Women’s right to birth control is a human right

September 2007

Human rights

Human rights are guaranteed in international treaties and conventions. The Universal Declaration of Human Rights of the United Nations (New York, December 10, 1948) has been exemplary, but is not binding. Internationally effective treaties are the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR, Rome, 1950) of the Council of Europe, and the International Covenant on Civil and Political Rights (New York, 1966) of the United Nations.
Whenever articles of these conventions are invoked before a national judge, this judge may put aside national law and apply the invoked articles of one or both Conventions. The Council of Europe, consisting of 46 European countries, has an international court, the European Court of Human Rights – ECHR – in Strasbourg, that by applying the ECHR articles can overrule national laws and decisions made by national judges. This Court, however, judges cases only when all means of getting your rights in your own country have been used to the full, but in vain.
In the following, two recent verdicts of the Strasbourg court will be discussed.

The right to life

Generally, those who plead for laws against abortion do so by emphasizing the right to life of ‘the unborn child’. The international treaties and conventions, however, grant this right only to ‘natural persons’; human beings are recognized as such from the moment they are born alive (and not before that) until they are dead. Thus the law views nor an embryo, nor a fetus, nor a baby not yet born, as a ‘person’. Fetuses do not have what living persons have got: an internationally guaranteed right to life.
Despite the right to life and as a consequence of unwanted human fertility, millions and millions of persons die because of lack of food or proper care. On earth, each DAY 25.000 people die of hunger and misery, of whom 18.000 are (young) children. And every year 80.000 women, mostly mothers, die from the consequences of an illegal abortion. Laws against (contraception and) abortion violate the right to life of those millions of people -all real and living persons.
As yet, there has never been a human rights lawsuit in which a woman invoked her own right to life and that of her living children to obtain a decision that would give her access to a legal abortion.

The right not to be submitted to torture and inhuman treatment

Denying a woman medical help in case of an unwanted pregnancy is a structural infringement, -lasting from menarche to menopause or even all her life- upon her human right not to be submitted to torture and inhuman treatment. Homo sapiens sapiens, male and female, is characterized by being able to evaluate actual situations, foreseeing future developments and acting to evade the worst and promote the best. Preventing female human beings from terminating unwanted pregnancies means depriving them of their right to exercise this faculty , and thus of their status of human being; it reduces them to breeding stock.
Even worse than this inhuman treatment of all women is the torture inflicted on those who are actually pregnant and want an abortion. The World Health Organization has calculated that half of all the human pregnancies on earth are unwanted. The Alan Guttmacher Institute in New York has found that one quarter of all the human pregnancies on earth end in an abortion. So, of the unwanted pregnancies, half is carried to term, and half is terminated long before that. This makes unwanted pregnancy the greatest problem on earth, a box of Pandora from which emerge deprivation, war and millions of unnecessary deaths yearly.
This global problem would be solved, if physicians all over the world were allowed to meet the contraceptive needs of women and perform abortions and/or sterilization at their wish. But doctors are prevented to do the latter, or even both, because of the penal codes of many countries.
If physicians, asked for help in cases of appendicitis or urine retention as a result of prostate problems, would risk prosecution by law for giving this help, patients would get no treatment; their appendix or bladder would burst and they would die. Such national laws would be judged incompatible with the internationally guaranteed right to life and the equally guaranteed right not to be submitted to torture or inhuman treatment.
It will take time and energy to convince human rights judges that it is tantamount to torture to force a woman against her will to complete a process of physical discomfort lasting nine months, followed by half a day or more of labor, excruciating pain and the unbearable task of raising a child in bad circumstances. In fact, the plea of inhuman treatment was recently rejected by the ECHR in Strasbourg in the case of Ms. Tyriac vs. Poland.

The right to a fair trial

Ours is a men’s world. Men are usually imbued with mistaken ideas about women and/or prejudices against women. Moreover, many of those ideas and prejudices are strengthened and sanctified by religious leaders. For instance, neither in the Old Testament, nor in the New Testament, nor in the Koran can be found one passage banning birth control for women. Yet, church leaders and priests preach otherwise. Judges should be impartial, but most of them are male and ignorant of the way of thinking of women, their emotions and their world. Generally speaking, they are not aware this deficiency that may impair their ability to judge impartially on female interests.
‘Powerless responsibility’ -thirty-five years ago leaders of the second feminist wave characterized the common feminine condition as such. Its complement is: irresponsible power. Those in power often lack responsibility and nearly all of them are men. Male judges, failing to appreciate their own shortcomings, judge women as if they are as powerful, and in the same way powerful, as many men. However, judges should recognize both a woman’s powerlessness when she tries to evade the consequences of male sexuality, and her great responsibility for the children she has born and those she might bear.
Of course, there has never been a human rights lawsuit where the judges’ lack of impartiality as
regards female responsibility, fertility and birth control has been pleaded; and it is unthinkable there ever will be.

The right to a private life and a family life

The articles in the human rights conventions concerning the right to a private life and a family-life comprise many exceptions. Invoking this right, therefore, seems not the best path to success.
Nevertheless, a plea on this ground was granted by the Court in Strasbourg, but only conditionally (Ms. Tyriac vs. Poland). The Court’s decision means that each time a woman with an unwanted pregnancy invokes this right, she will have to go to court whilst her pregnancy is progressing.
So, this human right can not be considered to be an adequate guarantee of a fundamental right of women.

The right to the integrity of the body

The right to the integrity of the human body is a relatively young right, but it might be used very effectively in favor of women. For example, in Western countries any attempt to determine the DNA of a suspect of a serious crime, such as murder, by taking a blood sample, has to wait until a judge has given permission to do so; in the days that DNA could not be determined otherwise, this caused serious delay. Consequently, this human right is taken extremely serious in jurisprudence and could be used in favor of women.
What happens to a woman’s body immediately after the innidation of the fertilized ovum in her womb? Her breasts begin to swell, often leading to permanent damage to the skin of the breasts. Soon af-ter, infirmities may crop up, such as nausea and fainting. Pains in the back, knees, ankles and feet, vertigo, claustrophobia, agoraphobia, insomnia, heightened blood pressure and even eclampsia (blood poisoning) may follow. Labor can be incredibly painful and after giving birth, back ache, pelvis instability, inconti-nence, swollen arteries and heart problems may be permanent conditions. Often, a woman’s beauty is im-paired for ever as well. In a men’s world, obsessed by young female beauty, these drawbacks of maternity may be painful to a woman, particularly when she is taunted for it, as often happens. The expectation of the great joys of coming motherhood usually helps the mother-to-be to bear all these inconveniences, ill-nesses and crippling infirmities with equanimity. But they are unbearable, when the woman does not want to bear, have and rear a child.
So, invoking the right to the integrity of the body in a human rights court should lead to success. But until now, it has never been invoked.

The right to equal treatment of men and women

The human right to be treated equally before the law is strongly emphasized in Western countries since the increase of Muslim immigration. However, because men and women have completely different roles as regards human procreation, equal treatment of men and women is just not good enough.
In law, the doctrine is paramount that to achieve equal treatment for all, each individual should be treated according to his or her means and circumstances. Therefore, in matters of procreation, the law should treat men and women differently, because it is the female who bears children, whereas the male does not. Consequently, women should have full power to decide about their pregnancies, whereas men should not have any say in the matter.
In this way the human right to equal treatment could be an exceedingly strong argument in a human rights’ court. But is has never been invoked.

The case Tysiac v. Poland

Ms. Tysiac had such bad eye-sight that she could not hold a job and hardly managed to raise her two children on her monthly welfare-allowance of PLN 560 (=€ 140; minimum wages in Poland € 220). Her GP told her that having a third child could lead to complete blindness.
When she became pregnant nevertheless, she consulted first an ophthalmologist who testified she needed -24 glasses for both eyes, and then presented herself to a gynecologist with a request for medical abortion. The latter refused, pointing out to Ms. Tysiac that her eyesight would not be further impaired, if she would have a caesarean. Two other specialists confirmed this opinion, without seeing Ms. Tysiac herself. Ms. Tysiac then agreed to a caesarean and became nearly completely blind six weeks after the operation.
Ms. Tysiac’s lawyers pleaded that Poland had violated her human right not to be tortured or submitted to inhuman treatment by denying her an abortion to which she should have been entitled on medical grounds. The Court rejected this argument, referring to the case of a Kurdish man suspected of belonging to a group of rebels. At capture, he was severely maltreated by the Turkish and then kept in custody for questioning; it was 36 hours later that he was eventually sent to hospital. The Court argued in his case that denying someone necessary medical aid with the intent of getting information out of that per-son, qualifies as torture. The Court dit not make clear the relevance of this case to that of Ms Tysiac’s nor why refusing medical aid to Ms Tysiac did not constitute torture or inhuman treatment, but all the same gave a verdict against her.
Alas! Ms. Tysiac’s lawyers failed to argue that not allowing women perfect birth control, including safe abortion, serves to keep them structurally in a subservient and exploited situation. Read the dissenting opinion of Judge Borrego Borrego. As such, denying women an induced, medically safe abortion is torture or inhuman treatment of possibly all women in the fertile age, and certainly of Ms. Tysiac.
On the other hand, the Court did accept the plea of Ms. Tysiac’s lawyers that her right to a private life and a family life was violated, but only insofar that she should have had the possibility to appeal against the gynecologist’s refusal. The Court allotted her € 25.000 for immaterial damages plus her costs and damages.

The case D vs. Ireland

Mrs. D, a mother of two children and happily expecting twins out of a new relationship, was sev-enteen weeks pregnant, when she was told that one fetus had been dead for nine weeks and that the other was dying at that moment. As she wanted to bury the twins in Irish earth, she hoped to get permission to be aborted in Ireland. She consulted a lawyer friend who dissuaded her from going to court: she was advised that she would certainly loose the case as the one and only exception to the Irish law’s absolute prohibition of abortion is when a woman is at risk of losing her own life as a result of the pregnancy. So Mrs. D. chose the quick solution of going to the United Kingdom, where she had the abortion and was permitted to take the last fetus home to Ireland.
Mrs. D. wanted the Strasbourg Court to examine the possible violation of her right to a private life, pleading that she could not possibly have gone to court in Ireland: she could not have afforded the costs, her personal and medical data would have been open to all, which could be detrimental to her two young children, and a negative verdict would have been inevitable. Moreover, her personal life was violated because she had not been permitted to take her medical file to the UK; as a result, she was denied the possibility of proper advise on possible genetic defects in the family.
The Court would not take her case, because she should have tried the costly, indiscreet and almost certainly unsuccessful action in Ireland first.

Evaluation

The judges of the Strasbourg Court are charged with, and have the duty of testing the legislation of the member-states of the Council of Europe and the execution of that legislation by the authorities; the articles of the European Human Rights Convention are the standard against which national law is tested.
In these two cases the judges restricted the examination. In the Polish case the human rights’ issues were cast aside; the judges only tested whether Poland had respected the ECHR articles concerning the right to ‘effective domestic remedies’ for the woman. In the Irish case too, the issues were restricted to procedural matters. The blame was put on the woman, because she did not avail herself of every effective ‘constitutional remedy’ in Ireland. But in reality she could not have taken any effective action at all, because the Irish law on abortion has no clause permitting abortion in case of a dead or dying fetus.
Both cases being extreme, it would have been a first and modest step to real human rights for women, if the judges had decided that denying an abortion to the Polish woman was either torture or inhuman treatment and that, for reasons of privacy, the Irish woman could not be denied an abortion in Ireland. It would have prepared the member-states to further steps to enlightenment.
The Strasbourg Court refused to decide the cardinal issues.

Legislation that penalizes abortion is absolutely incompatible with human rights. It forces women who do not want to carry their pregnancy to term to clandestine abortions. It keeps women in fear of un-wanted pregnancies for twenty, thirty or more years of their lives. It degrades perfectly honorable citizens to criminals, just because they are women in their fertile years.
Thus, legislation against medically safe abortion on the demand of the woman is a crime against humanity, and whoever contributes to realizing that legislation or executing it commits a crime against humanity.
The Strasbourg judges had nothing to fear, but still made themselves accomplices to infringements on human rights by condemning these women to the inhuman treatment of starting, in retrospect, an ex-pensive, prolonged and humiliating lawsuit, while the pregnancy inexorably progressed.
Women’s interests are served best by the law and order of a constitutional and democratic state, where the administration of justice is fair and impartial. Women, therefore, will have to educate legislators, judges, politicians and the public on their not-recognized human rights.

Hieke Snijders-Borst, lawyer
Schiefbaanstraat 25
2596 RC The Hague
The Netherlands
Tel.: +31703657188