Dear Congressmen,

Thank you for the invitation to appear before the Argentine Congress to discuss the decriminalization of abortion in the country.

The purpose of my presentation is to present a review of international human rights standards and comparative law that we hope the Argentine Congress will take into account when deciding on the decriminalization of abortion. Human Rights Watch considers the decriminalization of abortion to be a key advancement for women's human rights and a necessary step for Argentina to comply with its international obligations.

I will discuss three issues throughout my testimony. Firstly, I would like to explain why there is no obstacle from an international human rights law perspective impeding Argentina from decriminalizing abortion. Secondly, I will explain that, on the contrary, from the international law perspective, Argentina should decriminalize abortion. Lastly, I would like to present a comparative law perspective to explain that there is a global trend towards the progressive decriminalization of abortion.

The decriminalization of abortion is fully compatible with Argentina's obligations to protect the right to life

There are undoubtedly different ethical and biological views about the beginnings of human life. However, in legal terms, the decriminalization of abortion is not incompatible with the right to life.

Those who oppose decriminalization have invoked three arguments to support the claim that the decriminalization of abortion would be incompatible with the right to life. I will explain why all three are wrong.

Firstly, they have appealed to Article 4 (1) of the American Convention on Human Rights, which states that "[e]very person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.”[1]

However, the bodies of the Inter-American system in charge of interpreting the Convention have argued that it does not recognize an absolute right to life before birth. In 1981, in the case of Baby Boy v. United States, the Inter-American Commission on Human Rights concluded that the provisions on the right to life set forth in the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man were compatible with abortion.[2] Similarly, in the case of Artavia Murillo v. Costa Rica, the Inter-American Court of Human Rights concluded that embryos cannot be understood as persons for the purposes of Article 4(1) of the Convention.[3]

Secondly, opponents of the decriminalization of abortion have invoked the Convention on the Rights of the Child (CRC), which defines a child as “every human being below the age of eighteen years (...)" in article 1.[4] They employ two interpretations of this article, but both are legally weak.

First, they interpret article 1 of the Convention in light of the Preamble, which states that "the child (...) needs special safeguards and care, including appropriate legal protection, before as well as after birth."

However, the Committee on the Rights of the Child, the body charged with articulating authoritative interpretations of CRC provisions, has consistently maintained that the decriminalization of abortion is not incompatible with the Convention. On the contrary, the Committee has called on states to decriminalize abortion to protect the rights of adolescent girls.[5] For example, in its concluding observations in February of this year, the CRC urged Guatemala to "[d]ecriminalize abortion in all circumstances and ensure access to safe abortion."[6]

Another interpretation of those who oppose the decriminalization of abortion mentions the need to consider the interpretative declaration made by the Argentine State upon ratifying the Convention on the Rights of the Child in 1990, according to which Argentina “declares that… article [1] must be interpreted to the effect that a child means every human being from the moment of conception up to the age of eighteen.”[7]

However, this argument ignores a basic distinction within international law between reservations and interpretative declarations. Reservations seek to modify the state’s legal obligations.[8] On the other hand, interpretative declarations, such as this interpretative declaration made by the Argentine state in relation to the Convention on the Rights of the Child, merely indicate the state’s understanding of how a provision should be interpreted. In other words, Argentina’s interpretive declaration has no bearing on its legal obligations, to the extent that its interpretation is incorrect.

Thirdly, some opponents of the decriminalization of abortion have argued that it would be incompatible with Art. 75, No. 23 of the National Constitution, which requires Congress "to pass a special and integral social security system to protect children from abandonment, from pregnancy up to the end of elementary education.” I defer to the interpretations of Argentine jurists on the scope of this provision. However, I would like to clarify two important points.

Firstly, Argentine law must either be compatible with, or be brought into compliance with, Argentina’s obligations under international human rights law, including the human rights of women and girls to life and health.

Secondly, even if we grant that this provision does not refer only to social security and establishes a broad obligation to protect life from conception, this would not make the Constitution necessarily incompatible with the decriminalization of abortion. In fact, even in countries where national constitutions protect prenatal life from the moment of conception, many courts have recognized that this protection is not incompatible with the decriminalization of abortion. For example, in 1992 the German Federal Constitutional Court ruled that while the German constitution protects the fetus' right to life, such protection is not inconsistent with the decriminalization of abortion.[9]

Rights, such as the right to life, can be protected in various ways, and criminally prosecutions are just one of them. There are many alternatives. And in fact, threatening to imprison women who interrupt their pregnancies is a terrible way to protect life, as it does not help reduce the number of abortions. On the contrary, the criminalization of abortion puts the rights of women at risk, including their own right to life, which brings me to the second point of my presentation.

The decriminalization of abortion is a public health and human rights imperative

I would like to present two fundamental reasons why decriminalizing abortion is essential to protecting the human rights of women and girls in Argentina.

Firstly, the criminalization of abortion leads women to undergo unsafe abortions, affecting their right to life and to health. In effect, criminalization forces many women to resort to unsafe abortion methods and block them from receiving post-abortion care.

Secondly, the decriminalization of abortion makes it possible to guarantee access to safe and legal abortion in circumstances when compelling a woman to carry out a pregnancy would constitute cruel, inhuman and degrading treatment.

For these and other reasons, international treaty bodies responsible for interpreting human rights instruments ratified by Argentina have long argued that criminalizing or restricting access to abortion violates the human rights of women and girls, including their rights to life, to health and to be free from suffering cruel, inhuman and degrading treatment.

Global trend

Lastly, I would like to point out that at the global level, there is a trend to expand the circumstances in which women can have an abortion. Since 2000, 28 countries have reformed their abortion legislation, according to a recent study by the Guttmacher Institute. All of them, except for Nicaragua, expanded the circumstances in which women can legally abort; for example, to protect their health or during a specific stage of pregnancy.[10] Recently, on May 26, people in Ireland voted to repeal the 35-year constitutional ban on abortion and to allow parliament to regulate abortion access in the future.

Currently, almost all European and North American states have broad and liberal laws on abortion, while the few countries where there still exist extremely restrictive laws are developing countries.

In Latin America, Mexico City reformed its legislation in 2007 so that women can undergo abortions during the first 12 weeks of pregnancy. Uruguay approved similar legislation in 2012. In 2017, Chile ended the total ban on abortion and decriminalized it in three cases, despite opposition from the country’s elites, who are largely conservative.

According to the Guttmacher Institute, in countries where abortion is prohibited or only permitted to save the life of the pregnant woman, the abortion rate is higher than in those where abortion is allowed.[11] When other countries decriminalized this practice, the number of abortions and maternal mortality rates decreased. For example, in Spain, the total number of abortions decreased from 113,000 in 2010, when abortion was decriminalized, to 93,000 in 2016.[12] In Uruguay, maternal mortality rates associated with abortions were reduced from 37% in the 2001-2005 period to 8% in 2011-2015, largely thanks to various public health and social policies to protect women, including the decriminalization of abortion.[13]

Conclusion

To conclude, I would like to highlight that Argentina faces a historic opportunity to abandon the status quo of the criminalization of abortion that imposes an enormous, unnecessary and discriminatory burden on women and girls in the country, in violation of their human rights.


[1] American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force October 8, 1990, ratified by Argentina on August 14, 1984, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art. 4(1).

[2] Inter-American Commission on Human Rights, White and Potter (“Baby Boy Case”), Resolution No. 23/81, Case No. 2141, U.S., March 6, 1981, OAS/Ser.L/V/II.54, Doc. 9 Rev. 1, October 16, 1981.

[3] Inter-American Court, Artavia Murillo and others Case, Judgment of November 28, 2012 Inter-Am Ct.H.R., Series C. No. 257, para. 264.

[4] Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force August 13, 1990, ratified by Argentina on December 4, 1990, art. 1.

[5] See, for example, concluding observations of the Committee on the Rights of the Child on Guatemala, UN Doc. CRC/C/GTM/CO/5-6 (2018); Marshall Islands, UN Doc. CRC/C/MHL/CO/3-4 (2018); Palau, UN Doc. CRC/C/PLW/CO/2 (2018); Panama, UN Doc. CRC/C/PAN/CO/5-6 (2018); Solomon Islands, UN Doc. CRC/C/SLB/CO/2-3 (2018); Sri Lanka, UN Doc. CRC/C/LKA/CO/5-6 (2018); Malawi, UN Doc. CRC/C/MWI/CO/3-5 (2017); Saudi Arabia, UN Doc. CRC/C/SAU/CO/3-4 (2016); Sierra Leone, UN Doc. CRC/C/SLE/CO/3-5 (2016); Haiti, UN Doc. CRC/C/HTI/CO/2-3 (2016); Peru, UN Doc. CRC/C/PER/CO/4-5 (2016); Kenya, UN Doc. CRC/C/KEN/CO/3-5 (2016); and Ireland, UN Doc. CRC/C/IRL/CO/3-4 (2016).

[6] concluding observations of the Committee on the Rights of the Child on Guatemala, UN Doc. CRC/C/GTM/CO/5-6 (2018).

[7] Office of the High Commission on Human Rights, "Convention on the Rights of the Child, New York, 20 November 1989, Declarations and Reservations," https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11... (accessed May 29, 2018).

[8] Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force on January 27, 1980. United Nations, Treaty Series, vol. 1155, p. 331., art. 2.

[9] See Donald P. Kommers, “The Constitutional Law of Abortion in Germany: Should Americans Pay Attention” (1994), Scholarly Works. Paper 733, http://scholarship.law.nd.edu/law_faculty_scholarship/733 (accessed May 29, 2018).

[10] Guttmacher Institute, “Abortion Worldwide 2017: Uneven Progress and Unequal Access,” https://www.guttmacher.org/news-release/2018/new-report-highlights-worldwide-variations-abortion-incidence-and-safety (accessed May 29, 2018).

[11] Guttmacher Institute, “Abortion Worldwide 2017: Uneven Progress and Unequal Access,” https://www.guttmacher.org/news-release/2018/new-report-highlights-worldwide-variations-abortion-incidence-and-safety (accessed May 29, 2018).

[12] Ministry of Health and Social Services and Equality of Spain, “Statistical information” (“Datos Estadisticos”), no date, https://www.msssi.gob.es/profesionales/saludPublica/prevPromocion/embarazo/tablas_figuras.htm (accessed May 29, 2018).

[13] L. Briozzo, “Overall and abortion‐related maternal mortality rates in Uruguay over the past 25 years and their association with policies and actions aimed at protecting women's rights,” International Journal of Gynecology and obstetrics, August 2016, https://obgyn.onlinelibrary.wiley.com/doi/full/10.1016/j.ijgo.2016.06.004 (accessed May 29, 2018).