The UN Human Rights Committee’s General Comment 36 on the Right to Life and the Right to Abortion

Livio Zilli is a Senior Legal Adviser & UN Representative at the International Commission of Jurists.

Background

Abortion is a highly safe and reliable medical procedure when performed by skilled health care providers in sanitary conditions. In contrast, “illegal” abortions, performed without safeguards, are generally unsafe and lead to high rates of complications and to maternal deaths and morbidity. Some 47,000 women die each year as a result of unsafe abortions, which also cause some form of disability to an additional five million women. Estimates from the World Health Organization (WHO) confirm that the legal status of abortion does not correlate to the number of induced abortions, as women will seek abortion regardless of its legal status and lawful availability.

Given the well-documented impact of unsafe abortion on maternal mortality and morbidity, the availability of safe, legal and effective access to abortion on broad socioeconomic grounds is critical to women’s and girls’ enjoyment of their human rights, including in particular, to health and bodily autonomy and – even more fundamentally – to their right to life.

In October 2014, the UN Human Rights Committee decided it would elaborate a new General Comment on article 6 – enshrining the right to life – of the International Covenant on Civil and Political Rights (ICCPR). Consistent with its customary practice, the Committee decided that this new General Comment would revisit and expand on its earlier General Comments of 1982 and 1984, in light of the experience it had gained through its reviews of States’ compliance with and implementation of article 6 – as well as its jurisprudence adjudicating on communications under the Optional Protocol and the adoption of General Comments on related issues.

The ICJ, together with civil society organizations working on reproductive rights, saw this as invaluable advocacy opportunity to urge the Committee to continue building on its progressive stance on these issues by elaborating on States’ obligations to realize women’s and girls’ right to life on the basis of equality and non-discrimination, taking into account the risks to their lives they face related to reproduction and gender. To our mind, this approach boded well, given that, by then, the Committee had already repeatedly recognized that women’s lives and health continued to be jeopardized: by preventable maternal mortality and morbidity, resulting  from poor maternal health services; by States’ failure to provide access to reproductive health information; by inadequate access to contraception; and by restrictive abortion laws. As early as 2005, for instance, in its seminal decision in K.L. v. Peru, the Committee held that the refusal of a therapeutic abortion had constituted, inter alia, a violation of article 7 of the ICCPR – enshrining the prohibition on torture or other cruel, inhuman or degrading treatment or punishment. In addition, by October 2014, other UN Treaty Bodies – including the Committee on Economic, Social and Cultural Rights and the Committee on the  Elimination of Discrimination against Women (CEDAW) – had long underscored the linkages between denial of abortion and maternal mortality and morbidity, and addressed such a denial as a violation of women’s and girls’ right to life, among other rights.

Advocacy Work on State’s Obligations to Realize Women’s and Girls’ Right to Life on the Basis of Equality and Non-Discrimination 

Therefore, the ICJ and its civil society partners were surprised, disappointed and profoundly concerned when, in April 2015, the first paper on draft General Comment No. 36 (CCPR/C/GC/R.36) began circulating. This document set out the thinking of the then Committee’s two rapporteurs for the general comment as to certain questions arising under article 6 that the general comment may address, including, the applicability of the right to life to “the unborn”.

As a result, in July 2015, at a half-day of general discussion with the Committee on the draft General Comment, the ICJ joined a large coalition of civil society organizations (CSOs) which delivered a statement urging the Committee to seize the opportunity of the new general comment to reaffirm that article 6 rights accrue at birth and do not extend prenatally. Indeed, this position was consistent with a long established principle of interpretation of treaties, part and parcel of customary international law, and codified in Article 31 (General Rule of Interpretation) of the Vienna Convention on the law of treaties, and followed from the plain text of the ICCPR, the travaux preparatoires, and the Committee’s previous decisions, General Comments, and concluding observations. Indeed, as the Committee later acknowledged, “proposals to include the right to life of the unborn within the scope of article 6 were considered and rejected during the process of drafting the Covenant”, a stance also consistent with “the reference in article 1 of the Universal Declaration on Human Rights to all human beings ‘born free and equal in dignity and rights’”(emphasis added). Moreover, as CEDAW has affirmed: “[u]nder international law, analyses of major international human rights treaties on the right to life confirm that it does not extend to foetuses.”

However, the proverbial genie was out of the bottle, and worse was to come. The half-day of general discussion generated 115 written submissions, many from anti-abortion groups. Some hailing from the anti-abortion camp described how during the half-day of general discussion the Committee had been confronted with a “deluge of requests urging it to resist pressure to declare abortion a human right”. Over 30 organizations, out of the 40 entities and individuals who took the floor at the half-day of general discussion, urged the Committee “to recognize the right to life of unborn children, or at least not recognize a right to abortion.” The rapporteurs’ draft (CCPR/C/GC/R.36/Rev.2), which was circulated in advance of the Committee’s October/November 2015 session, featured a number of references to “the rights of unborn children, including to their right to life”. At best it may be said that all the authors probably wanted to do through those references was to acknowledge that States may have a legitimate interest in “prenatal life”, while underscoring that there was no assumption that article 6 imposed an obligation to recognize a prenatal right to life under the ICCPR. It is possible that by mentioning the unborn, etc., the rapporteurs wanted to find some way to be seen to be taking into account the many interventions they had received from anti-abortion groups.

From the beginning, the ICJ joined forces with a large coalition of like-minded CSOs to urge the Committee to hold fast and reaffirm that the right to life under the ICCPR only applies from birth. The groups emphasized that policies that often jeopardize women’s and girls’ ICCPR rights to life and health are often introduced and defended by some States on the basis of a purported right to life of the unborn. The ICJ and other CSOs worked hard to persuade the Committee to delete from the draft any express references, such as “the rights of the unborn children”, or any other turn of phrase that may have implied that the right to life under the ICCPR applied before birth. We called on the Committee to reaffirm that the rights protected under the ICCPR begin at birth, and that the protection of article 6 does not extend prenatally. In this connection, we insisted that States parties may not invoke prenatal interests to justify exceptions to ICCPR rights, particularly with regard to women and girls. Where States parties adopt measures designed to protect prenatal interests, or that recognize a right to life prior to birth, they must ensure that such measures do not result in violations of the rights of pregnant women and girls under the ICCPR, including their right to life and to freedom from ill-treatment. With respect to this, any legal restrictions on women’s and girls’ access to abortion services must not jeopardize their health and lives or subject them to severe physical or mental pain or suffering.

In July 2017, the Committee finalized its first reading of the draft and commenced a formal consultation process with a wide-range of stakeholders, such as States, CSOs, academics and UN agencies, on this new revised draft adopted by the Committee at first reading. The joint CSO strategy and efforts had already begun to pay off. This draft no longer featured any reference to the unborn, let alone to the idea that article 6 protected prenatal interests.

The ICJ along with other CSOs continued their joint advocacy on the right to abortion and the right to life culminating in a joint submission with the Center for Reproductive Rights, Amnesty International, Human Rights Watch and Ipas, lodged with the Committee in October 2017, endorsed by over 70 other organizations and individuals, focussing on three main issues:

• recognition of the rights to non-discrimination, equality before the law and equal protection of the law, specifically in relation to gender and sex, as fundamental components of the right to life (directed at paragraph 9 of the July 2017 draft);
• liberalization of abortion laws to ensure women’s and girls’ right to life by eliminating preventable maternal mortality and morbidity by reaffirming States parties’ obligations to guarantee access to safe and legal abortion in order to protect women’s and girls’ right to life, encompassing a call for immediate decriminalization and removal of barriers to abortion (addressing paragraph 9 of the 2017 draft); and
• ensuring access to a comprehensive range of quality sexual and reproductive health services provided in a non-discriminatory manner that respects informed consent and confidentiality in order to prevent maternal mortality and morbidity and respect, protect and fulfill women’s and girls’ right to life (paragraph 30 of the 2017 draft).

The Committee began its second reading of the draft at its October-November 2017 session where, eventually, it steered clear of taking any position that article 6 protected prenatal interests and, instead, began focusing on ensuring that the general comment should comprehensively address the rights of women and girls to life and health in relation to abortion, including by expounding on States’ parties obligations to provide affordable access to safe abortion. The discussions within the Committee began to emphasize the need for abortion to be decriminalized, as criminalization led to unsafe abortions, which, in turn, undermined the right to life of women and girls. The fact that the Committee’s composition had changed, with six new members joining the Committee at its October-November 2017 session, appeared to have had a clear impact on the discussions. Amendment proposals, emphasizing safe, legal and effective access to abortion, were presented and discussed.

Another significant factor was the fact that, beginning in 2016, the Committee had by then adopted important decisions arising from the legal prohibition of abortion in Ireland. Building on its seminal 2005 findings in K.L. v. Peru, the Committee found that Ireland’s abortion ban had resulted in a violation of the prohibition against cruel, inhuman or degrading treatment under article 7; a violation of the right to privacy under article 17; and that it constituted discrimination, thus violating the right to equality before the law and equal protection of the law without discrimination under article 26.

We note that, in both cases, the Center for Reproductive Rights represented the women who had complained of violations of their ICCPR rights. The fact that the Committee adopted decisions in both cases at a critical point of its then ongoing consideration of the relationship between abortion and the right to life in the context of a new general comment was perhaps serendipitous. But the collective CSOs’ strategy was indeed to encourage as many partners as possible to provide the Committee with submissions to assist it in its review of State parties’ periodic reports focusing on concerns arising from the regulation of pregnancy or abortion in a manner that could compel women and girls to seek clandestine or illegal abortions and how these endanger their health and lives; or on the criminalization of pregnancies by unmarried women; or on the criminalization of women for seeking or undergoing abortion or of health professionals who assist them; or on concerns arising from burdensome or humiliating requirements on women and girls who seek to access legal abortion services, including mandatory waiting periods, biased counseling requirements and provision of misinformation, before a legal abortion could be carried out. The objective was to ensure that those issues were live during the State parties’ periodic review process, and that the Committee tackled them explicitly in its Concluding observations and recommendations addressed to State parties whose record it had reviewed. Since the Committee’s established practice in the elaboration of any general comment was to rely on its own case-law, and on the experience it had gained though its examination of States’ periodic report, we aimed to ensure that there would be a body of progressive pronouncements on abortion by the Committee while its elaboration of the general comment on article 6 was ongoing.

Key result

The abortion paragraph, in an almost final formulation, was adopted at second reading on the 28 March 2018 and, by then, the joint efforts of the ICJ and many other CSOs appeared to have paid off. The entire draft general comment was adopted at second reading on 24 October 2018, and the Committee officially adopted its General Comment no. 36 on article 6 of the ICCPR on the right to life on 30 October 2018.

The paragraph on voluntary termination of pregnancy, paragraph 8 in the final, adopted version of the general comment (CCPR/C/GC/36), reads as follows:

Although States parties may adopt measures designed to regulate voluntary terminations of pregnancy, such measures must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the Covenant. Thus, restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering which violates article 7, discriminate against them or arbitrarily interfere with their privacy. States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable. In addition, States parties may not regulate pregnancy or abortion in all other cases in a manner that runs contrary to their duty to ensure that women and girls do not have to undertake unsafe abortions, and they should revise their abortion laws accordingly. For example, they should not take measures such as criminalizing pregnancies by unmarried women or apply criminal sanctions against women and girls undergoing abortion or against medical service providers assisting them in doing so, since taking such measures compel women and girls to resort to unsafe abortion. States parties should not introduce new barriers and should remove existing barriers that deny effective access by women and girls to safe and legal abortion, including barriers caused as a result of the exercise of conscientious objection by individual medical providers. States parties should also effectively protect the lives of women and girls against the mental and physical health risks associated with unsafe abortions. In particular, they should ensure access for women and men, and, especially, girls and boys, to quality and evidence-based information and education about sexual and reproductive health and to a wide range of affordable contraceptive methods, and prevent the stigmatization of women and girls seeking abortion. States parties should ensure the availability of, and effective access to, quality prenatal and post-abortion health care for women and girls, in all circumstances, and on a confidential basis. (footnotes omitted)

 All in all, this is a strong reaffirmation of abortion as pivotal in ensuring the right to life of women and girls, in turn, because of its critical impact on the prevention of maternal mortality and morbidity. As such, the Human Rights Committee has (re)affirmed that:

1. safe legal and effective access to abortion is a human right protected under the ICCPR, including, in particular, under the right to life;
2. preventable maternal mortality and morbidity constitute violations of the right to life; and
3. the right to life under the ICCPR begins at birth.

The Committee has also enumerated some paramount States obligations to give effect to women’s and girls’ right to life, including the following:

• States’ duty to provide safe, legal, and effective access to abortion, including when pregnancy endangers health or would cause substantial pain or suffering, notably in cases of pregnancies resulting from rape or incest;
• States’ duty to remove any abortion restriction that endangers the lives of women and girls, or subjects them to physical or mental pain or suffering in violation of the ICCPR, or that discriminates against them, or that violates their right to privacy under the ICCPR;
• States’ duty to dismantle any existing barriers when such measures would deny effective access to safe and legal abortion, including barriers resulting from healthcare providers’ “conscientious objection”, and the prohibition to introduce any new ones;
• the prohibition on any regulation of pregnancy or abortion that contravenes States’ duty to ensure that women and girls do not have to have recourse to unsafe abortions, such as their criminalization for seeking an abortion or the criminalization of health providers for assisting in the procedure since either compels women and girls to have resort to unsafe abortions; and
• States’ duty to revise their abortion laws taking the above points into account.

Impact

In light of the above, the Human Rights Committee’s General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, marks a great step toward preventing maternal mortality and morbidity, to secure women’s and girls’ right to equality and non-discrimination, and to ensure their right to life. This is also a precious tool for stakeholders, chiefly, women and girls, as well as for States, non-governmental organizations, health professionals, members of the judiciary and of the legal profession, education officials, among others, in their endeavors to secure, more broadly, effective realization of women’s and girls’ rights.