30 September 2002
Everyone has the right to recognition everywhere as a person before the law.
(Universal Declaration of Human Rights (1948) Article 6).
The ACT Right to Life Association shares grave public concerns about an entrenched bill of rights. Rather than adopt such a controversial and divisive model of legislation, we urge the ACT Government to affirm our existing legal framework for the protection of human rights and to place greater priority and commitment upon the practical implementation of the International Bill of Rights through protective legislation for those people most vulnerable in our community – pregnant women and unborn children, people who are elderly, people with a terminal illness, those people who have a mental or physical illness, and people with disabilities.
Our gravest concern with an ACT Bill of Rights is that it would attempt to assert that a number of unjust and exploitative practices against human beings are “new” human rights and should be accorded this status. The introduction of such practices to a bill of human rights will have the tragic effect of damaging the genuine and basic human rights that affirm and protect life for everyone. Such subversive attempts to undermine the universally accepted International Bill of Human Rights would include any attempt to introduce “the right to assisted suicide” and “the right to abort an unborn child”. The ACT Government must be extremely cautious about introducing a Bill of Rights that may end up restricting human rights, rather than expanding them.
For example the right to medically assisted suicide would impact upon everyone’s right to be cared for and to receive proper palliative care free of implicit or explicit pressure to accept a lethal injection. The right to abort an unborn child with a disability would impact upon every child’s right to life, irrespective of disability, as well as affect how existing children with disabilities are valued in our society. These spurious “rights” would also impact upon a doctor’s basic right of conscience to refuse to carry out procedures that destroy life, rather than heal and protect it. Any medical practices which involve the abuse of a human being, including practices that use human embryos as a means to an end, are not consistent with authentic human rights, which uphold the dignity of every human being:
“Recognising and affirming that all human rights derive from the dignity and worth inherent in the human person.” (Preamble, Vienna Declaration and Programme of Action, from the World Conference on Human Rights, Vienna, 1993).
Human Rights for All Without Discrimination
Mary Robinson, United Nations High Commissioner for Human Rights, addressing the Plenary Session of the Earth Summit in Johannesberg, 29 August 2002, declared that in every country the emphasis must be on “building democratic institutions, the rule of law and effective legal systems that function to protect the human rights of all without discrimination”.
If the ACT wants to become a main player in a truly democratic system, then the Assembly must ensure that any Bill of Rights will conform with our grave duty—to build the rule of law that will function to protect the human rights of all without discrimination.
If, however, the Assembly uses a Bill of Rights to introduce a right to assisted suicide or a right to abortion, then it will be failing grievously to protect the human rights of a class of human beings that has been separated out from the human family in a most discriminatory way. Such a Bill should not be used to authorise discrimination against embryonic human beings, unborn children with disabilities, vulnerable people with mental illness, depression, terminal medical conditions – all of whom are entitled to not simply the best medical care, but the best social networks of support and care as well.
An ACT Bill of Rights must never endorse the idea that some human beings are disposable or unwanted – that it can be a “human right” to administer a harmful treatment to someone whose life is deemed to be impaired. There must be nothing in a Bill of Rights that violates the human rights of every human being – from embryonic human beings to the frail, the mentally incapacitated, and the elderly – to be protected without discrimination.
Australia, along with all the other nation members of the international community solemnly agreed at the UN World Conference on Human Rights in Vienna (1993) to uphold “the importance of ensuring the universality, objectivity and non-selectivity of the consideration of human rights issues” (Vienna Programme of Action, para 32). If the ACT introduces a Bill of Rights, the Assembly must ensure universality, objectivity and non-selectivity. To honour these criteria, an ACT Bill of Rights must ensure that every human being is recognised and included as being a worthy subject for the whole range of human rights protection. As the opening words of the Universal Declaration of Human Rights declares:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” (Preamble, Universal Declaration of Human Rights).
It is absolutely vital that an ACT Bill of Rights accords with this recognition, especially with regards to the “inherent dignity” and the “equal and inalienable rights” of “all members of the human family” including the most vulnerable – pregnant women and their unborn children, people with disabilities, those with a mental or terminal illness, the frail and the “unwanted”.
The present total lack of laws in the ACT to protect children before birth is incompatible with our present human rights obligations under the International Bill of Rights.
Relevant UN International Human Rights commitments include:
- Under the UN Declaration on the Rights of the Child (1959): governments are obliged to provide “appropriate legal protection for the child, before as well as after birth.”
- Under the UN Convention on the Rights of the Child, governments must recognise that “every child has the inherent right to life” and ensure the child’s “survival and development” to the maximum extent possible (Article 6).
- Under the International Covenant on Civil and Political Rights, “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” (Article 6 (1) ).
- Under the International Covenant on Civil and Political Rights, “No one shall be subjected to cruel, inhuman or degrading treatment” (Article 7).
- Under the International Covenant on Civil and Political Rights, pregnant women and their unborn children must be protected from capital punishment: “sentence of death…shall not be carried out on pregnant women” (Article 6 (5) ).
- Under the Universal Declaration on Human Rights, “Everyone has a right to medical care and a right to security “adequate for his health and well-being”, both “in the event of disability” and “in circumstances beyond his control” (Article 25).
Special Safeguards of the Child Before as well as After Birth
“Bearing in mind that, as indicated in the Declaration of the Rights of the Child adopted by the General Assembly… “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’.” (Convention on the Rights of the Child, Preamble)
The importance of affirming the child’s right to life was underscored in the discussions of the Working Group on drafting the Convention of the Rights of the Child in 1988, in which the right to life was described as “an intransgressible norm”.(1) The right to life and the right to protection from cruel and inhuman treatment are recognised as fundamental civil and political rights, under the International Covenant on Civil and Political Rights, Articles 6 and 7.
Under the Convention on the Rights of the Child, governments must protect children from physical violence and “cruel and inhuman treatment” (Articles 19 and 37). Abortions conducted at a stage when the unborn child can feel pain clearly contravene these protections. There are currently no restrictions on the age or circumstance under which an unborn child might be aborted in the ACT.
The Fourth World Conference on Women, Beijing, 1995 declared that governments must take action re the Convention on the Rights of the Child to:
“ensure its full implementation through the adoption of all necessary legislative, administrative and other measures and by fostering an enabling environment that encourages full respect for the rights of children” (Para 274).
Contrary to the ACT Legislative Assembly’s recent decision to remove all protection from the child before birth, here is a directive to adopt all necessary legislative measures to encourage full respect for the rights of children. A Bill of Rights for the ACT must remedy our present total abandonment of CRC obligations.
“Special care and assistance” for Pregnant Women – A Fundamental Obligation
“Motherhood and childhood are entitled to special care and assistance”
(Universal Declaration of Human Rights, Article 25-2)
Another vital area which any ACT Bill of Rights must address is the lack of support for pregnant women in the community. The ACT has a tragically high abortion rate of 1 abortion for every 2.8 live births. Among teenage women, the abortion rate in 2000-2001 was more than two abortions for every live birth. Clearly, pregnant women are not being accorded their human rights as set out in the international human rights instruments to which we are already signatories.
- Articles 10 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which deal with the protection of motherhood and the right to health, respectively. Articles 6 and 7, which address the right to work and just working conditions.
- Articles 9 and 23 of the International Covenant on Civil and Political Rights (ICCPR), which deal with the right to life, liberty and security of the person, and the right found a family respectively.
- All provisions in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), but especially Articles 11 (employment and protection of motherhood), 12 (pregnancy and post-natal health care) and 16 (the right to found a family).
- “The right of access to appropriate health-care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.” (Fourth World Conference on Women, Beijing, paragraph 94).
It is time for both government and community to address the real issues of support for pregnant women and the value we place on children and motherhood. We need to face up to our responsibilities and address directly the problems women face—not just offer them an abortion to treat the “symptom”. We need to provide real alternatives to abortion and work to improve our workplaces, schools and tertiary institutions so that they will support and value all pregnant women and women with children. No woman should ever feel forced to choose between continuing her education or career and giving birth to her child.
After women’s rights have gained so much positive attention over the past thirty years, it is disturbing to realise that many in our society still refuse to acknowledge the breadth and depth of a problem that profoundly affects young women: this choice they are frequently forced to make between continuing their education or career and giving birth to their child. This is a heartbreaking choice for many women, but a choice that is conveniently suppressed under the public rhetoric of “safe abortion services” and “the right to abortion”.
The Young Women 2000 Conference reported that many young women feel that they cannot have a baby and continue to pursue their education.
As Susan Halliday, Sex Discrimination Commissioner, commented in 2000: “In 1997, 13137 Australian women under the age of 19 gave birth to a child. Few girls who give birth ever complete high school. Faced with the pressures of parenthood, financial pressures and schools that make them feel unwelcome, young mothers often forgo education and experience lifelong limited opportunities.”(2)
Other studies of women seeking abortions have found that employment and financial pressures are major impediments to women continuing their pregnancies. Pregnant and Productive, the Human Rights and Equal Opportunity Commission’s report on pregnancy discrimination in the workforce, revealed that many women continue to confront this ugly barrier.
If the ACT Government is serious about introducing a comprehensive Bill of Rights, then it will need to address the tragedy of the high abortion rate and its recent abandonment of responsibility for the welfare of pregnant women and their unborn children. Removal of the abortion laws and the laws protecting women’s right to information about abortion has withdrawn the rightful legislative protection for maternity and for the child before birth which was fully compliant with Australia’s obligations under international human rights instruments. The ACT at present is the only Australian jurisdiction that has completely abandoned these obligations. We need to restore our commitment to supporting pregnant women and affirming the human rights of mothers and children.
Privacy Must Be No Defence to Human Rights Violations
If a Bill of Rights were to assert a right to privacy, it must be made clear that such a right is not to be used to cover up or justify human rights abuses. It is clear that appeals to privacy cannot excuse the violence of abortion and assisted suicide, just as they cannot excuse violence against women, discrimination against the disabled, and any form of physical or social exploitation of human beings, whether perpetrated or tolerated by the state or private persons. In contrast to so-called “right to privacy” jurisprudence, human rights protections override privacy considerations, i.e. the right to privacy must be subordinate to the necessity of being able to investigate and uphold human rights which are being violated in private.
For example, abortion is an act of violence that results in physical harm and death to the child, and may also result in physical and mental hurt to the mother. This act of violence perpetrated by the abortion provider can be excused by neither the right to privacy “whether occurring in public or private life,” nor by the fact that it is “condoned by the state wherever it occurs,” i.e. in those places where abortion is not against the law. This principle is laid down in the UN Declaration on Elimination of Violence Against Women (1993).
With regard to the argument for a “right to abortion”, human rights must protect both women and children. The reality that pregnancy is an extraordinary and beautiful relationship involving two bodies, two lives, cannot easily be suppressed. We can now see the unborn child clearly thanks to the remarkable developments in foetal medicine over the last 30 years. Dramatic advances in the care and survival rates of premature babies have highlighted the unmistakable humanity of these tiniest persons long before full-term. Doctors are now treating unborn children as unique patients, through ultrasound technology and foetal surgery, proving that an unborn child can experience pain from as early as 13 weeks.
Unborn children, women who are pregnant, people who are elderly, people with disabilities, those people who have a mental or physical illness, are all truly part of the human family and entitled by their inherent humanity to all human rights. Consistent and objective application of international human rights instruments positively demands that protective legislation for the most vulnerable human beings be enacted and respected by all people of good will committed to truly universal human rights. This application of human rights instruments would best be undertaken under our current legal structure, which provides a better framework for the application of these rights than a new ACT Bill of Rights. These rights could and should, however, also be protected under any new ACT Bill of Rights.