The United Nations and the Unborn Child
by William E. May
Review of Human Rights and the Unborn Child, by Rita Joseph. (Leiden/Boston: Martinus Nijhoff Publishers, 2009. xviii+357 pp. $148.00.)
Rita Joseph has represented family concerns at UN conferences, and writes and lectures on social issues especially concerning women and families, and has made a special study of the Holy Father's writings on family and on women. She has previously lectured at the John Paul II Institute for Marriage and Family Studies in Melbourne. Rita and her husband live in Canberra, Australia.
In July 2009, her book, Human Rights and the Unborn Child was published. The book analyzes documents from the major human rights treaty monitoring bodies relating to the topic of the unborn child. Contemporary reinterpretations of these documents are closely examined in their historical context, along with commentary on the original purpose, meaning and philosophical foundation of modern international human rights law. (Ordering info: http://www.brill.nl/product_id33806.htm or available at amazon.com ).
One often hears that the rights of the unborn child are not included in key United Nations human-rights documents. This notion is false, as Australian Rita Joseph amply shows in this very important and meticulously researched book, Human Rights and the Unborn Child. The author’s close involvement with UN commissions and committees and as a member of the Australian delegation in working group sessions negotiating human rights languages convinced her that the dignity and worth of all human beings, including the unborn, is affirmed by the UN documents.
The first two chapters lay the foundation of the entire volume by providing the historical context indispensable to show that the authors of the 1948 UN Universal Declaration of Human Rights (UDHR) clearly recognized that the unborn child, like all other innocent human beings, has an inalienable right to life. The third chapter then focuses on the “fundamentals” of the Universal Declaration of Human Rights in order to show that at its heart is the incomparable dignity of the human person, which in turn is rooted in basic natural-law principles. The overriding importance of these chapters for fully grasping the remainder of the book warrants an in-depth presentation of their contents.
The Rights of the Child
In the first chapter, the author carefully analyzes the UN 1959 Declaration on the Rights of the Child (DRC), in particular on its preamble, whose third paragraph explicitly affirms the unborn child’s inalienable right to life by declaring:
Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth. (emphasis added)
In order fully to appreciate the significance of this paragraph, Joseph observes, we must read it within the context of the preamble’s second paragraph:
Whereas the United Nations has, in the Universal Declaration of Human Rights, proclaimed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
From this we can see that the third paragraph of the preamble to the Declaration of the Rights of the Child particularizes its scope to the special case of the child “before and after birth”, thus eliminating possible ambiguity about application of the provisions of the Universal Declaration of Human Rights to the unborn child.
Joseph shows that the preamble’s fourth paragraph offers “incontrovertible historical proof that the UDHR ‘recognized’ that the child before birth, no less than the child after birth, is an appropriate subject of human rights law and is entitled to appropriate legal protection. It declared: ‘Whereas the need for such special safeguards [i.e., those mentioned in paragraph 3] has been stated in the Geneva Declaration of the Rights of the Child of 1924, and recognized in the Universal Declaration of Human Rights and in the statutes of specialized agencies and international organizations concerned with the welfare of children.’ Insertion of the word ‘such’ here and repetition of the words ‘special safeguards’ makes the essential continuity of these two clauses [paragraphs 3 and 4] unmistakably clear.”
The legal force of the 1959 DRC, Joseph says, “lies in the formal and irrefutable evidence it provides that in November 1959 the whole international community agreed and understood that the UDHR had for the first decade of its jurisdiction recognized the legal status of the child before birth as a juridical personality entitled to legal protection. This is the evident sense of the UDHR, the very foundation instrument of modern international human rights law” (pp. 2-3).
Historical Context of the UN Declarations
In the second chapter, the author summarizes masterfully the historical context showing that at the time the UDHR was written in 1948, the civilized world unambiguously recognized the right of the unborn human baby to be born and to enjoy appropriate legal and moral protection.
Joseph cites and comments on more than fifteen documents to illustrate this historical tradition. Some, written long before the 1948 UDHR, reflect the lengthy common-law tradition protecting the child before birth, pre-eminently the ancient Hippocratic Oath and the 1924 Geneva Declaration of the Rights of the Child.
Other sources immediately preceded the 1948 UN document, and among these we find: the British Medical Association’s June 1947 reaffirmation of the Hippocratic Oath in a submission to the World Medical Association; textbooks on human embryology in the late 1940s affirming that the human embryo is a distinct new human being and that the end of the process of fertilization marks the beginning of a new human life; popular books, magazines, and articles on parenting and baby care during the 1940s that regularly included special advice for the care of the child before birth, such as Dr. Benjamin Spock’s immensely popular and influential Common Sense Book of Baby and Child Care; the affirmation by Eleanor Roosevelt, who later became Chairwoman of the Drafting Committee of the UDHR, that “women bear the children, and love them even before they come into the world”.
Joseph then quotes and analyzes documents and other materials from 1947 through 1969 to establish her thesis. Among these are: The Nuremberg Trials and Tribunals 1947, along with testimony from medical authorities and Lebanese philosopher and diplomat Charles Malik’s contributions to the final UN General Assembly debate on the UDHR in December 1948 expressing opposition “to the barbarous doctrines of Nazism and Fascism”; the First Draft of the International Covenant on Human Rights 1947; the Fourth Geneva Convention 1949; the World Medical Association’s 1948 Geneva Declaration; the [Latin] American Declaration of International Rights and Duties of Man (also known as the Bogotá Declaration) of 1948; the International Code of Medical Ethics 1949; the UN Declaration of the Rights of the Child 1959; the International Covenant on Civil and Political Rights 1966.
The author points out that some of these sources explicitly affirm that the unborn are human persons with an inviolable right to life, and that this right is to be appropriately protected legally.
Among these are the First Draft of the International Covenant on Human Rights, the Draft American Declaration of the International Rights and Duties of Man, and the World Medical Association’s 1948 Geneva Declaration.
Other sources, for instance The Nuremberg Trials and Tribunals, the International Covenant on Civil and Political Rights, and the UDHR of 1948 do not make such explicit affirmations. But overwhelming evidence marshaled by Joseph clearly shows that these sources accept the truth that the unborn are human beings.
Thus, Joseph shows how the preparations for the UDHR shed light on its silence on this matter. She first cites an amendment proposed by Chile to the UDHR on the universal application of the right to life that very explicitly stated that unborn children have the right to life.
At that time unborn children were commonly recognized as persons (as other sources already noted make clear). The Chilean amendment, she argues, was removed chiefly in the “cause of keeping to the broadest simple expression of the principle in order to produce a more concise text”.
Legally Binding Principles of Protection
The book’s third chapter is titled “Fundamentals of the Universal Declaration’s Human Rights Protection”. Joseph shows that, considering the legally binding principles of the declaration, the UDHR recognizes the rights of the child before birth. She emphasizes that it specifies rights recognized in the Charter of the UN and derives its binding power from the legal standing of that charter. She notes that internationally respected experts on international law (e.g., Hersch Lauterpacht of Cambridge University) agree that UN members are obliged legally to act in accord with the charter.
She stresses several points: (1) that the 1959 Declaration of the Rights of the Child is of immense importance for explicitly affirming the unborn child’s right to life and to appropriate legal protection, (2) that human rights are essentially inalienable and timeless, (3) that they are clarified by the Holocaust experience, and (4) that they allow no one to be excluded. She refers to the testimony Drs. Leo Alexander and Andrew Levy gave at the Nuremberg Trials showing how Nazi doctors violated these rights and ushered in a relativistic ethic that can threaten medical ethics.
In a most important section Joseph then shows how the dignity of the human person, as a being of moral worth surpassing in value other forms of life, is at the heart of the UDHR, and that the principle of the dignity of the human person itself is a major principle of the natural law as demonstrated by such major figures influential in the articulation of the UDHR (e.g., Charles Malik, Field Marshal Smuts, Eleanor Roosevelt and others).
Referring then to John Finnis’s Natural Law and Natural Right, Joseph focuses on the way Finnis showed that the right to life of innocent persons, including the unborn, is rooted in the fundamental natural-law principle that the basic aspects of human good are never to be directly (i.e. intentionally) suppressed, a principle providing the rational basis for absolute human rights that prevail semper et ad semper (always and on every occasion), even against the most specific human i.e., man-made (as by Hitler) enactments and commands (pp. 31-43).
In concluding the chapter Joseph shows how procured abortion violates a basic human right and a basic natural-law principle and how efforts to dehumanize unborn children and others by a dehumanizing use of language violate the principles of the natural law and of the UDHR (pp. 43-46).
I have given detailed summaries of Chapters 1, 2, and 3 because in the remaining chapters of her book Joseph uses the evidence and arguments marshaled in them, along with further evidence and arguments, to show how terribly flawed are later ideologically driven efforts to “re-interpret” the founding documents of the UN in order to dehumanize unborn children, rob them of their right to be born, and decriminalize abortion, elevating it to the rank of a basic right of women. Shorter summaries of the book’s remaining chapters can thus be given, despite the complexity of some of them, in particular, Chapter 11.
Inviolable Rights Undermined
In chapter 4 the author examines “The Inaugural Human Right To Be Born Free and Equal”. In this chapter the author emphasizes that this right is an endowment that accompanies the child’s coming into being, and is not dependent on his/her being born nor is it conferred by others (its parents or the state). She then surveys and criticizes contemporary ideological attempts (e.g., militant feminism) to re-interpret the UDHR and similar documents.
Chapter 5, “What Is Appropriate Legal Protection Before As Well As after Birth?”, takes this matter up in detail appropriate legal protection is to punish by law the intentional killing of unborn children (abortion). Here Joseph likewise surveys and criticizes efforts to deny the unborn child a legally recognized personality, to decriminalize abortion, etc.
Chapter 6, “The Right to Life and the Necessities of Life”, identifies such rights recognized in legally binding documents. Among them are the right of all human beings to physical existence and to physical integrity from the moment of conception, the right of the mother of the unborn to necessities of life, to liberty and the security of the person, etc.
These rights also protect persons against cruel, inhuman, and degrading treatment and punishment, and repudiate abortion as part of the “science of death” that advocated the use of pre-natal testing in order to abort “defective” children. (This “science of death” was termed “ktenology” by Leo Alexander, who condemned the Nazi view that some lives are not worth living.)
Chapter 7 takes up “Decriminalization A Treaty Interpretation Manifestly Unreasonable”. Joseph offers a devastating critique of efforts to reinterpret key UN Documents from 1948 (UDHR) and 1959 (DRC). She begins by summarizing and reaffirming the truth that the UDHR recognized the unborn child as a person with an inalienable right to life and the fact that international covenants had been enacted in accordance with the UDHR. It is then obvious that the repeated ideologically driven efforts to dehumanize the unborn, to decriminalize abortion, and “to gut ‘appropriate legal protection’ of the unborn”. Joseph shows the mental gymnastics and linguistic distortions used to re-interpret the basic documents to make them conform to a relativistic ethic.
UN Convention on the Rights of the Child
Chapter 8, “CRC [Convention on the Rights of the Child 1989] Legislative History and the Child before Birth”, focuses on Legislative History on the Convention on the Rights of the Child, published in 2007 by the Office of the High Commissioner for Human Rights. The author shows how the UN publication of this Legislative History “provides support of the Convention’s recognition of the human rights of unborn child and States parties’ obligation to protect them” (p. 121). She also shows that this is true, despite the argument that although the UN’s 1989 Convention on the Rights of a Child is a legally binding document, the obligations it imposes on States (the USA is the only country that has not ratified it) do not extend to the child before birth because these rights are mentioned only in the preamble to the document.
Adam Lopatka (who had served as the Chairman/Rapporteur of the Working Group on the Draft of this Convention) invoked this argument in his introduction to the Legislative History. But his argument directly contradicts Article 31, General rule of interpretation of the 1969 Vienna Convention on the Law of Treaties. (Article 31 establishes, inter alia, the object and purpose of a treaty and its historical context as guidelines of interpretation. Ed.)
Joseph also reviews the long tradition demanding protection of the human rights of the unborn child, the right to pre-natal care, the incompatibility of these human rights with abortion, the spurious efforts to establish abortion as a fundamental right of women, etc., and concludes by showing how the historical context invalidates Lopatka’s claim.
In Chapter 9, “Selective Abortion on the Grounds of Disability”, the author reviews and rebuts efforts to justify the abortion of unborn children who are judged disabled and the view that these children would be better off dead than alive. Joseph shows how such efforts are utterly incompatible with the Nuremberg Trials and testimony given there, and a myriad of conventions and declarations on the rights of the child, as testimonies given by many respected authorities make crystal clear.
Joseph opens Chapter 10, “European Convention (1950) and the Unborn Child”, by declaring: “The historical background to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) reveals that a broad consensus for including the child before birth in human rights protection was operating universally and without controversy at that time” (p. 179).
The European Convention, written only two years after the UDHR, includes unborn children as persons whose lives are to be protected. However, in 2007 the European Court of Human Rights denied that the Convention mandated protection of the unborn child’s right to life, deeming the unborn child merely a “potential” and not actual person.
Joseph reviews the vigorously presented dissent elicited by this decision and summarizes again evidence mostly already given regarding the consensus in the 1940s and ’50s that unborn children are persons whose right to life must be protected. She also shows how spurious are claims that the UDHR as a “living document” is subject to reinterpretation.
Joseph begins Chapter 11, titled “American Convention on Human Rights ‘… in general from the moment of conception’”, by stating:
from the very first draft (1947) of the human rights principles that comprise the American Declaration on the Rights and Duties of Man (1948) to their final codification in the American Convention on Human Rights (ACHR) (1969), it was consistently recognized that unborn children were included in the human rights protections being drawn up (p. 213).
This chapter is complex because of the history with which it is concerned principally the misrepresentation of prior Latin American declarations and conventions in the 1981 ruling known as the “Baby Boy Resolution”, in which the Inter-American Commission on Human Rights (IACHR) ruled that the right to life of an aborted baby boy was not protected by existing documents and the nefarious influence of this resolution on post-1981 American declarations and conventions on human rights.
Joseph gives devastating criticism of ideologically driven efforts to deny rights to unborn children, giving special attention to the “Baby Boy Resolution”. The IACHR majority’s ruling grossly misrepresented the meaning of “in general from the moment of conception”. This phrase had appeared in the American Convention on Human Rights of 1969.
The actual text of this Resolution stated, “the legal implications of the clause ‘in general, from the moment of conception’ are substantially different from the shorter phrase ‘from the moment of conception’…” But the majority commissioners interpreted this phrase as being not “substantially different” but “totally different”. The majority commissioners’ mistake, Joseph points out, is critical “since it has been used in subsequent legal disputes to deny the right to life of every child from the moment of conception”.
Chapter 12 (pp. 245-264) is concerned with “Reclaiming Rights of the African Child at Risk of Abortion”. Joseph gives a splendid critique and rebuttal of the 2003 African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, a document that directly contradicts one of the basic principles of modern human rights laws as well as several African regional human-rights declarations and charters such as the Declaration on the Rights and Welfare of the African Child (1979), African Charter on Human and Peoples’ Rights (1981), and African Charter on the Rights and Welfare of the Child (1990), all of which pledged and renewed African commitment to the human-rights provisions of original UN documents and covenants. The abortion language in the 2003 document is incompatible with African values, Joseph says, and abortion further compounds an abused woman’s tragedy.
In Chapter 13 Joseph provides evidence and arguments to show that “Selective Abortion [Is] An Act of Violence and Discrimination on Grounds of Sex”. She comments on barbaric proposals to search and destroy prenatal children because of their sex usually because of their female sex. She notes that the 1995 Fourth UN Conference on Woman in Beijing included “prenatal sex selection” among the “acts of violence against women”. This resolution’s last paragraph included a condemnation of abortion of unborn children because they are female.
Five years later, however, at a meeting in New York in which Rita Joseph was a participant, the pro-abortionists “resisted all our efforts to review how governments were performing on their Beijing promise to enact and enforce legislation to eliminate the violent act of pre-natal sex selection resulting in abortions. The UN Secretariat and Chair just drew a blanket of silence over the Beijing commitment” (p. 266).
This silence continued until the 2007 meeting, when pro-abortion ideologues rejected a resolution condemning sex-selective abortion, and thus repudiated protections of unborn girls demanded by the 2005 UN Committee on the Rights of the Child.
All this shows how serious logical inconsistencies prevail, such as between the 2007 UN meeting in New York and the UN Committee on the Rights of the Child, as long as ideology prevails over truth. Prenatal sex-selection threatens to expose the weakness of abortion arguments, all of which are spurious and seek to supplant biological and, it needs to be added, natural laws with the will of parents and of ideological women.
“Without any exceptions whatsoever”
“Children’s Rights ‘… without any exceptions whatsoever’” is the title of Chapter 14. Its purpose is to reaffirm, in face of the legalizing of abortion of children conceived as a result of rape and/or incest, that the absolute moral norm protecting the inviolability of the lives of innocent human beings fully applies to children before birth. The expression “without any exceptions whatsoever” is found in Article 3 of the UDHR and applies to the inviolability of the life of unborn children.
Aborting the unborn child for any reason whatsoever, including children conceived as a result of rape or incest, is unfairly discriminatory against some unborn children, shifts punishment from those who are guilty of violence by committing another act of violence (the lethal punishment of the innocent), and does not restore their mothers’ health. Justifying abortion due to rape or incest strengthens the radical feminist view that an “unwanted” pregnancy is a “forced pregnancy” and that therefore the unwanted “product of conception” can be eliminated. This “elimination” of an innocent life also destroys the powerful capacity of the little child for both giving and receiving love. The proper response to rape and incest is not abortion but proper pre- and post-natal care for the mother and careful and sensitive counseling.
In her conclusion Joseph rightly proclaims the truth that “Ideologies Must Conform to Human Rights Not Human Rights to Ideologies”. She shows how the feminist revolution and championing of women’s “right” to abortion has turned the putative oppressed into the oppressor. The ideology underlying such feminism has hijacked human rights, Joseph says, and she describes how in the past twenty-five years or so, specious reasoning let to radical reinterpretation of basic human rights rights recognized as worthy of protection when the founding documents of the UN were prepared. As a result of this sad history the kind of barbarism rightly condemned at Nuremberg has now become for many the one that prevails over most of the world, in particular those nations who suffered greatly under the Nazis and their cohorts.
In writing Human Rights and the Unborn Child Rita Joseph has made a very significant contribution to perhaps the most important and controverted topic of our time.
Dr. William May is Emeritus Michael J. McGivney Professor of Moral Theology, Pontifical John Paul II Institute for Studies on Marriage and Family at The Catholic University of America and Senior Fellow, Culture of Life Foundation.
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