This section provides articles dealing with current issues in international law of human rights. In this edition which deals with Rights of the unborn child in international Law we present the following items:

° Rights of the unborn child in international Law: Towards a Convention

° Declaration on the Rights of the Unborn Child: A Proposal.

RIGHTS OF THE UNBORN CHILD IN INTERNATIONAL LAW: TOWARDS A CONVENTION

JUDE I. IBEGBU

INTRODUCTION

In this article we wish to propose a Convention on the Rights of the Unborn Child in International Law with reference to the questions of abortion and modern Biotechnology. The aim of this article is to ensure that the lacuna which exists today in international Law concerning the rights of the unborn Child is filled through an elaboration of a Convention on the Rights of the unborn Child in international Law by the United Nations Organisation.

The sixth commandment which stipulates: "You shall not kill," obliges not only Christians as a moral law, but also every human person including non-believers since it is also a natural Law. This law which is written in the conscience of every human person is known through the reason. Consequently every human person is conscious of it. Thus the Constitutions of many States stipulate that every human person has a right to life. Not only that human life is sacred, but it is also inviolable. No one therefore, has the right to take away human life; instead we have the duty to care for it, to protect it and to defend it. Only God is the owner and Master of human life.

It is a well known fact that each day in the World many unborn children are killed through abortion. The Holy Father in his recent Encyclical Letter Evangelium Vitae: Addressed by The Supreme Pontiff John Paul II to the Bishops Priests and Deacons Men and Women Religious Lay Faithful and all People of Good Will on the Value and Inviolability of Human Life observed: "Today there exists a great multitude of weak and defenceless human beings, unborn children in particular, whose fundamental right to life is being trampled upon." This situation is due to the fact that abortion is legalised in most States for unjustifiable reasons for example for the deformity of the unborn Child, for economic difficulty, for psychological health of the mother, etc. Some States defend the so-called right of the woman to decide whether to abort or not. This so called right of the woman to freedom of choice, according to the Courts of some States, derives from right to private life of each person, protected by the Constitution.

The international instruments on Human Rights are ambiguous on the issue of whether the unborn Child is protected or not. Our analysis of the International Instruments on Human Rights shows that there is no explicit protection of the right to life of the unborn child. The regional Commissions, the Courts of Human Rights and some national Courts have refused to declare categorically that the unborn Child is a subject of the right to life. Consequently, the protection of the right to life and other inherent rights of the unborn Child is left to the free decision of the States. It can rightly be affirmed that as far as the protection of the rights of this category of human beings is concerned, there is lacuna in international Law.

Even though in reality the unborn Child has a legal personality in the laws of many States because he is a subject of some rights which the law recognises, the fact remains that it is only from birth that the unborn Child acquires legal personality. Thus, the legislations of many States stipulate that legal capacity begins with birth. For example, article 1 of the Italian Civil Code states that legal capacity is acquired from the moment of birth. The Civil Code also states that the rights which the law recognises in favour of the unborn Child are subject to the event of birth. Therefore, even when the law recognises the rights of the unborn child, the protection of such rights is weak since it is made conditional to birth.

The uncertainty on the legal status of the unborn Child in international Law has led to the existence of arbitrary and conflicting laws on the rights of the unborn Child in many States. Consequently, while some States protect certain rights of the unborn Child, others deny them. For example, while some States prohibit abortion with no exception, others, instead have liberalised it permitting abortion for any reason whatsoever, that is abortion is permitted in order to protect the life of the woman, for economic difficulties, for the protection of the physical and mental health of the woman, when the unborn child is deformed, etc. This situation is due to the fact that there is no universal Convention which protects the rights of the unborn Child.

The jurisprudence of some national Courts maintains that the unborn child is not a human person from constitutional point of view, and therefore has no right to life, which must prevail over the right to private life of the woman. Besides there is pressure from some both on the national and international levels to promote abortion as method of birth control; consequently numerous unborn children are killed with impunity through abortion.

Not only that the legislations of many States allow women to terminate their pregnancy, resulting in constant violation of the right to life of the unborn Child, but also the modern Biotechnology violates many inherent rights of the unborn Child. The fertilisation in vitro in its present state involves the destruction of the so-called "surplus embryos," that is, the embryos which are not implanted after fertilisation in vitro. We know very well, for example, that few years ago, about three thousand embryos frozen and preserved in the fridge were destroyed by a State because their owners no longer wanted to implant them in the womb of the woman. Besides, since in in vitro fertilisation, the unborn Child is not conceived through conjugal act, but instead in vitro by the Scientist, the unborn child becomes a product of technology of a scientist and no more the fruit of conjugal love between spouses united in marriage. Thus it is violated the inherent right of the unborn child to be conceived and to be born through conjugal love in a legitimate marriage.

In some States the law allows the production of human embryos for the purpose of experimentation and research in which the embryos do not derive any advantage; instead, they are used only as instruments for the benefits of others. The commercialisation of human embryos constitutes a violation of the dignity of the human person and cloning of the human embryos is contrary to the inherent right to genetic uniqueness and individuality of every human person, the right of each person to his own identity and to the equality between human persons.

Some States permit heterologous fertilisation in vitro and heterologous insemination, in which the gametes of a donor are used in order to realise fertilisation and pregnancy in a married woman which is contrary to matrimonial fidelity. Thus, the natural right of the unborn child to be born in an authentic family and by spouses united in marriage is violated.

The consequence of the absence of legal protection of the natural rights of the unborn Child, both in national and international Laws, is that there is a constant violation of these rights. Therefore there is an urgent need for a universal legal protection of these rights. Thus, the objective of this article is to stimulate the United Nations to elaborate a Convention on the Rights of the unborn Child which will be ratified by all the States in the World, so that the rights of the unborn Child are protected universally. The World Conference on Human Rights held in Vienna in June 1993 rightly noted that "certain advances, notably in the biomedical and life sciences may have potentially adverse consequences for the integrity, dignity and human rights of the individual. Consequently it called for "international co-operation to ,ensure that human rights and dignity are fully respected in this area of universal concern."

We cannot remain indifferent before this grave injustice committed today in many States against these innocent and weak human beings. To defend the rights of the unborn Child is the duty of every human person.

But what are the reasons for which we request the United Nations to elaborate a universal Convention in order to protect the rights of the unborn Child? They are as follows:

(1) article 6 paragraph 5 of the International Covenant on Civil and Political Rights 1966, in article 6 paragraph 5 of the Covenant stipulates that capital punishment cannot be carried on, on a pregnant woman in order to avoid taking away the life of the unborn child who is innocent;

(2) in the penal Codes of many States abortion is as a rule prohibited and penalised. It is permitted in some States only for certain serious reasons and under strict conditions. Therefore, abortion is only an exception to the rule, which means that indirectly States protect the life of the unborn Child.

(3) in the civil Codes of many States the legal personality of the unborn Child is recognised indirectly by the mere fact that the law recognises the right of the unborn child to inherit, to receive donations, to succeed, etc;

(4) the international Conferences on population control do not admit that abortion should be resorted to as a method of family planning;

(5) the international Conventions on Human Rights stipulate that every human person has right to life. Paragraph 9 of the preamble of the Convention on the Rights of the Child states that "bearing in mind that, as indicated in the Declaration of the Rights of the Child, "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.''

Article 1 of the Convention which deals with the definition of the child states: "For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.'' Paragraph 1 of article 6 which deals with the right to life of the child, states: "State parties recognise that every child has the inherent right to life.'' Paragraph 2 of the same article stipulates: "State parties shall ensure to the maximum extent possible the survival and development of the child'' The American Convention on Human Rights in article 4 paragraph I states: "1. Every person has the right to have life respected. This right shall be protected by law, and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.…"

(6) In its opinion, the Commission for human rights of Strasbourg has stated that "pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a woman is pregnant her private life becomes closely connected with the developing fetus."

Since the right to life is the source of other human rights, it is therefore more important than the right to privacy. We therefore maintain that whenever there is conflict between the so- called right to privacy of the woman and the right to life of the unborn child, the right to life of the unborn child must prevail over the right to privacy of the woman;

(7) besides, in order to protect the rights of the unborn child in the field of modern biotechnology, in which the rights of the unborn are flagrantly violated, many committees on Bioethics have been instituted both at national and international level by governments with the view of preparing legislations and convention for the legal protection of the rights of the human embryo. This shows that there exists a growing consciousness of the importance of an explicit protection of the unborn Child in today's international community.

On the basis of the afore-mentioned reasons, we therefore make the following requests to the United Nations Organisation:

(a) that a Convention on the Rights of the Unborn Child be drafted as soon as possible, so that their rights and especially their right to life are protected by all States;

(b) that the right to life of every unborn child be recognised from the moment of conception;

(c) that his legal personality be recognised explicitly by the legislation of every State.

While we celebrate with the United Nations Organisation the 50th anniversary of the promulgation of the Universal Declaration of Human Rights of 10 December 1948, we strongly maintain that if the Organisation wishes to be faithful to its purposes and principles among which is "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction...." it must elaborate a Convention in order to ensure that the rights of the unborn child are given legal protection universally.

Moreover, to ensure progress in the implementation of its purposes and principles with regard to promoting and encouraging respect for human rights, and as a milestone for the 50th anniversary of the promulgation of the Universal Declaration of Human Rights, we strongly propose that this year, the United Nations Organisation promulgates a Universal Declaration of Human Rights of the Unborn Child. This will be followed by a Convention on the Rights of the Unborn Child to be ratified by all States. This Convention will enter into force by the year 2000.

The unborn constitute the future generation of humanity. If we wish to guarantee a better future for humanity, we cannot remain indifferent when their rights, and especially their right to life, are violated with impunity. We must take concrete measures in order to protect the rights of these weak, innocent and defenceless human persons which for a long time are violated because of the logic that whoever is stronger is always right.

DECLARATION ON THE RIGHTS OF THE UNBORN CHILD: A PROPOSAL

JUDE I. IBEGBU

PREAMBLE

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom,

Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the rights and freedoms setforth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,

Recalling that as stated by the Convention on the Rights of the Child "the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,"

Recalling further that as stated in the Convention on the Rights of the Child, that "recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding"

Recalling further that according to the Convention on the Rights of the Child, "the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,"

Bearing in mind that, as stated in the Declaration of the Rights of the Child, and reaffirmed in the Convention on the Rights of the Child, "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",

Recalling that article 6 paragraph 5 of the International Covenant on Civil and Political Rights 1966, stipulates that sentence of death "shall not be carried out on pregnant women"

Recognizing that in the penal Codes of many States abortion is as a rule prohibited and penalised. It is permitted in some States only for certain serious reasons and under strict conditions. Therefore, abortion is only an exception to the rule, which means that indirectly States protect the life of the unborn Child;

Conscious of the fact that in the civil Codes of many States the legal personality of the unborn Child is recognised indirectly by the mere fact that the law recognises the right of the unborn child to inherit, to receive donations, to succeed, etc;

Recalling that the international Conferences on population control do not admit that abortion should be resorted to as a method of family planning;

Recalling that the international Conventions on Human Rights stipulate that every human person has right to life. Paragraph 9 of the preamble of the Convention on the Rights of the Child states that "bearing in mind that, as indicated in the Declaration of the Rights of the Child, "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.''

Recalling that article 1 of the Convention which deals with the definition of the child states: "For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.''

Recalling that paragraph 1 of article 6 which deals with the right to life of the child, states: "State parties recognise that every child has the inherent right to life;''paragraph 2 of the same article stipulates: "State parties shall ensure to the maximum extent possible the survival and development of the child''

Recalling further that The American Convention on Human Rights in article 4 paragraph I states: "1. Every person has the right to have his life respected. This right shall be protected by law, and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life...;"

Recalling that in its opinion, the Commission for human rights of Strasbourg has stated that "pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a woman is pregnant her private life becomes closely connected with the developing fetus."

Convinced that since the right to life is the source of other human rights, it is therefore more important than the right to privacy;

Recalling further that in order to protect the rights of the unborn child in the field of modern biotechnology, in which the rights of the unborn are flagrantly violated, many committees on Bioethics have been instituted both at national and international level by governments with the view of preparing legislations and convention for the legal protection of the rights of the human embryo. This shows that there exists a growing consciousness of the importance of an explicit protection of the rights of unborn Child in today's international community.

Conscious of the fact that each day in the World many unborn children are killed through abortion.

Deploring the fact that the consequence of the absence of legal protection of the natural rights of the unborn Child, both in national and international Laws, with reference to the questions of abortion and biotechnology is a constant violation of these rights.

Convinced therefore of the necessity and urgency of a Convention on the Rights of the Unborn Child in International Law with reference to the questions of abortion and modern Biotechnology in order to ensure that the lacuna which exists today in international Law concerning the rights of the unborn Child is filled and to guarantee a universal legal protection of these rights.

Convinced of the necessity for the United Nations to elaborate a Convention on the Rights of the unborn Child which will be ratified by all the States in the World and incorporated into the domestic law so that the rights of the unborn Child are protected universally.

Bearing in mind that as we celebrate with the United Nations Organisation the 50th anniversary of the promulgation of the Universal Declaration of Human Rights of 10 December 1948, we strongly maintain that if the Organisation wishes to be faithful to its purposes and principles among which is "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction...." it must elaborate a Convention in order to ensure that the rights of the unborn child are given legal protection universally;

We therefore request:

1. That the United Nations adopts and proclaims a Universal Declaration on Rights of the Unborn Child this year;

2. That this be followed by a Convention on the Rights of the Unborn Child which will enter into force by the year 2000.

3. As a proposal to the Declaration and the subsequent Convention on the Rights of the Unborn Child, we affirm that the following inherent rights of the unborn child should be recognised by all States and should be given legal protection through Conventions and laws:

DEFINITION OF TERMS

1."UNBORN CHILD"

For the purposes of the present Declaration "unborn child" means a child developing in the womb from conception until birth. The term "unborn child" as used in this declaration, therefore includes all the different stages of development of the fertilized ovum up till birth. These stages of development of fertilized ovum comprises the zygote stage, embryonic stage, and fetal stage.

2."FERTILISATION" or "conception"

For "fertilisation" or "conception" is meant the process by which the male and female gametes unite to form the zygote. As used in this work, the word "fertilisation" is synonymous with "conception."

3. "PREGNANCY"

For the purposes of this Declaration, pregnancy is the coming into existence of the human being which begins from conception or fertilisation and terminates with childbirth.

4."ABORTION"

By the term "abortion" we mean in this Declaration the killing of the unborn child at any stage of his prenatal existence that is as zygote, embryo or fetus.

5. "EMBRYO"

By "embryo" we mean the unborn child after the zygote stage and before attaining the fetal stage. Every reference to "embryo" excludes the terminology "pre-embryo" since we do not accept the existence of "pre-embryo."

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ART. 1.RECOGNITION OF THE LEGAL PERSONALITY OF THE UNBORN CHILD FROM CONCEPTION

ART. 2. RIGHT TO LIFE OF THE UNBORN CHILD FROM CONCEPTION

Every unborn child has a right to life from the moment of conception. Under no circumstance should the unborn child be killed. Abortion is prohibited in all circumstances.

ARTICLE 3. RIGHT TO LIFE OF THE UNBORN CHILD IN VITRO FERTILISATION

ART. 4. RIGHT OF THE UNBORN CHILD TO PROCREATION WORTHY OF HUMAN DIGNITY

ART. 5. RIGHTS OF THE UNBORN CHILD IN HETEROLOGOUS IN VITRO FERTILISATION

ART. 6 SURROGACY AND RIGHTS OF THE UNBORN CHILD

ART. 7.PROHIBITION OF GAMETE DONATION

ART. 8. PROHIBITION OF COMMERCIALIZATION OF GAMETES AND EMBRYOS

ART. 9. RIGHT TO BE BORN BY LIVING PARENTS

ART. 10. PROHIBITION OF IN VITRO FERTILISATION

1. In vitro fertilisation is prohibited. No one should create a child through this reproductive technology.

ARt. 11. STORAGE OF EMBRYOS

ART. 12. CLONING AND RIGHTS OF THE UNBORN CHILD

ART. 13. RIGHT TO PHYSICAL INTEGRITY

ART. 14. PRENATAL DIAGNOSIS and rights of the unborn child

ART. 15. DUTY OF STATES TO PROTECT AND PROMOTE THE RIGHTS OF THE UNBORN CHILD

N.B. The author will be very grateful to those who will send him suggestions for the realization of the Convention on the Rights of the Unborn Child.

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