Fleming article continued (from Part 1)


Dr John I Fleming and Dr. Michael G Hains



The Right to Life of the Unborn and International Law 

Denying Personhood Used to Justify Abuse of Human Rights





Within what limits may a state party provide for legal abortion? To find the answer to this question, full account has to be taken of the provisions of the United Nations Charter, the Universal Declaration of Human Rights 1948 that seeks to amplify Article 55 of the United Nations Charter, and the International Covenant on Civil and Political Rights 1966. Article 55 commits the United Nations to "promote respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." [46]

The Universal Declaration of Human Rights 1948 is founded upon the notion that there are human values and these values are inherent in the human individual. In the Preamble the Declaration states that "the foundation of freedom, justice and peace in the world" is the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family".[47]

As far as the Declaration is concerned there are human values inherent in all members of the human family because of their "inherent dignity". Since "dignity" is about true worth or excellence ["dignus" L. means worthy], and, in the context, human worth, then the claim for the inherent dignity of human beings is a claim for basic human values. Further, the Preamble links human dignity, human values with human rights that it describes as "inalienable rights", rights of which we may not be deprived and cannot deprive ourselves. I must not be sold into slavery and I am to be restrained from selling myself into slavery.

These human rights which reflect human values must, says the Preamble, "be protected by the rule of law" otherwise humankind may be driven, "as a last resort, to rebellion against tyranny and oppression". This protection of the rule of law is necessary not only for human beings to live together peaceably within the State, but also so that nations may live together in peace.

The Universal Declaration of Human Rights 1948 presents itself to the world as "a common standard of achievement for all peoples and all nations" and as a guide for every structure in society and for every individual in order that the rights identified in the Declaration may have "their universal and effective recognition and observance" secured.

Article 1 of the Declaration asserts certain things about human beings that affect the understanding of the rest of the document. Human beings, it says, "are born free and equal in dignity and rights". This value of equality of human beings, this injunction not to show preference between individuals in the recognition of "the rights and freedoms set forth in this Declaration", is further specified in Article 2. In particular, in the entitlement to the rights and freedoms in the Declaration there is to be no distinction of any kind, "such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

In this way the Declaration excludes discrimination against the elderly and the very young, the physically and mentally disabled and the chronically ill. All have equal claim to the rights and freedoms enunciated in the Declaration.

Article 3 of the Declaration begins the articulation of the human values to be defended in terms of human rights. "Everyone has the right to life, liberty and the security of person." Thus, human life is held to be both inviolable and inalienable. The Declaration does not begin with hard cases or exceptions, but with the general proposition which concerns the value of human life. Noting the order of the rights articulated is also interesting - life first, then freedom [liberty], and then security of person. Unless the State can guarantee the right to life then there are no meaningful rights to freedom or to security of person. The right to life is logically prior to considerations of the quality of the individual’s life.

Does this right to life extend to the unborn child? When Article 3 of the Universal Declaration of Human Rights 1948 was being drafted there were several proposals for the provision of an explicit protection for the unborn child. [48] These proposals were certainly debated. In the event, none of the relevant proposals was pushed to a vote and the final text stated only that ‘everyone had the right to life . . ." [49]

The fact that the matter was not pushed to a vote does not mean that one can conclude that the rights of the unborn child are not covered by the Universal Declaration of Human Rights 1948. The text clearly states that everyone has the right to life, and that what is meant by everyone is "every member of the human family," [50] that is, all human beings. Here is the nub of the matter. Some of those nations who opposed an understanding of the CRC's Preambular reference to "the child, by reason of his physical and mental immaturity" needing "special safeguards and care, including appropriate legal protection, before as well as after birth," as including abortion did so on the basis of attitudes which violate explicit provisions of the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights 1966.

That opposition was on the basis "that an unborn child is not literally a person whose rights could already be protected, and that the main thrust of the Convention was deemed to promulgate the rights and freedoms of every human being after his birth and to the age of 18 years."[51] These are mere assertions of opinion, opinion which is not universally shared in the way that the various human rights instruments are universally agreed, and in fact is opinion which is in conflict with universally agreed human rights instruments.

Michel Meslin, however, has shown that "the concept of person is one of the most difficult concepts to define - even though it is always burdened with hopes and revendications. It is neither a simple fact, nor evident throughout history." [52]

The briefest of surveys of the literature provides ample evidence to support Meslin's contention. Concepts of personhood based upon science and philosophy abound. For some, personhood begins at syngamy. For others it is at fourteen days after fertilisation, twelve weeks, twenty-eight weeks, birth, three months after birth and so on. There is no agreement in science or philosophy about when personhood begins or where it ends or how it should be defined. The only agreement one finds is in the embryological text books, that human life begins at fertilisation. It is the fertilisation of a human egg by a human sperm that produces a member of the human species, the human family. The main results of fertilisation are:

(a) restoration of the diploid number of chromosomes, half from the father and half from the mother. Hence, the zygote contains a new combination of chromosomes, different from both parents; (b) determination of the sex of the new individual. An X-carrying sperm will produce a female (XX) embryo, and a Y-carrying sperm a male (XY) embryo. Hence, the chromosomal sex of the embryo is determined at fertilization; (c) initiation of cleavage. Without fertilization the oocyte usually degenerates 24 hours after ovulation. [53]

Anthony Fisher has assembled other citations from many medical and biological textbooks, all of which underscore the scientific consensus that "the human embryo is a genetically human, discrete and an alive unit, organically single and individual, with a self-contained power to organise his or her own growth, multiplication and differentiation in a way that ordinarily leads to a human adult." [54]

R. Yanagimachi begins his essay on "Mammalian Fertilization" with the statement: "Fertilization in mammals normally represents the beginning of life for a new individual." [55]

On the basis, then, of this standard text book definition of fertilisation it may reasonably be concluded that the embryo [56] is a "new individual", genetically different from his or her parents, and containing all the necessary genetic information for further development. This embryological understanding of the beginning of human life has been expressed in various formulations. The Senate Select Committee On The Human Embryo Experimentation Bill 1985 [Australia] defined the human embryo:

The Committee, in adopting the usage 'embryo' to describe the fertilised ovum and succeeding stages up to the observation of human form, means to speak of genetically new human life organised as a distinct entity oriented towards further development.

The testimony of C.R. Austin that the "stage which marks the start of a person is a matter of opinion" [58] is matched by Roger Short’s contention that the benchmark fourteen days, for which he argued, was nevertheless "a prejudice" and "purely arbitrary". [59]

We conclude that there is no agreed basis for dividing up the human family into persons and nonpersons, but there is an agreement from science that from fertilisation we all share a common humanity, that we are all members of the "human family", to use the words of the Universal Declaration of Human Rights 1948. This latter point has been conceded by strong supporters of the 'pro-choice' position, especially Peter Singer, Michael Tooley and Helga Kuhse. The attempts to disenfranchise some members of the human family from moral consideration has lead to justifications of intolerable abuses of human rights including slavery, genocide, abortion, infanticide, non-voluntary sterilisation, non-voluntary and voluntary euthanasia of other human beings.

In the current climate we need to appreciate that the same fashionable philosophical notions of human personhood used to justify abortion are also being used to justify the killings of children up to three to six months after birth [60] . If the killing of a child after birth is considered to be in violation of our human rights obligations, then the killing of the child before birth on the same philosophical justification must also be considered a violation of that child’s right to life.


The eugenic impulse to kill fetuses and other members of the human family who have disabilities is still in evidence in the late twentieth century [61] and is used together with a utilitarian moral philosophy to deny personhood, and therefore moral consideration, to those classes of human beings who constitute a burden to the community, a burden which it is often unwilling to accept. Abortion can then be advanced to parents who may feel unable to cope with that burden alone and without the support of the wider community.

There is a connection between the self-interest of communities and the line to be drawn between persons and non-persons. That self-interest may be driven by eugenic, economic, social and political factors such that those a society wishes to exclude are deemed to be non-persons. History is replete with examples of this phenomenon. Thus could Chief Justice Taney of the United States Supreme Court exclude Dred Scott (a Negro slave) from personhood, [62] could the Egyptian Pharaohs exclude the Israelites, could Hitler exclude Jews, Gypsies, the 'degenerate' and the asocials from personhood, [63] could the British tolerate the slave trade, and could the European Australians liquidate and repress the Aborigines. The notion that certain classes of persons are non-persons is a not uncommon opinion. The Canada Indian Act 1880 states that "the term person means an individual other than an Indian".

In the Canada Franchise Act 1885, we learn that "[a person] is a male person, including an Indian and excluding a person of Mongolian or Chinese Race." Here is progress; in only five years Indians were upgraded to personhood and Asians are called persons in the very clause denying them personhood. By 1925, Canadian legislation had determined that all races-and women-are persons. Changes in Canada continued. By 1980, the government had recognized the Inuit, or Eskimos, as Indigenous Peoples with entitlement to lands. And the nation had developed a cadre of advocates dedicated to the empowerment of the disadvantaged. [64]

The Universal Declaration of Human Rights 1948, following the United Nations Charter, rejects discrimination against any members of the "human family", and requires the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family" (Emphasis added). As far as human personhood is concerned, the Declaration does not allow discrimination on the basis of human personhood. Article 2 asserts firmly that "everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind . . ." (Emphasis added) and Article 30 commands that "nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein."

Article 6 specifically deals with the matter of the division of human beings into persons and non-persons in these terms:

Everyone has the right to recognition everywhere as a person before the law. [65]

It is true that the practice of abortion is widespread and, in many countries, legal at least in some circumstances. There is, however, a mismatch between the human rights requirements of international law and the practice of individuals and nation states in the same way that there is a mismatch between the rights of women and the practice of individuals and nation states.

If the human rights of the unborn child are to be upheld in law there will need to be with it an acceptance of the obligation to provide the social, economic, and moral support that women need when faced with an unwanted pregnancy. The hard cases need to be seen as hard cases against the background of the inalienable right of the fetus to live (a right that the fetus shares with his or her fellow human beings) and the rights of everyone (in this context especially women) "to a standard of living adequate for the health and well being of himself and of his family . . . and the right to security in the event of unemployment . . . or other lack of livelihood in circumstances beyond his control." And further, Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. [66]

Article 6(1) of the International Covenant on Civil and Political Rights 1966 guarantees that "every human being has the inherent right to life." The right to life is the only right in the Convenant that is expressly stated to be "inherent" to everyone. The Human Rights Committee [67] has described it as the "the supreme right." [68]

It is also one of the rights which cannot be derogated from, [69] even in a "time of public emergency which threatens the life of the nation." [70]In its General Comment, [71] on Article 6, the Human Rights Committee has:

". . . noted that quite often the information given concerning article 6 has been limited to only one or other aspect of this right. It is a right which should not be interpreted narrowly." [72] And the "expression 'inherent right to life' cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures." [73] That international law does envisage human rights protection for the unborn can be seen in the provision dealing with capital punishment in the International Covenant on Civil and Political Rights 1966:

Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. [74]

In this provision, a state may execute a woman only when she is not pregnant. The innocent are not to die along with the guilty. [75] Indeed the travaux préparatoires of the International Covenant on Civil and Political Rights 1966 makes this abundantly clear: The principal reason for providing in paragraph 4 [now Article 6(5)]of the original text that the death sentence should not be carried out on pregnant women was to save the life of an innocent unborn child. [76]

Here is an explicit recognition in international law that human rights enjoyed by every member of the human family includes the unborn. This fundamentally humane principle was reflected in the common law in England and Australia when each country had the death penalty. [77]

Abortion advocates, however, have asserted that when Article 1 of the Universal Declaration of Human Rights 1948 says that "all human beings are born free and equal in dignity and rights", this means that "persons are recognized in international law, as human beings having been born." [78]

This deduction is without merit in the light of the detailed arguments we have already adduced. It cannot, in good faith, reasonably be deduced from Article 1, read in the context of the whole of the document and in the light of the Covenants which have further specified human rights, that unborn human beings are not persons with rights. The natural meaning of the text, in the light of the other references in the relevant provisions of international law, is that human beings without distinction are born free and equal in dignity and rights because as members of the human family they have had that status from the beginning. The interpretation offered by abortion advocates is about as helpful as deducing from a statement that a baby is born human that it was not human before birth.

Lastly, the use of abortion as a means of genocide is raised in the Convention on the Prevention and Punishment of the Crime of Genocide 1948. [79] In Article II the Convention defines the "odious scourge" [80] of genocide to include "killing members of the group" and "imposing measures intended to prevent births within the group." [81]

The latter inclusion explicitly recognises the right to life of the unborn. In the same article genocide is conceived in terms of an intention "to destroy, in whole or in part, a national, ethnical, racial or religious group". The question is, to what extent, if at all, does this apply to the practice of abortion in contemporary society?

Much depends on what should be understood by the term "in whole or in part of a national group". The moral justification most frequently advanced for abortion is that, as a group or category of human beings, the unborn are not persons and accordingly have no right to life to protect. But, as we have already argued, the unborn are part of the human family. And the human family is itself broken down into nation states or groups.

The unborn are, then, a sub-group of a national group. If the unborn, contrary to Article 6 of the Universal Declaration of Human Rights 1948 and Articles 6 and 16 of the International Covenant on Civil and Political Rights 1966, are defined, as a group, as non-persons and therefore beyond moral and legal protection, does the crime of genocide apply to those countries that fail to give protection to that part of the national group?

Even more obviously, "disabled persons" are recognised in international law as a group which forms part of a nation. [82] These persons "have the same civil and political rights as other human beings" [83] and must be "protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature." [84] If it is legally permissible to end the life of unborn human beings with disabilities, and medical tests are routinely applied to pregnant women to discover any fetal abnormality, would this not amount to the crime of genocide against the disabled unborn?

The Genocide Convention speaks of "imposing measures intended to prevent births within the group." Does this mean that the Genocide Convention is limited only to cases where abortion is imposed on women? The answer to this question is no. Since the Genocide Convention defines genocide in terms of "killing members of the group", since "measures intended to prevent births" clearly includes induced abortion, and since abortion involves the intentional killing of the unborn, then the Convention's reference to "imposing measures" cannot be interpreted in a way that would limit its application to women who are forcibly aborted. And in any case, the Convention’s definition of genocide includes "killing members of the group". This is sufficient by itself to raise serious questions as to whether the practice of abortion is genocide.

What often makes a group vulnerable to genocide is the denial of human rights, precisely what has occurred to the unborn in Australia and in many other countries. The questions that supporters of legal abortion need to address, then, are these: how is it not genocide to define some members of the human family as non-persons, thereby allowing them to be directly and intentionally killed by induced abortion? How is it not genocide to legally prescribe and actively promote the induced abortion of human beings on the grounds of their actual or perceived disability? If it could be shown that homosexuality was genetically influenced, and homosexuality was thought of as a disability, would the routine abortion of homosexuals be considered the crime of genocide against homosexuals?


The member nations of the United Nations are committed to the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion" (85) by way of a pledge. All members pledge themselves to take joint and separate action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55.(86) What we have here is the idea of a consensus gentium, an agreement among the nations, a consent to be bound by certain values expressed as human rights. This doctrine of consent involves the idea that the "basis of obligation of all international law, and not merely of treaties, is the consent of States." (87)

Australia has bound itself to membership of the United Nations, to the United Nations Charter, to the Universal Declaration of Human Rights 1948, the Convention on the Prevention and Punishment of the Crime of Genocide 1948, the International Covenant on Civil and Political Rights 1966, the Convention on the Rights of the Child 1989, and the Declaration of the Rights of the Child 1959. These documents contain strong commitments to the protection of human rights of all without any distinction whatsoever. Discrimination because of age, personhood, status and disability are all examples of unjust discrimination, including when they are applied to unborn children.

There are, of course other important obligations under international law which, as we have already suggested, will influence municipal law in many other areas of the law. However, it is hard to imagine a more neglected area of human rights discussion, from the perspective of international law, than the rights of the unborn. The Commissions have continued this neglect by their conspicuous failure to discuss these issues which they are obliged to discuss. Any domestic cases involving the unborn whether that be abortion, succession, medical negligence or the criminal law must now have regard to our obligations under international law. Put succinctly, there is a case to be heard for the unborn based on Australia’s existing human rights obligations and that now is the time to adjust practice to principle rather than continuing to compromise principles to bring "principle" in line with practice.

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46 Charter of the United Nations, Article 55(c).

47 In Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (Marion's case.) (1992) 175 CLR 218

Brennan J. emphasised:

The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and of the intellectually disabled . . . Our law admits of no discrimination against the weak and disadvantaged in their human dignity.

48 Philip Alston, op. cit. n 32, 159.

49 Ibid.

50 Preamble, Universal Declaration of Human Rights 1948, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

51 Sharon Detrick. op. cit. n 27, 109.

52 Michel Meslin, "Religious traditions and the Human Person", in Concepts of Person in Religion and Thought, eds. Hans G. Kippenberg, Yme B. Kuiper, and Andy F. Sanders, (Berlin: Mouton de Gruyter, 1990), 67.

53 T.W. Sadler, Langman’s Medical Embryology Sixth Edition, (Baltimore: Williams & Wilkins, 1990), 30.

54 Anthony Fisher, IVF The Critical Issues, (Melbourne: Collins Dove, 1989), 133. Fisher refers to W. J. Hamilton and H.W. Mossman, Human Embryology 4th Edition, (Cambridge: Plenum, 1972); L.B. Arey, Developmental Anatomy 7th Edition, (Philadelphia: Saunders, 1975); B. Alberts et al, Molecular Biology of the Cell, (New York: Garland, 1983); K.L. Moore, Before We Are Born, (Philadelphia: Saunders, 1983); L. Nilsson et al, A Child Is Born, (London: Faber & Faber, 1977).

55 R. Yanagimachi, "Mammalian fertilization", The Physiology of Reproduction, eds. E. Knobil, J. Neill et al, (New York: Raven Press, 1988), 135.

56 It is interesting to note that Langman’s Medical Embryology Sixth Edition does not use the term "pre-embryo", a term which is meant to refer to the entity up to 14 days. The comparative lawyer Albin Eser has suggested that "the naive (speaking from a normative-theoretical perspective) and rather simplistic efforts to get rid of the basic value problem through terminological ‘degradation’ of the pre-implantation embryo to the status of ‘pre-embryo’ or even to simple ‘seed’ or ‘germ’ should be abandoned. Rather than prejudicing the value questions involved through conceptual-terminological game-playing it would be better to concentrate on the question that is lastly decisive: To what extent does or should a species-specific human (since originating from human gametes) new entity of life - i.e., at least genetically capable of achieving the full potential of a human being - possess sufficient value to make us unwilling to allow for total freedom of choice with respect to maintaining or destroying this life?" A. Eser, "Experiments with embryos: legal aspects in comparative perspective", UK National Committee of Comparative Law 1987 Colloquium Legal Regulation of Reproductive Medicine (Cambridge) cited in Anthony Fisher, op. cit., 173-174.

57 Human Embryo Experimentation In Australia, Senate Select Committee On The Human Embryo Experimentation Bill 1986, (Canberra: Australian Government Printing Service, 1986), xiii.

58 C.R. Austin, Human Embryos, (Oxford: Oxford University Press, 1989), 31.

59 Senate Select Committee on the Human Embryo Experimentation Bill 1985, Official Hansard Report, op. cit. n 57, 2161-2162. Professor R.V. Short was Chairman, Working Party on Human Embryo Experimentation, Australian Academy of Science, Canberra, Australian Capital Territory.

60 Michael Tooley, Abortion and Infanticide, (Oxford: Clarendon Press, 1983). Tooley argues that a child becomes a "quasi-person" at around three months after which time it might be thought wrong to kill the baby (see his conclusions, p. 424). Cf Helga Kuhse and Peter Singer, Should the Baby Live?, (Oxford: Oxford University Press, 1985) especially p. 131 where the authors describe Tooley’s argument as "basically sound". For a refutation of Tooley see Bernard Williams, Ethics and the Limits of Philosophy, (London: Fontana Press/Collins, 1985), 114-115.

61 It was also prevalent in the early twentieth century. For example, "Eugenics aims to secure better babies." (Margaret Sanger, Medical Journalists Advocate Birth Control, Birth Control Review, Volume II, Number 10 (October 1918), 4) and ". . . we need not more of the fit, but fewer of the unfit . . . Is it not time to protect ourselves and our children and our children’s children? The propagation of the degenerate, the imbecile, the feeble minded, should be prevented." (Margaret Sanger, Birth Control, Past, Present and Future, Birth Control Review, Volume V, Number 8 (August 1921), 19.

62 "Prior to the American Civil War and the antislavery amendments, such decisions as Dred Scott v. Sandford relegated slaves to the legal status of nonpersons in spite of clear biological evidence of their humanity." John Warwick Montgomery, "Abortion and the Law: Three Clarifications", in New Perspectives on Human Abortion, eds. Thomas W. Hilgers, Dennis J. Horan, and David Mall, (Frederick, Maryland: University Publications of America, Inc., 1981), 284. Cf. Dred Scott v. Sandford, 19 Howard 393 (1857) and the Slavery Convention 1927, Article 1.

63 See RN Proctor, Racial Hygiene: medicine under the Nazis (Cambridge, MA: Harvard University Press, 1988); also RJ Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York, Basic Books, 1986).

64 Hiram Caton and John I. Fleming, "Afterword: An Allegory", in Hiram Caton and John I. Fleming eds., Proceedings of the Bioethics Symposium: Limits on Care of the Ninth World Congress on Intellectual Disability, (Canberra: National Council for Intellectual Disability, 1992), 67-68.

65 Cf The International Covenant on Civil and Political Rights 1966, Article 16.

66 Universal Declaration of Human Right 1948, Article 25.

67 The Human Rights Committee is established under the International Covenant on Civil and Political Rights 1966 to implement the Convenant, see Part IV of the Convenant. Mr Ganji, a former Human Rights Committee member, has provided useful insight to the Committee’s approach concerning Article 6. He has observed:

In order to exercise any rights with which the Committee was concerned an individual had to exist, and in order to exist, he must die neither before nor after birth and he must receive a minimum of food, education, health care, housing and clothing. There was undoubtedly an interconnexion between the right to life, the requirements of which were material and the right to exercise all other freedoms. [SR 67 pr. 78. Comments made during consideration of a report by the German Democratic Republic.]

68 GC 7(16), Doc. A/37/40, 94. Also in Doc. C/21/Add. I.

69 International Covenant on Civil and Political Rights 1966, Article 4(2).

70 International Covenant on Civil and Political Rights 1966, Article 4(1).

71 International Covenant on Civil and Political Rights 1966, Article 40(4).

72 Human Rights Committee, General Comment 6, Article 6 (Sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994) §1.

73 Id. at §5.

74 Article 6(5) of the International Covenant on Civil and Political Rights 1966, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171. See also the United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty 1984, Article 3.

75 Marc J. Bossuyt in the Guide to the "Travaux Préparatoires" of the International Convenant on Civil and Political Rights, (Martinus Nijhoff Publishers, 1987) observes:

Commission on Human Rights, 5th Session (1949), 6th Session (1950), 8th Session (1952) A/2929, Chapt. VI, §10: "It would seem that the intention of paragraph 4 [5] which was inspired by humanitarian considerations and by consideration for the interests of the unborn child, was that the death sentence, if it concerned a pregnant woman, should not be carried out at all. It was pointed out, however, that the provision, in its present formulation, might be interpreted as applying solely to the period preceding childbirth [E/CN.4/SR.311, p.7 (B)]." Third Committee, 12th Session (1957) A/3764, §118 [actually §117]: "There was some discussion regarding the meaning of paragraph 4 [5] of the draft of the Commission on Human Rights (E/2573, annex I B), which provided that the sentence of death should not be carried out on a pregnant woman. A number of representatives were of the opinion that the clause sought to prevent the carrying out of the sentence of death before the child was born [A/C.3/SR.809, §27 (CHI); A/C.3/SR.810, §2 (B), §7 (IR); A/C.3/SR.812, §32 (RI); A/C.3/SR.814, §42 (CDN)]. However, other (sic) thought that the death sentence should not be carried out at all if it concerned a pregnant woman [A/C.3/SR.810, §14 (PE); A/C.3/SR.811, §24 (SA)]. The normal development of the unborn child might be affected if the mother were to live in constant fear that, after the birth of her child, the death sentence would be carried out."

76 Ibid., §118, A/3764.

77 In R v. Wycherley 173 ER 486 the accused woman had been found guilty of murder and was sentenced to death. When asked whether she had anything to stay the execution she replied: "I am with child now." A jury was empanelled and found that the woman was not pregnant. Nevertheless, the case highlights that the death penalty was stayed pending the resolution of the issue and logically would have been stayed until at least the birth had she been found to be pregnant.

78 International Planned Parenthood Federation, IPPF Charter on Sexual and Reproductive Rights, 12.

79 78 U.N.T.S. 277, the Convention entered into force on 12 January 1951. The Convention was signed by Australia on 11 December 1948 and ratified on 8 July 1949. Australia has approved and repeated the Convention on the Prevention and Punishment of the Crime of Genocide 1948 in the Genocide Convention Act 1949 (Cth.). However, the Act does not implement the Convention into municipal law, see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287, 298, 304, 315 and Krueger v The Commonwealth, unreported, High Court of Australia, 31 July 1997. Compare the comments of Justice Evatt who has argued:

Quite apart from conventions that Australia ratifies, some parts of that international law can, as a matter of common law, apply in Australia without any further action on the part of anyone. I think the recent High Court case of Teoh may have referred obliquely to this, but it could have said more about the fact that under common law, customary rules, and particularly principles of human rights, such as the principle against genocide and so on, are part of customary international law. Naturally as such, they can be overruled by legislation, as any part of the common law can. But we should not think of international law as being an entirely separate thing from the law of Australia. Some parts of it we would recognise. [Report by the Senate Legal and Constitutional References Committee, Trick or Treaty?, Commonwealth Power to Make and Implement Treaties, November 1995 at §6.6, see also §3.33.]

80 Convention on the Prevention and Punishment of the Crime of Genocide 1948, Preamble.

81 In Thorpe v The Commonwealth [No 3], unreported, High Court of Australia, 12 June 1997, Kirby J. observed "The definition of "genocide" in the [Genocide] Convention is very broad."

82 Declaration on the Rights of Disabled Persons 1975, proclaimed by the General Assembly Resolution 3447 (XXX) of 9 December 1975. The Declaration is attached as Schedule 5 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth.).

83 Declaration on the Rights of Disabled Persons 1975, Article 4.

84 Declaration on the Rights of Disabled Persons 1975, Article 10.

85 United Nations Charter, Article 55(c).

86 United Nations Charter, Article 56.

87 Parry and Grant Encyclopaedic Dictionary of International Law, eds. Professor Clive Parry et al, (New York: Oceana Publications, Inc., 1986), 72.



Dr John I Fleming, BA, ThL (Hons), PhD.


Southern Cross Bioethics Institute

PO Box 206

Plympton, SA 5038


Tel: + 61 8 8297 0022

Fax: + 61 8 8371 1391

Mobile: 0419 819 452

Email: jfleming@bioethics.org.au

Dr. Michael G Hains, LLB (Hons), Ph.D.


Research Fellow

Southern Cross Bioethics Institute

Adjunct Lecturer in Law, University of NSW

Visiting Fellow University of Melbourne (1996)

Email: mhains@ozemail.com.au