Abortion in Latin America and the Caribbean

Ligia De Jesús Castaldi

Description

Abortion in Latin America and the Caribbean is the first major book to analyze the abortion laws of the Latin American and Caribbean nations that are parties to the American Convention on Human Rights. Making use of a broad range of materials relating to human rights and abortion law not yet available in English, the first part of this book analyzes how Inter-American human rights bodies have interpreted the American Convention’s prenatal right to life. The second part examines Article 4(1) of the American Convention, comparing and analyzing the laws regarding prenatal rights and abortion in all twenty-three nations that are parties to this treaty. Castaldi questions how Inter-American human rights bodies currently interpret Article 4(1). Against the predominant view, she argues that the purpose of this treaty is to grant legal protection of the unborn child from elective abortion that is broad and general, not merely exceptional.

Abortion in Latin America and the Caribbean offers an objective analysis of national and international laws on abortion, proposing a new interpretation of the American Convention’s right-to-life provision that is nonrestrictive and provides general protection for the unborn. The book will appeal not only to students and scholars in the field of international human rights but also to human rights advocates more generally.

Sujets

• Social Science
• POLITICAL SCIENCE
• América del Sur
• South America
• Abortion
• Birth Control
• World
• LAW
• International

Informations

• Publié par: University of Notre Dame Press
• Date de parution: 25 juin 2020
• Nombre de lectures: 2
• EAN13: 9780268107673
• Langue: English

Extrait

Abortion in Latin America and the Caribbean
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For a complete list of titles from the Helen Kellogg Institute for International Studies, see http://www.undpress.nd.edu .
Abortion in Latin America and the Caribbean

The Legal Impact of the American Convention on Human Rights
Ligia De Jesús Castaldi
University of Notre Dame Press
Notre Dame, Indiana
University of Notre Dame Press
Notre Dame, Indiana 46556
undpress.nd.edu
Copyright © 2020 by the University of Notre Dame
All Rights Reserved
Published in the United States of America
Library of Congress Control Number: 2020937032
ISBN: 978-0-268-10765-9 (Hardback)
ISBN: 978-0-268-10768-0 (WebPDF)
ISBN: 978-0-268-10767-3 (Epub)
This e-Book was converted from the original source file by a third-party vendor. Readers who notice any formatting, textual, or readability issues are encouraged to contact the publisher at [e-mail]
To Richard Stith,
Emeritus Professor of Law
CONTENTS
Acknowledgments
Abbreviations Introduction ONE The Inter-American Commission on Human Rights’ Inconsistent Treatment of the Prenatal Right to Life TWO The Inter-American Court of Human Rights’ Restrictive Approach to the Prenatal Right to Life THREE Toward a Nonrestrictive Interpretation of the American Convention’s Prenatal Right to Life from Conception FOUR Evolutive Interpretation: State Practice on Prenatal Personhood and Human Rights Entitlement FIVE Evolutive Interpretation: State Practice on the Treaty Obligation to Legally Protect Prenatal Life from Abortion SIX Systemic and Historic Interpretation: Relevant Rules of International Law and the Convention’s Preparatory Work Conclusion
Notes
Bibliography
Index
ACKNOWLEDGMENTS
The author wishes to thank former commissioners and judges who provided invaluable commentary on this research. She also wishes to thank Marel, Antonello, and Tommaso for their support. Opinions expressed in this work are exclusively the author’s.
Unofficial translations are the author’s, unless otherwise indicated.
The author intervened in Artavia Murillo v. Costa Rica as amicus curiae along with former Inter-American Court Judge Rafael Nieto Navia and law professors Jane Adolphe and Richard Stith.
ABBREVIATIONS CEDAW Convention on the Elimination of All Forms of Discrimination against Women CRC Convention on the Rights of the Child ECJ European Court of Justice IACHR Inter-American Commission on Human Rights ICCPR International Covenant on Civil and Political Rights ICPD International Conference on Population and Development IVF in vitro fertilization OAS Organization of American States UDHR Universal Declaration of Human Rights UN United Nations VCLT Vienna Convention on the Law of Treaties
Introduction
By ratifying the American Convention on Human Rights, most Latin American and Caribbean nations have undertaken an international obligation to legally protect every person’s right to life from the moment of conception. 1 Article 4(1) of the convention has been identified by international human rights experts as the most emphatic recognition of the prenatal right to life to date in international human rights law: 2 “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.”
The recognition of a right to life from conception in the American Convention seems to have been distinctly inspired by a Catholic moral tradition of respect for prenatal life and a Latin American Catholic understanding of human rights law in general. 3 Direct and indirect references to the Catholic faith were made during the convention’s drafting stages. The San José Conference, where the convention’s text was adopted, began with opening speeches by the Costa Rican president and the first chief justice of the Inter-American Court of Human Rights, both of which invoked the Christian, particularly Catholic, inspiration of the human rights movement in Latin America. 4 Prior to the San José Conference, the Inter-American Commission on Human Rights (IACHR) had acknowledged the moral significance of the prenatal rights provision for states parties and cited “reasons of principle” to swiftly reject a proposal to remove the provision from the treaty text. 5
Since the adoption of the treaty text including a prenatal right to life from conception in 1969, twenty-three countries have ratified the American Convention, namely Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay. 6 The United States is a signatory but not a party: it signed the convention in 1977 but has never ratified it. 7 On the other hand, it has not as of 2019 withdrawn or expressed an intent to withdraw its signature.
In the last few decades, however, international human rights bodies have repeatedly urged Latin American and Caribbean nations to decriminalize and provide access to abortion, notwithstanding the American Convention’s recognition of a general state duty to legally protect prenatal life. United Nations treaty bodies have repeatedly told Latin American and Caribbean states that international human rights treaties require the creation of abortion rights, as explained in chapter 6, and that legally authorizing abortion would reduce maternal mortality rates in the region. 8 The argument has been refuted in recent years by a number of medical studies that have found that legalization or availability of abortion is not one of the most relevant factors in maternal mortality reduction and that there is no correlation between restricted access to abortion and high maternal mortality rates. 9 For instance, Chile, a country that fully banned abortion for over a hundred years consistently had until 2017 the lowest maternal mortality rate in Latin America and the Caribbean. The United States, on the other hand, has the highest maternal mortality rate in the developed world, even though ample legal access to abortion—and even public subsidies—have been provided nationwide since 1973. 10
Proposals to abolish prenatal life protections and to create a legal entitlement to abortion have also been advanced at the national level, and regionally through the Inter-American human rights system. Starting with the Inter-American Commission on Human Rights’ Baby Boy report in 1981, a series of abortion-related hearings and petitions have provoked reports promoting decriminalization of abortion in several Latin American and Caribbean countries, as described in chapter 1. The Inter-American Court then suggested in 2012 that decriminalization of abortion, especially at an early gestational age, may be legally compatible with the convention, in the Artavia v. Costa Rica judgment dicta, as discussed in chapter 2. The judgment, which cited Roe v. Wade along with German and Spanish high court judgments on abortion, suggested a desire to identify with Western European and North American feminist visions of human rights to the detriment of the prenatal right to life as recognized by states parties to the American Convention. 11
As of 2019, no state party to the American Convention has fully decriminalized abortion despite a significant prevalence of advocacy for the creation of abortion rights in international human rights politics. Such advocacy has nevertheless deeply divided nations and individuals within the Inter-American human rights system, forcing them to take a position on a single issue that, since the 1970s, seems to have taken precedence over all oth