{"id":14786,"date":"2021-07-16T09:33:08","date_gmt":"2021-07-16T07:33:08","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=14786"},"modified":"2021-07-18T19:31:34","modified_gmt":"2021-07-18T17:31:34","slug":"genetic-cleansing-under-the-guise-of-womens-rights","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/genetic-cleansing-under-the-guise-of-womens-rights\/","title":{"rendered":"\u201cGenetic Cleansing\u201d Under the Guise of Women’s Rights?"},"content":{"rendered":"

The fight for the protection and recognition of disabled persons\u2019 rights frequently ends before it even starts. While about\u00a025%<\/a>\u00a0of fetuses are generally aborted, this percentage rises to about\u00a090%<\/a>\u00a0when the\u00a0fetus\u00a0is diagnosed with\u00a0a disability. As a result, certain disabilities are disappearing in\u00a0several\u00a0countries\u00a0(e.g. Down Syndrome in\u00a0Denmark<\/a>).<\/p>\n

This\u00a0increase in disability-selective abortions\u00a0roots in two distinctive (albeit inextricably linked) grounds:\u00a0de jure<\/em> in disability-selective abortion rules, and de facto<\/em> in increasing\u00a0(non-invasive)\u00a0prenatal diagnostic possibilities.\u00a0This piece will view these measures through the lens of international human rights law [most importantly the Convention of the Rights of\u00a0Persons with\u00a0Disabilities (CRPD)] and will highlight the importance of reconciling States\u2019 human rights obligations towards women and towards persons with disabilities\u00a0in this very sensitive\u00a0and\u00a0complex\u00a0field.<\/p>\n

The Fetus under International Law<\/strong><\/p>\n

The legal status of the unborn under international law remains controversial (in detail here<\/a> and here<\/a>). Although fetuses are not perceived as holders of the right<\/em> to life themselves, there seems to be a consensus that at least in certain circumstances safeguards<\/em> may be extended to the unborn child (ECtHR, Vo v. France<\/a>, paras. 80, 84). However, this article does not focus on the question whether disability-selective abortions interfere with any of those safeguards, but highlights that these measures are highly problematic for the nondiscrimination (e.g. Art. 5(2) CRPD) and stigma reduction (Art. 8 CRPD) obligations of the States implementing them.<\/p>\n

Discriminatory Abortion Laws\u00a0<\/strong><\/p>\n

National legal systems abound in laws\u00a0favoring disability-selective abortion:\u00a0women\u00a0often\u00a0have a (temporally) extended right to terminate their pregnancy, if a disability is diagnosed\u00a0(sometimes up\u00a0to the 9th month\u00a0of pregnancy<\/a>), whereas in\u00a0several\u00a0States<\/a>,\u00a0with more restrictive abortion regulations, a diagnosed disability is an exception to the\u00a0abortion bans.<\/p>\n

The idea that disability justifies abortions seems to be\u00a0backed up (at least\u00a0partially)\u00a0by\u00a0many\u00a0international human rights bodies. Inter alia<\/em>, the Human Rights Committee (HRC) in its\u00a0General Comment No. 36\u00a0<\/a>on the right to life (para. 8) and the Committee on the Elimination of Discrimination again Women<\/a> have\u00a0held\u00a0that absolute abortion bans are a violation of international human rights law and that abortions must be possible to protect the mother\u2019s life and health. Notably, abortion is widely accepted<\/a> in case of the diagnosis of severe abnormalities in the development of the fetus.<\/p>\n

While the majority of human rights bodies has aimed at a\u00a0<\/u>quite liberal human rights approach\u00a0<\/a>to abortion in order to protect the pregnant women\u2019s rights, the Committee on the Rights of Persons with Disabilities (the Committee) takes a more restrictive position in this field, deeming disability-selective abortion to be incompatible with the CRPD.\u00a0Indeed, in several reports, the Committee has raised concerns over disability-selective abortion legislation: it\u00a0condemned Spain<\/a>\u00a0in 2011 for allowing to terminate a pregnancy based solely on disability for being incompatible with Art. 1-4 CRPD\u00a0(general principles and obligations)\u00a0as well as\u00a0the UK<\/a>\u00a0in 2017,\u00a0Hungary<\/a>\u00a0in 2012 and\u00a0Austria<\/a>\u00a0in 2013 for\u00a0violating Art.\u00a05\u00a0(Equality and non-discrimination) for the same reasons.<\/p>\n

The disagreement among different UN treaty bodies was particularly clearly highlighted in the\u00a0Committee\u2019s comment<\/a>\u00a0to the HRC on a draft of General Comment No.\u00a036,\u00a0which underlined that laws explicitly allowing abortions on grounds of impairment violate the CRPD Arts. 4,5,8. As it further held, \u201c[\u2026] even if the [fetus\u2019] condition is considered fatal, there is still a decision made on the basis of [the fetus\u2019] impairment. [\u2026] [T]he assessment perpetuates notions of stereotyping disability as incompatible with a good life.\u201d<\/p>\n

Prenatal Genetic Testing (PGT) under\u00a0the CRPD\u00a0<\/strong><\/p>\n

As has been noted above, PGT may also serve as a\u00a0de facto<\/em>\u00a0promoter of disability-selective abortion. While disability rights groups have vehemently\u00a0opposed such targeted testing<\/a>, the Committee has hardly addressed the issue. Although\u00a0considered (para. 44)<\/a> the topic was not included in the Committee\u2019s 2018\u00a0General Comment No. 6 on Art. 5<\/a>, but finally, the Committee\u00a0directly\u00a0addressed the issue in this year\u2019s\u00a0Concluding Observations on Estonia\u2019s initial report<\/a>.<\/p>\n

Precisely, it recognized the increased risk of the tests\u2019 CRPD-incompatibility, if they are used as a measure to systematically prevent the emergence of disability. It raised concerns about PGT\u2019s implications in the context of Art.\u00a08 CRPD, which requires States to actively engage in awareness raising activities to combat stereotypes.\u00a0Against this background, it\u00a0called upon the State\u00a0to \u201cidentify and combat disability stigma and stereotypes in all areas of life,\u00a0including prenatal genetic testing, as a means of preventing disability, which is not in line with the Convention”<\/em>(para. 18.c).<\/p>\n

Assessment of the Conflicting Obligations<\/strong><\/p>\n

The Committee\u2019s argumentation seems to be indicating that Art. 5 CRPD grants protection against discrimination even before birth. Although, against the background of the unsettled fetus\u2019 legal status, this interpretation may seem precarious, it does have some merit, if considered in the broader context of such abortion regulations\u2019 impacts on the community of persons with disabilities as a whole.<\/p>\n

The States\u2019 general obligations to refrain from any form of discrimination based on disability (Art. 5 CRPD), to respect persons\u2019 with disabilities inherent dignity (Art. 3 (1) CRPD) and to engage in stigma reduction (Art. 8 CRPD) are breached whenever a state officially promotes that disability is incompatible with a good life and persons with disability are living a life of less value.\u00a0The same must apply if a State delivers the same message through its abortion regulations since arguably – relying on the international guidance on sex selective practices<\/a> – disability-selective abortion regulations can be qualified as a \u201csymptom of pervasive social, cultural, political and economic injustices\u201d. As there seems to be a consensus on the fact that practices<\/em>in favor of selective abortions as a \u201cmanifestation of (..) discrimination\u201d must be prevented, this must a fortiori<\/em>apply to legal rules<\/em> explicitly allowing for such differentiations. Consequently, the measure\u2019s discriminatory and disparaging effect on persons with disabilities is indeed incompatible with the general principles and obligations of the CRPD and calls for\u00a0legislative changes towards stigma reduction (such a petition has been recently\u00a0submitted<\/a>\u00a0to the UK High Court).<\/p>\n

However, although the Committee explicitly reaffirms the right of women to reproductive autonomy in the respective reports, it apparently fails to give due weight to the impact of an absolute prohibition of disability-selective abortion on this and other rights of women.\u00a0Against the background of States\u2019\u00a0 obligation to protect women’s right to physical and mental health, the mental suffering of being forced to give birth to a non-viable child can mark the decisive difference that would justify (or even preclude) a breach of States\u2019 CRPD obligations in the context of non-discrimination and stigma reduction (see the\u00a0HRC argumentation in K.L. v Peru<\/a>, para. 6.3). Contrary to the argumentation of the Committee, it is then not a matter of valuing life with disability less, but of\u00a0protecting\u00a0the expectant mother\u2019s health. Consequently, although disability-selective abortion may serve as stigma promoter, it is not per se<\/em> incompatible with the CRPD, as it is not necessarily based on the judgement of disabled life being inferior. It is instead required for the protection of the rights of the expectant women.<\/p>\n

Conclusion<\/strong><\/p>\n

Nevertheless, States must be aware that the imminent danger of discriminatory stigmatization is high when having a child with disability is generally perceived as an increased burden. After all, under Art. 8 CRPD, States are not only required to refrain from any actions fostering such stigmatization, but also to actively engage in awareness raising activities to reduce and prevent it. Thus, instead of de jure<\/em> differentiations in abortion legislation that can create and increase negative stigmas, liberal abortion options as a legal norm are needed to do justice to the Committees demand<\/a> to respect \u201cwomen\u2019s rights to reproductive and sexual autonomy (\u2026) without legalizing selective abortion on the ground of fetal deficiency\u201d.<\/p>\n

In fact, this is the only way for States to avoid complicated case-by-case considerations, which would require evaluations and uncertain predictions about the impact of certain disabilities on a (prospective) mother\u2019s rights and would ultimately lead to additional stigmatization and discrimination. In such a scenario, where at least the lex lata\u00a0<\/em>would not differentiate fetuses with and without disabilities, countering the use of PGT as a de facto<\/em> promoter of disability-selective abortion becomes of particular importance so that abortion will finally no longer be perceived as a \u201csolution\u201d to a supposed \u201cproblem\u201d of a disability\u2019s diagnosis.<\/p>\n

 <\/p>\n

The “Bofaxe” series appears as part of a\u00a0<\/em>collaboration<\/em><\/u><\/a>\u00a0between the\u00a0<\/em>IFHV<\/em><\/u><\/a>\u00a0and V\u00f6lkerrechtsblog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The fight for the protection and recognition of disabled persons\u2019 rights frequently ends before it even starts. While about\u00a025%\u00a0of fetuses are generally aborted, this percentage rises to about\u00a090%\u00a0when the\u00a0fetus\u00a0is diagnosed with\u00a0a disability. As a result, certain disabilities are disappearing in\u00a0several\u00a0countries\u00a0(e.g. Down Syndrome in\u00a0Denmark). This\u00a0increase in disability-selective abortions\u00a0roots in two distinctive (albeit inextricably linked) grounds:\u00a0de jure […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6047,5173],"article-categories":[5108],"doi":[],"class_list":["post-14786","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-nadine-gruenhagen","authors-vanessa-bliecke","article-categories-bofaxe"],"acf":{"subline":"On Disability-Selective Abortion as a Means to Prevent Disability "},"meta_box":{"doi":"10.17176\/20210716-135718-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14786","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=14786"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14786\/revisions"}],"predecessor-version":[{"id":14800,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14786\/revisions\/14800"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=14786"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=14786"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=14786"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=14786"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=14786"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=14786"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}