Journal of Reproduction & Infertility

Journal of Reproduction & Infertility

Abortion and human rights in the outlook of international laws

Author
Amir Hasan Mehrgan
Department of Science and Research, Azad Islamic University, Tehran, Iran
Abstract
Studying abortion from Human Rights views and making a statement about its legality or illegality, requires us to know that human rights is a part of International Law, which is based on the will of states as the mem-bers of international community, and it is materialized in international conventions and customs. Internatio-nal Law is a main branch of science of Law which is a tool in the hands of the civilized man to draw the different wills closer and to enact punishment for breaching the rules pertaining to Public Order. In the con-temporary era, human rights which is inclined towards the inherent values of human beings and is outside the reach of the will of states and accordingly should be just codified and respected by governments, and in this respect can not be granted or even waived, with regard to the rapid changes in the international commu-nity, already is under such a great attention that has affected Law in its whole concept. The main issue in all international human rights instruments is human being and the intrinsic rights belonging to his nature, accordingly it can be deduced that humanity as a whole, is the real concern in human rights. Notwithstand-ing, the most fundamental right of human beings through which enjoyment of other rights is possible, is the Right to Life which is considered by all the relevant instruments. Different human rights are not based on hierarchy but each of them is complimentary or supplementary to the others, therefore submitting to this right without considering and respecting the other human rights i.e. freedom of choice, actually would end up in negating the intrinsic values of mankind which has been created by God in his figure. Abortion is a complicated issue and necessitates considering the contradicting rights inherent in human nature namely: the right of fetus, which according to medical and biological sciences bears human DNA and therefore should be considered a human being, the right to life and the right of women to choose the walks of life they choose, especially when one chooses the kind of motherhood she wishes during her life. The reason why most international human rights instruments do not carefully address this important problem is rooted in the mentioned conflicts which in a broad analysis have a restricting effect on the rights of the two parties. The black and white theories of those who approve or criticize abortion, which is based on pure metaphysics or humanism, to the benefit of either the unborn child or the mother, can not help to elucidate this problem because the mentioned inconsistency is not entrenched to the theoretical debates but is considered as the exact starting point of encountering reality and law in a particular aspect of social life. Although in our views, there is no uncertainty about the human characteristics of the fetus, hence about his right to life, we have to remember that the nature of human beings consists of opposing and at the same time evolutional elements, therefore human rights can not be studied devoid of consideration of all conflicting problems and developing issues concerning this complex nature with its earthly needs. If no steps are taken to comply with the minimum standards in the mankind’s life, he, as a result of distress or as seeking a solution to his problems, without contemplating about ethics and values, may infringe the rights of others, including his own child’s.
Keywords
abortion
Human rights
Humanity
International Law
Right to Life
ساکت، محمد حسین. شخصیت و اهلیت در حقوق مدنی.
قانون مجازات اسلامی. تعریزات و مجازات‌های بازدارنده. مصوب 1375.
سید فاطمی، دکتر سیدمحمد. حق حیات. مجله تحقیقات حقوقی. شماره 31-32 دانشگاه شهید بهشتی، پاییز- زمستان 1379، صفحات 149-166.
Harris D.J. Cases and materials on internationa law. 4th Edition. London, Sweet & Maxwell.1991.
Yanagimachi R. Mammalians Fertilization. The Phy-siology of Reproduction. Knobil E., Neill J., et al (Editors). New york: Raven Press.1988.
Engilish Dictionary of Medical Terms.
Wallace R. Internationa human rights. Text & Mate-rials. Sweet and Maxwell.1997.
Ghandhi P.R. Internationa human rights documents. Blackstone?s Statute Books, Edition.
Australian Senate Select Committee on the Human Embryo Experimentation Bill, 1985. Official Hansard Report. Canberra: Australian Government Printing Service, 1986.
Convention on the Prevention and Punishment of the Crime of Genocide.1948.
Declaration on the Rights of Disabled persons, 1975, GA. Res. 3447 (XXX), 9 December1975.
Declaration of the Rights of the Chidl, 1963.
Fleischhaver. Carl August, the Legal Council, 9 De-cember 1988, Response of the legal council E/CN.
General Assembly Res. 34/180/UN Doc. A/34/46/19 I.L.M.33 (1980)
General Assembly Res. 48/104/February 23/1994.
Human Rights Committee, General Comment GC.7 (16), Doc. A/37/40, 94. Also in Doc. C/21/Add. L.
Human Rights Committee, General Comment 6, Arti-cle 6 (sixteenth session, 1982), Compilation of General Comments & General Recommendations Adopted by Human Rights Treaty Bodies. U.N. Doc. HRI/GEN/ 1Rex. 1 at 6 (1994).
Sharon Detrick. Compiler & Editor, The United Nations Convention on the Rights of the Child, A Guide to the “ Travaux Preparatiores” (Dordrecht: Martinus, Nijhoff Publications, 1992).
The American Convention On Human rights, 1969.
The United Nations Convention on the Rights of the Rights of the Child 1989.
The International Covenant on Civil and political Rights, 1966.
The International Covenant on Economic, Social and Cultural Rights, 1966.
The Convention on Elimination of Discrimination Against Women, 1979.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950
Universal declaration of Human Rights, 1948, GA. Res. 217A (III).
United Nations Charter.
United Nations Safeguards Guaranteeing Protection of the Rights those Facing the Death Penalty,1984.
Catholic Medical Quarterly, Whose Rights Are they? November 2001 edition.
Fleming. J., Hains G.M. What Rights If Any, Do the unborn have under international law?
Dr. Krishna Siwakoti. Gopal, Humanrights: Rhetoric And Realities. File: //A:/humanrights: rhetoricandrea-litis.htm.
Fisher. Anthony, IVF the Critical Issues (Melbourne: Collins Dove, 1989).
F. Boehm, Dr. OB. Vanderbilt U. Med. The Washing-ton Times, May, 1966),
Fleming, International Law & Fetal rights. http:// www. International Law and Fetal rights.htm.
Fleming, Article, The Right of the Unborn Under International Law. http://www.International Law and Fetal Rights. Htm.
Konsen. A., Without God Rights are an Illusion, Articl. http://www.humanrights,htm.
Mackay et al. “Safety of Local vs. General Anesthesia for Second Trimester D & E Abortions”. OB & GYN, vol, 60, no. 5 November 1985.
R. Yanagimachi, “Mammalians Fertilization”, The Physiology of Reproduction, eds. E. Knobil, J. Neill et al, (New York: raven press, 1988).
Rahman A., Katsive. Laura & Henshow, Stanley. K. A Global Review of Laws on Induced Abortion, 1985- 1997. By www.whrr.com.
Unsafe Abortion Around the World. Fact Sheet. http://www. usafeabortionaroundtheworld.htm.
Harris D.J. Cases and materials on international law. 4th Edition. London, Sweet & Maxwell.1991.
Journal of Reproduction & Infertility
Volume 6, Issue 4
Autumn 2005
Pages 410-440