"By what right? Are they not Human Beings?"

Voices Online Edition
Vol. XXVII, No. 4
Advent-Christmas 2012

“By what right? Are they not human beings?”

The human rights case against eugenic birth prevention

by Rita Joseph

The perilous notion that the killing of “inferior” human beings should be allowed is remarkably persistent. In each age, somewhere on this earth, eugenic “selection” raises its ugly head, often in different guises but generally with the same excuses. “These are defective beings,” they say, “with lives not worth living; killing is the only humane way to prevent suffering for themselves and their families, and to prevent them being a burden to society.”

And so, quite arbitrarily, eugenicists draw up a sharp dividing line between those they deem to have a right to live and those they deem expendable. They do not see that each child is a unique human being. They insist that children with “defects” can be easily replaced — by superior children who promise greater well-being and less trouble for everyone.

Eugenics is always utilitarian. French philosopher Paul Ricoeur rightly condemned utilitarian philosophy, because, he said, it is always the ones at the vulnerable edges of society, the weakest members of the human family, who are made to sacrifice the most for what is claimed to be the greater good.

New eugenics — same crime: different language

Under Adolf Hitler, in the 1930s and ’40s, the Nazi medical authorities instituted what they believed to be a noble, successful program of eugenic selection. The records tell us that children with Mongolism (we call it Down syndrome today) and “severely defective closure of the vertebral column” (spina bifida) were, by Nazi decree, to be “selected” for euthanasia. The lives of children with these “conditions considered a basis for killing” were terminated by Nazi doctors.

Indeed, historian Henry Friedlander says these children comprised the very first group targeted for eugenic elimination; and the “health” measures developed in the “child killing programs” became the prototype for the later eugenic health programs against adults with hereditary or congenital conditions and then against Jewish people. “Auschwitz was only the last, most perfect Nazi killing center.”

And now today, in many countries around the world, Down syndrome and spina bifida are authorized once again as “conditions considered a basis for killing” — and unborn children with these conditions are now being identified and targeted by pre-natal screening programs that facilitate eugenic selection.

The disturbing truth is that Nazi process of “selection” for killing has chilling similarities to what occurs today — when every unborn child has only a tentative right to exist, must undergo pre-natal testing to qualify biologically, and is completely dependent on the mother’s “choice.”

Today’s eugenics uses the word “choice”: the Nazis used “selection.” It is the same crime — lethal eugenics — in different language: reproductive choice.

Around the world, pre-natal screening programs specifically aimed at identifying unborn children with Down syndrome and spina bifida are resulting in the routine abortion of more than 90% of the unborn children so identified. Fewer than 10% of these children are “selected” or “chosen” to be born.

The making of a crime against humanity

In the April 2012 issue of The American Journal of Bioethics, two eugenicists argue quite seriously that the possibility of screening out embryos with defects carries with it a parental duty to produce only children free of these defects. How quickly the “choice” to reject children with a troublesome condition may become a duty.

Both legal and health authorities assure us that facilitating measures to prevent births within a group is not a crime against humanity because this, they say, is just individual women exercising their right to make informed choices to continue or to abort the pregnancy.

But we say this is a crime against humanity. This is an accumulative crime. So many individual decisions made on eugenic grounds accumulate into a systematic and widespread persecution of the group, a crime against humanity. Just as the Nazi crimes against humanity — committed on a systematic, widespread scale — were made up of many discrete inhumane acts committed by individuals, facilitated by individual doctors, and individual government health officials.

Today, a distinctly eugenic pattern is emerging — an alarming pattern of prevention of births within a targeted group, a pattern that is insidiously changing the way we think about the survivors of that group. We can imagine a time when the mother of a child with Down syndrome may be asked, “Why didn’t you have prenatal screening?” Or may be openly accused of failing to prevent the birth of her child. Before the prenatal screening and follow-up abortion “choice” were offered, all children with these conditions were accepted, at the very least, as being born through no fault of the parents.

Proponents of pre-natal screening with follow-up abortion say, “this is all voluntary — every woman can make a choice.” And the choice to end the pregnancy has no impact on others who choose to have their own children with these conditions. But the unwelcome truth is that the choice to prevent so many of these births has very serious consequences for the survivors. How can they live comfortably in a society in which 90% of children with their particular disability were not allowed to be born — explicity and openly for that reason?

Denying guilt — rationalizing eugenics

What message are we sending if we approve programs that invite every pregnant woman to seriously consider the “choice” to prevent births on the grounds of Down syndrome and spina bifida?

In authorizing the medical destruction of selected children (before as well as after birth), Nazi ideologues insisted this was perfectly reasonable, unobjectionable — there could be no guilt:

Around the world today, approval is being given with the same two broad justifications that were proffered in Nazi Germany. The eugenic purpose of the Nazi abortion program was rationalized as a “humane” measure: 1) to prevent births to a group because it would be cruel to give them birth as their lives are “not worth living”; and 2) because they are “a terrible, heavy burden upon their relatives and society as a whole.”

Suffering is made to seem as synonymous with evil, and termination of the life of one who suffers as humane and good. Eugenicists claim that they are preventing suffering by preventing births. But suffering is part of being alive — it is part of the human condition. And we respond to it with compassion and love and solidarity — with life-affirming care — not with killing.

Never again!

When World War II was over and the nature and extent of Nazi atrocities were more fully revealed, in a moment of grace the nations of the world came together and forged a mighty determination that never again would domestic legislatures and their courts be permitted to legalize lethal human rights abuses against any vulnerable group of human beings: The Universal Declaration of Human Rights was adopted December 10, 1948.

Having researched and compiled the evidence available in the United Nations’ archives, I can tell you that anyone who says that the unborn child was not included for legal protection right from the beginning of modern international human rights law is either ignorant or lying through their teeth.

It is just brazen intellectual dishonesty for pro-abortion ideologues to insist today on reading the historic post-World War II Universal Declaration of Human Rights with their 21st-century pro-abortion bias.

You see, it is not just the accumulative evidence in the archives; it is the intention and purpose of the founders and the founding principles that make it impossible for the unborn child not to be included in universal human rights protection.

Indeed, it was agreed from the outset that the new international human rights were to be based on principles. Historically and philosophically, a rock-solid deontological basis was established for this new modern international human rights law project.

The Universal Declaration of Human Rights begins with “recognition of the inherent dignity and the equal and inalienable rights of all members of the human family … the foundation … of justice … in the world.”

Children with Down syndrome and other conditions are included in “all members of the human family” and are entitled to “appropriate legal protection before as well as after birth.”5

Programs that facilitate a legal choice to eliminate before birth some “members of the human family” because of the possible presence of Down syndrome or other conditions are deeply and irrevocably offensive against human dignity and worth. Programs that tolerate and affirm a subjective choice by individuals and their doctors to project a “negative value” (to use an old Nazi term)6 onto the lives of members of this group on these grounds are “contrary to the purposes and principles of the United Nations.”

Permanent principles underpin human rights law

Six key principles became the foundation stones of human rights protection:

Inclusion – meaning that these rights apply to absolutely everyone, including the unborn child. Use of the terms “every person” or “everyone” throughout the Universal Declaration was deliberate in order to extend the same legal protection to every human being “without any exception whatsoever.”

Inherency – meaning that these rights were seen as inherent in each human being, not granted by external government. The child’s rights pre-exist birth — they “inhere” in the child’s humanity. To be eligible for membership in the human family, one has only to be human. Both reason and science confirm that the unborn child is already in existence, being protected and nurtured in his/her mother’s womb. With astonishing accuracy, we can locate the child within definite coordinates of space and time. The child is not a generic, anonymous fetus. We can identify the child’s father, and whether the child is a son or a daughter. We can ascertain long before birth that the child is a unique member of the human family, biologically, genetically, and genealogically.

It is not age or size or independence or being “perfect” that confers human rights, it is just being a human. This is the irrevocable legal basis of all human rights.

Inalienability – the right to legal protection “before as well as after birth” is one of the equal and inalienable rights of all members of the human family. No one may destroy that right, nor deprive any human being of that right, nor transfer that right, nor renounce it — that’s what inalienable means.

When the document states, “it is essential … that human rights should be protected by the rule of law,” it is clear that no one may remove the human rights of the unborn child from the protection provided by the rule of law. The term “no one” means no sovereign country, no legislature, no judiciary — none of these has the authority to de-recognize the human rights of any individual human being or any selected group of human beings.

Human beings cannot be deprived of the substance of their rights, not in any circumstances, not even at their own or their mother’s request.

Equality – in modern human rights law, there could be no concept of some human beings being “more equal” than others — thus the unborn child at risk because of disability has the same right to life as every other member of the human family. Human rights entitlement is not scaled according to ability or viability or competence or social status.

Indivisibility – meaning that legal protection of the rights of one set of human beings cannot be sacrificed to enhance the rights of another set. The life of the child at risk of abortion is not to be sacrificed to promote, for example, women’s rights or “to expand women’s choices.”

Universality – the same non-derogable or absolute human rights are to be upheld in every age, everywhere, by every culture and every legal system. Localized democratic majorities may not pass laws in violation of non-derogable human rights.

Each Universal Declaration principle was explored and debated thoroughly before being set down for posterity. Human rights principles were first “recognized” in the declaration and then codified in binding international law in the subsequent conventions. Any reinterpretation of the conventions that claims to de-recognize the rights of children to legal protection before birth is invalid — a complete nonsense for such a reinterpretation would represent a rupture with the foundation principles the covenants have been entrusted to codify.

The dignity of every human being “without any exception whatsoever”

The covenants recognize that every human being has an immutable dignity, a dignity that does not change with external circumstances such as levels of ability or disability, independence, or prognoses of quality of life, or functionality or wantedness. For the group with Down syndrome and groups with other conditions, it is their essential and irrevocable human- ity that entitles them to “recognition of the inherent dignity and inalienable rights of all members of the human family.” It is this recognition that obliges us to travel in human solidarity with them, to be attentive to their needs, to provide them with the best attainable care, in their homes, in local communities, in education and health facilities, in places of employment and of recreation; and to correct, rather than encourage, entrenched attitudinal prejudice that condones prevention of births to the group.

The truth is that every human being coming into existence at conception has a right to be here. Every unborn child has a right to exist, a right to be born. Every child has the inherent and inalienable right to membership in the human family. That membership is inclusive of all the billions of natural variations of abilities and appearances and personalities and problems. Though we are not endowed with equal abilities, we each have an equal right to be born, a right to be given before as well as after birth equal protection of the law against harmful medical interventions.

There can be no compromise, no accommodating lethal eugenic “choice,” not even for specified conditions revealed by prenatal testing. Technological advances are already spiraling. Some prenatal blood tests on the horizon are promising identification of some three thousand conditions that may place babies in line for eugenic “choice” for their death.

We can’t go any further down this track. We must draw a line here, now. We must take a stand in human solidarity with every mother and with every child — before as well as after birth. Today must we commit to the human rights defense of every child with Down syndrome, every child with spina bifida, every child with any condition that is being “considered a basis for killing.” We must defy eugenics and recommit to loving “every child, without any exception whatsoever.” We are one human family.

Notes:

1 Wagner, Gerhard: “Rasse und Bevölkerungspolitik,” Der Parteitag der Ehre, vom 8, bis 14, September 1936. Offizieller Bericht über den Verlauf des Reichsparteitages mit sämtlichen Kongreßreden, Munich: Zentralverlag der NSDAP., 1936, pp. 150-60. Online: calvin.edu/academic/cas/gpa/pt36rasse.htm.

2 Defendant Guenther Tesch, Nuremberg Trials Record, Vol. V. p. 87. Online: www.mazal.org/archive/nmt/05/NMT05-T0087.htm.

3 Defendant Inge Viermetz, Nuremberg Trials Record, Vol. V, p. 87.

4 Wagner, op.cit.

5 The Preamble to the Convention on the Rights of the Child (1990) reaffirmed what was agreed in the Declaration on the Rights of the Child (1959): “… 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...” Understanding this in the context of Principle 1 of the Declaration (“Every child without any exception whatsoever is entitled to these rights …”), it is clear that the degree of this immaturity is not to be allowed to diminish in any way the child’s inherent humanity: human rights are equally valid for the child before birth as for the child after birth without any discrimination whatsoever.

6 The term was used by German jurist Karl Binding to describe “beings” or “existences” with impairment (“incurable idiots”) in the influential 1920 publication authored jointly with Alfred Hoche: Die Freigabe der Vernichtung Lebensunwertem Lebens (Permission for Destroying Lives Not Worth Living); cited and translated as “beings who are not only worthless but even manifest negative value” in Henry Friedlander’s The Origins of Nazi Genocide: From Euthanasia to the Final Solution (Chapel Hill: University of North Carolina Press, 1995) p. 15; also cited and translated as “not merely worthless but actually existences of negative value” in Michael Burleigh’s Death and Deliverance: Euthanasia in Germany 1900-1945 (Cambridge, England: Cambridge University Press, 1994) pp. 17-8. The “negative value” is calculated as “a terrible heavy burden upon their relatives and society as a whole.”

Rita Joseph, of Canberra, Australia, a member of the editorial board of Voices, has frequently represented family concerns at United Nations conferences. She writes and lectures on social issues, with special emphasis of papal writings on family and on women. She has lectured at the John Paul II Institute for Marriage and Family Studies in Melbourne. She is the author of Human Rights and the Unborn Child (2009. Martinus Nijhoff Publishers). A version of this article was presented as an address at the “Loving Every Child: Defying Eugenics” conference held in Auckland, New Zealand, August 4, 2012.