Down Syndrome: Is abortion a human right?

This 21st March, on World Down Syndrome Day, a group of former judges of the European Court of Human Rights, of the Inter-American Court of Human Rights and of UN experts are asking the European Court of Human Rights (ECHR), along with the ECLJ, to recognise that eugenic abortion of children with Down Syndrome can be prohibited, and indeed should be prohibited out of respect for the rights of disabled people.

Op-Ed published in French in Valeurs Actuelles.

This step is unprecedented in the history of the European Court. It is the first time that former judges have acted in this way before the Court and that the question of eugenic abortion has been raised in such a direct manner. It must be said that the issue of eugenics is at the heart of the abortion debate in the United States, the United Nations and now in Europe.

In the United States, twelve states have banned medical personnel from performing abortions when they are requested in a discriminatory manner because of a diagnosis of Down syndrome. Some states also prohibit abortion on the basis of the child's sex or "race".

Then the UN Committee on the Rights of Persons with Disabilities (CRPD) - composed of a majority of persons with disabilities - stated that "Laws that explicitly permit abortion on the basis of disability violate the Convention on the Rights of Persons with Disabilities", in particular because such abortion "perpetuates notions of stereotyping disability as incompatible with a good life.” (2018). If a disabled person's life is worthless before birth, why should it be valuable afterwards?

Since 2011, this Committee has already ruled in relation to Spain, Austria and Hungary that foetal disability should not be the subject of a specific abortion regime. The Committee recommended that the United Kingdom "amend its abortion law accordingly", stating that “Women’s rights to reproductive and sexual autonomy should be respected without legalizing selective abortion on the ground of foetal deficiency” (2017). Abortion laws must apply equally to unborn children, regardless of their health status, but also regardless of their gender, as the UN women's rights committee (CEDAW) stated. A former Chair of the Committee on the Rights of Persons with Disabilities is among the signatories of the ECLJ's observations to the European Court.

After the United States and a United Nations Committee, the Polish Constitutional Court ruled on 22 October 2020 that abortion on the grounds of a child's disability is a violation of human dignity and must therefore be abolished. This judgment was strongly condemned and denounced by some European bodies.

In Poland, as in the United States, the same pro-abortion lobbies are taking legal action to guarantee - in contrast - a right to eugenic abortion, sometimes even up to birth, as is already the case in France. In the United States, this lobbying has led to the suspension of the application of these laws in some States, and their conservation in others, depending on whether judges consider that the choice to set legal conditions for access to abortion is consistent with the American Constitution.

This issue will soon be decided at the federal level by the US Supreme Court in Dobbs v. Mississippi. The outcome of this case could call into question the famous 1973 Roe v. Wade decision that made abortion - unconditionally up to 24 weeks - a constitutional right.

At the European Court of Human Rights, the judges are hearing a case (M. L. v. Poland, no. 40119/21) brought by a woman who complains that she was unable to have an abortion in Poland, as she was expecting a child with Down syndrome. She sought compensation for the inconvenience she suffered and the 1220 euros she spent to go to the Netherlands for an abortion. Beyond this particular claim, the real issue is whether the European Convention on Human Rights allows States to ban eugenic abortion, and even more so whether this ban constitutes a violation of human rights.

Advocates for the lives of people with disabilities can rely not only on the Convention on the Rights of Persons with Disabilities, but also on the Universal Declaration of Human Rights, on which the European Convention is based. Indeed, the drafters of the Universal Declaration refused to include an exception to the respect for the right to life in order to allow “the prevention of the birth of mentally handicapped children” and of children “born of parents suffering from mental illness”. The reason for this refusal was the similarity of this provision to the circular of 13 September 1934, in which the Nazi regime secretly authorised abortion on women who were likely to produce "hereditarily ill offspring".

More generally, this case of eugenic abortion raises two crucial questions.

Firstly, it raises the huge question of the acceptance of eugenics in our society, marked by the development of biotechnologies. Two conceptions of human and their fundamental rights are opposed: are human rights for or against eugenics? Is their role to protect us from it in order to preserve our humanity, or on the contrary to guarantee access to it in the name of progress in the human condition? If suppressing a child in utero, because they are genetically imperfect, is a human right, what is our conception of human?

Secondly, the issue of eugenic, racist or sexist abortions radically contradicts the 'right' to abortion because it undermines its two foundations, namely the ignorance of the humanity of the foetus and the valorisation of the woman's will. Indeed, taking into account the eugenic, sexist or racist character of abortion reminds us that the foetus has human characteristics - a sex, a race, a state of health - that they share with born people. To recognise these characteristics in the foetus is to implicitly recognise their humanity. Similarly, eugenic, sexist or racist abortions reveal that a woman's will can be driven by discriminatory intentions, intentions generally prohibited by human rights.

Thus, as soon as the value of the woman's will is questioned and the humanity of the foetus is taken into account, the logic of a general right to abortion is shaken. The contradictions of the "right" to abortion then appear, from which it is only possible to emerge by absolutizing it - as is the tendency in Western Europe - or, on the contrary, by relativising it, as is the tendency in the United States and among defenders of the rights of the disabled.

Finally, these cases of eugenic abortion question us about our own humanity.