Daily Summary related to Draft Article 8
RIGHT TO LIFE
Prepared by Landmine Survivors Network

Volume 3, #7
January 13, 2004

Afternoon Session
Commenced: 3.17 pm
Adjourned: 6.00 pm

RIGHT TO LIFE

Inclusion International asserted that the lives of all future PWD, especially those with intellectual disabilities, are at risk because of developments in bioethics and prenatal testing for disability. For most persons with an intellectual disability, the disability is present before birth. Underlying these developments is an intolerance towards diversity which constitutes a denial of the right to be different. Society might soon be making a distinction between lives worth living and those not worth living. This is not an argument about a women’s right to choice, it is about “our right” to be born and to be to be different. The presence of a disability must not be allowed to become a justification for the termination of life, nor must a disability justify changing the genetic make-up of a person. A strong statement advocating the right to life for PWD should recognize the richness and diversity that PWD bring to the lives of their family and community.

Firstly, LSN suggested that the draft text use the same language as Article 6 of the Convention on the Rights of the Child (CRC). This formulation includes the right to life, survival and development, which is particularly relevant to the disability context. The second point relates to the right to life, but may be better placed under a section on groups at risk. This is the situation of PWD in armed conflict. PWDs are typically the last to be evacuated in conflict situations and when they are evacuated their rights are seldom addressed in centers for refugees and internally displaced persons. LSN drew attention to Article 38 of the CRC, which links international humanitarian law to human rights law. Based on this model, LSN affirmed a need to include a provision on the promotion and protection of the rights of PWD in armed conflict.

The South African Human Rights Commission (SAHRC) preferred to retain this article but with as unambiguous and simplified a formulation as possible. To the sentence “Every person with a disability has the inherent right to life and survival” should be added “irrespective of his/her disability.” The second sentence stipulating that “This right shall be protected by law” is redundant and should be deleted since by definition all rights in this convention are protected by law.

DPI affirmed that the right to life is the most basic right and noted that the Chair’s draft as drawn from the Bangkok text includes the right to life. DPI further specified that the Bangkok text does not address specific infringements on the right to life, such as forced or coerced abortions or practices of euthanasia. The representative urged WG members to consider more focused references to the issues faced by PWD in this area.

WNUSP supported the inclusion of this article if it could be done in a way that would not compromise women’s reproductive rights. WNUSP also pointed to the phenomenon of non-disabled persons justifying killing of PWD because of the extent of their suffering. Another justification is that parents could not cope with the situation. Whether or not the WG would call attention to this specifically, it is necessary to be aware that states have an obligation to protect PWD’s right to survival and to protect people from these atrocities. The lives of PWD as well their dignity and autonomy are being tacitly assumed to be less worthy than the lives of others.

India noted that the right to life as drafted in the Chair’s text (Article 12) is based on Article 6.1 of ICCPR. India would like the third and last sentence of the article, “No one shall be arbitrarily deprived of his or her life,” qualified with the language “because of disability and/or gender.”

Colombia stressed the importance of an article, or perhaps something within the same article, on genetic discrimination. In Colombia, abortion is banned. It would not be appropriate to promote abortions based on possible disabilities. If there were any kind of genetic treatment used, for example if a couple is attempting to have a child through some sort of enhanced genetic intervention, or on the contrary, if one wants to do away with the fetus, this is a polemic discussion.

Ireland noted that the EU draft does not have an article dealing with the right to life, because the EU was not convinced that the inclusion of such an article would add to existing human rights law. The EU is opposed, from the outset, to the repetition of existing rights simply for the sake of repeating them. Our view is that everyone person has exactly the same rights as any other person. The need to protect the right to life of the unborn is a concept that Ireland has considerable sympathy with nationally, however international human rights begin at birth. With respect to rights before birth, there is no consensus in the international community. Furthermore, the Chair’s text omits an important component of the right to life, which is protection against the death penalty. The EU undertakes demarches in many countries against the death penalty and in favor of people who may be suffering mental illness and mental disability. In conclusion, Ireland noted that at this stage the international consensus in relation to the right to life is insufficiently advanced for the WG to include a useful article. The EU concluded that it is best not to include an article on the right to life in this text

Sierra Leone shared the view of the EU that there was no need to have a separate article on the right to life. This could instead be recognized in the preamble. If the right to life does constitute a separate article, state obligations that flow from it should be included as well, but this might be too controversial.

New Zealand asserted that the article needs more detail. There is a need, as Sierra Leone affirmed, to talk about what states should do. One area of focus should be around education. Medical professionals need to know what the lives of PWD are like and to understand the right of PWDs to life. Furthermore, these efforts could be broadened beyond just medical staff. When women are debating over abortion, there is a lot of material stipulating that the lives of PWD are better unborn. In relation to the point made by Colombia, the text could prohibit the promotion of abortion on the grounds of disability. This is a useful formulation, as it does not suggest that women do not have the right to choose.

Rehabilitation International (RI) found the text of Article12 of the Chair’s text to be finely balanced as drafted. If there is to be something specific to be included in order to add value to the right to life in this context, RI suggested that it might take the lines of a specific prohibition against eugenic laws and policies directed against PWD. Colombia stressed that some way should be found to effectively guard against discrimination on the basis of genetic information. RI concurred, but suggested that it more appropriately falls under the non-discrimination heading rather than that of the right to life. There might be some basis for adding, either to the right to health, or to the right to life, something along the lines that states would ensure that biomedical advancement, including genetic advances would be tied to the advancement of the rights of PWDs.

WFD noted that in many cases there are recommendations given to parents to abort for economical reasons, since the child with disabilities will bear additional costs, and that life for a PWD is a “sad misery.” There are no factual grounds for these recommendations, yet it is based on these that parents agree to abort their child with disabilities. WFD expressed the view that abortion based on disability should be prohibited. It also supported the suggestion that bioethics and technology should be closely linked with rights of PWD.

The Philippines supported retaining Article 12, but also concurred with the suggestion to delete the second sentence and the amendment by India. In contrast, the representative did not see the merit of “downgrading” this article to the preamble.

Serbia and Montenegro supported the views expressed by the EU. The controversial nature of this article might impede a key goal in drafting the convention, to have it accepted by as many countries as possible. The representative reiterated that PWD have equal right to life and that there could be no moral justification for taking away the life of a PWD which has been born.

Volume 3, #9
January 15, 2004

Morning Session
Commenced: 10:30 AM
Adjourned: 1:03 PM

RIGHT TO LIFE

The Coordinator referred members to A/AC.265/WG/CRP.3/Add.18 for this discussion.

DPI said the right to life was a basic right. The article should address practices of euthanasia, bioethics, and forced abortion for PWD given their grave nature and frequency of occurrence in many countries.

LSN proposed a separate article on the situation of disabled people in armed conflict when they are more exposed to dangers. CRC Article 38 tackles the issue.

China said the right to life was a fundamental human right but various parties have not reached consensus on its definition. If it referred to the rights a child has after it is born, almost all States would protect the right. If it referred to a right to life before a child is born, all States might not admit and protect the right. A child that is not yet been born has the right to be born but mother also has right to choose freely. The issue also involves euthanasia, gene technology, and certain values and religions. The practices of various countries on this issue are not the same and the AHC should consider whether this right should be included in the Convention.

Coordinator said there was a footnote that discussed this issue. South Africa supported the article and LSN’s proposal for a separate article on armed conflict. WFDB asked if the right to life also included a right to survive. Coordinator said this was a deeply vexing question for many. Thailand-supported the article and said that maybe members could find common ground on the issue of where life begins in the article. Many PWD are also deprived of life after birth (they are killed by their families or by others in the case of WW2). The article should support life as it is addressed in most human rights documents.

Volume 3, #9
January 15, 2004

Afternoon Session
Commenced: 3:34pm
Adjourned: 6:00 p.m.

RIGHT TO LIFE (cont)

Lebanon supported the suggestion made by LSN at the morning session, noting that PWD under occupation might also be included under a relevant separate article.

Sierra Leone asserted that the word “survival” should appear in this text. This is not a new right, but an extension of the right to life. In addition, the word “survival” has the added benefit of covering such areas as armed conflict and even refugees without explicitly referring to them.

RI stressed that it is essential to bear in mind specific threats to right to life for PWD. Some reference should be made to prohibiting eugenic laws, policies and practice. RI agreed with LSN’s proposal to include wording on situations of war, with the addition of the topic of post-conflict reconstruction and nation-building.

II raised concerns over the lack of detail in this article. This text is extremely short as compared with other articles. China asserted earlier that the rights of unborn children is a contested area, however the AHC should at least deal with practices such as late abortion that take place in the light of a disability, often in cases of Down syndrome. Some babies survive this practice. In addition, there is infanticide, which allows a doctor to kill a baby just before it is born. II requested that eugenic practices be prohibited, as stated by RI. Lastly the representative drew attention to a medical practice termed “pre-implementation diagnosis,” in which only embryos which are deemed healthy are implanted. The others are thrown away or used for stem cell research.

Ireland recalled that the EU text does not include an article on the right to life, partly because attempting to define its content would risk undermining this right. There is a clear lack of agreement about which issues are relevant to the discussion. In the thematic consultation on this issue it was clear that there would never be agreement in that group. There is, however, agreement on the text as it now stands. It requires states to take “all necessary measures to ensure” the enjoyment of the right to life by PWD. There will certainly be diversions concerning how that will be done, but this text has the advantage of not excluding views expressed in the WG. As such, it is intended to cover the question of survival, without citing it explicitly. The delegate noted that “survival” is mentioned solely in the CRC. The formulation of this right in the WG text seemed to find a degree of acceptance. Ireland urged that it be sent to the AHC with the existing footnote, which stipulates that “there were different views expressed within the Working Group as to whether the Convention should include an article on the right to life.”

Canada urged that the WG accept the text as presented and expressed satisfaction that the thematic consultation was able to settle on a proposal for the WG. The WG text on the table carefully follows language in Article 6 of the ICCPR. Canada opposed further suggestions--including the proposal of inserting “survival”-- on the basis that it would upset the agreement reached.

Germany concurred with Ireland’s statements, but noted that due to its history, which includes the mass killing of PWD, it has a strong interest in an article on the right to life. A short article constitutes a compromise, yet it is essential to include it in the convention.

Sierra Leone called for the footnote to reflect both points of disagreement on this issue – the content of the right to life and whether there should be an article on the right to life in the convention at all.

Uganda shared views expressed by II. As a compromise, perhaps the footnote could be expanded to reflect those sentiments. In this way, the AHC could have the “full story” and engage in discussion conscious of all the elements.

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