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The Victorian Council for Civil Liberties’ submission to the Victorian Law Reform Commission on the Law of Abortion is a half-baked and rather shallow piece of work that is not up to dealing responsibly with the grave human rights issues involved in abortion law reform.  Liberty Victoria’s submission relies on a flawed interpretation of international human rights principles relating to legal protection for the child at risk of abortion.

Liberty Victoria’s first fault lies in their use of the term ‘the foetus’—they fail to recognize and use the agreed legal language of the foundational international human rights instruments which "recognize" the right of "the child" to legal protection "before as well as after birth".

 The drafting histories of the major human rights instruments upon which modern international human rights law is founded all record regular use and acceptance of the vocabulary of the human rights of the child before birth.  The definitive language of “expectant mothers” (Geneva Conventions) and their “unborn children” (Nuremberg judgments) is being ignored—pro-abortion groups such as Liberty Victoria are exercising a sleight of hand when they replace the term ‘child’ with ‘foetus’ and then proceed to the false position that because “the foetus” is not mentioned in human rights instruments, the unborn child at risk of abortion has no human rights.

The second flaw in Liberty Victoria’s submission lies in its facile readiness to ditch the fundamental human rights principles of non-discrimination and of equality before the law.  The child before birth is dismissed with the discriminatory opinion that the child is “only a potential person”  with lesser human rights to legal protection than “an actual person” or “an independent living person” (2.1). The implication that the child at risk of abortion is not ‘living’ is nonsensical—if the child is dead then there is no ‘need’ for abortion.  Similarly nonsensical is the implication that human beings must be ‘independent’ in order to have legal rights and be able to assert them—the whole thrust of the human rights movement has been to ensure human rights including equality before the law to “all members of the human family” including the disabled, the frail aged and children at risk of abortion all of whom, though most vulnerable in their dependency, are certainly not rendered rightless by that dependency.

Liberty Victoria observes quite rightly that the law governing this area [abortion] should rest upon, and recognize, Australia’s obligations under international human rights instruments, specifically the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). (2.2)

But regrettably Liberty Victoria goes on then to produce an ideological reinterpretation of selected articles from these instruments, giving them a new pro-abortion meaning that was never there in the drafting history. A right to abortion was never  included and this  was affirmed in the two most acclaimed authorities on the drafting history of the Universal Declaration—Albert Verdoodt, in the first major study, Naissance et Signification de la Déclaration Universelle des Droits de l’Homme (Société d’Etudes Morales, Sociales et Juridiques, Louvain-Paris, Editions Nauwelaerts, 1964); and Johannes Morsink in his Universal Declaration of Human Right: Origins, Drafting and Intent, (Philadelphia: University of  Pennsylvania Press, 1999).  Both authorities confirm also that the drafters intended to ensure that human rights were to be applied inclusively—absolutely no one was to be excluded from human rights protection.

Articles 1, 3, 12 and 25(1) of the Universal Declaration apply equally and without discrimination to the child before as well as after birth as well as to the child’s mother.  The fundamental human rights principle of indivisibility ensures that neither governments nor courts of law can delete the human rights of an unborn child by purporting that such a deletion is necessary for the protection of the human rights of the child’s mother. The abuse of one person’s rights cannot be justified by upholding another person’s rights.  The indivisibility principle requires that human rights protections for both mother and child be observed—both mother and child at risk of abortion are entitled to legal protection.  Both are entitled to the best possible health care.

The reference by Liberty Victoria to ICESCR Article 12 (1) and (2) is rather inept in that this Article very carefully excludes no one from health rights and places particular emphasis on the need for special health provisions for the child before as well as after birth “for the reduction of the still-birth-rate and of infant mortality and for the healthy development of the child”.

Liberty Victoria fails also to comprehend that the de criminalization of abortion they espouse actually contravenes Article 6 of the ICCPR which protects the right to life of all members of the human family and includes the unborn child.

The ICCPR’s  travaux preparatoires stated this explicitly: The principal reason for providing in paragraph 4 [now Article 6(5)] of the original text that the death sentence should not be carried out on pregnant women was to save the life of an innocent unborn child, and reached the conclusion: The provisions of paragraph 4(5) of the draft article aimed at the protection of the life of the unborn child whose mother was sentenced to death; that protection should be extended to all unborn children.

Liberty Victoria is also wrong-footed when it cites CEDAW Articles 12(1) and 16.  They appear to be ignorant of the fact well-documented in the drafting history of this Convention that the term ‘family planning’ does not include abortion. CEDAW does not endorse abortion—on the contrary, it provides special protections for maternity. Their ignorance is further displayed in their selective quotation on family planning from the 1994 Cairo Programme—they assume that family planning includes abortion and fail to acknowledge the critical consensus by the 184 UN member states at the Cairo Conference—“In no case should abortion be promoted as a method of family planning.”

Finally, with regard to the assertion: Liberty Victoria believes that the guiding principles that should underpin reform of the law of abortion should be international human rights principles not the concept of sin or a particular religious belief (2.13) we would agree and add “or ideological belief”.  Liberty Victoria employs an ideological belief as the founding premise of its submission:

Liberty Victoria starts from the position that abortion is not morally objectionable and that the foetus ‘is only a potential person to whom the law offers lesser protection than to an actual person such as the mother’ (2.1)

Such a belief stems from an extreme feminist ideology that seeks to deny the fact that both reason and science confirm the humanity of these children.  Such an irrational belief represents an invalid attempt to de-recognize the human rights of the child before birth which are recognized for posterity in the Universal Declaration. New and extreme ideologies are frequently contrary to law and reliance on ideological endorsement of lethal practices such as abortion to restrict or narrow the law on equal human rights protection for all members of the human family is not a sound basis for any law reform.