The Human Rights Aspects of Abortion

• Date: 01 January 2017
• Author: Molly Joyce

27

e Human Rights Aspects of Abortion

MOLLY JOYCE

Introduction

Abortion has not traditionally been viewed as a human rights issue. In particular,

the political debate and legal framework surrounding abortion in many countries

has revolved primarily around cultural and religious claims regarding the morality

of abortion as well as the status of the foetus.1 Abortion has further been typically

framed as a criminal matter so that abortion remains illegal in many countries, with

limited exceptions to that illegality carved out in law.2

In this environment, the recognition of abortion as an issue aecting the

reproductive, liberty and privacy rights of the pregnant woman, among other

rights, has oen been overlooked. While the human rights aspects of abortion have

been increasingly considered and put into practical eect in many countries such

as South Africa3 and Canada4 and by international bodies such as the European

Court of Human Rights (“the ECtHR”),5 there has generally been a very limited

1 Stephanie Palmer, “Abortion and Human Rights” (2014) 6 E.H.R.L.R. 596, pp. 596 –597

2 For example, the UK model retains the oence of attempting to “procure a miscarriage” but

provides doctors with a legal defence according to the terms of the Abortion Act 1967 (c.87) (UK),

ibid, p. 597. Similarly, Article 149a, §1, of the Polish Criminal Code retains the oence of causing

the “death of a conceived child” with §3 providing a defence to doctors who perform abortions in

accordance with the Family Planning, Human Embryo Protection and Conditions of Permissibility

of Abortion Act 1993 while Articles 441-447 of the Ecuador Penal Code make it an oence for

a doctor to provide an abortion unless it was done to “prevent danger to the life or health of the

mother” or it was provided in a situation where the pregnancy resulted from “rape or statutory rape

committed against a woman who is an idiot or insane”. See Centre for Reproductive Rights, ‘World

Abortion Laws’, available at http://worldabortionlaws.com/map/ [Accessed 21 March 2017].

3 An example is the South Africa Choice on Termination of Pregnancy Act 1996 which recognises

the reproductive rights and freedom of every woman to choose whether to have an early, safe and

legal termination of pregnancy, see Women’s Legal Centre, “Conscientious Objection and the

Implementation of the Choice on Termination of Pregnancy Act 92 of 1996 in South Africa”

(WLC, 2010). In addition, the seminal US case of Roe v Wade 410 US 113 (1973) involved

extensive discussion of the privacy rights of the pregnant woman.

4 See for example the Canadian Supreme Court case of R v Morgentaler [1988] 1 S.C.R. 30, where the

Supreme Court found that the Canadian Criminal Code’s prohibition on abortion violated section

7 of the Canadian Charter of Rights and Freedoms which protects the “right to life, liberty and

security of the person”. Specically, the majority of the justices found that these abortion provisions

violated the right to the security of the person, with only one justice (Justice Wilson) concluding that

the provisions also violated the right to “liberty”.

5 For example, the European Court of Human Rights [hereinaer ECtHR] has recognised that laws

surrounding abortion may impact e.g. a woman’s Article 8 right to privacy and Article 3 right to

prevention of cruel, inhuman or degrading treatment, see Nedim Malovic, “Access to Abortion

02 Joyce.indd 27 30/05/2017 16:32