Seeking Deliberation on the Unborn in International Law
Abstract
International human rights instruments and jurisprudence radiate an understanding
of international law as also serving to protect fundamental rights and the interests of
the individual. The idea that human rights provide a credible framework for
constructing common norms among nations and across cultures is both powerful and
attractive. If the protection of being human serves as the common denominator in
human rights discussion, and if human rights are deeply inclusive, despite being
culturally and historically diverse, then a failure to deliberate on the legal status and
protection of the unborn may be seen as a failure to extend respect where it is due.
Such deliberation is required, irrespective of the fact that jurisprudential debate on
the unborn and on abortion is complex and controversial. The protection of human
life, well–being, and dignity are essential aims of the United Nations Charter and the
international system created to implement it. Although there have been collective
efforts resulting in substantial development in international human rights law, the
international community has not approached the legal status and protection of the
unborn as a matter of urgency ? this, while much has been accomplished regarding
women, children, animals and cloning. This article therefore argues for the
development of a deliberative framework so as to further the recognition (not
necessarily in an absolute sense) of the unborn in international law, bearing in mind
that opposition to abortion does not of itself constitute an attack on a woman's right
to respect for privacy in her life. The article also sets out what such deliberation on
the legal status and protection of the unborn entails, against the background of a
procedurally–rational approach.
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