Report asks the European Parliament to pass a resolution in which considers abortion as human right 

A new attempt at the objectification of the embryonic human being, with the consequent and blatant strike on its dignity and right to life, has been generating a great deal of controversy in recent weeks. The “Draft report on the situation of sexual and reproductive health and rights in the EU, in the frame of women’s health”, known as the Matić Report, is asking the European Parliament to pass a resolution in which abortion (killing of a human being during its prenatal life) is considered a human right, in clear violation of the Universal Declaration of Human Rights and the main binding treaties, as well as the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union and our Spanish Constitution. This report, which undermines the fundamental values of the European Union (EU) such as the respect for life, is in clear opposition to the EU Charter of Fundamental Rights and the judicial system of the Member States, which recognizes the dignity of the human being and their right to life (arts. 1 and 2), as well as the right to the integrity of the person, which includes the prohibition of eugenic practices and the prohibition on making the human body and its parts as such a source of financial gain. It also contradicts the 2030 Agenda in several areas, very specifically target 16.2: “End abuse, exploitation, trafficking and all forms of violence and torture against children” within Goal 16 of promoting just, peaceful and inclusive societies.

Could the limitation of abortion be a violation of some human right?

The Report not only seeks to abolish any regulation by the Member States that limits abortion in some way (i.e. the protection of prenatal life) but instead seeks to see these limitations as a violation of human rights and a form of gender-based violence against women, without considering that what really causes a violation of human rights is the resulting death of the embryonic human being. It would have been more in line with the principles of dignity and defense of the rights that are upheld by the European Union if policies for the defense and protection of motherhood were proposed; to help women, mothers, to allow them to enjoy the wonderful experience of being life-bearers rather than encouraging abortion.

The report also seeks to abolish the right to conscientious objection of doctors and healthcare workers and to introduce a new human right: abortion, which is precisely an attack on a human being equally endowed with human rights.

Human rights put the human person at the center of the system for the protection of these rights, thus accepting that the catalog of rights for the defense of the person within a community is not static but that, as a result of advances in science and new technologies, they can be updated in a process of adaptation of the Law to the changing times. It cannot be said that these rights can be truly constructed as new rights, but as instrumental rights (protection of privacy against new technologies, etc.), which obviously cannot violate the human rights of others when they collide.

Abortion as human right would exclude conscientious objection and freedom of conscience

On the one hand, conscientious objection is a manifestation of the human right to ideological and religious freedom, and it implies not only the right to freely form one’s conscience, but also to act in a manner consistent with its imperatives. So much so that legally, freedom of conscience does not refer solely to an inner faculty of the subject, but expands outwardly and protects the individual from the coercion or interference that they may experience for behaving in accordance with their beliefs or convictions. And nothing short of this, it is intended to be abolished in order to create a right that threatens this fundamental human right to freedom of thought and conscience.

On the other hand, the position adopted by this Report is not surprising in relation to abortion, considering the treatment afforded to the human being in the embryonic state as an object and not as a subject of law, which has helped to objectify it. In recent decades, progress in the field of biomedicine and genetics has resulted in a dramatic advance in human knowledge. Paradoxically, scientific and technological progress and advances in the life sciences have meant a setback in the protection of human life and dignity of that human being who is, ultimately, the child. All of this is unacceptable for due respect for the most vulnerable human being, the unborn child. It should be clarified that there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate it; on the contrary, States are obliged to protect human life and dignity, and abortion, the intentional killing of the child, clearly threatens the life and dignity of the developing embryo. Abortion interrupts a human life, the life of the child; it does not remove an unwanted cyst.

Could human embryos be objects of experimentation, production, or transfer and commercial exchange?

The subject matter of this Report should be based on criteria that focus on respect for human dignity and other rights of this very vulnerable being. The heart of the debate is none other than to determine whether the child in an embryonic stage, as a living human being, is the property of the parents, and can therefore be subject to transfer or legal business and may be disposed of by removing it and, therefore, causing its death. This is not a trivial issue. In recent decades, we have witnessed a process of objectification of the child according to the whims of the desires of parenthood or motherhood (as in the case of surrogate motherhood), where the use of human embryos as mere reproductive materials or as raw material for the benefit of this parental need has crossed the threshold of respect for the dignity of the child, producing it ad hoc when there is such a desire for parenthood/motherhood, or killing it if the mother does not want it. This, as well as an aberration and an attack on the human rights of the embryonic child subject to the wishes and needs of its “parents”, violates its rights to life and dignity, as well as its rights to integrity, identity, equality before the law, to continuous and integral gestation in the womb of its mother, to be born in the family, to be recognized as a subject to be born, therefore not to be killed, nor treated as an object of experimentation, production or transfer and commercial exchange.

The protection of the best interests of the child

This issue also violates the requirements for the protection of the best interests of the child against any third party that may harm them. It should therefore be noted that the Convention on the Rights of the Child expressly states in article 3.1 that the best interests of the child and its enforcement cannot be left to the discretion of States and that it must be considered to be superior to the other interests at stake. For its part, the Committee on the Rights of the Child, through General Comment No. 14, in an attempt to limit or alleviate any possible arbitrariness in the matter, has introduced some interpretative rules, stating that the protection of the child’s right to life, survival and development and the satisfaction of their basic needs shall be taken into account, among many other issues in defense of their interests. Also interesting is the case law of the Spanish Supreme Court in the definition of the concept, in the sense of understanding that the “best interests of the child” is a matter of public policy and is above the parental bond, having to prevail over any interpretation and decision affecting them. Consequently, the best interests of the child has become an elementary, necessary and unswerving principle that informs the dictating of any measures concerning children that must prevail over any other, including that of their parents, to the point that the so-called “bonum filii or filii” favor has been elevated to the universal principle of law, constituting a fundamental and basic guiding principle of judicial action in accordance with the Spanish constitutional principle of the integral protection of children (art. 39.2 of the Spanish Constitution). In fact, the latest reforms in the context of protection for children and adolescents in Spain have for the first time meant the regulation of the protection of the unborn child, considering the possible situation of prenatal risk, which impairs normal development or may cause physical, mental, or sensory diseases or abnormalities in the newborn. In this regard, it could be argued that the legal representatives of the minor are obliged to guarantee the right to life and health of the children (those who are in the embryonic phase are also children) always with respect for their personal dignity. Abortion practices that irreversibly cause their death do not serve the fundamental best interests of the child and/or threaten their dignity and right to life, health, etc. These practices entail the dehumanization, objectification and patrimonialization of the embryonic child and would mean a return to the postulates of Antiquity when there were human beings who were “persons” and human beings who were not.

Pilar María Estellés Peralta J.D. PhD

Head of the Department of Private Law

Universidad Católica de Valencia

References:

[1] Charter of Fundamental Rights of the European Union of 26 October 2012, whose Preamble states that: “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing citizenship of the Union and by creating an area of freedom, security and justice. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention”.

[2] Vid, in this regard, Mª. J. Corchete: “Los nuevos derechos”, p. 545, in  http://e-spacio.uned.es/fez/eserv.php?pid=bibliuned:TeoriayRealidadConstitucional-2007-20-5500&dsID=Documento.pdf

[3] A broad doctrinal sector considers the nasciturus as a person and as such a subject of rights from the very moment of its conception. Among many others, A. Calvo Meijide: “El nasciturus como sujeto del derecho. Concepto constitucional de persona frente al concepto pandectista-civilista”, Cuadernos de Bioética, 2004 (2), pp. 91-93 (http://aebioetica.org/revistas/2004/15/2/54/283.pdf), who expressly states that “the nasciturus is therefore a person from the embryonic and foetal stages, a reality that should be recognized by Positive Law, overcoming a nineteenth-century conception of the person and accepting more broadly the legal-constitutional concept derived from Article 10 of the Spanish Constitution, and, consequently, recognizing it as the holder of the rights that are inherent in every human being”; likewise, C. Martínez de Aguirre y Aldaz: “Comentarios a los artículos 29 a 34 del Código Civil”, in Comentarios al Código Civil, t. II, vol. 1º (coord. J. Rams Albesa), Bosch, Barcelona, 2000, pp. 256 and 257, who defends the consideration of the human being as person from the very moment of conception, even though he understands that before his birth his personality is constrained and is limited to the ownership of the primary natural rights (life, physical integrity, etc.).

[4] Similarly, L. Ciccone: “Bioética. Historia. Principios. Cuestiones”, Palabra, Madrid, 2005, p. 130.

[5] J. Vidal Martínez: “Derechos inherentes en la reproducción asistida”, en La Humanidad in vitro (coord. J. Ballesteros), Comares, Granada, 2002, pp. 268-269; R. Andorno: Bioética y dignidad de la persona, Madrid, 1998, p.112. Similarly, G. Arroyo Urieta, J. Cortés Castán and J. A. Díaz González: “Instrumentación genética y manipulación de embriones. Situación jurídica y aspectos bioéticos”, Diario La Ley, 1996, t. 4 (La Ley 22586/2001).

[6] Vid. in this sense, C. E. Arias: “Reglamentación legal nacional de la filiación por dación o abandono del concebido crioconservado y reglamentación legal de las técnicas de procreación humana asistida en la República Argentina”, in www.revista persona.com.ar/persona 22/22 Arias.htm.

[7] Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, ratified by Spain on 21 December 1990 (BOE 31 December 1990, No. 313).

[8] STS 19 April 2012 (Tol 2532886).

[9] SSTS 25 April 2018 (Tol 6592125), 15 December 2017 (Tol 6461936), 19 October 2017 (Tol 6402978), 28 September 2016 (Tol 5843549), 17 November 2015 (Tol 5596288), 31 January 2013 (Tol 3020982). This is to ensure that the fundamental rights of the child are protected and that this happens as a matter of priority and preference to those of others involved.

[10] Thus art. 17.9 Organic Law 1/1996, of 15 January, on the Legal Protection of Minors, as amended by Law 26/2015, of 28 July, modifying the system of protection for children and adolescents, and by final provision 8.5 of Organic Law 8/2021, of 4 June, on the comprehensive protection of children and adolescents against violence, states that a prenatal risk situation means the lack of physical care of the pregnant woman or the abuse of substances with addictive potential, as well as any other action of the woman or of third parties tolerated by the woman, that impairs the normal development or may cause physical, mental or sensory diseases or abnormalities to the newborn.

[11] R. Andorno: “La dignidad humana como noción clave en la Declaración de la UNESCO sobre el genoma humano”. Revista de Derecho y Genoma Humano, núm. 14, 2001.

 

close

Subscribe

Subscribe to our newsletter:

We don’t spam! Read our privacy policy for more info.