Conference at the Lithuanian Parliament: For a better protection of prenatal life
On December, 4th, the Lithuanian Parliament held an international conference on “Unborn child: is abortion a human rights?” with Javier Borrego-Borrego, former ECHR judge, and Grégor Puppinck, PhD, Director of the ECLJ.
This conference was organised by the parliamentarian group for human dignity, and the Free Society Institute.
It took place this day while the Seimas (Parliament) is currently considering a bill of law seeking to reinforce the protection of human prenatal life. This conference has been preceded by a seminar held at the Vytautas Magnus faculty of law on the previous day.
Mr Javier Borrego-Borrego, reminded the assistance that the Court can’t create new rights that were not in the Convention, such as a right to abortion. He addressed the current issues related to the loss of credibility of the Court in the context of growing criticism over its judicial activism and tendency to social engineering. Mr Borrego explained that a cause of the current difficulties of the Court lies in the fact that many ECHR judges have no judicial experience before entering the Court, as they are often law professors.
Regarding abortion, Mr Borrego, after commenting the Tysiac v Poland case, noticed a semantic change: The use of “right to abortion” was first replaced by “pro choice” which was more positive. It has been recently again replaced by the use of the expression “sexual and reproductive health and rights” which seems more acceptable that right to abortion or pro-choice, but means the same.
Dr Grégor Puppinck has presented the status of abortion under the European Convention on Human Rights. Based on a study of the case law of the European Court of Human Rights, he explained that there is no “right to abortion” within the European Convention. In fact the Convention does not exclude prenatal life from its scope of protection. In most European national legislation, abortion is a derogation to the protection granted in principle to the life of the unborn. The Court ruled that if a State allows abortion in its national legislation, it remains subject, under the Convention, to an obligation to protect and respect competing rights and interests –including the right to life of the unborn and the interests of the society to reduce the number of abortions; those rights and interests weigh on both sides of the balance in restricting the scope of the derogation as well as in supporting it. It also appears from the case law of the Court that abortion on demand is a “blind spot” in the case-law of the Court and violates the Convention, because it harms interests and rights guaranteed by it without any proportionate justification.
Then, Dr Grégor Puppinck insisted on the duty to uphold the fundamental right “not to abort”. While 30% of pregnancies end up in abortion in Europe, it is no longer possible to talk about abortion only in terms of “progress” and “freedom”. The massive practice of abortion is a result of a systematic failure by States to fulfil their obligations in regard to socio-economic rights. Indeed, most abortions are requested because of socio-economic constraints of the mother and family. This constraint and the resulting high number of abortions could be limited if States endeavoured to really fulfil their socio-economic obligations, according to which “special protection should be accorded to mothers during a reasonable period before and after childbirth” and that “the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society” (International Covenant on Economic, Social and Cultural Rights, Article 10, paras. 1 and 2). The fulfilment by States of their socio-economic obligations would go a long way towards helping women in crisis pregnancy and towards the implementation of a forgotten right: the “right not to abort”.
