccio
¤ n Internacional de los
Derechos Humanos de las Mujeres, Papers from the proceedings of a conference held in San
Jose, Costa Rica, April 1997 (Portada de la Editorial Farben, 1997) at 150. See also American
Convention on Human Rights 1969, OAS Treaty Series No. 36, OEA/Ser.L.V/II.23, doc.21, rev.
6 (American Convention), which entered into force on 18 July 1978.
23 Supra n. 22 at 150.
24 ACHPR, ‘
African Commission on Human and Peoples’ Rights, Establishment ^ Information
Sheet No.1’ (African Commission-Information Sheet), available at: http://www.achpr.org/eng-
lish/information_sheets/ACHPR%20 inf.%20sheet%20no.1.doc [last accessed 21 September
2007].
25 Article 62, African Charter.
26 African Commission ^ Information Sheet, supra n. 24. A communication can also be made by
a State Party that reasonably believes that another State Party has violated any of the
Charter’s provisions.
254 HRLR 8 (2008), 249^294

complement the ACHPR by interpreting and applying the African Charter and
to give legally binding judgments in individual cases, which will, bolster
women’s rights under the African Charter and its Women’s Protocol.27
At pre-
sent, there is not a regional human rights monitoring system in Asia.
Despite progress made by treaty-monitoring bodies regarding reproductive
rights, to date no such body has explicitly recognised women’s right to
abortion on request or for economic and social reasons, nor have they expli-
citly called for the legalisation of abortion on those grounds. The extent to
which women’s right to abortion is currently protected under human rights
law generally hinges on whether a woman’s life or health is at risk, the preg-
nancy resulted from rape or incest or there is risk of foetal impairment.
In these contexts, significant progress has recently been made within inter-
national and regional human rights discourses requesting States Parties
to liberalise abortion laws and actualise women’s right to safe abortion ser-
vices. The recognition by treaty-monitoring bodies that restrictive abortion
laws may force women to seek illegal, and hence, unsafe abortions which
threaten their lives, can be used by advocates to support abortion on request
or for socio-economic reasons.
Notwithstanding protection for women’s right to abortion in the above-listed
contexts, a constellation of human rights, including the rights to privacy, liberty,
physical integrity, non-discrimination and health, support the notion that abor-
tion on request is a human right. While international and regional human
rights treaties and treaty-monitoring bodies have yet to directly address the
issue of abortion on request, there is strong textual and interpretive support for
the above-listed related rights which have been used by national legislatures
and courts around the world to guarantee a woman’s right to abortion, and
which can be used byadvocates to promote women’s right to abortion on request.
A. Abortion to Save aWoman’s Life
(i) International human rights parametersçthe woman’s right to life
Some pregnancies and their related complications can place women’s lives at
grave risk. It is estimated that at least 70,000 women worldwide die each year
as a consequence of unsafe abortion, and 5.3 million suffer temporary or per-
manent disability.28
Restrictive or criminal abortion legislation also jeopardises
women’s lives by compelling women to obtain dangerous clandestine abortions.
While there has been a worldwide trend towards liberalising restrictive abor-
tion laws,29
maternal mortality and morbidity due to unsafe abortion
27 Beyani,‘
A Human Rights Court for Africa’, (2005) 15 Interights Bulletin 1.
28 WHO, supra n. 1.
29 Center for Reproductive Rights, ‘The World’s Abortion Laws’, available at: http://www.
reproductiverights.org/pub_fac_abortion_laws.html [last accessed 30 August 2007].

continues to be a major public health concern. At present, Chile, El Salvador
and Nicaragua have legislation eliminating all exceptions to the countries’
abortion prohibitions, even when a woman’s life is at risk, thus giving women
no recourse when their lives are imperilled during pregnancy.30
Furthermore,
a persistent foetal rights movement has emerged asserting that foetuses are
entitled to a right to life at the expense of women’s human rights. Advocates
can rely upon the below discussed international and regional human rights
treaty provisions and their interpretations, to reject foetal rights claims and to
ultimately safeguard women’s right to access abortion.
International covenant on civil and political rights
The International Covenant on Civil and Political Rights 1966 (ICCPR)31
pro-
vides an explicit pronouncement of the right to life. Article 6(1) of the ICCPR
states that: ‘Every human being has the inherent right to life.’ The Human
Rights Committee (HRC), the ICCPR’s interpretive body, emphasises in General
Comment No. 6 (right to life), that the inherent right to life should not be
understood in a restrictive manner.32
General Comment No. 6 requires States
Parties to take positive measures to ensure the right to life, particularly mea-
sures to increase life expectancy.33
Additionally, the HRC’s General Comment
No. 28 on equality of rights between men and women, asks States Parties,
when reporting on the right to life protected by Article 6, to ‘give information
on any measures taken by the State to help women prevent unwanted pregnan-
cies, and to ensure that they do not have to undergo life-threatening clandes-
tine abortions’.34
General Comment No. 28 also considers laws or policies
where States impose a legal duty upon doctors and other health personnel to
report cases of women who have undergone abortion, a potential violation of
the right to life (Article 6) and the right torture or to cruel, inhuman or
degrading treatment or punishment (Article 7).35
The HRC’s Concluding Observations also provide strong support for women’s
right to access abortion and, in particular circumstances, impose duties on
States Parties to take affirmative steps to realise women’s right to life in the
context of abortion. For example, the Committee has made the link between
30 IPAS, ‘
Abortion ban saga continues in Nicaragua’, 22 November 2006, available at: http://
www.ipas.org/Library/News/News_Items/Abortion_ban_saga_continues_in_Nicaragua.aspxht=
[last accessed 25 September 2007].
31 999 UNTS 171, which entered into force on 23 March 1976.
32 HRC, General Comment No. 6: Article 6 (Right to life), in Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev. 7
(2004) (Compilation of General Comments) at 128.
33 Ibid. at 129, para. 5.
34 HRC, General Comment No. 28: Article 3 (Equality of rights between men and women), in
Compilation of General Comments supra n. 32 at 179, para. 10.
35 Ibid. at 181, para. 20.
256 HRLR 8 (2008), 249^294

illegal and unsafe abortions and high rates of maternal mortality.36
The HRC
has further noted that illegal abortions have serious harmful consequences
for women’s lives, health37
and well-being.38
The HRC has expressed particular concern for restrictive abortion laws,
especially when women’s lives are at risk.39
More specifically, the HRC has
expressed concern regarding the criminalisation of abortion,40
even when the
pregnancy is the result of rape,41
and confirmed that such legislation is incom-
patible with women’s right to life under Article 6.42
In that regard, the HRC
has recommended that States Parties adopt measures to guarantee the right
to life for women who decide to terminate their pregnancies,43
including
ensuring the accessibility of health services and emergency obstetric care.44
In the HRC’s 1998 Concluding Observations to Ecuador, it linked the high
rate of suicide among adolescent girls and the restrictions on abortion to find
this to be incompatible with adolescents’ right to life, and recommended that
the State Party adopt all legislative and other measures, including increasing
access to adequate health and education facilities, to address the problem.45
The HRC has also called upon States Parties to amend restrictive abortion
laws to help women avoid unwanted pregnancies and unsafe abortions,46
and
to bring laws in line with the ICCPR,47
specifically Article 6 (right to life).48
For example, the HRC’s 2004 Concluding Observation to Poland expressed
deep concern regarding the State Party’s restrictive abortion law that
36 Concluding Observations of the HRC regarding: Chile, 30 March 1999, CCPR/C/79/Add.104 at
para. 15; Colombia, 1 April 1997, CCPR/C/79/Add.76 at para. 24; Ecuador, 18 August 1998,
CCPR/C/79/Add.92 at para. 11; Guatemala, 27 August 2001, CCPR/CO/72/GTM at para. 19;
Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; Mongolia, 25 May 2000, CCPR/C/79/
Add.120 at para. 8(b); Peru, 15 November 2000, CCPR/CO/70/PER at para. 20; Poland, 29
July 1999, CCPR/C/79/Add.110 at para. 11; and United Republic of Tanzania, 18 August 1998,
CCPR/C/79/Add.97 at para. 15.
37 Concluding Observations of the HRC regarding: Mali,16 April 2003, CCPR/CO/77/MLI at para.
14; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8.
38 Concluding Observations of the HRC regarding El Salvador, 22 August 2003, CCPR/CO/78/SLV
at para. 14.
39 Concluding Observations of the HRC regarding; Chile, 18 May 2007, CCPR/C/CHL/CO/5 at
para. 8; and Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14.
40 Concluding Observations of the HRC regarding: Mauritius, 27 April 2005, CCPR/CO/83.MUS
at para. 9; and Venezuela, 26 April 2001, CCPR/CO/71/VEN at para. 19.
41 Concluding Observations of the HRC regarding Gambia, 12 August 2004, CCPR/CO/75/GMB
at para. 17.
42 Peru, supra n. 36 at para. 20.
43 Venezuela, supra n. 40.
44 Mali, supra n. 36.
45 Ecuador, supra. n. 36. For further discussion of the threat of suicide as a potential risk to life
and thus a viable exception to abortion prohibitions, see infra section 2(A)(ii) European
System.
46 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at
para. 8; El Salvador, 22 August 2003, CCPR/CO/78/SLV at para. 14; Madagascar, 11 May 2007,
CCPR/C/MDG/CO/3 at para. 14; and Poland, 2 December 2004, CCPR/CO/82/POL at para. 8.
47 Concluding Observations of the HRC regarding: Chile, 18 May 2007, CCPR/C/CHL/CO/5 at
para. 8; and Madagascar, 11 May 2007, CCPR/C/MDG/CO/3 at para. 14.
48 Chile and El Salvador, supra n. 46.

‘. . .incite[s] women to seek unsafe, illegal abortions, with attendant risks to
their life and health’.49
The HRC focussed on the lack of accessibility of abor-
tion in Poland, even when the law permits it, due to lack of information and
the use of conscientious objection by medical practitioners, and advised
Poland to liberalise its legislation and practice on abortion.50
To reduce the rate of abortion and address the prevalence of unsafe
abortion, the HRC has recommended increased access to family planning ser-
vices51
and education.52
The HRC has also expressly referenced States Parties’
duty to protect all persons’ lives, including women who decide to terminate their
pregnancies.53
For example, the HRC recommended that Chile amend its ban on
abortion to include exceptions.54
The Committee similarly recommended that
Guatemala provide the necessary information and resources to guarantee
women’s right to life, and incorporate additional exceptions to the country’s
abortion law that only permits abortionwhere awoman’s life is at risk.55
Convention on the elimination of all forms of discrimination against women
The International Convention on the Elimination of all Forms of
Discrimination Against Women 1979 (ICEDAW) does not explicitly confer the
right to life; however, the Committee on the Elimination of Discrimination
Against Women (CEDAW) has addressed how issues concerning abortion
impact women’s health and life, and, ultimately, women’s equality.56
For exam-
ple, CEDAW has recognised the inextricable link between women’s right to
health during pregnancy and childbirth, and their right to life in its General
Recommendation No. 24 on women and health.57
CEDAWexplained that provi-
sion of reproductive health services is essential to women’s equality and that
‘it is discriminatory for a State Party to refuse to provide legally for the perfor-
mance of certain reproductive health services for women.’58
With respect to abortion, CEDAW has given considerable attention to the
issue of maternal mortality as a result of unsafe abortions,59
and explicitly
49 Poland, supra n. 46.
50 Ibid.
51 Chile and Guatemala, supra n. 36.
52 Ecuador, supra n. 36.
53 Chile and Guatemala, supra n. 36.
54 Chile, supra n. 36.
55 Guatemala, supra n. 36.
56 1249 UNTS 13.
57 Committee on the Elimination of Discrimination Against Women, General Recommendation
24: Article 12 of the Convention (Women and Health), in Compilation of General Comments
supra n. 32 at 280, para. 27 (CEDAW ^ General Rec. 24).
58 Ibid. at 276, para. 11.
59 Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38/Rev.1 at 10,
para. 73; Belize, 1 July 1999, A/54/38 at para. 56; Burundi, 2 February 2001, A/56/38 at para.
61; Colombia, 4 February 1999, A/54/38 at para. 393; Georgia, 1 July 1999, A/54/38 at para.
258 HRLR 8 (2008), 249^294

framed the issue as a violation of women’s right to life.60
For example, CEDAW
consistently makes the important point that lack of access to contraceptive
methods and family planning services, as well as restrictive abortion laws,
tend to correspond with the high prevalence of unsafe abortions, which in
turn, contributes to high rates of maternal mortality.61
To this end, CEDAW
has recommended that States Parties increase access to family planning pro-
grammes and services,62
especially to reduce the number of unsafe abortions63
and maternal mortality rates.64
CEDAW has also recommended making a
range of contraceptives and family planning methods more affordable65
and
providing social security coverage for abortion procedures.66
Finally, CEDAW
has asked States Parties to review legislation making abortion illegal67
and
has praised States Parties for amending their restrictive legislation.68
Convention on the rights of the child
Article 6 of the International Convention on the Rights of the Child 1989
(ICRC), protects children’s right to life and survival.69
The Committee on the
111; Kyrgyzstan, 27 January 1999, A/54/38 at para. 136; Mongolia, 2 February 2001, A/56/38
at para. 273; Myanmar, 28 January 2000, A/55/38 at para. 129; Nepal, 1 July 1999, A/54/38 at
para. 147; Nicaragua, 31 July 2001, A/56/38 at paras 300^1; Peru, 8 July 1998, A/53/38/Rev.1
at 73 and 75, paras 300 and 339; Romania, 23 June 2000, A/55/38 at para. 314; and
Zimbabwe, 14 May 1998, A/53/38/Rev.1 at 16, para. 159.
60 Concluding Observations of CEDAW regarding; Belize, 1 July 1999, A/54/38 at para. 56;
Colombia, 5 February 1999, A/54/38 at para. 393; and Dominican Republic, 14 May 1998,
A/53/38 at para. 337.
61 Concluding Observations of CEDAW regarding: Chile, 9 July 1999, A/54/38 at paras 209 and
228; Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at
para. 254; Lithuania, 16 June 2000, A/55/38 at para. 158; Ukraine, 9 May 1996, A/51/38 at
para. 287; and Georgia and Mongolia, supra n. 59.
62 Concluding Observations of CEDAW regarding; Burundi, 2 February 2001, A/56/38 at
para. 62; Chile, 9 July 1999, A/54/38 at para. 229; Chile, 25 August 2006, CEDAW/C/CHI/CO/
at para. 20; Georgia, 1 July 1999, A/54/38 at para. 112; Greece, 1 February 1999, A/54/38 at
para. 208; Ireland, 1 July 1999, A/54/38 at para. 186; Kazakhstan, 2 February 2001, A/56/38
at paras 76 and 106; Lithuania, 16 June 2000, A/55/38 at para. 159; Mongolia, 2 February
2001, A/56/38 at para. 274; Nicaragua, 31 July 2001, A/56/38 at para. 301; and Slovenia,
12 August 1997, A/52/38/Rev.1 at para. 119.
63 Concluding Observations of CEDAW regarding: Burkina Faso, 31 January 2000, A/55/38 at
para. 275; Luxembourg, 12 August 1997, A/52/38/Rev.1, Part II at para. 221; Myanmar,
28 January 2000, A/55/38 at para. 130; and Slovenia, 12 August 1997, A/52/38/Rev.1 at
para. 119.
64 Chile, 25 August 2006, supra n. 62.
65 Ibid.
66 Burkina Faso, supra n. 63 at para. 276.
67 Concluding Observations of CEDAW regarding: Andorra, 31 July 2001, A/56/38 at para. 48;
Belize, 1 July 1999, A/54/38 at para. 57; Cameroon, 26 June 2000, A/55/38 at para. 60; Chile,
25 August 2006, CEDAW/C/CHI/CO/4 at paras 19-20; Colombia, 4 February 1999, A/54/38 at
para. 394; Ireland, 1 July 1999, A/54/38 at para. 186; Jordan, 27 January 2000, A/55/38 at
para. 181; Nepal, 1 July 1999, A/54/38 at paras 139 and 148; Panama, 2 July 1998, A/55/38/
Rev.1 at para. 201; Peru, 8 July 1998, A/53/38/Rev.1 at para. 340; Saint Vincent and the
Grenadines, 12 August 1997,A/52/38/Rev.1 at para. 148; and United Kingdom, 1 July 1999,
A/55/38 at para. 310.
68 Concluding Observations of CEDAW regarding; Belgium, 9 May 1996, A/51/38 at para. 181.
69 1249 UNTS 13, which entered into force on 2 September 1990.

Rights of the Child (CRC) has expressed repeated concern over adolescent girls’
access to safe abortion services and the need for states parties ‘ to . . .provide
access to sexual and reproductive health services, including . . . safe
abortion services’.70
The CRC has also urged States Parties to provide safe
abortion services where abortion is not against the law, in its General
Comment No. 4 on adolescent health and development.71
Further, the CRC has
linked unsafe abortion to high maternal mortality rates,72
and expressed con-
cern over the impact of punitive legislation on maternal mortality.73
In that
regard, the CRC has specifically recommended that a state party undertake a
study of the negative impact of early pregnancy and illegal abortion.74
International covenant on economic, social and cultural rights
The International Covenant on Economic, Social and Cultural Rights 1966
(ICESCR) does not explicitly confer the right to life, but the Committee on
Economic, Social and Cultural Rights (CESCR) has repeatedly expressed con-
cern regarding the relationship between high rates of maternal mortality and
illegal, unsafe, clandestine abortions.75
The CESCR has thus called upon
States Parties to take remedial measures to address the problems of unwanted
pregnancies, clandestine abortions and high maternal mortality rates,76
and
70 Committee on the Rights of the Child, General Comment No. 4; Adolescent health and devel-
opment in the context of the Convention on the Rights of the Child, in Compilation of
General Comments, supra n. 32 at 328, para. 27 (CRC ^ General Comment No. 4).
71 Ibid. Note, the CRC has also expressed concern within its Concluding Observations regarding
sex-selective abortions and female infanticide: see China, 24 November 2005, CRC/C/CHN/
CO/2 at para. 28; India, 26 February 2004, CRC/C/15/Add.228 at para. 33, and recommended
States Parties implement existing legislation prohibiting such practices and taking additional
measures such as imposing sanctions to end such practices. See Concluding Observations of
the CRC regarding: China, 24 November 2005, CRC/C/CHN/CO/2 at para. 29; and India, 26
February 2004, CRC/C/15/Add.228 at para. 34. The CRC has not, however, addressed the com-
plex intersection between curbing sex-selective abortion practices and promoting women’s
abortion rights, or specifically, called for States Parties to safeguard women’s abortion rights
when seeking to eradicate sex-selective abortion.
72 Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 at
para. 30; Colombia, 16 October 2000, CRC/C/15/Add.137 at para. 48; Guatemala, 9 July 2001,
CRC/C/15/Add.154 at para. 40; and Nicaragua, 24 August 1999, CRC/C/15/Add.108 at para. 35.
73 Concluding Observations of the CRC regarding: Chad, 24 August 1999, CRC/C/15/Add.107 at
para. 30; and Guatemala, 9 July 2001, CRC/C/15/Add.154 at para. 40.
74 Chad, ibid.
75 993 UNTS 3, which entered into force on 23 January 1976. See Concluding Observations of
the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 25; Nepal, 24
September 2001, E/C.12/1/Add.66 at para. 32; Panama, 24 September 2001, E/C.12/1/Add.64
at para. 20; Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12; Senegal, 24 September 2001,
E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2003, E/C.12/1/Add.99 at para. 22.
76 Concluding Observations of the CESCR regarding: Nepal, 24 September 2001, E/C.12/1/Add.66
at para. 55; and Poland, 19 December 2002, E/C.12/1/Add.82 at para. 51.
260 HRLR 8 (2008), 249^294

to permit or consider permitting abortion for therapeutic reasons,77
and when
pregnancies are life threatening or a result of rape or incest.78
(ii) Regional human rights parametersçthe woman’s right to life
In addition to international human rights obligations, advocates can rely on
regional human rights parameters to advocate on behalf of women’s right
to access abortion.
European system
The right to life protections under Article 2 of the European Convention on
Human Rights (ECHR)79
confer both substantive and procedural obligations.
As to the substantive obligations, Article 2 requires Member States to avoid
taking actions to intentionally deprive individuals’ lives. As to the procedural
obligations, Article 2 requires Member States to provide an effective official
investigation when an individual dies due to acts by state agents,80
and in the
context of health care, requires medical institutions to have regulations for
the protection of patients’ lives and an effective system to determine the cause
of death which occurs in a hospital and which may pose civil and/or criminal
liability.81
Thus, even if the ECtHR finds no substantive violation for a loss of
life, it may find a procedural violation. At present, the ECtHR has not heard a
case where a woman was denied an abortion when her life was under threat
based on application of a Member States’ abortion law. The ECtHR has also
77 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105
at para. 53; Malta, 14 December 2004, E/C.12/1/Add.101 at para. 41; and Monaco, 13 June
2006, E/C.12/MCO/CO/1 at para. 23.
78 Concluding Observations of the CESCR regarding: Chile, 1 December 2004, E/C.12/1/Add.105
at para. 53; Malta, 14 December 2004, E/C.12/1/Add.101 at para. 41; Monaco, 13 June 2006, E/
C.12/MCO/CO/1 at para. 23; and Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 55.
79 Article 2 of the ECHR provides:
Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law.
Note that the European Commission on Human Rights (EComHR) interpreted this right as not
only requiring State Parties to prevent intentional killing, but to also take necessary affirma-
tive measures to protect life against unintentional loss. See Cook, Dickens, and Fathalla,
supra n. 2 at 161, citing Tavares v France, Application No. 16593/90, EComHR, Report of 12
September 1991, which was declared inadmissible on technical grounds. While the ECtHR
now has the sole role of interpreting and applying the ECHR, prior Commission statements
and decisions are persuasive.
80 Krzyanowska-Mierzewska, How to Use the European Convention for the Protection of Human
Rights and Fundamental Freedoms in Matters of Reproductive Law:The Case Law of the European
Court of Human Rights, (Astra, 2004) at Part III.1, available at: http://www.astra.org.pl/astra_
guide.htm [last accessed 9 September 2007].
81 Tavares v France, supra n. 79.

never confirmed whether threat of suicide is equivalent to a threat to life, in
the context of reviewing a Member States’abortion law.82
Protections under Article 2 of the ECHR will be addressed at greater length,
under the sections addressing claims of foetal rights and abortion to preserve
a woman’s health.
African system
The African Women’s Protocol is the only international human rights instru-
ment to explicitly pronounce, in the text of the instrument, women’s right to
access abortion when pregnancy ‘endangers the . . .life of the mother or the
foetus’.83
While some African states permit abortion to save a woman’s life,
the Protocol calls upon ratifying States to take a step further and extend the
right to women whose lives are ‘endanger[ed]’ by pregnancy.84
This permissive,
unqualified language represents a significant expansion of women’s right to
access abortion in Africa.
B. Foetal ClaimsçRight to Life
In some instances, those opposing abortion have attempted to co-opt right to
life protections set forth within international and regional human rights law
to assert that foetuses are similarly accorded a right to life. These assertions
are incompatible with women’s fundamental human rights to life, health and
autonomy, by imposing involuntary motherhood on to women and, in essence,
requiring women to jeopardise their own lives for the lives of their future
children. Nevertheless, as demonstrated subsequently, such contentions have
been defeated on various occasions within both international and regional
human rights forums.
(i) International human rights parameters
Historical analyses of the Universal Declaration of Human Rights 1948
(UDHR),85
ICCPR and ICRCçthe major international human rights treaties
conferring the right to lifeçconfirm that that right does not extend to foe-
tuses. As the first pronouncement of the right to life, Article 3 of the UDHR
82 Recently, the ECtHR referenced the Irish Supreme Court decision Attorney General v X, which
held a pregnant teenager’s suicidal tendencies to be a real and substantial risk to life under
Ireland’s life exception to the constitutional abortion ban, in the case D. v Ireland, to assert
that Ireland’s Constitutional Court has the potential to develop the parameters of the Irish
abortion law, thus requiring the exhaustion of domestic remedies. See D. v Ireland (2006) 43
EHRR SE16 at paras 88^103. See also Attorney General v X [1992] 2 CMLR 277.
83 Article 14.2 (c), African Women’s Protocol.
84 Ibid.
85 GA Res. 217A(III), 10 December 1948.
262 HRLR 8 (2008), 249^294

specifically limits that right to those who have been ‘born’. In fact, the term
‘born’ was intentionally used to exclude the foetus or any other antenatal appli-
cation of human rights. This is confirmed by the fact that a proposed amend-
ment to remove the term and protect the right to life from the moment of
conception, was denied.86
Therefore, in the context of abortion, the UDHR
limits the right to life to women and girls.
Similar to the UDHR, the ICCPR rejects the proposition that the right to life
attaches before birth. The ICCPR’s negotiation history indicates that an amend-
ment was proposed and rejected which stated: ‘the right to life is inherent in
the human person from the moment of conception, this right shall be protected
by the law’.87
The HRC has also repeatedly called upon States Parties to liberal-
ise criminal abortion laws,88
a position that is discordant with any purported
right to life for foetuses.89
Along similar lines, the ICRC’s travaux pre¤ paratoires and its interpretation
by the CRC confirm, that the ICRC’s protections concerning life begin at
birth.90
Arguments to the contrary have been made based on Paragraph 9 of
the ICRC’s 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’’’.91
At most, this language recog-
nises a state’s duty to promote a child’s capacity to survive and thrive after
birth, by targeting the pregnant woman’s nutrition and health.
The ICRC’s travaux actually confirm that the pre-natal language is not
intended to infringe on any women’s right to access abortion. Notably, the
ICRC’s initial draft did not contain the ‘before as well as after birth’ language,
which was subsequently added as an amendment proposed by The Holy See.92
When proposing the amendment, The Holy See clarified that ‘the purpose of
the amendment was not to preclude the possibility of abortion’.93
The ICRC’s
Working Group also confirmed the amendment’s limited nature when stating
86 GA OR 3rd Comm., A/PV/99 (1948) at 110^124.
87 GA OR Annex, 12th session (1957), Agenda Item 33 at 96, A/C.3/L.654 at para. 113. The
Commission on Human Rights ultimately voted to adopt Article 6, which has no reference
to conception, by a vote of 55 to nil, with 17 abstentions: see GAOR, 12th Session, Agenda
Item 33, A/3764 (1957) at 119(q).
88 Concluding Observations of the HRC regarding: Argentina, CCPR/CO/70/ARG (2000) at para.
14; Costa Rica, CCPR/C/79/Add.107 (1999) at para. 11; United Republic of Tanzania, CCPR/C/
79/Add.97 (1998) at para. 15; Venezuela, CCPR/CO/71/VEN (2001) at para. 19; and Poland,
CCPR/CO/82/POL (2004) at para. 8.
89 Concluding Observations of the HRC regarding: Ecuador, 18 August 1998, CCPR/C/79/Add.92
at para. 11; Mongolia, 25 April 2000, CCPR/C/79/Add.120 at para. 8(b); and Poland, 29 July
1999, CCPR/C/79/Add.110 at para. 11.
90 CRC, supra n. 69.
91 Ibid. at Preamble, para. 9.
92 Commission on Human Rights, Question of a Convention on the Rights of a Child: Report of
the Working Group, 10 March 1980, E/CN.4/L/1542.
93 Ibid.

that ‘the Working Group [does] ‘‘not intend to prejudice the interpretation of
Article 1 or any other provision of the Convention by States Parties’’’.94
Therefore, the focus of the preamble’s language is on the ‘child’, as defined
under the ICRC as ‘every human being below the age of eighteen years[,]’ and
not a foetus.95
Finally, the CRC implies within its Concluding Observations,
that the definition of a ‘child’, for the purposes of the ICRC, does not include a
foetus. As such, the CRC has never applied Article 6’s protections to foetuses.
(ii) Regional human rights parameters
Foetal rights to life have also been vetted within the regional human rights
systems, through cases brought before the EHRC and the Inter-American
Commission.
European system
Foetal claims to the right to life brought to the European human rights system
have largely been ineffective. As noted before, there are substantive and proce-
dural elements to the right to life (Article 2) under the ECHR. When foetal
rights claims have been asserted based on Article 2’s substantive protections,
the ECHR bodies repeatedly conclude that foetuses do not enjoy an absolute
right to life. For example, the European Commission of Human Rights
(EComHR) confirmed in Paton v United Kingdom, that the use of the term
‘everyone’ in Article 2, protecting the right to life, does not include
foetuses, although it left open the question whether the ‘right to life’ in
Article 2 might cover the ‘life’ of the foetus, with implied limitations.96
The
husband-applicant in Paton asserted that his pregnant wife should be pre-
vented from aborting the foetus based on the foetus’ right life under Article 2.
The EComHR dismissed the complaint and confirmed that a foetus’ potential
right to life did not outweigh the interests of the pregnant woman since
the foetus is intimately connected with and cannot be isolated from, the life
of the pregnant woman.97
The EComHR went on to say that: ‘If Article 2 were
held to cover the foetus and its protections under this Article were, in the
absence of any express limitation, seen as absolute, an abortion would have to
be considered as prohibited even where the continuance of the pregnancy
94 UN Commission on Human Rights, Report of the Working Group on a Draft Convention on the
Rights of the Child, E/CN.4/1989/48 (1989) at p. 10, as cited in LeBlanc, The Convention on the
Rights of the Child: United Nations Lawmaking on Human Rights (Lincoln: University of
Nebraska Press, 1995) 69 (quoted in Ibegbu, Rights of the Unborn in International Law
(Lewiston NY: E Mellen Press, 2000) at 145 and 146^7.
95 Article 1, ICRC.
96 Paton v United Kingdom (X v United Kingdom) (1980) 19 DR 244; (1981) 3 EHRR 48 at paras 7^
9 and 23.
97 Ibid. at paras 7^9 and 19.
264 HRLR 8 (2008), 249^294

would involve a serious risk to the life of the pregnant women[,]’and this would
mean that the ‘unborn life’ of the foetus would be more regarded as of higher
value than the life of the pregnant woman.98
By making this statement, the
EComHR implied that the rights and interests of the woman’s right to life take
precedence over the interests of the foetus.
A similar claim was brought in Boso v Italy, when the ECtHR found that the
contested abortion was not in breach of Article 2. It was performed under
Italian law which permitted an abortion in the first 12 weeks to protect the
woman’s physical or mental health. This law struck a fair balance between
the woman’s interest and the state’s interest in protecting the foetus.99
Boso
highlights the ECtHR’s tendency to analyse abortion from a view of health,
regardless of the nature of an applicant’s substantive claims. For example,
while Boso alleged that his partner’s abortion constituted an Article 2 viola-
tion, the ECtHR rejected the applicant’s claim based partially on the fact that
Italy’s abortion law protects the health of pregnant women.100
Notably, each
of the abortion laws at issue in these cases were fairly liberal. It is unclear
whether the ECtHR would accord similar deference to Member States with
more restrictive abortion laws.
While the ECtHR has affirmed that foetuses do not enjoy an absolute right
to life, the Court has failed to unequivocally state whether Article 2’s protec-
tions apply to foetuses, and in turn, avoided drawing any conclusion that may
adversely affect Member States’abortion laws.101
The ECtHR was asked for the
first time, in Vo v France, to squarely determine whether foetuses enjoy the
right to life under Article 2.102
While the ECtHR reaffirmed its jurisprudence
on abortion laws which recognise that ‘the unborn child is not regarded as
a ‘‘person’’ directly protected by Article 2 of the Convention’, and that if the
unborn do have a ‘‘‘right’’ to ‘‘life’’, it is implicitly limited by the mother’s rights
and interests’, it avoided explicitly confirming whether Article 2 applied to foe-
tuses by noting that, there is no European consensus on the scientific and
legal definition of the beginning of life’. 103
98 Ibid. at para. 19.
99 Boso v Italy 2002-VII 99.
100 Ibid.
101 Hewson, ‘Dancing on the Head of a Pin? Foetal Life and the European Convention’, (2005)
13 Feminist Legal Studies 363 at 372.
102 Vo v France (2005) 40 EHRR 12 at para. 80.
103 Ibid. at paras 80 and 82. See also Gre
¤ goire Loiseau,‘Histoire d’une vie vole
¤ e: le foetus n’est pas
une personne’, Droit et patrumone, November 2001, chron. Droits des personnes, p. 99, sum-
marising the 2001 case. The Cour de Cassation confirmed that a‘human being’ is a biological
concept in France, and ‘human beings’are understood to exist from the beginning of life, gen-
erally considered as conception, although there is no firm agreement on when life begins.
On the other hand, the term ‘person’ is a legal term that is attached to a legal category
whose rights takes effect and are perfected by birth, although in certain circumstances the
rights acquired at birth will be retroactive to conception. The decision was based on the
distinction made in French law between the concepts of ‘human being’ and ‘person’, which
scholars assert is deeply founded in principles of French civil law: ibid.

The applicant inVo argued that her foetus was denied the right to life based
on medical negligence which led to her unanticipated therapeutic abortion.
After unsuccessfully pursuing a criminal prosecution against the negligent
doctor within the French court system,Vo filed a petition with the ECtHR alle-
ging that France, in refusing to treat the foetus as a person and thus, prosecute
the doctor for unintentional homicide, violated her foetus’ Article 2 right to
life.104
The ECtHR ultimately declined to treat the foetus as a‘person’or require
a homicide prosecution, by deferring the issue to France, in line with the
margin of appreciation doctrine.105
In the Court’s view, the civil remedy avail-
able in French law was sufficient. The Vo decision is indicative of the ECtHR’s
ambivalence regarding Article 2’s application to foetal life and reluctance to
pose challenges to Member States’abortion laws.106
More recently, the ECtHR was asked to consider, in Evans v United Kingdom,
whether embryos are entitled to Article 2 right to life protections under the
ECHR.107
The applicant in Evans complained of a violation of rights under
Articles 2, 8 and 14 of the EHRC based on her partner’s withdrawal of consent
for use of embryos they had created and frozen for future implantation.
Specifically, she claimed that the provisions of English law requiring the embryos
to be destroyed once her partner withdrew his consent to theircontinued storage
violated the embryos’ right to life, contrary to Article 2 of the Convention.
Affirming its decision in Vo v France, the ECtHR further declined to extend
Article 2 protectionto the embryos.108
Referring to the lackof any European con-
sensus on the scientific and legal definition of when human life begins, the
ECtHR again deferred to the state.109
In that regard, it recalled English law
under which ’an embryo does not have independent rights or interests and
cannot claim ^ or have claimed on its behalf ^ a right to life under Article 2 [of
the Convention]’.110
In addition, in the ECtHR’s extensive analysis and balancing
of the rights (underArticle 8çright to private and family life) of the applicant to
preserve the embryos and the rights of her partner to have them destroyed, the
ECtHR did not include any ‘embryonic interests’ in this balancing test, thus indi-
cating, that the ECHR does not require protection of such arguable interests.111
While there have been few embryonic right to life claims, analogous to
claims of foetal rights, they may be asserted by abortion opponents to diminish
104 Vo v France, supra n. 102 at para. 48.
105 Ibid. at paras 84, 89 and 92^3.
106 Hewson, supra n.101 at 372. Note, the ECtHR’s failure to take a bright-line stance on Article 2
arguably opens the door for anti-abortion advocates to rely upon the ECtHR’s consistent defer-
ence to States Parties to assert that if the tables were turned, and a State determined life
commenced at conception, the ECtHR would have to employ similar deference.
107 Evans v United Kingdom (2008) 46 EHRR 728.
108 Ibid. at paras 54^56.
110 Ibid.
266 HRLR 8 (2008), 249^294

women’s right to abortion.112
Historically, issues of embryonic interests have
arisen within assisted reproductive technologies debates. Embryonic and
foetal rights start to overlap, however, in the in vitro fertilisation context.
Some abortion opponents maintain that dismissal of fertilised ova during
the in vitro process is equivalent to aborting a foetus, and thus, should be
prohibited as a potential right to life violation. Nevertheless, claims of embryo-
nic rights are even more tenuous than those of foetal rights because
foetal rights claims have been denied thus far, and embryos are the biological
precursor to foetuses. Moreover, debates surrounding assisted reproductive
technologies in many instances do not raise the competing interests of preg-
nant women, an issue posed by foetal rights claims and in situations of
abortions.
While the ECtHR’s decisions in Vo and Evans were ultimately favourable
towards Member States liberal abortion laws, it does, by deferring the decisions
to states on whether or not foetal life should be protected, potentially leave
the door open for such deference when foetal life and interests are protected
by national law. However, the ECtHR, in keeping in line with its case law,
should limit any such interests with the pregnant woman’s rights and interests,
should they be in conflict.
Inter-American system
Contrary to the European human rights system, where protection of foetal
interests still remains unclear, the Inter-American system provides somewhat
more explicit guidance regarding ‘right to life’ protections. For example, the
Inter-American Commission determined that Article 4 of the American
Convention113
did not preclude liberal abortion legislation in the Baby Boy
case.114
The Baby Boy case involved an American doctor who was prosecuted
for manslaughter after providing an abortion to a teenage girl at the girl’s and
her mother’s request.115
A petition was submitted to the Inter-American
112 A case is pending before the Inter-American Commission on Human Rights challenging the
Costa Rican Supreme Court’s 2000 ruling banning in vitro fertilisation, based on the conten-
tion that human life begins at conception, thus entitling embryos and foetuses to the same
legal protections as born individuals. Opponents of the decision are alleging that the
Supreme Court ruling violates a myriad of human rights such as the right to health, to form
a family, to privacy and to benefit from scientific progress, as recognised under international
law. The Inter-American Commission’s ruling could have worldwide implications, impacting
not only in vitro fertilisation and the right to bear children, but also the legal status of contra-
ception and abortion. See Case 12.361, Ana Victoria Villalobos et al. v Costa Rica, Report No.
25/04 (2004).
113 Article 4 reads,‘The right to life shall be protected by law and, in general, from the moment of
conception.’
114 Case 2141, Baby Boy, 25/OEA/ser.L./V
./II.54, Doc. 9 rev. 1 (1981).
115 Ibid. Criminal charges were initially brought against the doctor in the Baby Boy case in the
Massachusetts’ court system; however, the highest court eventually overturned the doctor’s
conviction.

Commission on behalf of the aborted foetus, referred to as ‘Baby Boy’, alleging
violations of the American Declaration of Rights and Duties of Man 1948
(American Declaration).116
Article 1 of the American Declaration protects the right to life without refer-
ence to the ‘moment of conception’,117
however, Article 4 of the American
Convention, which does make such reference, was used as an interpretative
tool in the case. The Inter-American Commission rejected the petitioners’
claims and noted that an absolute protection of the ‘right to life’ conflicted
with most states’ abortion and death penalty laws.118
The Commission also
found that, unlike the American Convention, the Declaration’s travaux pre¤ para-
toires revealed that a number of States were opposed to protecting life
from the moment of conception, and language to that effect had been
removed, thus qualifying any right to life protections under the American
Declaration.119
C. Abortion to Preserve aWoman’s Health
Similar to the right to life, some international and regional human rights
instruments protect women’s right to health. The WHO defines ‘health’ as
‘a state of complete physical, mental and social well-being, and not merely the
absence of disease or infirmity’.120
While this is not a guarantee of perfect
health, it imposes an obligation on governments to provide adequate health-
care and conditions conducive to enjoying good health. In the abortion con-
text, the right to health can be interpreted as requiring governments to take
positive measures to avoid women’s exposure to the health risks of unsafe abor-
tion and to ensure pregnant women’s access to abortion when their health is
at risk.121
Such measures arguably include removing legal restrictions on abor-
tion and ensuring access to high-quality abortion services. Notably, convention
bodies consistently interpret treaty-based health protections as intricately con-
nected within individuals’ right to life, especially in discussions of maternal
mortality.
As a whole, treaty-monitoring bodies’ have not precisely defined women’s
health protections in this context. However, a recent interpretation of health in
116 O.A.S.Res.XXX, 9th International Conference of American States (1948), OEA/Ser.L/II.82
doc.6ev.1 at 17 (1992), Article 1. The petitioner sought recourse under the American
Declaration, as the United States is not a party to the American Convention. The American
Declaration is technically not a legally binding agreement under international law; however,
it is a source of legal obligations for OAS Member States and has legal ramifications for
those Member States that have not yet ratified the American Convention.
117 Ibid.
118 Baby Boy, supra n. 114 at para. 18.
119 Article 4, American Convention.
120 WHO,‘Constitution of the World Health Organization’, signed 22 July 1946, OR Wld Hlth Org.,
2, 100, which entered into force on 7 April 1948, at the preamble.
121 Report of the International Conference on Population and Development, supra n. 12.
268 HRLR 8 (2008), 249^294

the abortion context, by a treaty-monitoring body, aligns with the WHO’s broad
conception of health, which includes mental health.Women’s right to abortion
should be expandedtoincludeabortionon requestor forsocio-economic reasons,
as denial of which may significantlyaffect women’s mental or physical health.
(i) International human rights parameters ^ right to health
The ICESCR, ICEDAW and ICRC expressly confirm women’s right to health and
treaty-monitoring bodies have interpreted and applied that right in the context
of abortion.122
The ICCPR’s provisions do not expressly protect the right to
health, however, the HRC has recently handed down the decision in KL v Peru
that has addressed the intersections of health, privacy rights and the right
to be free from inhumane and degrading treatment, and called for a broad
reading of health exceptions under a state’s abortion law.123
In the context of abortion, the HRC has linked women’s right to life to condi-
tions of health,124
and emphasised connections between unsafe abortions and
high rates of maternal mortality.125
The Committee has specifically addressed
the effect of restrictive abortion laws on women’s health.126
For example, the
HRC recently reviewed Peru’s restrictive abortion law in KL v Peru.127
The
case of KL involved a 17-year-old Peruvian girl who was pregnant with an
anencephalic foetus. Doctors confirmed that her foetus would likely be born
without major portions of its brain leading to stillbirth or death, which posed
risks to KL’s life if the pregnancy continued.128
A social worker advised KL to
get an abortion as continuing the pregnancy would ‘. . .prolong the distress
and emotional instability of . . . [KL] and her family[,]’ and a psychiatrist con-
cluded that ‘. . .the so-called principle of the welfare of the unborn child has
caused serious harm to the mother, . . . [which] has substantially . . . [triggered]
122 Article 12, ICESCR; Article 12, CEDAW; and Article 24, ICRC.
123 KL v Peru (1153/2003), CCPR/C/85/D/1153/2003 (2005); 13 IHRR 355 (2006).
124 Concluding Observations of the HRC regarding: El Salvador, 22 August 2003, CCPR/CO/78/
SLV at para. 14; Mali, 16 April 2003, CCPR/CO/77/MLI at para. 14; and Poland, 2 December
2004, CCPR/CO/82/POL at para. 8.
125 Concluding Observations of the HRC regarding: Gambia, 12 August 2004, CCPR/CO/75/GMB
at para. 17; Guatemala, 27 August 2001, CCPR/CO/72/GTM at para. 19; Mali, 16 April 2003,
CCPR/CO/77/MLI at para. 14; Mongolia, 25 May 2000, CCPR/C/79/Add.120 at para. 8(b); and
Poland, 29 July 1999, CCPR/C/79/Add.110 at para. 11.
126 Concluding Observations of the HRC regarding Mali, 16 April 2003, CCPR/CO/77/MLI at
para. 13.
127 KL v Peru, supra n. 123.
128 Ibid. at para. 2.2.

the symptoms of depression’, severely impacting KL’s development and future
mental health.129
While abortion is illegal in Peru, there is a limited exception
for women’s life or health. Despite this legal exception and medical recommen-
dations to terminate the girl’s pregnancy, Peru’s state hospitals ultimately
denied KL’s request for an abortion because they claimed it fell outside the
health and life exceptions, as there is no explicit right to abortion in cases of
severe foetal impairment.
KL was forced to carry her pregnancy to term and gave birth to an anence-
phalic girl. After she was forced to breastfeed the baby for four days, the baby,
as medically expected, died and KL became severely depressed, requiring
psychiatric treatment. Thereafter, three non-governmental organisations
collectively submitted an individual complaint to the HRC on KL’s behalf.130
The individual complaint alleged that state authorities’ denial of KL’s legal
right to therapeutic abortion violated Article 2 (respect for and guarantee
of rights), Article 3 (equality and non-discrimination), Article 6 (right to life),
Article 7 (freedom from torture and cruel, inhuman and degrading treatment),
Article 17 (right to privacy), Article 24 (special measures for minors) and
Article 26 (equal protection of the law) of the ICCPR.
The HRC ultimately held Peru in breach of its ICCPR obligations under
Articles 2, 7, 17 and 24, for denying access to a therapeutic abortion permitted
by its own domestic law, but deemed KL’s Article 3 claim to be unsubstantiated
and found it unnecessary to make an Article 6 finding based on the finding
of an Article 7 violation.131
With respect to Article 7, the HRC reasoned that
KL’s depression and emotional distress were foreseeable and the State’s omis-
sion in ‘not enabling . . . [KL] to benefit from a therapeutic abortion was . . . the
cause of the suffering she experienced’.132
It followed that a state’s obligation
to respect the right protected under Article 7 requires it to guarantee women’s
access to abortion in cases where pregnancy threatens her physical and
mental health, including due to severe foetal impairment. Notably, the HRC’s
finding of an Article 7 violation did not depend on the lawfulness of
the procedure, which thus opened the possibility for both the legal and practi-
cally inaccessibility of a therapeutic abortion.
With respect to Article 17, the HRC relied on the WHO’s holistic definition of
health to read mental health into Peru’s health exception, and found that
since KL was legally entitled to an abortion, ‘the refusal to act in accordance
with the author’s decision to terminate her pregnancy was not justified’.133
Infringing on KL’s rights in this regard, in turn, violated her right to privacy.
129 Ibid. at paras 2.4 and 2.5.
130 The organisations were: Peruvian organisation Estudio para la Defensa de los Derechos de la
Mujer (DEMUS); the Latin American and Caribbean Committee on the Defense of Women’s
Rights (CLADEM); and the United States organisation the Center for Reproductive Rights.
131 KL v Peru, supra n. 123 at paras 6.3 and 6.6.
270 HRLR 8 (2008), 249^294

As to Article 24 (special measures for minors), the HRC noted KL’s ‘special vul-
nerability’as a minor girl, by recognising the unique barriers and susceptibil-
ity to rights violations that adolescents face when attempting to access
abortion.134
Finally, as to Article 2 (respect for and guarantee of human
rights), the HRC held that the state had a duty to provide legal and administra-
tive mechanism to prevent or redress rights violations.135
The significance of KL is immense because it marks the first time a UN
human rights body held a government accountable for failing to ensure
access to abortion services to an individual. In sum, under KL, the HRC
requires a broad reading of statutory health exceptions to include issues of
mental health, the positive realisation of a right to access abortion for states
that permit abortions in circumstances of foetal impairment, necessary mea-
sures to guarantee adolescents’ access to reproductive health services, and
accessible, economically feasible procedures to appeal a doctor’s refusal to per-
form a legal abortion.
On a related note, the HRC has called upon Ireland, in its 2000 Concluding
Observations, (which was prior to the decision in KL) to ‘ensure that women
are not compelled to continue with pregnancies where that is incompatible
with obligations arising under the ICCPR (Article 7) and General Comment
No. 28[,]’ on equality of rights between men and women.136
The Committee
expressed concern that women in Ireland could only obtain abortions
when the pregnant woman’s life was endangered, and did not include an
exception for pregnancies that resulted from rape.137
The Committee recom-
mended that Ireland bring its abortion legislation in line with the Covenant
and its interpretations.138
Convention on the elimination of all forms of discrimination against women
Article 12 of ICEDAW sets forth women’s right to health.139
CEDAW has
addressed in its Concluding Observations the intersections between abortion
and women’s right to health and other rights related to marriage and family
life. For example, it has raised general concerns over high rates of abortion,140
136 Concluding Observations of the HRC regarding Ireland, 29 March 2000, CCPR/C/21/Rev.1/
Add.10 at para. 24.
139 Article 12(1), ICEDAW.
140 Concluding Observations of CEDAW regarding: Chile, 9 July 1999, A/54/38 at para. 209; Czech
Republic, 14 May 1998, A/53/38 at para. 197; Georgia, 1 July 1999, A/54/38 at para. 111;
Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at para. 254;
Namibia, 12 August 1997, A/52/38/Rev.1, Part II at para. 111; Lithuania, 16 June 2000, A/55/
38 at para. 158; Republic of Korea, 8 July 1998, A/55/38/Rev.1 at para. 382(c); Romania, 23

particularly among adolescents,141
and has praised efforts by States Parties to
reduce abortion rates.142
CEDAW has expressed particular concern regarding
lack of access to contraceptive methods and family planning services, which
lead to unsafe abortions and rising rates of maternal mortality.143
CEDAW has also expressed concern about the reliance on abortion
as a primary means of family planning.144
In that regard, CEDAW has
recommended that contraception and family planning services be freely
available and accessible145
and that States Parties ensure that abortion is
not perceived as a family planning method.146
CEDAW has also expressed
a particular concern in cases where contraceptive methods are freely
available but the rate of abortion remains very high.147
Notably, CEDAW
has never expressly acknowledged that access to safe, legal abortion is
always needed as a back up method of family planning when methods of con-
traception fail.
CEDAW has recently shown a greater willingness to raise issues related to
abortion and direct States Parties to take affirmative measures to safeguard
women’s reproductive rights. For example, based on concern over Ireland’s
extremely restrictive abortion laws, the Committee has urged Ireland on two
occasions to ‘facilitate a national dialogue on women’s right to reproductive
June 2000, A/55/38 at para. 314; Russian Federation, 31 May 1995, A/50/38 at para. 523;
Slovakia, 30 June 1998, A/53/38/Rev.1 at para. 91; Ukraine, 9 May 1996, A/51/38 at para. 287;
and Vietnam, 31 July 2001, A/56/38 at para. 266.
141 Greece and Vietnam, supra n. 140.
142 Concluding Observations of CEDAW regarding: Cuba, 19 June 2000, A/55/38 at para. 257; and
Finland, 31 May 1995, A/50/38 at para. 378.
143 Concluding Observations of CEDAW regarding: Georgia, 1 July 1999, A/54/38 at para. 111;
Greece, 1 February 1999, A/54/38 at para. 207; Hungary, 9 May 1996, A/51/38 at para. 254;
Lithuania, 16 June 2000, A/55/38 at para. 158; Mexico, 25 August 2006, CEDAW/C/MEX/CO/
6 at para. 32; Mongolia, 2 February 2001, A/56/38 at para. 273; and Ukraine, 9 May 1996, A/
51/38 at para. 287.
144 Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38 at para. 66;
Burundi, 2 February 2001, A/56/38 at para. 62; Cuba, 25 August 2006, CEDAW/C/CUB/CO/6
at para. 27; Former Yugoslav Republic of Macedonia, 3 February 2006, CEDAW/C/MKD/CO/3
at para. 31; Georgia, 1 July 1999, A/54/38 at para. 111; Kazakhstan, 2 February 2001, A/56/38
at para. 105; Kyrgyzstan, 27 January 1999, A/54/38 at para. 136; Republic of Moldova, 27
June 2000, A/55/38 at para. 109; Romania, 23 June 2000, A/55/38 at para. 314; Slovakia, 30
June 1998, A/53/38/Rev.1 at para. 91; and Uzbekistan, 2 February 2001, A/56/38 at para. 185.
145 Concluding Observations of CEDAW regarding: Azerbaijan, 14 May 1998, A/53/38 at para. 73;
Burundi, 2 February 2001, A/56/38 at para. 62; Former Yugoslav Republic of Macedonia, 3
February 2006, CEDAW/C/MKD/CO/3 at para. 31; Georgia, 1 July 1999, A/54/38 at para. 112;
Greece, 1 February 1999, A/54/38 at para. 208; Kazakhstan, 2 February 2001, A/56/38 at
para. 106; Kyrgyzstan, 27 January 1999, A/54/38 at para. 137; Republic of Moldova, 27 June
2000, A/55/38 at para. 110; Romania, 23 June 2000, A/55/38 at para. 315; Slovakia, 30 June
1998, A/53/38/Rev.1 at para. 92; Uzbekistan, 2 February 2001, A/56/38 at para. 186; and
Vietnam, 31 July 2001, A/56/38 at para. 267.
146 Concluding Observations of CEDAW regarding Kyrgyzstan, 27 January 1999, A/54/38 at para.
137.
147 Concluding Observations of CEDAW regarding; Czech Republic, 14 May 1998, A/53/38 at para.
197; and Mauritius, 31 May 1995, A/50/38 at para. 196.
272 HRLR 8 (2008), 249^294

health, including the [country’s] very restrictive abortion laws’ and improve
family planning services and availability of contraception.148
CEDAW has also called upon States Parties to review legislation
criminalising abortion and potentially remove barriers restricting access
to safe abortion, connecting such barriers to women’s right to health.149
For example, CEDAW’s 2006 Concluding Observations to Mexico expressed
concern that abortion remained one of the leading causes of maternal mortal-
ity, despite legalisation of abortion in some contexts, due to lack of access to
safe abortion services and a wide range of contraception, including emergency
contraception.150
CEDAW recommended that Mexico increase access to repro-
ductive health care and family planning services and address obstacles to
accessing those services, provide sex education targeting men and women,
and adolescent boys and girls, and harmonise federal and state abortion legis-
lation.151
CEDAW also urged Mexico to implement a comprehensive strategy to
provide effective access to safe abortion in situations provided for under the
law, a wide range of contraceptives, including emergency contraception, and
campaigns to raise the awareness regarding unsafe abortions.152
Convention on the rights of the child
Article 24 of the ICRC guarantees children’s right to the highest attainable stan-
dard of health and places responsibility on State Parties to ensure proper
health care for mothers, children and families. The CRC expanded upon Article
24’s protections in General Comment No.4 (adolescent health and development),
which emphasises the significant health risks faced by adolescents due to
unwanted pregnancies and unsafe abortions.153
The CRC has called upon
States Parties to ‘take measures to reduce maternal morbidity and mortality in
148 Concluding Observations of CEDAW regarding: Ireland, 22 July 2005, CEDAW/A/60/38 paras
359^405, 397. See also Ireland, 25 June 1999, CEDAW/A/54/38 at paras 161^201.
149 Concluding Observations of CEDAW regarding; Andorra, 31 July 2001, A/56/38 at para. 48;
Argentina, 23 July 1997, A/52/38 Rev.1, Part II at para. 319; Belize, 1 July 1999, A/54/38 at
para. 57; Burkina Faso, 31 January 2000, A/55/38 at para. 276; Cameroon, 26 June 2000, A/
55/38 at para. 60; Chile, 9 July 1999, A/54/38 at para. 229; Chile, 31 May 1995, A/50/38 at
para. 158; Chile, 25 August 2006, CEDAW/C/CHI/CO/4 at paras 19^20; Colombia, 4 February
1999, A/54/38 at para. 394; Dominican Republic, 14 May 1998, A/53/38 at para. 349; Ireland,
1 July 1999, A/54/38 at para. 186; Jordan, 27 January 2000, A/55/38 at para. 181; Mauritius,
31 May 1995, A/50/38 at para. 196; Mexico, 14 May 1998, A/53/38 at para. 408; Namibia, 12
August 1997, A/52/38/Rev.1, Part II at para. 127; Nepal, 1 July 1999, A/54/38 at paras 139 and
148; Panama, 2 July 1998, A/55/38/Rev.1 at para. 201; Paraguay, 9 May 1996, A/51/38 at para.
131; Peru, 8 July 1998, A/53/38/Rev.1 at para. 340; Peru, 31 May 1995, A/50/38 at paras 446
and 447; Saint Vincent and the Grenadines, 12 August 1997, A/52/38/Rev.1 at para. 148;
United Kingdom, 1 July 1999, A/55/38 at para. 310; and Zimbabwe, 14 May 1998, A/53/38 at
para. 159.
150 Concluding Observations of CEDAW regarding Mexico, 25 August 2006, CEDAW/C/MEX/CO/6
at para. 32.
152 Ibid.
153 CRC ^ General Comment No. 4, supra n. 70.

adolescent girls, particularly caused by early pregnancy and unsafe abortion
practices, and to support adolescent parents’.154
Notably, the CRC has urged
States Parties to provide safe abortion services where abortion is not against
the law.155
Further, the CRC has recognised that safe abortion is part of adoles-
cent girls’ right to adequate health under Article 24, noting that ‘high maternal
mortality rates, due largely to high incidence of illegal abortion’contribute sig-
nificantly to inadequate local health standards for children.156
The CRC recently addressed adolescent health in the context of abortion in
its 2005 Concluding Observation to China.157
The CRC expressed concern
regarding the high incidence of teenage pregnancies and abortions in the
Hong Kong Special Administrative Regions.158
The Committee recommended
that China ‘pay close attention to adolescent health and . . . health services,
taking into account . . . General Comment No. 4’ and ‘strengthen its efforts to
promote adolescent health, including by providing sexual and reproductive
health education in schools, and to introduce school health services, including
youth-sensitive and confidential counselling and care’.159
International covenant on economic, social and cultural rights
Article 12(1) of the ICESCR confirms the right to the ‘enjoyment of the
highest attainable standard of physical and mental health’and Article 12(2)(a)
specifically requires States Parties to reduce the stillborn birth-rate and infant
mortality.
The CESCR has repeatedly expressed deep concern in its Concluding
Observations over the relationship between high rates of maternal mortality
and illegal, unsafe, clandestine abortions.160
The CESCR has thus recom-
mended that States Parties increase education on reproductive and sexual
health,161
as well as implement programmes to increase access to family
154 Ibid.
155 Ibid.
156 Concluding Observations of the CRC regarding: Guatemala, 9 July 2001, CRC/C/15/Add.154 at
para. 40; Chad, 24 August 1999, CRC/C/15/Add.107 at para. 30; and Nicaragua, 24 August
1999, CRC/C/15/Add.108 at para. 35.
157 Concluding Observations of the CRC regarding China, 24 November 2005, CRC/C/CHN/CO/2
at paras 64^5.
160 Concluding Observations of the CESCR regarding: Mexico, 9 June 2006, E/C.12/MEX/CO/4 at
para. 25; Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 32; Panama, 24 September
2001, E/C.12/1/Add.64 at para. 20; Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12; Senegal,
24 September 2001, E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2003, E/C.12/1/Add.99 at
para. 22.
161 Concluding Observations of the CESCR regarding: Bolivia, 21 May 2001, E/C.12/1/Add.60 at
para. 43; Mexico, 8 December 1999, E/C.12/1/Add.41 at para. 43; and Nepal, 24 September
2001, E/C.12/1/Add.66 at paras 33 and 55.
274 HRLR 8 (2008), 249^294

planning services and contraception.162
The CESCR has also expressed general
concern over the prevalence of abortion,163
especially among adolescent
girls,164
as a result of lack of access to contraception.165
Furthermore, the
CESCR has praised family planning policies that result in declines in abortion
rates,166
and it has recommended increased family planning programmes to
decrease the prevalence of abortion.167
Finally, the CESCR has commented on
States Parties’ failure to provide information on abortion168
and has recom-
mended study and analysis of high abortion rates.169
(ii) Regional human rights parameters ^ the woman’s right to health
Similar to the international human rights system, there have been significant
developments within regional human rights systems regarding women’s
access to abortion as they intersect with women’s right to health. One of the
foremost affirmations of such rights was in the ECtHR’s landmark decision
Tysia˜ c v Poland, where the ECtHR was asked whether the State’s failure
to apply the exception to Poland’s abortion law, which permits abortion for
health reasons, violated the ECHR.170
European system
The ECHR does not expressly guarantee any health or reproductive rights,171
or
any determined standard of medical care.172
Furthermore, the ECHR bodies
162 Concluding Observations of the CESCR regarding: Kuwait, 7 June 2004, E/C.12/1/Add.98 at
para. 43, Mexico, 9 June 2006, E/C.12/MEX/CO/4 at para. 44; and Poland, 16 June 1998, E/
C.12/1/Add.26 at para. 12.
para. 25; Senegal, 31 August 2001, E/C.12/1/Add.62 at para. 26; and Spain, 7 June 2004, E/
C.12/1/Add.99 at para. 22.
para. 25; and Spain, 7 June 2004, E/C.12/1/Add.99 at para. 22.
165 Concluding Observations of the CESCR regarding: Armenia, 8 December 1999, E/C.12/1/Add.3
at para. 15; and Poland, 16 June 1998, E/C.12/1/Add.26 at para. 12.
166 Concluding Observations of the CESCR regarding: Russian Federation, 20 May 1997, E/C.12/1/
A dd.13 at para. 10.
167 Concluding Observations of the CESCR regarding: Armenia, 8 December 1999, E/C.12/1/
Add.39 at para. 19; Nepal, 24 September 2001, E/C.12/1/Add.66 at para. 55; Panama, 24
September 2001, E/C.12/1/Add.64 at para. 37; Senegal, 24 September 2001, E/C.12/1/Add.62 at
para. 47; Spain, 7 June 2004, E/C.12/1/Add.99 at para. 40; and Ukraine, 24 September 2001,
E/C.12/1/A dd.65 at para. 31.
168 Concluding Observations of the CESCR regarding Switzerland, 7 December 1998, E/C.12/1/
Add.30 at para. 22.
169 Concluding Observations of the CESCR regarding; Mauritius, 28 December 1995, E/C.12/1995/
18 at para. 245; Poland, 19 December 2002, E/C.12/1/Add.82 at para. 51; and Spain, 7 June
2004, E/C.12/1/Add.99 at para. 40.
170 Tysia˜ c v Poland (2007) 45 EHRR 42.
171 How to Use the European Convention, supra n. 80 at Part I (b)^(f).
172 Ibid. at Part III.1.

have carefully avoided stating whether abortion is protected under the ECHR,
and/or whether ‘legal and safe abortion should or should not be available
under domestic law, . . . and if so, on what conditions’.173
As it now stands, it
appears that Member States are free to determine the availability and legal
status of abortion.174
However, jurisprudence under the ECHR does indicate
that the ECtHR may show less deference to Member States in cases where
women cannot obtain abortions when their lives and/or health are at risk.
Health-related rights have been read into Articles 2 (right to life), 3 (freedom
from inhuman and degrading treatment) and 8 (right to respect for private
and family life) by ECHR bodies. With respect to Article 2, again, Member
States have an obligation to ensure procedures are in place to protect lives
when threatened.175
The EComHR has interpreted this to include hospital reg-
ulations for the protection of patients’ lives and an effective system to deter-
mine the cause of death which occurs in a hospital and which may pose civil
and/or criminal liability.176
With respect to Article 3, ‘[f]ailure to afford ade-
quate medical care may be also in breach of the prohibition of torture, inhu-
man or degrading treatment . . .’.177
While a few complaints have been made
under Article 3 in the reproductive health care context, to date none has been
successful.178
Article 8 protects individuals from arbitrary interference
by public authorities. Article 8 also imposes a positive obligation on govern-
ments to adopt measures designed to secure respect for private life, even in
the sphere of relations between individuals.179
With respect to abortion, the
ECHR jurisprudence recognises that legislation regulating abortion falls
under the sphere of Article 8 and statutory abortion restrictions may consti-
tute an interference with women’s private lives.180
There is ‘no recent case-law to the effect that non-availability of legal
and safe abortion can amount to a breach of Article 2, or Article 8 of the
ECHR’.181
This is due to the fact that none of the cases filed challenging
the unavailability of abortion have moved beyond the admissibility stage. The
173 Ibid. at Part III.7.
174 Ibid.
175 Article 2, ECHR.
176 Tavares v France, supra n. 79.
177 How to Use the European Convention, supra n. 80, (see also Ireland v United Kingdom A 25
(1978); (1979^1980) 2 EHRR 25 at para. 162, where the ECtHR stated ‘. . .ill-treatment must
attain a minimum level of severity if it is to fall within the scope of Article 3 . . .. The assess-
ment of this minimum is, in the nature of things, relative; it depends on all the circumstances
of the case, such as the duration of the treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim, etc’.
178 Ibid. at Part III.3, stating: ‘Treatment is degrading if the person concerned has undergone
humiliation or debasement attaining a minimum level of severity.’ The assessment must be
done on a case-by-case basis. Note, however, the author asserts that no such Article 3 com-
plaints have been successful in the context of reproductive rights.
179 Ibid. at Part III.1. See also M.C. v Bulgaria (2005) 40 EHRR 20.
180 Bru
« ggemann and Scheuten v Federal Republic Germany (1977) 10 DR 100 at para. 100. See also
Tysia˜ c v Poland, supra n. 170 at paras 105^115.
181 How to Use the European Convention, supra n. 80 at Part III.7.
276 HRLR 8 (2008), 249^294

only decision on the merits which addressed a challenge to a Member States’
restrictive abortion law is the 1977 case of Bru
« ggemann and Scheuten v Federal
Republic of Germany.182
The applicants in Bru
« ggemann asserted that a German
statute criminalising abortion after the 12th week of pregnancy violated their
privacy interests under Article 8. The EComHR affirmed the privacy interests
at stake by stating that, ‘[w]henever a woman is pregnant her private life
becomes closely connected with the developing foetus[,]’183
but held that not
every restriction on termination of unwanted pregnancies constitutes an inter-
ference with a woman’s privacy rights under Article 8(1).184
In rendering this
decision, the EComHR relied upon the German statute’s exception for women’s
health or life, implying that an absolute abortion ban that does not make
exceptions for the health or life of pregnant woman may very well be an imper-
missible interference of privacy rights under Article 8.185
Since Bru
« ggemann, the ECtHR has recognised, in some circumstances, preg-
nant women’s right to terminate their pregnancies under Article 8, but only
in cases where abortion was legally permissible under the Member States law.
For example, Paton v United Kingdom, R.H. v Norway and Boso v Italy, involved
claims by ‘fathers’ that Article 8 granted them rights regarding the foetus
when the women sought to terminate their pregnancies. In each of these
cases the claim was denied and it was confirmed that women’s pregnancy-
related privacy rights trumped the ‘fathers’’ purported ECHR rights because a
pregnant woman is,‘the person primarily concerned by the pregnancy and its
continuation or termination’.186
In March 2007, the ECtHR decided for the first time in Tysia˜ c v Poland, that
Article 8 procedural obligations require Poland to ‘provide a comprehensive
legal framework regulating disputes between pregnant women and doctors as
to the need to terminate pregnancy in cases of a threat to a woman’s
health’.187
The applicant, Alicja Tysia˜c, was a Polish woman who nearly went
blind when forced to continue a pregnancy that threatened her health.
Suffering from a severe eye condition, Tysia˜c sought to terminate her preg-
nancy after three doctors confirmed the pregnancy and pending delivery
threatened her eyesight.188
While Polish law permits abortion for health
reasons, the doctors refused to giveTysia˜c the requisite health certificate to ter-
minate her pregnancy.189
Tysia˜c sought further medical advice and received
a certificate confirming the dangers pregnancy posed to her health, but she
182 Bru
« ggemann and Scheuten v Germany, supra n. 180.
183 Ibid. at 18 at para. 59.
184 Ibid. at 19 at para. 61.
185 Ibid. at 19 at para. 62
186 Paton v United Kingdom, supra n. 96; R.H. v Norway Application No. 17004/90, Admissibility
decision of 19 May 1992, at para. 4; and Boso v Italy, supra n. 99.
187 Tysia˜ c v Poland, supra n. 171 at para. 80.

was denied permission to abort the foetus.190
As predicted, Tysia˜c’s eyesight
greatly deteriorated after delivery.191
Tysia˜c initially filed a criminal complaint against state authorities, but was
unsuccessful. She then filed a petition with the ECtHR alleging that the gov-
ernment violated Articles 3, 8, 13 and 14 of the ECHR by denying her abortion
and thus failing to apply Poland’s abortion law.192
With respect to Article 3
(freedom from inhuman and degrading treatment), the ECtHR found, with
little explanation, that the facts alleged did not amount to an Article 3 viola-
tion. Rather, the ECtHR deemed Tysia˜c’s complaints more appropriately exam-
ined under Article 8.193
With respect to Article 8 (private life), Tysia˜c argued
that her rights had been ‘violated both substantively, by failing to provide her
with a legal abortion, and . . . [procedurally,] . . . by the absence of a comprehen-
sive legal framework to guarantee her rights by appropriate procedural
means’.194
Notably, the ECtHR did not address the alleged substantive violation
of Article 8, although it recognised that she ‘suffered severe distress and
anguish when contemplating the possible negative consequences of her preg-
nancy and upcoming delivery for her health’. The ECtHR did decide that
Poland violated its positive obligation to establish an effective procedure
through which Tysia˜c could have appealed her doctors’ refusal to grant her
abortion request and capable of determining whether the conditions for
obtaining a lawful abortion had been met in her case. In other words, where
Polish law accords women the right to legal abortion, the government must
establish procedures enabling women to exercise that right. The ECtHR noted
some of the key components of such a procedure, which include: (i) a guaran-
tee that a pregnant woman has the right to be heard in person and have her
views considered; (ii) a body to hear the woman’s appeal; (iii) that the body
reviewing her appeal should issue written grounds for its decision; and, finally,
(iv) that the government recognise that ‘the time factor is of critical impor-
tance’ in decisions involving abortion and therefore the hearing and appeals
process should ensure that such decisions are timely. 195
As to Tysia˜c’s Article 13 (right to an effective remedy) claim, the ECtHR
found that Poland’s positive obligations under Article 13 overlapped with
those under Article 8, and thus there were no outstanding issues to merit
a separate Article 13 violation.196
Finally, the ECtHR declined to examine
195 Ibid. at para. 118. The ECtHR prescribed some of the key components of such a procedure: it
should guarantee to a pregnant woman the right to be heard in person and have her views
considered; the body reviewing her appeal should issue written grounds for its decision;
and, recognising ‘the time factor is of critical importance’ in decisions involving abortion,
the procedure should ensure that such decisions are timely.
278 HRLR 8 (2008), 249^294

Tysia˜c’s Article 14 (prohibition of discrimination) claim based on its previous
finding of an Article 8 violation.197
Tysia˜ c is significant because it confirms that women’s right to access legal
abortion may not be illusory. The ECtHR’s Article 8 analysis holds states to
their procedural obligation to make abortion practically available where it is
legally available. However, theTysia˜ c decision may indicate the ECtHR’s unwill-
ingness to address substantive violations of abortion rights, even when there
is a legal basis for abortion, and propensity to rely on procedural violations to
remedy the wrong. It may also indicate the ECtHR’s unwillingness to decide
substantive violations when there are arguably undecided medical issues
in a case, even when state action has caused the applicant ‘severe distress’.
As to the discrimination claim, the decision exemplifies the ECtHR’s overarch-
ing unwillingness to address human rights issues generally and women’s
human rights issues specifically as a form of discrimination against women.
As the ECtHR has never decided a case challenging a State Party’s restrictive
abortion law on the merits, other than in Bru
« ggemann, to hold that abortion
should be available, it is unclear how the ECtHR would decide a petition
directly contesting the merits of an abortion law. The case law does somewhat
indicate, however, that regardless of the substantive claims sought, the ECtHR
has looked at abortion-related claims from a perspective of health of the preg-
nant woman. In that regard, it may behoove advocates to frame the right to
access abortion claims in the context of women’s health, when submitting
such claims to the ECtHR.
Inter-American system
On 10 December 2006, the Rapporteur on the Rights of Women of the
Inter-American Commission issued an unprecedented letter of concern to
Nicaragua’s Minister of Foreign Affairs, declaring Nicaragua’s recently passed
abortion ban contrary to international law, as it threatened women’s human
rights and jeopardised women’s health. The Rapporteur reiterated that ‘thera-
peutic abortion has been internationally recognized as a specialized and neces-
sary health service for women, its ultimate purpose being to save the life of the
mother when threatened during pregnancy’and that denial of abortion services
endangers women’s lives as well as their physical and psychological integrity.198
The Rapporteur also referenced prominent human rights bodies and representa-
tives’ position that total abortion bans negatively impact women, to confirm
that ‘[s]uch bans result in high rates of maternal mortality and therefore pose a
197 Ibid. at paras 55^61 and 144.
198 Organization of American States ^ Inter-American Commission on Human Rights, Letter to
Nicaragua Minister of Foreign Affairs, HE Norman Calderas Cardenal, 10 November 2006,
available at: http://www.reproductiverights.org/pdf/index_nicaragua_ english.pdf [last
accessed 22 September 2007].

public health problem’.199
The Rapporteur then called upon the Nicaraguan gov-
ernment to take into account the above referenced human rights principles
when deciding whether to ratify the country’s abortion ban.200
The Rapporteur’s 2006 statement to Nicaragua represents the first time a
human rights body representative has contacted a Member State on its own
accord to emphasise the human rights implications of a pending state action.
At present, the ratification of Nicaragua’s ban is still pending on a decision by
the country’s Supreme Court.
African system
The AfricanWomen’s Protocol explicitly calls upon States Parties to‘[authorise]
medical abortion . . . [when] the continued pregnancy endangers the mental
and physical health of the mother’.201
It is unclear whether the Protocol’s
health-related provision will be interpreted as separate mental or physical
health grounds or conjunctively, requiring endangerment to both physical
and mental health. Either way, the Protocol squarely frames abortion as an
issue of women’s health.
Similar to the Protocol’s preservation of life grounds for abortion, the health
grounds includes mental and physical health, and merely requires a women’s
health to be ‘endanger[ed]’.202
As health is not merely the absence of disease,
but rather includes a more holistic sense of social well-being, as defined by
the WHO, the Protocol’s health grounds should be interpreted broadly.
D. Abortion forWomen who have Suffered Rape or Incest
Other than the African Women’s Protocol, no international or regional human
rights treaty explicitly confers the right to abortion on women who have suf-
fered rape and/or incest. Nonetheless, treaty-monitoring bodies are addressing
the issue with greater frequency in Concluding Observations to States Parties,
thus bolstering the law in this context.
(i) International human rights parameters
The HRC has expressed concern regarding the criminalisation of abortion
when the pregnancy is the result of rape,203
and confirmed that such
199 Ibid.
200 Ibid.
201 Article 14.2 (c), African Women’s Protocol.
202 Ibid.
203 Concluding Observations of the HRC regarding Gambia, 12 August 2004, CCPR/CO/75/GMB
at para. 17.
280 HRLR 8 (2008), 249^294

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