Human Rights and the Unborn Child (review)

Rita Joseph’s Human Rights and the Unborn Child promises to represent “what international law has to say about the human rights of the unborn.”¹ This book postulates that abortion is prohibited under any circumstances by a range of international instruments, including the International Covenant on Civil and Political Rights (ICCPR) and Convention on the Rights of the Child (CRC).² Despite the silence of these instruments on the subject, Joseph argues that the consensus they represent regarding an absolute fetal right to life is so obvious that it did not need to be properly articulated. The same right is ascribed to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol), which authorizes medical abortion.³ An entitlement to the full panoply of human rights is declared from the moment of conception or “in practical terms, from the first moment that an unborn child’s existence in a new pregnancy is acknowledged and verified.”⁴ Exponents of a contrary view are regaled with an arsenal of pejorative terms. Philip Alston, Paul Hunt, members of the European Court of Human Rights (ECtHR), United Nations (UN) Secretariat, treaty bodies and a range of others are dismissed as disingenuous, conspiratorial, pretentious, exceptionally devious, perverse, ideologically zealous, ignorant, academically dishonest, extravagantly revisionist, scheming, confused, or radical feminists.

Joseph’s volume looks like a scholarly text. It was purchased by my university’s law library (and presumably many others) on the basis of its title, chapter headings and reputable publisher. Its first review lauded it the emerging “standard text on the matter.”⁵ Yet the book is replete with editorial oversights, including inaccurate descriptions of the offices occupied by individuals (Herbert Vere Evatt is described as a former Prime Minister of Australia), misuse of legal terminology and incorrect citations of paragraph numbers from treaties and general comments. Instead of citing to Article 14(2)(c) of the African Women’s Protocol, in a chapter aimed at establishing the article’s flawed drafting and impermissibility, the author incorrectly cites the article throughout the chapter as Article or Principle 16(c). The author also erroneously inserts the words “before as well as after birth” into what appears to be an extract from Article 2 of CRC. The personal pronoun “we” is employed repeatedly without acknowledgment of the persons said to hold the views expressed. Furthermore, a laxity of legal reasoning afflicts the text. Contentious proposals which were defeated or never put to the vote are cited as “affirmation” of international consensus. Historical context is seen to permeate international instruments by implication, as if by osmosis, to introduce obligations which were never agreed upon. Assumptions are elevated to the status of legal truth. A vague preambular statement in an international declaration is seen as evidence of a legal commitment in a declaration made eleven years earlier and a convention concluded years later, both of which failed to secure agreement on the issue. For readers who lack experience in the area, the text is apt to mislead as to the content and character of obligations under international law.

I. An Inaugural “Right to Be Born”

The legislative history of the Universal Declaration of Human Rights (UDHR) is declared to “determine without doubt” that the term “child” was “understood at the time in both the text and the context” to encompass the fetus.⁶ The preambular reference to “special safeguards and care including appropriate legal protection before as well as after birth” in the 1959 Declaration on the Rights of the Child (DRC)⁷ is cited as “formal and irrefutable evidence” and “intellectually binding proof” that the UDHR recognized an absolute fetal right to life.⁸ The necessary connection between the two declarations is seen to be sufficiently established by the presence of some common delegates at the drafting stage, which “ensured an unbroken continuity on all such important concepts.”⁹ Chile’s contentious proposal to extend the right to life to “unborn children and incurables, mentally...