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Abortion on Demand and the European Convention on Human Rights

Published on February 23, 2013        Author: 

Director of the European Centre for Law and Justice (ECLJ), Expert at the Council of Europe. This article synthesises a section of a study on “Abortion and the European Convention on Human Rights” that will be published in the coming weeks.

The European Court of Human Rights (the Court) has issued several judgments on abortion, especially in recent years since the fundamental ruling of the Grand Chamber in A. B. and C. v. Ireland of 2010. In those cases, the Court found violations of the European Convention on Human Rights (the Convention) in specific situations where the life or the health of the pregnant woman was endangered, or when the pregnancy was the consequence of a rape. The purpose of this article is firstly to identify the rationale of the Court on the matter of abortion, and secondly to observe how it applies to the vast majority of abortions practiced, i.e. “abortion on demand”, also called on request:  abortions that are not justified by a matter of health, life or rape, but by the free will of the woman.

Through its various rulings, the Court explicitly declared that abortion is not a right under the Convention: there is no right to have an abortion (Silva Monteiro Martins Ribeiro v. Portugal) or to practice it (Jean-Jacques Amy v. Belgium). The prohibition per se of abortion by a State does not violate the Convention, (Silva Monteiro Martins Ribeiro v. Portugal see also the case of the first two applicants who unsuccessfully complained of the prohibition of abortion on demand in A. B. and C. v. Ireland), but States can allow it for the sake of competing rights guaranteed by the Convention, i.e. the life and the health of the pregnant woman. In other words, it can be said that the Court tolerates an abortion if it is justified by a proportionate motive protected by the Convention.

It is uncontested, even by the promoters of a right to abortion, that there is no direct or indirect right to abortion on demand or for socio-economic reasons in any international or regional treaty, including the European Convention on Human Rights (Ch. Zampas and J. Gher, “Abortion as a Human Right…” p. 287). Abortion on demand is illegal in three out of four countries in the world. When the Convention was drafted, abortion on demand was widely recognised as a crime (Brüggemann and Scheuten v. Federal Republic of Germany § 64). It is true that the absence of right does not creates a prohibition and vice versa, but legal arguments supporting that abortion on demand does not hurt the Convention do not resist the analysis. When applying the reasoning and the case-law of the Court to such claims of abortions, they fail to find any justification under the Convention.

In cases where abortion is legal, the Court has established that its legal framework shall adequately take into account the different legitimate interests involved. The Court has stressed several times that if and:

once the state, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations”,the legal framework devised for this purpose should be shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” (A. B. and C. v. Ireland § 249; R. R. v. Poland § 187; P. and S. v. Poland § 99; see also Tysiac v. Poland, § 116).

This wording became the principle underpinning the regulation of abortion by the Court. Therefore, States are free as to decide to allow or not abortion, but once the national legislator decides to legalise it, the Court can assess its legal framework by looking whether in the specific situation at stake a fair balance was struck between the various rights and interests involved in the issue. As the Grand Chamber said simply, “It is also clear from an examination of these cases [of the Commission and Court] that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms” (Vo v France § 80). In synthesis, once a State decides to allow abortion, its “margin of appreciation is not unlimited” “as to how it balances the conflicting rights”; then “the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved(A. B. and C. v. Ireland §§ 238; 237).

The Court has already identified a number of those “different legitimate interests involved” such as the legitimate interest of society in limiting the number of abortions (Odièvre v. France § 45), the interests of society in relation to the protection of morals (Open Door and Dublin Well Woman v. Ireland § 63; A. B. and C. v. Ireland  §§ 222-227). The Court has also identified a number of rights guaranteed by the Convention that can be curtailed by an abortion, in addition to the right to life of the unborn which status is still not clearly defined.  One may think that the only Convention right affected by an abortion is the right to life of the unborn child. This is not the case, otherwise, how could be justified the limitations of access to abortion, such as the prohibition of sexist or late-term abortions? Those rights are article 3 and 8. The Court applied to the unborn the prohibition of torture in Boso v. Italy, and the right to respect for family life to the “potential father” in X. v. the United Kingdom and to the potential grand-mother in P. and S. v. Poland. There are also other rights curtailed in specific situations, in particular the freedom of conscience of health professionals (Tysiac v. Poland § 121; R. R. v. Poland § 206) and of medical institutions (Rommelfanger v. FRG). The matter of the rights of disabled people in regard to wrongful birth (K. v. Latvia) and wrongful life cases (M. P. v. Romania) is also currently before the Court.

As shown in its case-law, for the Court, abortion should have (at least apparently) an objective motive that may outweigh the various competing rights and interests affected by the procedure and guaranteed and recognised by the Convention, namely the protection of the life and of the health of the pregnant woman.

Examining the Court’s case-law, it appears that the Court has never admitted that the free-will or the autonomy of the woman could, on its own, suffice to justify an abortion. No right to abortion stems from the right to personal autonomy; as it was reaffirmed recently in the P. and S. v. Poland, case, the Grand Chamber of the Court “has held that Article 8 [guaranteeing personal autonomy] cannot be interpreted as conferring a right to abortion” in A. B. and C. v. Ireland (§ 214). Therefore, while abortion on demand finds no justification under the Convention, it affects rights guaranteed by the Convention and interests recognized by it. The curtailment of those rights and interests by abortion on demand is not balanced with, and justified by any competing right guaranteed by the Convention. Consequently, abortion on demand violates the Convention, although it represents the vast majority of all abortions performed. This violation by the State is even more flagrant when we do not only consider the negative obligations of States under the Convention not to take life, but also the positive obligations to protect and support life, the pregnant women and family life.

Logically, regarding abortions that are not on demand, their necessity and proportionality with their cause and aim should be established in order to respect the Convention (A. B. and C. v. Ireland § 249; R. R. v. Poland § 187; P. and S. v. Poland § 99).

The only way for the Court to conclude that abortion on demand would not violate the Convention would be to declare that the unborn child is not a person, and, in addition, to renounce to offer protection to the other rights and interests affected by the abortion. For that the Court would have to push the unborn into a legal gap. If, on the one hand, the Court allows States, within their margin of appreciation, to determine in their internal order “when the right to life begins” (Vo v France § 82), on the other hand, the Court since Brüggemann and Scheuten v FRG  (§ 60) and R. H. v. Norway (p. 167) has always refused to exclude the unborn from the field of application of the Convention and to declare that he/she is not a person within the meaning of the Convention. In Vo v France, the Grand Chamber said “that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention”, and added that “it may be regarded as common ground between States that the embryo/foetus belongs to the human race” and that he/she “require[s] protection in the name of human dignity” (§ 85). As Judge Jean-Paul Costa explained “Had Article 2 been considered to be entirely inapplicable, there would have been no point – and this applies to the present case also – in examining the question of foetal protection and the possible violation of Article 2, or in using this reasoning to find that there had been no violation of that provision” (Separate Opinion in Vo v France §11).

At first glance, people may think that abortion on demand is acceptable under the Convention because the Court has not yet condemned a State for permitting it. It is so only because of the general toleration of abortion in Europe, because the direct victims of abortion never had the chance to survive and to complain before the Court, and because the opponents to abortion have not been recognised as victim (Borre Arnold Knudsen v. Norway and X. v. Austria). Until now, only the pregnant women have been able to successfully complain, as victims, for difficulties in access to legal abortion, for malpractice or physical complications of abortion (Csoma v. Romania). Regarding the father, the Court has recognized that “as a potential father he could claim to be a victim” of the abortion practiced on his unborn child (Boso v. Italy, see also X. v. the United Kingdom). The reason why the Court found no violation of the father’s rights is only because in those cases, abortions were declared aimed at preserving the mothers’ health, and therefore justified and proportionate in the eyes of the Court. Judge Jean-Paul Costa noticed a contrario: “It would have had to reach the opposite conclusion had the legislation been different and not struck a fair balance between the protection of the foetus and the mother’s interests. Potentially, therefore, the Court reviews compliance with Article 2 in all cases in which the “life” of the foetus is destroyed” (Separate opinion in Vo v France § 13). The Court also recognized under article 8 that “the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not” (P. and S. v. Poland § 109), therefore, a potential grand-parent can also have locus standi.

Possibly, one day a father or grand-parent of an unborn child will complain before the Court and succeed to save the life of their child. All that such a father or grandparent has to do is to fax a letter to the Court under article 39 of the Rules of the Court, requesting it to take urgent and interim measures in order to avoid the realization of a serious and imminent risk of breach of a fundamental right. All they have to do is to request that the rights to life (art. 2) and to physical integrity and dignity (art. 3) of their unborn child or grand-child be preserved, and that their right to family life (art. 8) be protected. The relatives of the unborn child could successfully obtain from the Court an order to suspend the procedure of abortion, if they demonstrate that this abortion is not justified by a proportionate motives guaranteed by the Convention; they may also inform the Court that they are ready to rear the child. This procedure has never been used yet to stop an abortion, but it could be an effective way to save lives. It would be in continuity with the original meaning of the Convention and with the Court’s own case-law.

So far, the Court has stayed on the edge, refusing to throw the unborn child out of the scope of the Convention, and refusing to let him “naked”, without any legal protection. So far, the Court has gone as far as it could to tolerate abortion without nullifying the human beings before their birth. Currently, abortion advocates are repeatedly demanding the Court to jump this gap and to throw the unborn out, in the name of human rights.

It is still time for the Court to hold its mission to protect every human being, especially the weakest. It is true that people, at least in Western countries, do not really care for the life of the child before birth; maybe simply because we are out of danger: we do not face anymore the risk of being aborted. We care much more for the human rights that we may be deprived of. However, abortion on demand is nothing else than the domination of the born over the not-yet-born. One can say that it has its own legitimacy, but this legitimacy is only one of violence, even if we call this violence freedom; it should not be covered up with the legitimacy of human rights.

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19 Responses

  1. “The relatives of the unborn child could successfully obtain from the Court an order to suspend the procedure of abortion, if they demonstrate that this abortion is not justified by a proportionate motives guaranteed by the Convention; they may also inform the Court that they are ready to rear the child.”

    I am not a lawyer, so please excuse what is possibly a silly question: how is the pregnant woman to be restrained while this is going on?

  2. Diogo Alvim

    Congratulations for your article!
    In Portugal, where I’m from, there is still another interest to consider: that of the taxpayers. Given that all abortions are completely free of charge to women who request them, it is to the taxpayers to support the cost of the procedure.
    This, obviously, means that even those taxpayers who are morally against abortion have to pay for it against their moral principles and conscience. Their interests are being utterly ignored and even harmed.

  3. Giacomo Pailli

    Dear Gregor,

    in your contribution, you seem to have already answered the (very hard) question of whether the unborn is, indeed, a human being or “a life”. You also seem not to make any distinction based on timing: when does a foetus becomes a being? At conception, first 3 months, viability, birth? and why?

    I certainly agree that abortion is an area that still deserves careful attention and exploration. It is, indeed, a contentious field where reasonable people have very different opinions. But reading your article I had the sense I was thrown back to the ’70s when women and men in my country (Italy) hardly fought to establish every woman’s right to choose for herself. The law that was adopted, which also survived with 68% of popular consent an early attempt of abrogation via-referendum, admitted on-demand abortion in hospital within the first 3 months of pregnancy. It also ended a long trail of dead women who lost their lives attempting illegal abortions.

    What you might see as the victory of an arrogant majority over a weak and defenseless ‘yet-to-be’ human, I see as an achievement of our modern society.
    Would it be advisable for the ECHR to step into this debate and simply ignore what men and women have strenuously fought for?

  4. Andreea Popescu, former lawyer at the ECHR

    Original and great idea for the father or grandparents (and why not brothers and sisters?) to make use of Article 39 of the Rules of the Court in order to suspend the procedure of abortion!
    This would be a step forward to “further realization of human rights” (Preamble of the European Convention on Human Rights) by protecting the weakest, a real development of human rights.
    If Article 39 of the Rules of the Court was previously used to save the lives of in vitro babies (usually less protected by international norms), why wouldn’t it be used to save the lives of in utero babies before the Court?
    In Knecht v. Romania case (n° 10048/10), the applicant alleged a violation of her right to private and family life (Article 8 of the Convention) with regard to her inability to have a child by means of IVF using the embryos she had previously deposited in a private clinic, as her sixteen embryos were seized by the state authorities and deposited at the Institute of Forensic Medicine. On the request of the applicant under Article 39 of the Rules, four days later, the ECHR indicated to the Romanian Government that “in the interests of the parties and the proper conduct of the proceedings before the Court (…), under Rule 39 of the Rules of the Court, that the embryos should not be destroyed (…), for the duration of the proceedings before the Court” (§ 19). Therefore, the Romanian authorities had not only to “take the necessary measures to adequately preserve the applicants embryos” (§ 22), but they also had to pay the cost of storage, transportation, etc (§ 23) until the discontinuance of the interim measure (Article 39 of the Rules of the Court) and that since the 24th of February 2010 to 2 October 2012.
    The ECHR also gave the application priority treatment under Article 41 of the Rules of the Court (§ 4) and “requested to the Government, under Rule 54 § 2 (a) of the Rules of Court, to submit information as to the legal status of the embryos (…)” (§ 19 in fine).
    So, it is not a way back to the ’70, but a new and original path to fallow, but one needs to be bright and open minded to do that.
    As for the women’s right to choose for themselves, this right already exists and no one contests it, but if we have to be rigorous, abortion is not a woman’s right to choose for herself, but a right to choose for the life and death of the unborn child in this case.
    If women lost their lives attempting illegal abortions is because no one proposed them something else than abortion. Why abortion should be the only solution proposed to the women? Where is the freedom of choice here?

  5. Clément Mar

    While I find the reasoning very interresting, I share Giacomo Pailli’s opinion.

    Your premise is very subjective to say the least, as you seem to consider obvious that an unborn life is to be protected in the same way as a born one. This is very debatable and I fail to see how a small lump of cells should be be protected in the exact same way as a fully grown human being.

  6. Yakob Levi

    To Giacomo and Clement,
    The answer to the question of “when does the new life begin?” is not so relevant here. Call it a life or call it whatever else you would like, there is still a relevant interest of the father (and grandparents, etc.) here.
    Why? Well, the answer is simple: the foetus (or what other name you might want to call it) is a distinct genetic reality from the mother. It has that 50% genetic contribution from the father that makes it different from, for example, the appendix of the mother.
    It may be inside the body of the mother but it has a genetic identity of its own.
    What Gregor is talking about here is a pure “abortion on request” for no other reason that the wish of the mother. So, basically, a man and a woman have consented sex, she gets pregnant, he wants to keep the baby (whatever name you might want to call it, that’s the final product), she doesn’t and he has no say in the matter! You really think that is at all compatible with a rule of law system respecting human rights?

  7. Giacomo Pailli

    Dear Yakob,

    I am afraid there are no easy answers in this field. I am, myself, worried and concerned about the need to protect both the ‘yet-to-be’ human life and the father’s interest in the foetus.
    There is a physiological fact, however, that cannot be overlooked: the foetus only grows inside the mother’s womb, at least in the first months. Until this remains a medical reality, namely until it will be possible to grow at any time the child outside the woman’s womb (is it so desirable, though?), the only way to protect the life of the foetus is to impose ‘specific performance’ on the mother’s body.
    Hence, we are struck with competing violences: the life of the unborn versus the body and freedom of the mother. From this circumstance, the least worse mechanism that has been put in play is to balance between the two interests. The balance also turns on the way you define “life” and on the answer to the related question: when does the embryon stop being a ‘small lump of cell’ and become a human being?

    I am also tempted to reject the wording “on demand”. There certainly are women that use abortion as an ill method of birth control. But I guess, although I do not have data, that most women who undergo an abortion, including ‘on demand’, do not take this choice lightly, and often do it because of lack of social and economic resources. In this respect, I do share Andreea’s concerns: abortion should not be the only alternative given to women.

  8. Lorand Bartels Lorand Bartels

    I appreciate the legal analysis in this blogpost. But, like other commentators, I regret the low-quality advocacy towards the end.

    To say ‘It is true that people, at least in Western countries, do not really care for the life of the child before birth; maybe simply because we are out of danger: we do not face anymore the risk of being aborted’ is just wrong. The controversy is largely about when a foetus becomes a child.

    I hesitate to express views on what should and should not be published, and advocacy itself is a common feature of legal writing. I do not for that reason object to the advice to fax applications to the Court.

    But the unreasoned assertion quoted here is in a different category. In my view, it has no place in legal writing aspiring to anything like an academic standard.

  9. Sloet Steenkamp

    Lorand Bartels wrote: “The controversy is largely about when a foetus becomes a child.”
    Well, that’s the point. I have always been amazed at this “legal” argument: “We don’t know when a foetus becomes a human being; therefore an abortion “on demand” does not violate the right to life”.
    But… but… wait a minute! If you’re right, then the elementary logic and the plain, sound common sense tell us that all the abortions “on demand” should be immediately outlawed – until this question is clearly settled. Because if you don’t know whether a foetus is a person or not, then you logically admit that it might be. And if it might be, then it means that we are probably murdering human beings!
    (By analogy: if you have a gun and if you are a reasonable person, you will never shoot at a bush if you are not sure whether there are some people behind it that you can kill or wound.)
    Therefore, this “the controversy is about when a foetus becomes a child” stuff is an intellectually dishonest one. If you really think there is a controversy, then, first, you try to settle it as soon as possible, and second, you at least don’t do anything harmful in the meantime.
    As a matter of fact, it is rather strange to hear that “we cannot know for sure when a foetus becomes a child”. Oh really? We are able – at least in a continental or mixed legal system– to determine very precisely the moment of death in order to establish the right order of succession. In physics, we are able to calculate the Planck’s time and find out what happened a nanosecond after the Big Bang. And when a human being comes into existence, – this we are unable to know, huh? Unable or rather unwilling?
    To sum up, this is just a call to intellectual honesty, nothing more.

  10. Jakob Cornides Jakob Cornides

    I think that the question is not: “when does the fetus become a person?” or “when does it become a child?”. Whoever wants can avoid unwelcome conclusions simply by defining “person” or “child” according to his convenience. If you say that “personhood” requires cognitive faculties and self-consciousness, then maybe a fetus during he first weeks of pregnancy isn’t a “person”. And if for you a “child” exists only after birth, then a fetus isn’t a child. But that kind of reasoning is circular: the fetus isn’t a “person” or a “child” because you don’t want it to be one, and have crafted your terminology accordingly.

    There is however a completely uncontroversial reality: the fetus is a human being from the moment of conception. It is not a frog, it is not a vegetable, but it is a human being.

    Moreover, it is a distinct and individual human being, and not just a part of its mother. It has its own distinct genetic identity, which is different from that of the mother. Indeed, the separateness of the fetus is evidenced precisely by the fact that it can be created “in vitro”, and that in the case of natural conception it implants itself in the mother’s uterus only after some time.

    These are the objective realities.

    Thus I disagree with Lorand. It may be true that Mr. Puppinck didn’t expand on this point, but I think there is no need to repeat over and again what any educated person might be expected to know. This is neither “low-quality advocacy”, nor an unreasoned assertion, but rather a reflection how law applies to reality.

  11. Yakob Levi

    Dear Giacomo,
    You call those cells “yet-to-be human life” but I don’t understand how you reach that conclusion!
    1. It’s obvious that from the moment of conception those cells are living (the alternative would be to be inorganic or dead material, which they are not);
    2. It’s also obvious that they are a human life (the alternative being to consider them some other animal or plant life, an alternative pure logic would dismiss);
    3. To protect unborn life is common in relation even to animals (you are prohibited to hunt or fish most animal species during their mating and reproductive season and can’t collect eggs from endangered birds and reptiles);
    4. As such, not to give any legal protection to the unborn human life and to always privilege mother’s bodily wishes would lead to the strange result of protecting more many species of animals than human…
    And this leads us back to the main article: what about the rights of fathers and other relatives to protect what is already a human life with their genetic contribution? Not even to mention, as Diogo did, the rights of taxpayers who have to contribute to something they are very morally against with the money of their taxes?

  12. Lorand Bartels Lorand Bartels

    Jacob says ‘There is however a completely uncontroversial reality: the fetus is a human being from the moment of conception. It is not a frog, it is not a vegetable, but it is a human being.’ Yakob says something similar.

    It is certainly a potential human being. But it is not necessarily an extant human being worthy or protection. I used the world ‘child’ as shorthand for this concept. As for the arguments e contrario and from the particular to the general, well, these are simple logical fallacies. I agree that the arguments one way or the other are circular, or at least the assumption determines the conclusion. My point is that the assumption cannot be presupposed. The assumption is the arguable point.

  13. Jakob Cornides Jakob Cornides

    Lorand,

    concerning your theory about “potential human beings”:

    A. There is no doubt, as you yourself have agreed, that the human embryo is human.

    B. The term “being” (participium praesens of the auxiliary verb “to be”), implies that something “is”, i.e. that it exists. There obviously is no doubt about the existence of human embryos – otherwise, why would anyone need to abort them?

    C. Thus there is no doubt that the human embryo is a “human being”. But could you please explain to me (and the rest of us) where the “potential” comes in?

    Is it “potential” because it might be aborted? And again you might abort it because it is “potential”? That again seems circular.

  14. Grégor Puppinck Grégor Puppinck

    Thank you for your comments, here are some answers to your remarks, for the discussion:

    1. I did not say that for the ECHR the unborn is a person, but that the ECHR never said that he is not, and never excluded the unborn from the scope of the Convention, even when the national legislation allows abortion.

    2. It is also worth keeping in mind that the Court has refused the assertion that the pregnancy would only be the matter of the pregnant woman. The Court not only recognised the interests of the potential father and even of the grandmother, but also, more importantly, it declared that “pregnancy cannot be said to pertain uniquely to the sphere of private life” of the woman (see Bruggemann and Scheuten v. Germany and Boso v. Italy).

    3. The ECHR has never made any legal distinction between cells, embryos and fetus while considering the life in utero before birth; so it is not for us to introduce such non-legal distinctions while analysing its case-law; ubi lex non distinguit non debemus distinguere. (The distinction made in Costa and Pavan v Italy between the embryo in vivo and the child is irrelevant).

    4. At the contrary, the European Court of Justice gave a definition of the embryo, and consequently defined when starts the protection of human dignity and integrity. In its judgment of 18 October 2011, Oliver Brüstle v. Greenpeace e.V, 18 October 2011, C-34/10, the Grand Chamber of the ECJ, interpreting EU Directive 98/44/EC on the legal protection of biotechnological inventions, ruled that the embryo enjoys protection and that a patent should not be granted when the application at stage requires the prior destruction of human embryos. The principle of dignity and integrity of the person (Recital 16 of Directive 98/44/EC) protects the human embryo and the cells derived from it at any stage of its formation or development. The ECJ has defined the “human embryo” as “any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted, and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis”. This is the first decision of a European Court which provides a definition of the human embryo. The Court specified that this definition is “an autonomous concept of European Union law”. This means that in relation to European Union law the meaning and scope of the term “human embryo” must be given a uniform and independent interpretation throughout the European Union. The member States are no longer free to choose their own definition of the “human embryo” when applying the Directive. Within the framework of the ECJ, it does not belong to the national margin of appreciation to determine what an embryo is and when the human embryo deserves legal protection in regard to human dignity and integrity. Such an autonomous definition is necessary in order to permit a uniform interpretation and implementation of the Directive throughout the European Union. Consequently, the assessment of the ECHR in Vo v France, para.82 according to which “there is no European consensus on the scientific and legal definition of the beginning of life” has to be reconsidered…

    Thank you for the discussion,
    Grégor Puppinck.

  15. Lorand Bartels Lorand Bartels

    Nice work with the grammar book. But ‘human being’ is a term of art, equivalent to ‘child’, equivalent to ‘protected human being’ (see above). Human cells that are ‘being’ are not necessarily a ‘human being’ in this sense. I take no position on when they become one. Nor do I know when grains of sand become a beach. The point is that different societies and traditions have different answers on this question.

    The ‘circularity’ you suggest is not what I said. It is also a fallacy in its own terms. Yes, if a human being is only potential (an hence not protected, cf above), it follows that you can abort. But it does not follow that if you can abort, it is potential. You might be able to abort in other cases too.

    Forgive me if I comment no further. I have said all I want on this issue.

  16. Jakob Cornides Jakob Cornides

    Lorand: I forgive you. You have nothing more to say.

    Your last comment is the best evidence for circularity:

    “‘Human being’ is a term of art, equivalent to ‘child’, equivalent to ‘protected human being’”.

    As it appears, everything is what you define it to be. Very fine, but then you are living in a universe that you have created for yourself. If we all argue like this, no discussion is possible, but only affirmations like “for me, ‘human being’ means X, and ‘child’ means Y”.

    “Human cells that are ‘being’ are not necessarily a ‘human being’ in this sense.” Emphasis is on “in this sense”.

    Were you not, somewhere further above, accusing someone else of “unreasoned assertions”?

  17. The article is an impressive demonstration that the ECHR has not endorsed a human right to perform abortions. Many times, defenders of abortion say that it is a human right of the mother, protected by international law. Regardless of any other debate, at least honesty should prevail in the issue that is easy to establish: whether or not abortion has been accepted as a human right. It has not. The toleration of abortion in conflict cases is not the same thing as a right to have an abortion based on autonomy.

    Congratulations to the author of the paper.

  18. Lorand Bartels Lorand Bartels

    Jacob, I am happy to leave you the last word in this entertaining discussion, but I have to correct your description of my argument: I have said a few things about your arguments in favour of A. I have not taken a position on A or not-A, and have repeatedly said so (you seem to have missed this). So I do not know how I have made any unreasoned assertions. Nor have I said that A (or not-A) depends on B and vice versa, so no circularity. As far as the critique of relativism is concerned, fair point. But it is not individual relativism, as you imply, but society-wide relativism. And that, frustrating as it may be, is also an empirical fact.

  19. Aleksander Stępkowski

    This is really an impressive study. Congratulations to Dr Puppinck!
    I would like to add some reflection on “potentiality” of human embryo. If we refuse, that human being starts with conception becoming actual human deserving also protection appropriate to human being since the very beginning, than we have no other moment, which might be based on objective criteria independent of a conventional political decision. If we refuse this objective criteria (creation of an unique human genotype out of two others) than we place our-self in the position to determine the moment of legal recognition of human character of the embryo (as well as legal protection appropriate to human being), only upon human agreement (convention) which is always subject to revision. If we recognise, that we can decide upon the beginning of human life, than there is no reason why we should not to decide in a similar way upon the end of human life and modify our decisions from time to time. It leads to the conclusion, that legal protection of a human being will be subject to decision of a group of people strong enough to influence content of political decisions. It might appear, we place this conventional moment far after the birth and decide to end the legal protection to human life after some stage of development. Some of us will decide, who deserves protection and who does not.
    I think we should do everything in order to avoid such a scenario i.e. we have to insist on founding our way of understanding ‘human being’ upon objective criteria. This means we have to recognise, as the ECJ in Bruestle v Greenpeace did, that human being starts with a very conception and it deserve legal protection characteristic for human beings, since that very moment.