WHOSE RIGHT TO LIFE?

Womens Rights and Prenatal Protections

under Human Rights and Comparative Law
www.reproductiverights.org
INTRODUCTION
The right to life is a fundamental human right, central to the enjoyment of all other human rights. International human
rights law recognizes this basic right as accruing at birth, and international and regional human rights bodies, as well as
courts worldwide, have clearly established that any prenatal protections must be consistent with womens human rights.

An emerging trend to extend a right to life before birth, and in particular from conception, poses a signicant threat to
womens human rights, in theory and in practice. These efforts, often rooted in ideological and religious motivations,
are part of a deliberate attempt to deny women the full range of reproductive health services that are essential to
safeguarding womens fundamental rights to life, health, dignity, equality, and autonomy, among others.
These attempts to grant a right to life before birthand therefore recognize prenatal legal personhoodseek to
bestow rights on a zygote, embryo, or fetus that would be equal or superior to the rights of women. In many cases,
these measures aim to outlaw any procedure that terminates a pregnancy. In other cases, these attempts have sought
to justify restrictions on access to in vitro fertilization and contraception. Across the board, these strategies attempt to
deny women the ability to make autonomous decisions regarding their fertility with complete disregard for womens
basic human rights.
WHERE NATIONAL LEGAL FRAMEWORKS PROTECT LIFE BEFORE BIRTH
Several countries have adopted various legal frameworks for protecting life before birth:
- Explicit recognition of a constitutional right to life before birth, as in the national constitutions of
Guatemala and Chile.
1

- Constitutional protections that confer equal protection for the life of both the pregnant woman and
the unborn, as in the national constitutions of Ireland and the Philippines.
2

- Legislation establishing that the right to life is subject to protection prenatally, as Poland has done.
3

The strategy of promoting the recognition of a right to life before birth has emerged in the context of
constitutional reform processes, legislative initiatives, and court challenges that seek to extend constitutional
protections of the right to life prenatally. For example, in 2010, the Dominican Republic adopted a new
constitution, which recognized a right to life from conception.
4
In 2008 and 2010, the United States (U.S.)
state of Colorado,
5
and in 2011, the U.S. state of Mississippi
6
rejected initiatives to amend the constitutions
of these states to recognize that life begins at conception and that from the moment of fertilization, zygotes,
embryos, and fetuses are people with all the rights guaranteed to persons under their state constitutions.
Since 2008, at least 16 Mexican states have amended their constitutions to protect the right to life from
either fertilization or conception.
7
In 2007, members of the Slovak Parliament challenged the constitutionality
of the countrys abortion law, arguing that the constitution protects the right to life before birth. However, the
Slovak Constitutional Court found that granting the right to life to a fetus would directly contradict
womens constitutional rights to health and privacy and upheld the constitutionality of the abortion law.
8

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There are a number of steps that States can and should take to promote a legitimate interest in prenatal life while respecting
womens fundamental rights. This toolkit analyzes how States can meet their international human rights obligations as they
seek to protect the value of prenatal life. The toolkit sets forth international and comparative legal standards for interpreting
right to life protections. It also identies how relevant human rights, public health, and scientic evidence supports legal pro-
tections to guarantee womens rights as a crucial step in protecting the right to life and ensuring the health and well-being of
women and their children. When States protect a right to life before birth without regard for womens rights, inconsistencies
in law arise that jeopardize womens fundamental rights while doing little to protect prenatal life or existing children.
The Beginning of Human Life: Scientic, Moral, Religious, and other Considerations
Efforts to promote recognition of a right to life before birth frequently try to capitalize on the lack of moral or ethical consensus
on when human life begins, often seeking to codify a single religious or other ideological viewpoint on this question. In many
instances, these attempts have deliberately distorted scientic evidence around the progression of a womans pregnancy.
There is no consensus on when human life begins across various disciplines, including religion. Different religions maintain
differing viewpoints on this issue. Religious beliefs about the start of human life vary from the moment of fertilization,
9
to
40 days after fertilization,
10
to the 120
th
day of gestation,
11
to the point at which the head emerges from the womb.
12

The medical and scientic community similarly has not arrived at a consensus on when human life begins, but it has
agreed on the following terms and phrases to understand the progression of a womans pregnancy:
Fertilization occurs when a single sperm penetrates an egg cell to form a zygote.
13

After fertilization, the zygote travels through a womans fallopian tube and begins to divide to form several cells,
becoming a blastocyst or preembryo.
14

The blastocyst or preembryo reaches the uterus roughly ve days after fertilization.
15
The implantation of the fertilized
egg in the uterine lining generally denes the beginning of pregnancy according to medical standards.
16
It is worth
noting that the term conception is not a scientic term; it is used informally to refer to either fertilization or
implantation and is thus an imprecise term.
Approximately three weeks after fertilization has occurred, the implanted blastocyst or preembryo is sufciently
developed to be considered an embryo.
17

The embryo develops into a fetus between the end of the eighth
18
and the end of tenth week
19
of pregnancy.
Notably, a signicant percentage of zygotesestimated to be between one-half and two-thirdsdo not develop into human
beings.
20
Studies indicate that between 25-35% of preembryos never implant into the uterine lining,
21
up to 30% fail shortly
after implantation,
22
and roughly 15% of clinically established pregnancies miscarry.
23

Overview
This toolkit provides the legal and contextual framework, broken down in the following fact sheets, for understanding and
responding to the harmful efforts to dismantle womens human rights in the context of prenatal right to life protections:
o International and Regional Standards on the Right to Life, which outlines human rights standards interpreting
right to life protections, demonstrating that human rights law does not recognize a right to life before birth.
INTRODUCTION (continued)
www.reproductiverights.org
o High Courts Reject Recognition of a Prenatal Right to Life, which examines high court decisions addressing
prenatal protections in each region of the world, and the common threads that run through them.
o Striking a Balance: Womens Rights and an Interest in Prenatal Life, which identies how states can
legitimately promote an interest in prenatal life while ensuring respect for womens fundamental human rights.
o Womens Rights Jeopardized by Prenatal Protections, which examines the potential human rights violations
that occur when an interest in prenatal life is prioritized above womens fundamental human rights.
o The Law Denes Legal Personhood, Not Human Life, which analyzes the role of lawmakers and policy makers
in dening when legal personhood begins, as well as the legal implications of recognizing a zygote, embryo,
or fetus as a rights-holder.
INTRODUCTION (continued)
1
CONSTITUCIN POLTICA DE LA REPBLICA DE GUATEMALA [C.P.] tit. II, cap. I, art. 3 (2002) (Guat.); CONSTITUCIN POLTICA DE LA REPBLICA DE CHILE [C.P.] art. 19, 1 (1980)
(Chile).
2
IR. Const., 1937, art. 40.3.3; Const. (1987), Art. II, 12 (Phil.).
3
USTAWA z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie plodu ludzkiego i warunkach dopuszczalnosci przerywania cizy [Law of Jan. 7, 1993 on Family
Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination, as amended Dec. 23, 1997, art. 1 (Pol.)] (unoffcial translation on fle with the
Center for Reproductive Rights).
4
CONSTITUCIN POLTICA DE LA REPBLICA DOMINICANA [C.P.] art. 37 (2010) (Dom. Rep.).
5
The Associated Press, Colorado voters reject anti-abortion measure, Wash. Post, Nov. 3, 2010.
6
Katharine Q. Seelye, Mississippi Voters Reject Anti-Abortion Measure, N.Y. Times, Nov. 8, 2011; Denise Grady, Medical Nuances Drove No Vote in Mississippi, N.Y.
Times, Nov. 14, 2011.
7
GRUPO DE INFORMACIN EN REPRODUCCIN ELEGIDA [INFORMATION GROUP ON REPRODUCTIVE CHOICE], REFORMAS APROBADAS A LAS CONSTITUCIONES ESTATALES QUE PROTEGEN LA VIDA
DESDE LA CONCEPCIN/FECUNDACIN 2008-2011 [APPROVED CONSTITUTIONAL STATE REFORMS THAT PROTECT LIFE FROM CONCEPTION/FERTILIZATION] (2011).
8
Nlez stavnho sdu Slovenskej republiky, sp. zn. [Decision of the Constitutional Court of the Slovak Republic, No.] PL. S 12/01-297 (Dec. 4, 2007) (unoffcial
translation on fle with the Center for Reproductive Rights).
9
Daniel P. Sulmasy, Emergency Contraception for Women Who Have Been Raped: Must Catholics Test for Ovululation or is Testing For Pregnancy Morally Suffcient?, 16
Kennedy Inst. Ethics J. 305, 307 (2006) (describing commonly held Catholic views on when life begins); R. E. Florida, Buddhist Approaches to Abortion, 1 ASIAN
PHILOSOPHY 39, 42 (1991) (describing a commonly held Buddhist view that life begins when sperm, egg and vignana come together).
10
Lindsey Disney & Larry Poston, The Breath of Life: Christian Perspectives on Conception and Ensoulment, 92 ANGLICAN THEOLOGICAL REVIEW 271, 278 (2010) (describing
various Christian views on when life begins).
11
Id. at 281 (describing commonly held Islamic views on when life begins).
12
Id. at 279 (describing commonly held perspectives in Judaism on when life begins).
13
ANBAL FANDES & JOS S. BARZELATTO, THE HUMAN DRAMA OF ABORTION: A GLOBAL SEARCH FOR CONSENSUS 14 (2006); F. Zegers-Hochschild et al., International Committee
for Monitoring Assisted Reproductive Technology and the World Health Organization Revised Glossary on ART Terminology, 2009, 24 HUMAN REPRODUCTION 2683, 2685
(2009).
14
FANDES & BARZELATTO, supra note 13, at 15, 17; Guttmacher Institute, The Implications of Defning When a Woman is Pregnant, 8 GUTTMACHER REP. ON PUB. POLY, 7, 8
(2005); Zegers-Hochschild et al., supra note 13, at 2685.
15
Zegers-Hochschild et al., supra note 13, at 2686; Guttmacher Institute, supra note 14, at 8.
16
Guttmacher Institute, supra note 14, at 7; FANDES & BARZELATTO, supra note 13, at 17.
17
Guttmacher Institute, What Methods Should be Included in a Contraceptive Coverage Insurance Mandate? 1 GUTTMACHER REP. ON PUB. POLY 1, 1 (1998); FANDES &
BARZELATTO, supra note 13, at 17.
18
STEDMANS MEDICAL DICTIONARY 658 (27th ed. 2000); Zegers-Hochschild et al., supra note 13, at 2685 (2009).
19
FANDES & BARZELATTO, supra note 13, at 17.
20
SCOTT F. GILBERT, DEVELOPMENTAL BIOLOGY 827 (5th ed., 1997).
21
KENNETH L. BECKER MD, PHD ED., PRINCIPLES AND PRACTICE OF ENDOCRINOLOGY & METABOLISM 1050 (Ch. 107) (2001).
22
Id.
23
Raj Rai & Lesley Regan, Recurrent Miscarriage, 368 THE LANCET 601, 601 (2006).
www.reproductiverights.org
INTERNATIONAL AND REGIONAL STANDARDS ON THE RIGHT TO LIFE
International and regional human rights treaties protect a right to life without dening when life begins. Authorita-
tive sources for interpretationincluding the history of negotiations and the jurisprudence of the bodies charged
with interpreting and monitoring compliance with human rights treatiesclarify that these protections do not apply
before birth and recognize that to protect an absolute right to life before birth could contradict human rights protec-
tions for women. The histories of negotiations over the terms of human rights treaties (travaux prparatoires), which
provide a source for interpretation where the language of a treaty is ambiguous, indicate that right to life provisions
are not intended to protect a prenatal right to life. Additionally, treaty monitoring bodies, through general comments,
concluding observations, and decisions in individual cases, consistently emphasize the importance of protecting
womens rights, and assert that to guarantee womens fundamental rights to life and health, among others, States
must remove barriers to the full enjoyment of those rights, such as the denial of safe and legal abortions.
International Human Rights Standards
Universal Declaration of Human Rights
Article 1 of the Universal Declaration of Human Rights states that [a]ll human beings are born free and equal in
dignity and rights.
2
Signicantly, the history of negotiations indicates that the word born was used intentionally to
exclude a prenatal application of the rights protected in the Declaration.
3
The drafters of the Declaration rejected a
proposal to delete born, and the resulting text of the Declaration conveys intentionally that the rights of the Decla-
ration are inherent from the moment of birth.
4
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) rejects the proposition that the right to life, protect-
ed in Article 6(1), extends to prenatal life.
5
The drafters of the ICCPR specically rejected a proposal to amend this
article to provide that the right to life is inherent in the human person from the moment of conception, this right
shall be protected by law.
6

The Human Rights Committee, which interprets and monitors state compliance with the ICCPR, has further claried
that the ICCPRs right to life protections may be violated when women are exposed to a risk of death from unsafe
abortion as a result of restrictive abortion laws.
7
In the case of K.L. v. Peru, the Committee established that the
denial of a therapeutic abortion, where continued pregnancy posed a signicant risk to the life and mental health
of the pregnant woman, violated the womans right to be free from cruel, inhuman, or degrading treatment.
8
The
Human Rights Committee reafrmed this decision in the case of L.M.R. v. Argentina, when it held that the denial of
a legal abortion for a rape victim inicted physical and mental suffering, violating the womans right to be free from
torture or cruel, inhuman, or degrading treatment, and her right to privacy.
9

Convention on the Rights of the Child
Although the Preamble of the Convention on the Rights of the Child (CRC) provides that 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,
10
the history of negotiations makes clear that this language is not intended to extend Conven-
tion protections, including right to life protections, prenatally. To the contrary, the negotiations explicitly note that
this language is not intend[ed] to prejudice the interpretation of Article 1 or any other provision of the Convention,
where Article 1 denes a child for the purposes of the Convention as every human being below the age of 18
years. Proponents of the amendment calling for safeguards before birth further claried that the purpose of the
amendment was not to preclude the possibility of abortion.
11

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INTERNATIONAL AND REGIONAL STANDARDS ON THE RIGHT TO LIFE (continued)
The Committee on the Rights of the Child, which interprets and monitors state compliance with the CRC, supports the under-
standing that the CRC does not protect a prenatal right to life. The Committee has not issued any comments suggesting that
there is a right to life before birth; instead the Committee has expressed concern about maternal mortality in adolescent girls
stemming from unsafe abortion
12
a violation of their right to lifeand urged reform of punitive abortion legislation.
13

Convention on the Elimination of All Forms of Discrimination against Women
14

The jurisprudence of the Committee on the Elimination of Discrimination against Women (CEDAW Committee), which
interprets and monitors state compliance with the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), makes clear that the fundamental principles of non-discrimination and equality require that the rights
of a pregnant woman be given priority over an interest in prenatal life.
In the case of L.C. v. Peru, the CEDAW Committee found that the government had violated a pregnant girls rights by
prioritizing the fetus over her health by postponing an essential surgery until the girl was no longer pregnant. The girls
continued pregnancy posed a substantial risk to her physical and mental health, and the CEDAW Committee held that
the denial of a therapeutic abortion and the delay in providing the surgery constituted gender-based discrimination and
violated her rights to health and freedom from discrimination.
15
The CEDAW Committee has further expressed concern
that womens rights to life and health may be violated by restrictive abortion laws.
16

Regional Human Rights Standards
American Declaration on the Rights and Duties of Man and American Convention on Human Rights
Article 1 of the American Declaration on the Rights and Duties of Man provides that [e]very human being has the right to
life, liberty, and the security of his person.
17
Drafters of the American Declaration specically rejected a proposal to adopt the
following language: Every person has the right to life. This right extends to the right to life from the moment of conception.
18

They reasoned that such a provision would have conicted with existing abortion laws in the majority of the member states.
19
Article 4 of the American Convention on Human Rights states: Every person has the right to have his life respected. This
right shall be protected by law and, in general, from the moment of conception,
20
but the Inter-American Commission on
Human Rights, one of two adjudicatory bodies that interprets and monitors compliance with the American Convention, has
claried that this protection is not absolute.
21

In its decision in Baby Boy v. United States, the Inter-American Commission held that a law permitting abortion without
restriction as to reason was compatible with the right to life protection under the American Declaration, given the legislative
history of the Declaration.
22
The Commission then considered the history of negotiations of the American Convention, and
determined that the Convention language recognizing a right to life, in general, from the moment of conception is not
intended to confer an absolute right to life before birth, and therefore does not preclude a liberal abortion law.
23

The Inter-American Commission reafrmed that the American Convention does not protect an absolute right to life before
birth when it issued precautionary measures designed to protect the life and health of a pregnant woman from Nicaragua
who was denied necessary cancer treatment on the grounds that such treatment could cause an abortion. The Inter-Amer-
ican Commission determined that the State could not deny the woman life- and health-saving care, and called on the State
to provide the necessary medical treatment.
24
Implicit in this determination is the notion that the State cannot prioritize the
health or well-being of the fetus over the pregnant womans rights. The Inter-American Court of Human Rights, the other
body that interprets and monitors compliance with the American Convention, has further explained that the right to life
must not be interpreted restrictively, but that it includes the right to the conditions that guarantee a dignied existence.
25
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INTERNATIONAL AND REGIONAL STANDARDS ON THE RIGHT TO LIFE (continued)
European Convention on Human Rights
Article 2(1) of the European Convention on Human Rights provides: Everyones right to life shall be protected by law.
26

The European Commission on Human Rights, in Paton v. United Kingdom, held that the Convention language tend[s]
to support the view that [Article 2] does not include the unborn,
27
and acknowledged that recognition of an absolute
right to life before birth would be contrary to the object and purpose of the Convention.
28


In Vo v. France, the European Court of Human Rights, which interprets and monitors compliance with the European
Convention, afrmed 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 mothers rights and interests,
29
including
her rights to life, health, and privacy.
30
The Court reiterated this holding in A, B and C v. Ireland,
31
and noted that [a]
prohibition of abortion to protect unborn life is notautomatically justied under the Convention on the basis of unquali-
ed deference to the protection of pre-natal life or on the basis that the expectant mothers right to respect for her private
life is of a lesser stature, such that restrictions on abortion must be consistent with womens fundamental rights.
32
African Charter on Human and Peoples Rights and Protocol to the African Charter on Human and Peoples Rights
on the Rights of Women in Africa
Article 4 of the African Charter on Human and Peoples Rights states that [h]uman beings are inviolable. Every human
being shall be entitled to respect for his life and the integrity of his person.
33
Drafters of the African Charter specically
rejected language protecting a right to life from the moment of conception.
34


The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol)
does not address when life begins, but it implicitly reinforces the understanding that the right to life accrues at birth,
providing that States must take measures to protect the reproductive rights of women by authorizing medical abortion
in cases of assault, rape, incest and where the continued pregnancy endangers the mental and physical health of the
[pregnant woman] or the life of the [pregnant woman] or the foetus.
35

1
Vienna Convention on the Law of Treaties, art. 32, adopted May 23, 1969, 1155 u.n.t.s. 331 (entered into force Jan. 27, 1980).
2
Universal Declaration of Human Rights, adopted Dec. 10, 1948, G.A. Res.217a (III), Article 1, U.N. Doc. A/810 (1948).
3
U.N. GAOR 3
rd
Comm., 99
th
mtg., !! 110-124, U.N. Doc. A/PV/99 (1948).
4
Id.
5
International Covenant on Civil and Political Rights, art. 6(1), G.A. Res. 2200a (XXI), U.N. GAOR, 21
st
Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171
(entered into force Mar. 23, 1976).
6
U.N. GAOR Annex, 12
th
Session, Agenda Item 33, !! 96, 113, 119, U.N. Doc. A/C.3/L.654.
7
See, e.g., Human Rights Committee (H.R. Committee), Concluding Observations to: Argentina, ! 14, UN Doc. CCPR/CO/70/ARG (2000); Bolivia, ! 22, UN DOC.
CCPR/C/79/Add.74 (1997); Costa Rica, ! 11, U.N. Doc. CCPR/C/79/Add.107 (1999); Chile, ! 211, U.N. Doc. a/54/40 (1999); El Salvador, ! 14, U.N. Doc. CCPR/CO/78/SLV
(2004); Ecuador, ! 11, U.N. Doc. CCPR/C/79/Add.92 (1998); Gambia, ! 17, U.N. DOC. CCPR/CO/75/GMB (2004); Guatemala, ! 19, U.N. Doc. CCPR/CO/72/GTM (2001);
Honduras, ! 8, U.N. Doc. CCPR/C/HND/CO/1 (2006); Kenya, ! 14, U.N. Doc. CCPR/CO/83/KEN (2005); Kuwait, !! 466, 467, U.N. DOC A/55/40; GAOR 55
th
Sess., Supp.
No. 40 (2000); Lesotho, ! 11, U.N. Doc. CCPR/C/79/Add.106 (1999); Mauritius, ! 9, U.N. Doc. CCPR/CO/83/MUS (2005); Morocco, ! 29, U.N. Doc. CCPR/CO/82/MAR
(2004); Paraguay, ! 10, U.N. Doc. CCPR/C/PRY/CO/2 (2006); Peru, ! 15, U.N. Doc. CCPR/C/79/Add.72 (1996); Peru, 20, ! U.N. DOC. CCPR/CO/70/PER (2000); Poland,
! 8, U.N. Doc. CCPR/CO/82/POL (2004); United Republic of Tanzania, ! 15, U.N. Doc. CCPR/C/79/Add.97 (1998); Trinidad and Tobago, ! 18, U.N. Doc. CCPR/CO/70/TTO
(2000); Venezuela, ! 19, U.N. Doc. CCPR/CO/71/VEN (2001); Vietnam, ! 15, U.N. Doc. CCPR/CO/75/VNM (2002).
8
K.L. v. Peru, H.R. Committee, Commc`n No. 1153/2003, U.N. Doc. CCPR/C/85/d/1153/2003 (2005).
9
L.M.R. v. Argentina, H.R. Committee, Commc`n No. 1608/2007, U.N. Doc. CCPR/C/101/D/1608/2007 (2011).
10
Convention on the Rights of the Child, adopted Nov. 20, 1989, ! 9 of pmbl., GA Res. 44/25, annex, U.N. GAOR 44
th
Sess., Supp. No.49, U.N. Doc. A/44/49 (1989)
(entered into force Sept. 2, 1990).
11
Question of a Convention on the Rights of the Child: Rep. of the Working Group, U.N. Comm`n on Human Rights, 36
th
Sess., U.N. DOC. E/CN.4/L.1542 (1980). See
also Rep. of the Working Group on a Draft Convention on the Rights of the Child, U.N. Comm`n on Human Rights, 45
th
Sess., at 11, U.N. Doc. E/CN.4/1989/48 (1989).
12
Committee on the Rights of the Child (CRC Committee), General Comment No. 4: Adolescent Health and Development in the Content of the Convention on the Rights of
the Child (33
rd
Sess., 2003), ! 31, U.N. DOC. CRC/GC/2003/4 (2003).
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INTERNATIONAL AND REGIONAL STANDARDS ON THE RIGHT TO LIFE (continued)
13
See, e.g., CRC Committee, Concluding Observations to: Chad, ! 30, U.N. Doc. CRC/C/15/Add.107 (1999); Chile, ! 55, U.N. DOC. CRC/C/CHL/CO/3 (2007); Palau, ! 46,
U.N. DOC. CRC/C/15/Add.149 (2001); Uruguay, ! 51, U.N. Doc. CRC/C/URY/CO/2 (2007).
14
Convention on the Elimination of All Forms of discrimination Against Women, adopted Dec. 18, 1979, art. 12, G.A. Res. 32/180, UN GAOR, 34
th
Sess., Supp. No. 46,
U.N. DOC. A/34/46 U.N.T.S. 13 (entered into force Sept. 3, 1981). See also Committee on the Elimination of Discrimination against Women (CEDAW Committee),
General Recommendation No. 24: Article 12 of the Convention (women and health), (20
th
Session, 1999), in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, ! 11, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008).
15
L.C. v. Peru, CEDAW Committee, Commc`n No. 22/2009, ! 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011).
16
See, e.g., CEDAW Committee, Concluding Observations to: Belize, ! 56, U.N. DOC. A/54/38/Rev. 1, GAOR, 54
th
Sess., Supp. No. 38 (1999); Chile, ! 228, U.N. Doc.
A/54/38/Rev. 1, GAOR, 54
th
Sess., Supp. No. 38 (1999); Colombia, ! 393, U.N. Doc. A/54/38/Rev. 1, GAOR, 54
th
Sess., Supp. No. 38 (1999); Dominican Republic,
! 337, U.N. DOC. A/53/38/Rev.1, GAOR, 53
rd
Sess., Supp. No. 38 (1998); Paraguay, ! 131, U.N. DOC. A/51/38, GAOR 51
st
Sess., Supp. No. 38 (1996).
17
American Declaration on the Rights and Duties of Man, adopted 1948 by the Ninth International Conference of American States, art. 1, reprinted in Basic Documents
Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).
18
Baby Boy v. United States, Resolution 23/81, Case 2141, Inter-Am. Comm`n H.R., Resol. No. 23/81, OEA/Ser.L/V/II.54, doc. 9 rev. 1, ! 18(b) (Mar. 6, 1981), citing
Novena Conferencia Internacional Americana, Actas y Documentos Vol. V, at 449 (1948).
19
Id. ! 19(e).
20
American Convention on Human Rights, adopted Nov. 22, 1969, O.A.S.T.S. No. 36, O.A.S. Off. Rec. OEA/Ser.L./V/II.23, doc. 21, rev. 6 (entered into force July 18,
1978).
21
Baby Boy v. United States, supra note 18, ! 25.
22
Id. ! 18.
23
Id. ! 30.
24
Inter-Am. Comm`n H. R., Precautionary Measures 43-10, 'Amelia, Nicaragua (2010).
25
Case of the 'Street Children (Villagrn-Morales et al.) v. Guatemala, Inter-Am. Ct. H.R. (ser. C) No. 63, ! 144 (Nov. 19, 1999).
26
Convention for the Protection of Human Rights and Fundamental Freedoms, art. 2(1), adopted Nov. 4, 1950, 213 U.N.T.S. 222, Eur. T.S. No. 5 (entered into force
Sept. 3, 1953).
27
Paton v. United Kingdom, App. No. 8416/79, ! 9, 19 Eur. Comm`n of H.R. Dec. & Rep. 244 (1980).
28
Id. ! 20
29
Vo v. France, App. No. 53924/00, Eur. Ct. H.R., ! 80 (2004).
30
Id. ! 65.
31
A, B and C v. Ireland, App. No. 25579/05, Eur. Ct. H.R., !! 237-238 (2010).
32
Id. ! 238.
33
African Charter on Human and Peoples` Rights, adopted June 27, 1981, art. 4, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct. 21,
1986).
34
Compare Frans Viljoen, The African Charter on Human and Peoples Rights / The Travaux Prparatoires in the Light of Subsequent Practice, 25 HUM. RTS. L.J. 313,
314 (2004) (noting that the drafters of the African Charter relied largely on the American Convention on Human Rights), with Draft African Charter on Human and
Peoples` Rights, art. 17, O.A.U. Doc. CAB/LEG/67/1 (1979) (adopting the language of art. 4(1) of the American Convention on Human Rights, but replacing 'moment
of conception with the 'moment of his birth).
35
Protocol to the African Charter on Human and Peoples` Rights on the Rights of Women in Africa, 2
nd
Ordinary Sess., Assembly of the Union, adopted July 11, 2003, art.
14(2)(c).
www.reproductiverights.org
HIGH COURTS REJECT RECOGNITION OF A PRENATAL RIGHT TO LIFE
High courts in every region of the globe have considered the question of who is accorded a right to life within a given
legal system, particularly in the context of laws on abortion. Landmark decisions from high courts around the world
assert that, while States have a legitimate interest in the value of prenatal life, there is no prenatal right to life. Taken
together, these decisions reinforce the standards set by international and regional human rights bodies that the right to
life does not exist before birth, and that any steps a State takes to protect prenatal life must be consistent with womens
fundamental rights.
Constitutional Rights Accrue at Birth
A number of high courts have addressed whether constitutional rights, including the right to life, extend prenatally in
the context of laws on abortion, and have concluded that these rights accrue only at birth. The U.S. Supreme Court, for
instance, explicitly rejected the claim that a fetus is a person within the language and meaning of the U.S. Constitu-
tion.
1
In interpreting the Slovak Constitutions right to life provisionEveryone has the right to life. Human life is worthy
of protection even prior to birth
2
the Slovak Constitutional Court asserted that it is beyond any doubts that the
concept of everyone [in this provision] should be understood as everybody who is born [such that the] capacity to have
rights arises by birth and ends by death.
3
The Supreme Court of Nepal,
4
Colombias Constitutional Court,
5
and South
Africas High Court, Transvaal Provincial Division
6
similarly held that there is no constitutional right to life before birth.
Prenatal Protections Cannot Trump Womens Constitutional Rights
In considering the scope of constitutional protections, courts have acknowledged that recognition of a prenatal right to
life could create an impermissible conict between the rights of the pregnant woman and those of the zygote, embryo, or
fetus.
7
The Supreme Court of Nepal explained, for example, that:
[a] fetus is able to exist only because of the mother; if we grant the fetus rights that go against the mothers
health or well-being it could create a conict between the interests of the mother and the fetus, and even compel
us to recognize the superiority of the fetus, a situation that would be against the mother. It is not possible to put
the mothers life at risk to protect the fetus.
8

While acknowledging a legitimate interest in protecting prenatal life, these courts have distinguished this interest in the val-
ue of prenatal life from a legally constructed right to life and emphasized that efforts to protect this legitimate interest must
be consistent with womens fundamental rights. In South Africa, the High Court, Transvaal Provincial Division asserted that
in evaluating the constitutionality of prenatal protections, proper regard must be had to the rights of women as enshrined
in the Constitution, including womens rights to life; privacy; health; equality; freedom and security of the person, includ-
ing reproductive and bodily autonomy; respect for human dignity; and freedom of religion, belief, and opinion.
9

To ensure that efforts to protect prenatal life do not jeopardize womens fundamental rights, the Colombian Constitutional
Court ruled that Colombias restrictive abortion law must be expanded to permit abortion in certain circumstances.
The Court held the law to be unconstitutional because it entails the complete pre-eminence of the life of the fetus
and the absolute sacrice of the pregnant womans fundamental rights.
10
The Court further explained that [this law]
extinguishes the womans fundamental rights, and thereby violates her dignity by reducing her to a mere receptacle for
the fetus, without rights or interests of constitutional relevance worthy of protection.
11
The U.S. Supreme Court has similarly afrmed that womens rights to life and health must be given priority over the state
interest in protecting prenatal life.
12
The Court has further recognized, in the context of pregnancy, that the liberty of the
www.reproductiverights.org
1
Roe v. Wade, 410 U.S. 115, 157 (1973).
2
CONSTITUTION OF THE SLOVAK REPUBLIC, 460/1992 Coll. as amended, art. 15(1) (Slovk.).
3
Nlez stavnho sdu Slovenskej republiky, sp. zn. [Decision of the Constitutional Court of the Slovak Republic, No.] PL. S 12/01-297 (Dec. 4, 2007), at 4 (emphasis
added) (unoffcial translation on fle with the Center for Reproductive Rights) [hereinafter Slovak Constitutional Court Decision].
4
Lakshmi Dhikta v. Government of Nepal, Writ No. 0757, 2067 (2007) (Supreme Court of Nepal), at 3 (unoffcial translation on fle with the Center for Reproductive
Rights) [hereinafter Lakshmi Dhikta v. Nepal].
5
WOMENS LINK WORLDWIDE, C-355/2006: EXCERPTS OF THE CONSTITUTIONAL COURTS RULING THAT LIBERALIZED ABORTION IN COLOMBIA, 21 (2007) [hereinafter Colombian
Constitutional Court Decision].
6
Christian Lawyers Association of South Africa v. The Minister of Health 1998 (11) BCLR 1434 (T) at 24 - 25 [hereinafter Christian Lawyers Association of South Africa].
7
See, e.g., Id. at 30 - 31; Slovak Constitutional Court Decision, supra note 3, at 10.
8
Lakshmi Dhikta v. Nepal, supra note 4, at 2.
9
Christian Lawyers Association of South Africa, supra note 6, at 30 31.
10
Colombian Constitutional Court Decision, supra note 5, at 49.
11
Id. at 50.
12
See Roe v. Wade, 410 U.S. at 163-164.
13
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 852 (1992).
14
Roe v. Wade, 410 U.S. at 153.
HIGH COURTS REJECT RECOGNITION OF A PRENATAL RIGHT TO LIFE (continued)
woman is at stake in a sense unique to the human condition,
13
and has described the psychological harm and distress,
as well as the mental and physical health consequences, associated with carrying an unwanted pregnancy to term.
14

www.reproductiverights.org
An Interest in Protecting Prenatal Life Cannot Be Prioritized over Womens Rights
Legal rights, including the right to life, virtually always accrue at birth. Before birth, there may be a legitimate interest
in protecting prenatal life, but zygotes, embryos, and fetuses are not typically recognized as holders of legal rights.
As noted in the above fact sheets on human rights standards and high court decisions, recognition of legal rights
before birth could create a conict of rights, especially where the interest in prenatal life is pitted against the interests
of women. High courts around the world have recognized this potential conict of interests; they have explained that
while there may be an objective value in protecting prenatal life, there is an essential distinction between the value of
prenatal life and a legal right to life.
4

States must therefore ensure that any steps taken to protect their interest in prenatal life are consistent with the fun-
damental human rights of women. To do otherwise, as the Colombian Constitutional Court explained, runs the risk of
treating a woman as a mere instrument for reproduction, violating her right to dignity.
5
Thus, any legal protections
granted to prenatal life cannot be prioritized over womens rights.
Furthermore, prenatal protections must not perpetuate discrimination against women, as non-discrimination is
one of the founding principles of human rights law. The Committee on the Elimination of Discrimination against
Women has noted that the proposition that protection of the foetus should prevail over the health of the mother
is grounded in stereotyped roles for women and constitutes gender-based discrimination in violation of a
womans rights.
6

Where courts have interpreted right to life provisions as precluding legal abortion, these interpretations have given
way to legal inconsistencies, often with discriminatory legal effects, for instance by affording the fetus rights against
its mother, [even where the law does not otherwise recognize] the fetuss rights with respect to injuries caused by
third persons.
7
STRIKING A BALANCE: WOMENS RIGHTS AND AN INTEREST IN PRENATAL LIFE
What we do know is that a fetus does not have a separate existence and it can only exist
within a mothers womb. That is why, even if we do recognize a fetal interest, we cannot
say that it shall prevail over a mothers interest.
- Supreme Court of Nepal, Lakshmi Dhikta v. Nepal
1
The constitutional value of unborn human life can be protected only to such extent that
this protection [does] not cause an interference with the essence of [a] womans freedom
and her right to privacy.
- Constitutional Court of the Slovak Republic, Decision on the Constitutionality of the Act on Articial
Interruption of Pregnancy
2

[I]f the unborn do have a right to life, it is implicitly limited by the mothers rights and
interests.
- European Court of Human Rights, Vo v. France
3

www.reproductiverights.org
A Prenatal Right to Life Cannot Be Absolute
Although some countries recognize the value of prenatal life, only a handful actually includes constitutional or legislative
protections for a prenatal right to life. The Irish Constitution, for instance, acknowledges the right to life of the unborn
, with due regard for the equal right to life of the mother.
8
In its clause protecting the right to life, the Kenyan Con-
stitution states that [t]he life of a person begins at conception.
9
In 2000, the Constitutional Chamber of Costa Ricas
Supreme Court of Justice held that human life begins at fertilization, and that zygotes, embryos, and fetuses are thus
entitled to all human rights, including a right to life.
10

Where national laws do include protection of a legal right to life before birth, however, these protections generally oper-
ate alongside recognition that this right is not absolute. This is often done by permitting abortion where necessary to
safeguard the rights of a pregnant woman. The Supreme Court of Ireland has claried that in balancing the equal rights
of the pregnant woman and the unborn, the woman has a right to an abortion where the pregnancy poses a risk to her
life.
11
The Kenyan constitutional protection of the right to life contains an explicit clause stating that abortion, although
generally not permitted, is allowed where the life or health of the pregnant woman is at risk, there is need for emergency
treatment, or if permitted by any other written law.
12
The Costa Rican Penal Code permits abortion when necessary to
preserve the life or health of the pregnant woman.
13

Importantly, under international law, a right to life before birth cannot be absolute. International human rights standards
provide that any rights or protections accorded to prenatal life are necessarily limited by the rights of women,
14
and a
fundamental principle of international law states that governments cannot invoke their domestic law to justify non-com-
pliance with treaty obligations.
15

Safeguarding Womens Rights while Promoting Prenatal, Infant, and Child Survival
In many cases, womens rights align with both an interest in prenatal life and regard for the life and well-being of any
existing children the woman may have. Accordingly, governments can take a number of actions to promote prenatal,
infant, and child survival while respecting womens human rights:
o Provide the information and means for women to determine the number and spacing their pregnancies.
Infant and maternal mortality can be greatly reduced by increasing the intervals between births.
19

STRIKING A BALANCE: WOMENS RIGHTS AND AN INTEREST IN PRENATAL LIFE (continued)
RESTRICTING WOMENS REPRODUCTIVE RIGHTS DOES NOT PROMOTE LIFE
Efforts to promote a right to life before birth often simultaneously aim to restrict access to both contraception
and abortion. These actions are couched in rhetoric espousing the value of life, but they often serve the
opposite purpose, driving rates of maternal mortality and morbidity higher. Evidence demonstrates that the
legal status of abortion does not affect the incidence of induced abortions.
16
Instead, restrictive abortion
laws contribute to higher rates of unsafe abortion with attendant risks to the life and health of the pregnant
woman.
17
Lack of access to contraception, including emergency contraception, leads to higher rates of
unintended pregnancies and higher rates of induced abortion.
18
Arguments for recognizing a right to life
before birth have not addressed this crucial paradox.
www.reproductiverights.org
STRIKING A BALANCE: WOMENS RIGHTS AND AN INTEREST IN PRENATAL LIFE (continued)
o Promote access to adequate nutrition and nutritional supplements for pregnant women. Anemia and malnutrition
during pregnancy contribute to higher rates of maternal and infant death and low birth weight,
20
and inadequate
folic acid intake can lead to life- or health-threatening conditions, such as spina bida.
21

o Increase access to emergency obstetric care and skilled birth attendants. Emergency obstetric care and skilled
attendance during birth can help detect and treat complications, such as eclampsia and obstructed labor, that
can lead to stillbirths and death or disability of women and newborns.
22

o Reduce maternal mortality. Maternal death is closely linked to child mortality, and [c]hildren who have lost their
mothers are up to 10 times more likely to die prematurely than those who have not.
23

o Improve access to the interventions necessary to prevent vertical transmission of HIV. The risk of vertical HIV
transmission can be reduced to less than 2% where pregnant women living with HIV have access to several key
interventions,
24
improving the chance of child survival.
o Address underlying social conditions that can contribute to high-risk pregnancies, such as intimate partner
violence. Intimate partner violence during pregnancy has been shown to lead to greater risk of miscarriage and
pre-partum hemorrhage, as well as pre-term labor and low birth weight.
25
1
Lakshmi Dhikta v. Government of Nepal, Writ No. 0757, 2067 (2007) (Supreme Court of Nepal) (unoffcial translation on fle with the Center for Reproductive Rights)
[hereinafter Lakshmi Dhikta v. Nepal].
2
Nlez stavnho sdu Slovenskej republiky, sp. zn. [Decision of the Constitutional Court of the Slovak Republic, No.] PL. S 12/01-297 (Dec. 4, 2007), at 10
(unoffcial translation on fle with the Center for Reproductive Rights) [hereinafter Slovak Constitutional Court Decision].
3
Vo v. France, App. No. 53924/00, Eur. Ct. H.R., ! 80 (2004).
4
See, e.g., TC, Acrdo N.
o
75/2010, Mar. 26, 2010 (60 Dirio da Rep.15566) (Port.); WOMENS LINK WORLDWIDE, C-355/2006: EXCERPTS OF THE CONSTITUTIONAL COURTS RULING
THAT LIBERALIZED ABORTION IN COLOMBIA (2007) [hereinafter Colombian Constitutional Court Decision]; Lakshmi Dhikta v. Nepal, supra note 1; Slovak Constitutional Court
Decision, supra note 2. See also, Paton v. United Kingdom, App. No. 8416/79, 19 Eur. Comm`n of H.R. Dec. & Rep. 244, ! 9 (1980).
5
Colombian Constitutional Court Decision, supra note 4, at 53.
6
L.C. v. Peru, CEDAW Committee, Commc`n No. 22/2009, ! 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011).
7
REBECCA J. COOK, INTERPRETING THE PROTECTION OF LIFE 4 (2010), http://www.gire.org.mx/publica2/SeminarioAborto_300810_Cook_eng.pdf.
8
IR. CONST., 1937, art. 40.3.3.
9
CONSTITUTION, art. 26(2) (2010) (Kenya) [hereinafter Constitution of Kenya].
10
Sala Constitiucional de la Corte Suprema de Justicia [Constitutional Chamber of the Supreme Court of Justice], Expediente [Record] No. 95-001734-0007-CO, Voto
[Vote] No. 2306-00, Mar. 15, 2000 (Costa Rica).
11
Attorney General v. X and Others, [1992] 1 I.R. 846P (Ir.).
12
Constitution of Kenya, supra note 9, at art. 26(4).
13
Cdigo Penal [CP] (Penal Code) No. 4573, art. 121, May 4, 1970 (Costa Rica).
14
See, supra, International and Regional Standards on the Right to Life Fact Sheet.
15
Vienna Convention on the Law of Treaties, art. 27, adopted May 23, 1969 (entered in to force Jan. 27, 1980).
16
WORLD HEALTH ORGANIZATION (WHO), UNSAFE ABORTION: GLOBAL AND REGIONAL ESTIMATES OF THE INCIDENCE OF UNSAFE ABORTION AND ASSOCIATED MORTALITY IN 2008 6 (6th ed.,
2011).
17
Id.; Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health Anand Grover, Interim Report of
the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, ! 21, U.N. Doc. A/66/254 (Aug. 3,
2011).
18
GUTTMACHER INSTITUTE, ABORTION WORLDWIDE: A DECADE OF UNEVEN PROGRESS 37 (2010).
19
UNITED NATIONS POPULATION FUND (UNFPA), MDG Linkages to UNFPAs Work on Population, Reproductive Health and Womens Empowerment, http://www.unfpa.org/
public/home/sitemap/icpd/MDGs/pid/6626 (last visited Dec. 9, 2011).
20
WHO, COUNTDOWN TO 2015 DECADE REPORT (2000-2010) WITH COUNTRY PROFILES: TAKING STOCK OF MATERNAL, NEWBORN, AND CHILD SURVIVAL 13 (2010).
21
WHO, NUTRITION FOR HEALTH AND DEVELOPMENT: A GLOBAL AGENDA FOR COMBATING MALNUTRITION 17 (2000).
22
The Partnership for Maternal, Newborn and Child Health, Make Stillbirths Count, 13 KNOWLEDGE SUMMARY: WOMEN AND CHILDRENS HEALTH 2, 3 (2011); WHO, Making
Pregnancy Safer: Skilled birth attendants, http://www.who.int/making_pregnancy_safer/topics/skilled_birth/en/index.html (last visited Dec. 9, 2011).
23
UNFPA & UNITED NATIONS CHILDRENS FUND, WOMENS AND CHILDRENS RIGHTS: MAKING THE CONNECTION 51 (2010).
24
WHO, PMTCT STRATEGIC VISION 2010-2015: PREVENTING MOTHER-TO-CHILD TRANSMISSION OF HIV TO REACH THE UNGASS AND MILLENNIUM DEVELOPMENT GOALS 6 (2010).
25
WHO, INTIMATE PARTNER VIOLENCE DURING PREGNANCY: INFORMATION SHEET 2 (2011).
www.reproductiverights.org
WOMENS RIGHTS JEOPARDIZED BY PRENATAL PROTECTIONS
When governments prioritize an interest in prenatal life over womens fundamental rights, women may be denied access
to emergency contraception, safe abortion, post-abortion care, and other essential health services, such as life-saving or
emergency treatment. States that do so jeopardize womens rights to life and health; freedom from cruel, inhuman, or
degrading treatment; liberty and personal security; freedom from discrimination; and autonomy.
Womens Right to Life and Health
Case Study: Zs story
1

In early 2004, Zs daughter, a Polish woman in her second month of pregnancy, was diagnosed with ulcerative colitis,
a serious and painful colon disease. When seeking medical treatment, however, Zs daughter found that doctors were
more concerned with the fetus than with her medical needs. Doctors in her hometown and nearby cities refused to
offer her life-saving care for this very treatable condition, even though it was unlikely that the fetus would be harmed.
In September 2004, Zs daughter miscarried, and she died shortly thereafter without receiving the treatment that she
needed to save her life and prevent a miscarriage. In 2008, Z brought this case to the European Court of Human Rights,
asserting that by prioritizing the health of the fetus over her daughters health, the government violated her daughters
rights to life, to freedom from inhuman and degrading treatment, and to non-discrimination. The European Court has
not yet issued a decision in this case.
Case Study: L.C.s story
2

L.C., a young girl from Peru, was 13 years old when she found out that she was pregnant, after having been repeatedly
raped by a neighbor. Scared and ashamed, L.C. attempted to commit suicide by jumping off the roof of a building near
her home. Her suicide attempt resulted in a devastating spinal injury, and doctors concluded that an emergency surgery
was necessary to stabilize her, reduce the risk of paralysis of her arms, and potentially help her regain control over her
bowels. However, when hospital staff learned that L.C. was pregnant, they postponed the surgery. L.C. and her mother
requested a legal therapeutic abortion, but hospital ofcials denied their request. L.C. eventually suffered a miscarriage.
Several weeks after the miscarriage, and more than three months after she was told she needed surgery, L.C. nally
underwent the procedure. The excessive delay, coupled with the absence of adequate rehabilitation treatment, rendered
the procedure virtually useless. L.C. is now quadriplegic. In 2011, the CEDAW Committee held that the Peruvian govern-
ment violated L.C.s rights to health and to freedom from discrimination by prioritizing the interest of the fetus over L.C.s
physical and mental health, and denying L.C. an abortion.
Case Study: Haydees Story
3

Haydee, a woman from the Philippines, was diagnosed with a grave medical condition as a result of her rst pregnancy.
During her second pregnancy, she suffered a stroke and her health deteriorated quickly. A doctor recognized the im-
minent threat that this second pregnancy posed to her life, and performed a safe abortion. Although she tried to prevent
subsequent pregnancies, Haydee was unable to access medically appropriate and affordable contraceptives and became
pregnant again. Despite the fact that Haydee needed an abortion to save her own life, the doctor she consulted prioritized
the life of the fetus and refused to provide the necessary abortion because it is the taking of a life. Fearing for her life,
Haydee self-induced an abortion and experienced serious complications and weeks of heavy bleeding as a result. When
she sought emergency care at a hospital, a doctor told her, [t]hat is a sin. You killed your own child. The medical staff
proceeded to verbally abuse her, and threatened to report her to national authorities, despite the risk that continued
pregnancy had posed to her life and health.
www.reproductiverights.org
WOMENS RIGHTS JEOPARDIZED BY PRENATAL PROTECTIONS (continued)
Womens Right to be Free from Cruel, Inhuman or Degrading Treatment
Case study: K.L.s story
4

K.L., a 17-year-old Peruvian girl, was pregnant with an anencephalic fetus, a fetal abnormality that is ultimately fatal in
all cases. K.L.s doctors informed her that continued pregnancy posed risks to her life and physical and mental health,
and recommended that she terminate the pregnancy. The hospital director, though, refused to authorize the legal abor-
tion, forcing K.L. to carry the pregnancy to term. The baby survived for four days after birth, during which time hospital
ofcials made K.L. breastfeed the child. This harrowing experience had a severe impact, and doctors diagnosed K.L.
with severe depression requiring psychiatric treatment. A psychiatric report concluded that the so-called principle of
the welfare of the unborn child has caused serious harm to the mother, since she has unnecessarily been made to carry
to term a pregnancy whose fatal outcome was known in advance.
5
In 2005, the Human Rights Committee found that
the mental suffering K.L. experienced as a result of the denial of therapeutic abortion constituted cruel, inhuman, and
degrading treatment.
Womens Right to Liberty and Security
Case study: Zs story
6

In May 2006, Z, a young pregnant woman from one of Moldovas poorest regions, self-induced an abortion at a late stage
of her pregnancy. Suffering from severe blood loss, she sought emergency care at a local hospital, only to be reported to
the police by doctors and then detained. Even though there is no criminal penalty under Moldovan law for women who
have illegal abortions, Z was charged with intentional and premeditated murder, and in December 2006, she was sen-
tenced to 20 years in prison. Harassed by guards, denied essential medical care, and subjected to inhuman conditions,
Z might be 45 years old by the time she is released from jail. By charging Z with murder, the state implicitly recognized
the fetus as a legal person capable of being a victim of homicide. In 2009, this case was brought to the European Court
of Human Rights, asserting that by charging Z with the murder of her fetus, the government violated Zs rights to liberty,
security, and a fair trial; the right to be free from inhuman and degrading treatment; the right to not be convicted of and
punished for a crime with no basis in law; and the right to be free from discrimination. The European Court has not yet
issued a decision in this case.
Case study: Carmen and Manuelas story
7

Carmen and Manuela, Salvadorian women, both suffered complications during labor leading to stillbirths. When the
women sought follow-up medical care, doctors accused both women of having undergone abortions in violation of El
Salvadors restrictive abortion law. Police immediately arrested them for homicideone of the women was shackled while
she was still receiving critical medical care. Both were sentenced to more than 30 years in prison. In Carmens case, after
more than eight years in prison, a judge ordered her release, acknowledging that a mistake had been made. Neverthe-
less, the government never compensated Carmen for the grievous rights violations. Manuela died in prison; she had
suffered from Hodgkins lymphomaa form of cancerbefore she even became pregnant, but she received treatment
only after it was too late to save her. Investigating and imprisoning women for experiencing stillbirths violates their rights to
liberty and security of the person, along with a number of other fundamental rights.
www.reproductiverights.org
WOMENS RIGHTS JEOPARDIZED BY PRENATAL PROTECTIONS (continued)
Womens Rights to Privacy and to Decide the Number and Spacing of Children
Case study: Ana Cristinas story
8

Ana Cristina Castillo, a Costa Rican woman, and her husband had been trying to have children for eight years. She suf-
fers from endometriosis damage, while her husband has a low sperm count. After three years of unsuccessfully trying
hormones, surgery, and insemination, the couple started in vitro fertilization (IVF). Before they were able to conceive,
though, the practice was outlawed. In 2000, Costa Ricas Constitutional Chamber of the Supreme Court of Justice held
that human life begins at conceptionwhich the Court dened as the moment of fertilizationand is entitled to the
protection of the law from that point. According to ve of the seven justices, IVF places human life at too great a risk be-
cause some of the embryos will perish. In 2010, the Inter-American Commission on Human Rights held that the Courts
decision violated Ana Cristinas rights to be free from arbitrary interference with ones private life, to found a family, and to
equality. The Commission urged the government to adopt proportionate measures allowing IVF in a manner that balances
womens fundamental rights with the states interest in protecting life.
Case study: Emergency Contraception in Honduras
9

Hondurass Constitution provides that the unborn will be treated as a born person in the context of individual consti-
tutional rights, including the right to life.
10
On that basis, a 2009 Ministerial decree prohibits the promotion, use, sale,
purchase, and free distribution of emergency contraception (EC) on the scientically inaccurate grounds that EC could
potentially cause an abortion. This decree prohibits the dissemination of information on EC and applies to all individuals,
including victims of sexual violence, denying women access to an effective means of preventing unwanted pregnancies
and the related risks that unwanted pregnancies can present. In practice, this means that if a woman or girl is sexually
assaulted, healthcare providers cannot give her the care that she needs to prevent a pregnancy resulting from rape.
The ban violates womens right to privacy and the right to decide the number and spacing of children, as well as their
right to health. The Committee on the Rights of the Child has linked the prohibition of emergency contraception in other
countries with violations of womens and adolescent girls right to health, particularly in the context of sexual violence.
11
1
Z. v. Poland, Statement of Facts and Questions to the Parties, App. No. 46132/08 Eur. Ct. H.R. (2009).
2
L.C. v. Peru, CEDAW Committee, Commc`n No. 22/2009, ! 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011).
3
CENTER FOR REPRODUCTIVE RIGHTS, FORSAKEN LIVES: THE HARMFUL IMPACT OF THE PHILIPPINE CRIMINAL ABORTION BAN 38-41 (2010).
4
K.L. v. Peru, Human Rights Committee, Commc`n No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003 (2005).
5
Id. ! 2.5
6
CENTER FOR REPRODUCTIVE RIGHTS, Z. V. MOLDOVA, http://reproductiverights.org/en/case/z-v-moldova (last visited Dec. 9, 2011). See also, Application No. 28415/08 to the
Eur. Ct. H.R. (2009) (on fle with the Center for Reproductive Rights).
7
Interview with Carmen, in San Salvador (July 15, 2011) (on fle with the Center for Reproductive Rights); Interview with Manuela`s relatives, in Morazn (July 17, 2011)
(on fle with the Center for Reproductive Rights).
8
Press Release, Center for Reproductive Rights, Center Joins Couples` Legal Battle Against Costa Rica`s IVF Ban (Dec. 10, 2004), available at http://reproductiverights.
org/en/press-room/center-joins-couples%E2%80%99-legal-battle-against-costa-rica%E2%80%99s-ivf-ban; Letter from interested civil society to the Inter-American
Commission on Human Rights (Nov. 10, 2010), available at http://reproductiverights.org/sites/crr.civicactions.net/fles/documents/Carta%20Costa%20Rica.pdf.
9
Secretara de Salud [Secretary of Health], Acuerdo [Resolution] No. 2744, Oct. 21, 2009 (Hond.).
10
CONSTITUCIN POLTICA DE LA REPBLICA DE HONDURAS, art. 67 (1982).
11
Committee on the Rights of the Child, Concluding Observations: Ecuador, ! 60, U.N. Doc. CRC/C/ECU/CO/4 (2010).
www.reproductiverights.org
THE LAW DEFINES LEGAL PERSONHOOD, NOT HUMAN LIFE
In general, laws dene legal personhooda term used to determine who is accorded rights and protections within a legal
system
4
separately from moral, ethical, and religious perspectives on when life begins.
5
Courts have observed that the
task of the judiciary is to interpret the law in accordance with their legal traditions, and not to engage in moral or spiritual
discourse.
6
Many courts that have addressed abortion, for instance, have observed that the judicial task is not to resolve
conicts about biological facts or moral or spiritual values [about when life begins], but to make determinations of law,
according to legal traditions and contexts, guided but not governed by social effects.
7
Legal Consequences of Recognizing Prenatal Personhood
The rights and entitlements that accompany legal personhood virtually always accrue at birth. Recognizing legal person-
hood at any stage of prenatal development could have wide-ranging, and often unintended, consequences throughout
the legal sphere, which could lead to further human rights violations and other legal inconsistencies:
o Violating the Separation of Church and State: Recognizing prenatal personhood could carry implications for
constitutional protections of freedom of religion and conscience.
8
In such a context, individuals whose moral,
ethical, or religious beliefs lead them to believe that life begins at birth could be restricted from acting in a manner
consistent with their religious views, such as procuring an abortion when the pregnant womans life is at risk.
9

We need not resolve the difcult question of when life begins. When those trained in their
respective disciplines of medicine, philosophy and theology are unable to arrive at any
consensus, the judiciaryis not in a position to speculate.
- United States Supreme Court, Roe v. Wade
1

The Constitutional Courts role in this proceeding is neither answering the philosophical,
moral or ethical question when the human life starts, nor the question of correctness or
morality its only role is to answer the question what are the constitutional side fences
that the Constitution sets to the legislator.
- Constitutional Court of the Slovak Republic, Decision on the Constitutionality of the Act on Articial
Interruption of Pregnancy
2

These are topics on which men and women of different faiths, or indeed of no faith at all,
may and do hold, passionately and with the utmost sincerity, starkly differing views. All of
those views are entitled to the greatest respect but it is not for a judge to choose between
them. The days are past when the business of the judges was the enforcement of morals or
religious belief.
- United Kingdom, High Court of Justice, Queens Bench Division, Smeaton v. The Secretary of State
www.reproductiverights.org
THE LAW DEFINES LEGAL PERSONHOOD, NOT HUMAN LIFE (continued)
o Complicating Criminal Laws: Granting legal personhood status before birth would mean that zygotes, embryos,
and fetuses are included as victims throughout the penal code, opening the door to criminal investigation and
prosecution of women who suffer miscarriages or stillbirths.
10

o Limits on Womens Behavior and Autonomy: Recognizing legal personhood in utero could lead to restrictions
on the behavior of pregnant women. Pregnant women could be sanctioned for child abuse or endangerment if they
engage in behavior that is deemed risky to the fetus, such as riding in a car without their seatbelt fastened or
drinking alcohol at any gestational stage.
o Reproductive Technologies: Recognizing legal personhood as beginning at fertilization could have signicant
consequences for women seeking fertility treatment. For example, women undergoing in vitro fertilization could be
required to implant all fertilized eggs to avoid the destruction or freezing of some embryos. This practice could
lead to higher rates of multiple pregnancies and jeopardize both the health of women and fetal development.
o Property Laws: Legal personhood status for prenatal life could have implications for property rights by allowing
zygotes, embryos, or fetuses to have inheritance rights that currently are only granted to individuals who are alive
after birth for a certain period of time.
o Registration: Vital registration, such as a census used to determine the funding and distribution of services and
resources or a death registry, could be seriously impacted if zygotes, embryos, or fetuses were counted as legal
persons. Pregnant women who miscarry could be required to register the miscarriage through death registries.
1
Roe v. Wade, 410 U.S. 115, 157 (1973).
2
Nlez stavnho sdu Slovenskej republiky, sp. zn. [Decision of the Constitutional Court of the Slovak Republic, No.] PL. S 12/01-297 (Dec. 4, 2007), at 1 (unoffcial
translation on fle with the Center for Reproductive Rights).
3
Smeaton v. The Secretary of State for Health [2002] EWHC 610 (High Court Administrative, England), 2 FAM. L. REP. 146 (2002) (holding that emergency
contraception does not constitute abortion under the Offences against the Person Act of 1961).
4
See Joesph F. Bell, Schiavo's Right to Refuse Food and Water: Ascendancy of the Artifcial Natural Person, 2 LIBERTY U.L. REV. 193 (2007); JOHN CHIPMAN GRAY,
THE NATURE AND SOURCES OF THE LAW 27 (2nd ed. 1972).
5
See, e.g., Wartelle v. Women`s and Children`s Hosp., Inc., 705 So. 2d 778, 780 (1997); Christian Lawyers Association of South Africa v. The Minister of Health, 1998
(11) BCLR 1434 (T).
6
Rebecca J. Cook. Human Rights Dynamics of Abortion Law Reform, 25 HUM. RTS. Q. 1, 25 (2003) (discussing the role of courts in answering moral and ethical
questions).
7
Id. at 26.
8
See, e.g., COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, REP. OF THE COMMITTEE OF EXPERTS ON CONSTITUTIONAL REVIEW, ISSUED ON THE SUBMISSION OF THE PROPOSED
CONSTITUTION OF KENYA 14 (2010); John Morton Cummings, Jr., The State, the Stork, and the Wall: The Establishment Clause and Statutory Abortion Regulation, 39
CATH. U.L. REV. 1191, 1193 (1990).
9
Many Jewish denominations agree that abortion is a religious duty when the pregnant woman`s life is in danger. See, e.g., Brief for American Jewish Congress et al.
as Amici Curiae, Webster v. Reproductive Health Services, et al., 492 U.S. 490 (1989) (No. 88-605); Religions: Abortion, Judaism and Abortion, BBC, (July 15, 2009),
http://www.bbc.co.uk/religion/religions/judaism/jewishethics/abortion_1.shtml.
10
See, e.g., Jason Foster, Woman faces charge of killing unborn child during August suicide attempt, HERALD ONLINE, Feb. 21, 2009, www.heraldonline.com/2009/02/21/1152282/
woman-faces-charge-of-killing.html.