When Do Human Rights Begin?

On October 21, a pregnant woman was admitted into an Irish hospital after suffering from chronic back pain. At 17 weeks pregnant, she was told that she was having a miscarriage and requested an abortion. Doctors denied her the request after discovering a foetal heartbeat which ruled out termination under Irish Law. As a result, Savita Halappanavar, 31, died three days later of septicaemia.

Courtesy of Irish Times

The law on abortion is currently found under Offences against Person’s Act 1861 that has maintained all abortions to be illegal and subject to punishment. In addition to the Act, Ireland also made an amendment in the Constitution of Ireland in 1983 that asserted that an unborn had an explicit right to life from the time of conception. It notes “the State acknowledges the right to life of an unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”.
Savita’s case has been one of many to prompt Ireland to rethink their abortion laws.

Previously, three women from Ireland had travelled to England for abortions which brought a suit before the European Court of Human Rights asserting that the Irish laws violated provisions, especially the right to life, under the human rights law. Prior to this, the Court of Human Rights had never determined whether the convention protects a right to life of an unborn or conversely a right to an abortion. So perhaps Savita’s case may be the catalyst the court needs to make a judgement and likewise put pressure on Ireland to make its reforms.

Yet, in light of Savita’s case, it should be considered that if there was a right to life for her unborn “child”, then why did it take precedence over her own right to live? At 17 weeks, it would have been possible to have had a safe termination. Savita’s case has led to a lot of anger and resentment to the Irish government for an unclear, restrictive and outdated rule of law that failed anyway in protecting both mother and baby. The feeling that Mrs Halappanavar’s death was unnecessary and avoidable have sparked a debate on when human rights begin, whether they can exist for a potential life and how much authority it can command when conflicting against another’s human right.
There is no doubt that Mrs Halappanavar had a right to life. Her residency in Ireland ensured that she had some protection under a human rights law. There is also no doubt that her rights had been of the same importance as everybody else living under the same law. But what of her “child”?

At first sight, it appears obvious that her unborn baby did not have any human rights. At the very basis of this argument, we find the fundamental problem of identifying when a life can even be determined and at which point a foetus becomes a baby. Yet in some cases, it has been implied that an unborn may have some rights to live and that they may acquire these rights during a specific stage of pregnancy that can hold a mother liable. The case of Sarah Catt certainly considers this in her judgement that saw her being jailed for eight years after administrating poison with intent to procure a miscarriage. Mr Justice Cooke who delivered her sentence, noted that she had “robbed her baby of a life that it was about to live” and considered the seriousness of her crime as one that lay in between manslaughter and murder.

However, if we were to give this type of law a wider scope, it could follow that a woman would be held liable from the moment of conception even if she were unaware of it. Smoking and drinking during pregnancy may not just be a word of warning but unlawful. It could even follow that the death of a pregnant woman could constitute as two counts of murder and increase the severity of punishment to such a crime. In this respect, the reasonability for such a law to exist become somewhat diminished and it further blurs the distinction of an actual life and a potential one. Such ambiguity in a law gives this consideration an unstable legal foundation.

Laws that protect unborn children in this way show that the legal domain may not just exist for the benefits of social order or justice or even for the other reasons that we may assign to having laws at all. They may exist as authority that defers to religious beliefs. The abortion laws in Ireland and indeed other countries exist to run synonymously with catholic ethical values and thus give even God rights within the legal system. But for many who prefer an equal and fair judiciary that is secular in its interpretation; it is a mockery to give possible entities such as a foetus or God consideration over a woman who lived a life that was right in the middle of the social structure. Since Ireland failed to give this woman a right to life under God’s authority, it makes us wonder if God himself believes in human rights.


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