A Right to Life before Birth. Human Dignity in Biolaw - The Broken Promise?

Contents

1. Introduction

2. A Right to Life before Birth under Article 2 of the European Convention on Human Rights?

3. Human Dignity in German Constitutional Law

4. Legal Ideal and Legal Practice

5. Limits of Dignity?

6. Conclusions

Stefan Kirchner¹

www.crosslegal.com

Abstract: The question if unborn children have a right to life is among the most hotly contested political issues in many countries. At the same time is the notion that every human being has some inalienable human rights and an inherent human dignity almost universally accepted. While the question of the right to life of the unborn child can also be dealt with as a legal, rather than a political, problem, the widespread legal availability of abortion also in states which emphasize the importance of human dignity as a legal concept, exposes a disconnection between national and international biolegal claims and the implementation of biolaw on the national level. Looking at the European Convention on Human Rights and Germany’s Constitution, which is famous for opening with a commitment to human dignity, it will be shown that human dignity does indeed matter as a legal concept and that human rights are at a more general risk, if this concept is given up easily.

Keywords: Religion, human rights, right to life, human dignity, European Convention on Human Rights, Germany.

1. Introduction

Following up on an earlier text,² in which I had attempted to show that religious considerations can play a role in shaping biolaw, this article will go one step further by looking at one specific biolegal aspect. The right to life of unborn children is arguably one of the most controversial biopolitical issues. From a legal perspective, though, the question if an unborn child has a right to life, is a question which can be answered. In this article, I propose that not only can this question be answered in the affirmative, but also that it has to be answered in the affirmative. This will be shown in the context of the European Convention on Human Rights³ (ECHR)⁴ as well as of the Federal Constitutional law of Germany.⁵ It will also be shown, though, that the legal reality often conflicts with the legal standards set by human rights and constitutional law,⁶ that — despite such challenges — dignity still matters as a legal concept⁷ and that weakening this concepts creates risks for everybody.⁸

2. A Right to Life before Birth under Article 2 of the European Convention on Human Rights?

At the present, an interpretation of the personal scope of Art. 2 ECHR which includes unborn children is not reflected in the practice of most states which are parties to the Convention. It might therefore appear to be necessary to prove the validity of the conclusions presented here in the face of the contrary state practice. After all, “[a] law which would lack distance from State behavior, will or interest would amount to a non-normative apology, a mere sociological description. A law which would [as might at first glance seem to be the case with the conclusions presented here] base itself on principles which are unrelated to State behaviour, will or interest could seem utopian, incapable of demonstrating its own content in any reliable way. To show that an international law exists, with some degree of realitty, the modern lawyer needs to show that the law is simultaneously normative and concrete – that it binds a State regardless of that State’s behaviour, will or interest but that its content can nevertheless be verified by reference to actual State behaviour, will or interest.” ⁹

It is therefore necessary to prove that the conception of Art. 2 (1) ECHR which is presented in this thesis passes Koskenniemi’s test, namely, that it binds states regardless of their will but that its content can be determined by monitoring state behaviour. The principles on which the wide interpretation of the scope ¹⁰ ratione personae of Art. 2 (1) ECHR is based are not “unrelated to State behavior” – the generous understanding of the scope of human rights as such, the general need to protect all human life etc. All states which are parties to the ECHR respect that human life must be protected in principle. At the same time is the wide understanding shown here (which apart from the author of this thesis is shared only by few academics and practitioners, most notably the already mentioned former judges at the ECtHR, Javier Borrego Borrego and Antonella Mularoni) is not shared by most states parties to the Convention in that unborn human life is considered to be of a lesser status and therefore less “worthy” of protection than born life.

3. Human Dignity in German Constitutional Law

The German Federal Constitutional Court held in its so called First Abortion Judgment that unborn humans enjoy human dignity (“Würde”, a word which in German, although not identical with the word for “worth” – “Wert” – is nevertheless closely related to the word “würdig” which means “dignified” or “worthy”) just like born humans do. Nevertheless the same court decided that the right to life of unborn humans does not need to be protected through means of criminal law in the same manner the right to life of born humans is protected. In this sense, the German Federal Constitutional Court has accepted a principle which is independent of the state ^{11 12} – the principle that unborn children enjoy human dignity and the right to life – but which is not followed up in the legislative practice of the Federal Republic of Germany:

The German Criminal Law’s rules on Abortion have been the object of many changes in recent decades. In West-Germany, a strict prohibition gave some way in the 1970s, followed by a change required by the Bundesverfassungsgericht, (West-)Germany’s Federal Constitutional Court in the First Abortion Judgment, in which it was held that the unborn child was a human being, which led to an indication model which allowed abortion in cases of rape (criminological indication), health risks (medical indication) or for ¹³ “social” reasons (social indication), and also under the new law which is currently in place, the projected living conditions of the mother remains relevant for the legality of an eventual abortion. This system already allowed some degree of eugenics through the latter two indications but this system still protected unborn children far more than the permissive laws of socialist East Germany. After the accession of the newly formed states on the territory of the German Democratic Republic to the Federal Republic of Germany in 1990, both laws co-existed for some time, as had been stipulated by the reunification treaty. The new law created for the reunified Germany was then put to the test before the Federal Constitutional Court as well. The Federal Constitutional Court held in its so called second abortion Judgment that the unborn child requires to be protected but also that the unborn^{14 15 16 17} ’s child’s right to life does not lead to an absolute requirement to protect unborn life at all times. The Bundesverfassungsgericht held that in the early phase of human development the legislature were not required to protect unborn children. Rather, the parliament can decide place more emphasis on a consultation procedure. This contradiction between the fact that the unborn child is human and is to be protected ¹⁸ – but not really at all times, might the worst logical mistake ever committed by the German court which is highly respected there because it is seen as standing above the fray of politics. Nevertheless, this position is upheld to this very day.¹⁹

4. Legal Ideal and Legal Practice

This contradiction between the claim that human life is to be protected and the reality that abortion is widely available can be not only extrapolated to other states parties to the Convention but can actually be found in the legal systems of most states which have ratified the ECHR: the states parties to the Convention have domestic laws which deal with abortion in one form or an other. If the unborn child were not a human being, such laws – no matter whether permissive or restrictive – would not exist in the first place. In A, B and C v. Ireland, the European Court of Human Rights has followed up on Brüggemann by clarifying that Art. 8 (1) ECHR does not entail a right to have an abortion at will. In so far, the judgment does not really come as a surprise for those who have continuously monitored the jurisprudence of the Strasbourg organs. Any expectations of a liberalisation of European abortion laws had been unrealistic right from the very beginning. ²⁰

Yet, most judges in Strasbourg are still dragging their feet on actually saying out loud that the unborn child falls within the personal scope of Art. 2 (1) ECHR and only few states which have ratified the Convention protect the right to life of the unborn child by prohibiting at least abortions at the mere will of the mother. From this it follows that most European states do not consider life in the womb to be substantially the same as life after birth. This is also reflected in phrases employed when speaking about human life before birth: commonly heard phrases in this context are the membership of the embryo in the “human race” ²¹ (as if, if we exclude the possibility of the implantation of a human-animal hybrid child, the child of a human mother could be anything but a human being), the phrase “developing human life” ²² (which merely states the obvious fact that all beings develop continuously: obviously a three year old girl is different from the same girl as a teenager, as a mature woman or an elderly lady, yet we are always talking about the same being) or, maybe worst of all because it implies a denial of the human nature of the child and can be considered an attempt to put the child on the same level as material things, the term “potential child”. But if those European states which allow abortion do not consider the unborn child to be equally in need of legal protection regarding his or her right to life ²³ – regardless of the reasoning behind doing so, they contradict the principle of the right to life – and in fact they contradict themselves by the very laws created to allow abortion:

If there would be no life before birth, abortion laws would not be necessary. Hence the national legislatures must have felt the need to justify the treatment of unborn humans, regardless of which treatment the domestic laws allow for in the states which are parties to the ECHR. The need for legislation in this field already implies that the unborn child is not merely a collection of cells which is at the complete disposal of the mother. Were this so, then there would be no laws – like there are no laws regulating when a woman can cut her hair or a man can shave. After all, the cells in the hairs do not receive legal protection independent of the human to whom they happen to be attached. If then the unborn child were no different, there would be no domestic laws on abortion. Yet, there are such laws. In fact, in most legal systems abortion is a hotly debated issue. The more fact that states have found it necessary to legislate on abortion, even if they allow abortion under all circumstances, proves that domestic legislators are aware of the fact that the unborn child is not just a lump of cells which is part of the body of the mother. But if states perceive the unborn child as some”thing” human, then they implicitly accept that the unborn child is alive already before birth. These domestic legislative decisions may be morally wrong as well as incompatible with the rights of the unborn child, but they nevertheless are indicators of the legislators being aware of the human-ness and the life of the unborn child. The principle that the unborn child is a living human being can therefore be verified through the behavior of states, even the behavior of those states which allow -for the “destruction” of the unborn child.

What is still missing from Strasbourg is a clear statement to the effect that also unborn children are protected by Art. 2 (1) of the European Convention on Human Rights. But spelling this out is necessary if the Court is to take its mandate seriously. Including unborn children in the personal scope of the right to life under Art. 2 ECHR does not mean that they would ²⁴ per se take precedence over the rights of the mother – but it would mean that they have not merely an interest in being alive but a right to life. This right would then have to be balanced against the rights – and not merely the interests – of the mother. Since Art. 8 ECHR does not provide the mother with a right to an abortion simply because the mother wants to have an abortion, that is, no ²⁵ ‘choice’, to use the parlance of the contemporary debate, on the part of the mother to have an abortion – unless an equal right of the mother is at stake. Therefore a balancing of rights will require that states only allow abortions to save the life of the mother. As of now, this is not the case for most states which are parties to the ECHR.

5. Limits of Dignity?

This divergence between theory and practice raises serious questions. Are states not serious about human rights – or do they extend human rights only in as far as it appears to be politically opportune? And if this question can be asked, we might as well go one level deeper and ask why the law, any law, includes human rights in the first place. Is it mere compassion by those who are in power or a kind of insurance against social unrest? But if so, why would any society extend rights to those who are by their very nature too weak to mount a serious threat to the existing public order? In other words, are there any benefits to society at large which flow from protecting the weak? Certainly we could imagine a much smaller human society in which the weak simply starve to death – in fact, for most of human history this was how our society worked and in many parts of the world, this is still the case. So why this focus on human rights, particularly in the developed world? Why is it, that the Chinese model of material wealth but no individual freedoms is doomed to fail in the long run? There also might be a form of self-interest: one’s own interests would be an explanation as to why human rights activists become involved in this field: if abortion becomes “normal”, we might not care since we who are born are no longer at risk. At first sight, the legalization of abortion can only bring benefits to those who are born and only affects the unborn. This view, though, is short-sighted in two respects. Not only does it exclude the possibility of a form of divine judgment but even from an atheist perspective, it raises the question what is there to stop a state from going one step further and not only legalize abortion but also euthanasia? The risk of euthanasia affects everybody since nobody can rule out that he or she will come into a condition in which one can no longer express one’s desire to live. Fighting against abortion at the same time means fighting against euthanasia and thereby fighting against the risk of being killed when one e.g. has fallen into a coma. But self-interest seems not to be enough to explain why the law protects those who are weak, specifically, those who are completely defenseless. After all, the contemporary practice shows that doing so is hardly popular. The threat to the lives of the unborn is very real and it is realized in the death of millions of unborn children every year. Today there is a widespread belief in many European states that - regardless of the actual legal situation - abortion is a human right and in fact merely a form of birth control, on ²⁶ par with contraceptive devices. Europe, however, had no Roe v. Wade-like moment and in many European states abortion is still outlawed, albeit with many loopholes. The argument of abortion as birth control has become so widespread that some abortive devices are commonly thought to be merely contraceptive devices (in particular intra-uterine devices (IUDs) come to mind, but also the “morning after pill”, not to be confused with Roussel Uclaf S.A.’s²⁷ abortion pill RU-486, which contains mifeprystone, is also known as ²⁸ RU-38486, and is sold under brand names such as ²⁹ Mifegyne® and Mifeprex®: IUDs and ³⁰ “morning after pills” do not prevent conception, rather, they prevent the implantation of the embryo and thereby lead to the death of a human being, despite claims that it is not abortive or that it prevents the implantation of a mere egg, which obviously must be a ^{31 32 33} fertilized egg, i.e., an unborn child). In fact, it is even unclear how IUDs really work. So why is it that a society such as the one in Ireland still have laws which safeguard against such popular anti-life sentiments? The right to life is widely accepted, not only out of self-interest but because there exists in overwhelmingly large parts of society a belief, expressed or not, in the inherent sanctity of human life. It is here where the impact of faith on the society enters the equation. Laws directly or indirectly reflect the attitude of the society which is governed by these rules. In Ireland, traditional religious values continue to shape the law: There is an understanding that humans are special, that we are more than animals. This understanding extends even to those human species which have died out in the past. Nobody would assume that a Denisovan or a Neanderthal is merely an animal. But what is it that makes humans special? If it were merely the capability for reason or some form of intelligence, ^{34 35} e.g. based on the mirror test for self-awareness, then we would have to exclude the very young (children pass the mirror test only at an age of 18 months) or the mentally sick (and how about every one of us ^{36 37} – when we are unconscious or asleep?), but would maybe have to include some animals such as cataceans, larger apes and cephalopods as well as some bird species and maybe even pigs. ^{38 39 40}

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¹ Associate Professor for Fundamental and Human Rights, University of Lapland, Rovaniemi, Finland; admitted to the bar in Frankfurt am Main, Germany.

² Stefan Kirchner, Multidimensional origins of Biolaw and Bioethics and their Impact on Conceptions of Human Rights and Human Dignity - A European Perspective (2015).

³ European Treaty Series No. 5.

⁴ Below, part 2.

⁵ Below, part 3.

⁶ Below, part 4.

⁷ Below, part 5.

⁸ Below, part 6.

⁹ M. Koskenniemi – From Apology to Utopia – The Structure of International Legal Argument, Reissue with new epilogue, reprint of the reissue, Cambridge University Press, Cambridge and other locations (2007), p. 17.

¹⁰ For a more detailed elaboration on how to prove the objectivity of a given set of rules, in that case of international law, cf. ibid., pp. 23 et seq.

¹¹ Bundesverfassungsgericht – First Abortion Judgment, Joined Cases nos. 1 BvF 1, 2, 3, 4, 5, 6/47, Judgment of 25 February 1975, in: 39 Entscheidungen des Bundesverfassungsgerichts, pp. 1 et seq., at para. 109.

¹² Ibid., para. 119.

¹³ Cf. P. Lee – Abortion and Unborn Human Life, 1st ed., 2nd printing, The Catholic University of America Press, Washington D.C. (1997), pp. 120 et seq.; M. Wren – Abortion and Pregnancy Due to Rape, in: 21 Philosophia (1992), pp. 201 et seq.

¹⁴ § 219 (2) of the German Criminal Code, although this ruls also requires a risk for the life or the well-being of the mother. There is a significant risk of abuse of this norm due to a too-wide interpretation of the term “well-being”.

¹⁵ On the abortion laws in the German Democratic Republic cf. S. H. Pfürtner – Ethische Aspekte des Schwangerschaftsabbruches, in: U. Körner (ed.) – Ethik der menschlichen Fortpflanzung – Ethische, soziale, medizinische und rechtliche Probleme in Familienplanung, Schwangerschaftskonflikt und Reproduktionsmedizin, 1st ed., Thieme, Stuttgart (1992), pp. 103 et seq., at p. 105.

¹⁶ Einigungsvertrag (Reunification Treaty), Bundesgesetzblatt 1990, Vol. II, pp. 889 et seq.; cf. also E. Kolinski – Die Auseinandersetzung um die Abtreibung, in: E. Kolinsky – Women in 20th-century Germany: A reader, 1st ed., Manchester University Press, Manchester / New York (1995), pp. 281 et seq.

¹⁷ On the 1991/1992 debates and law reform after German reunification see U. Vultejus – Die Debatte zur Neuordnung des Schwangerschaftsabbruchs an der Jahreswende 1991/92, in: U. Körner (ed.) – Ethik der menschlichen Fortpflanzung – Ethische, soziale, medizinische und rechtliche Probleme in Familienplanung, Schwangerschaftskonflikt und Reproduktionsmedizin, 1st ed., Thieme, Stuttgart (1992), pp. 199 et seq., at pp. 201 et seq.

¹⁸ Bundesverfassungsgericht – Second Abortion Judgment, Joined cases 2 BvF 2/90, 2 BvF 4/92, 2 BvF 5/92, Judgment of 28 May 1993, in: 88 Entscheidungen des Bundesverfassungsgerichts, pp. 203 et seq., at p. 264.

¹⁹ Petitionsausschuss des Bundestages (Commission for Petitions, German Federal Parliament) – Reply to Petition 4-17-07-45130-014380, 6 January 2011, referring to a written statement by the Bundesjustizministerium (German Federal Ministry of Justice) of 29 December 2010, p. 2 (on file with the author).

²⁰ Cf. e.g. S. K. Calt – A., B. & C. v. Ireland: „Europe’s Roe v. Wade“?, in: 14 Lewis & Clark Law Review (2010), pp. 1189 et seq.

²¹ ECtHR – Vo v. France, Application No. 53924/00, Judgment of 8 July 2004, para. 84; T. Goldman –Vo v. France and Fetal Rights: The Decision not to decide, in: 18 HArvard Human Rights Journal (2005), pp. 277 et seq., at p. 282.

²² No author named – German supreme court decision on abortion, available online at <http://groups.csail.mit.edu/mac/users/rauch/germandecision/> (last visited 4 November 2011).

²³ L. R. Kass – Toward a More Natural Science – Biology and Human Affairs, 1st ed., The Free Press, New York City (1985), p. 82.

²⁴ Cf. S. Kirchner – Abortion and the Right to Life under Art. 2 of the European Convention on Human Rights?, in: A. Begum (ed.) – Medical Treatment and Law, 1st ed., Amicus Books, Hyderabad, India (2010), pp. 198 et seq., at pp. 199 et seq.

²⁵ ECtHR – A, B and C v. Ireland, Application No. 25579/05, Judgment of 16 December 2010, para. 214.

²⁶ A current example is the debate concerning organ donations and the question what really constitutes death and therefore what makes us human, material or immaterial aspects, cf. A. Kissler – Warum ich kein Organspender bin, in: The European, 18 October 2011, available online at <http://www.theeuropean.de/alexander-kissler/8507-hirn-oder-herz> (last visited 18 October 2011).

²⁷ RU stands for Roussel Uclaf S.A., the former company which originally developed the drug, no author named – Mifepristone, in: Wikipedia, available online at <http://en.wikipedia.org/Mifeprist one> (last visited 12 November 2011).

²⁸ Ibid.

²⁹ Ibid.

³⁰ Ibid.

³¹ D. Delvin – The morning-after pill, in: Netdoctor, 30 May 2011, available onle at <http://www.netdoctor.co.uk/sex_relationships/facts/morningafterpill.htm> (last visited 23 November 2011).

³² J. Peres / J. Manier – Morning-after pill's not abortion, scientists say, in: Chicago Tribune, 20 June 2005, available online at <http://www.religiousconsultation.org/ News_Tracker/morning-after_pill_not_abortion_scientists_say.htm> (last visited 24 November 2011).

³³ D. Delvin – The morning-after pill, in: Netdoctor, 30 May 2011, available onle at <http://www.netdoctor.co.uk/sex_relationships/facts/morningafterpill.htm> (last visited 23 November 2011).

³⁴ Cf. ibid.

³⁵ If that were the explanation, unborn life would be protected everywhere.

³⁶ For a short description see no author named – Mirror test, in: Wikipedia, available online at <http://en.wikipedia.org/wiki/Mirror_test> (last visited 24 November 2011).

³⁷ Ibid.

³⁸ The latter point is made well by C. Fahl – Schlaf als Zustand verminderten Strafrechtsschutzes?, in: 20 Jura – Juristische Ausbildung (1998), pp. 456 et seq., at p. 462,who points out that the lack of actual active awareness does not mean that the person in question is less protected by the law (in the case of Fahl’s text, criminal law).

³⁹ Some birds, such as pigeons, are said to pass the mirror test, no author named – Mirror test, in: Wikipedia, available online at <http://en.wikipedia.org/wiki/Mirror_test> (last visited 24 November 2011); R. Epstein / R. P. Lanza / B. F. Skinner – “Self-Awareness” in the Pigeon, in: 212 Science (1981), no. 4495, pp. 695 et seq., available online at <http://www.sciencemag.org /content/212/4495/695.full.pdf> (last visited 28 November 2011).

⁴⁰ Pigs are thought to be able to understand the concept of the reflection in the mirror but do not exhibit self-awareness, no author named – Mirror test, in: Wikipedia, available online at <http://en.wikipedia.org/wiki/Mirror_test> (last visited 24 November 2011).