VII. DISCUSIÓN
1. Resultados más relevantes
1.2 Efecto de la terapia con MARS en la supervivencia de los pacientes con Insuficiencia
International law places a high premium on family’s values and parental interests. The International Covenant on Civil and Political Rights, for instance, recognises the family as “the natural and fundamental group unit” of society and proclaims that it must, as such, be protected by society and the state.355 The Covenant on Economic, Social and Cultural Rights356 similarly considers the family as the natural and
355
UN Human Rights Committee CCPR General Comment No 19: Article 23 (The Family)
Protection of the Family, the Right to Marriage and Equality of the Spouses (1966)
(hereinafter “General Comment 19”) para [1].
356
98 fundamental group unit of society. The Convention on the Rights of the Child (“Convention”) mandates respect for the rights and duties of parents or legal guardians “to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”357
It is important to note that the preamble of the Convention on the Rights of the Child proclaims that:
“the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”, and recognises “that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.”358
This would suggest that international law is protective of the family and its values. The child as a member of this institution receives particular protection and the development of his or her personality is a major concern for international law. The preamble emphasises the role that the family environment must play in the child’s development and describes that environment as a place where happiness, love and understanding must reign.
4.2.2 International law provisions relevant to the protection of the family
The protection of the family is here analysed through the rights granted by international instruments to two categories of family members. The rights of parents will be analysed before analysing children’s rights.
357
Res. 44/25 of the Convention on the Rights of the Child, G.A.
358
99 4.2.2.1 International protection of the rights of parents
Although international law may provide many rights to individuals who may become parents if they so wish, this section focuses only on the right to marry and found a family as these rights directly involve children and are hence relevant for the purpose of this study.
4.2.2.1.1 The right to marry and found a family
A number of international instruments, including the United Nations Declaration of Human Rights,359 the International Covenant on Civil and Political Rights,360 and the International Covenant on Economic, Social and Cultural rights,361 protect the right of every mature person to marry and found a family. Article 16 of the United Nations Declaration of Human Rights for instance states that “[m]en and women of full age, without any limitation due to the race, nationality or religion, have the right to marry and found a family.”362
It is clear from this statement that no mature person irrespective of his or her sex, race, and country of origin or religious beliefs should be prohibited from marrying and founding a family. It is important to note that family can be built using various methods, including reproduction and adoption. However, not all mature people who can marry if willing are naturally able to reproduce and found a family. Some who are infertile can either adopt children or use ARTs to build their families. In this context, the right to found a family can be enjoyed by people who are married to one another and who engage in sexual activities as well as individuals who have chosen not to engage in sexual activities or who for some reasons, despite engaging in sexual activities, can still not reproduce due to their infertility status.
For the purpose of this study the right to found a family of individuals who can reproduce through sexual intercourse are referred to as “sexual and reproductive
359
United Declaration of Human Rights (1948).
360
International Covenant on Civil and Political Rights (1966).
361
International Covenant on Economic, Social and Cultural rights (1966).
362
100 rights”, and the right to found a family of individuals who cannot reproduce naturally are referred to as “reproductive rights”. There are different views on the scope of these rights. Cook, for instance, is of the view that the right to found a family encompasses the right to abort a non-desired child in order to protect the existing child. In Cook’s words:
“The right to found a family incorporates the right to maximise the survival prospects of a conceived or existing child through birth spacing by contraception or abortion. This right complements the right of a woman herself to survive pregnancy, for instance by delaying a first pregnancy...”363
This would suggest that the right to found a family requires the prospective parents to do their best to secure the life of the conceived baby if any or child who is already born to them. They can do so by observing birth spacing, by using contraception methods or by aborting an unwanted pregnancy. In other words, the survival of an existing child may require the passing of a certain period of time before having the next child, or the termination of the unwanted pregnancy. This in turn would suggest that the right to found a family is so broad that it encompasses the stopping of the life of a child in gestation provided that this is done in order to protect the existing child. As it will become clear further down, it can be argued that this view of the right to found a family undermines the interests of the unborn child.
With regard to the right to found a family for individuals who engage in sexual activities (sexual and reproductive rights), it is important to note that these rights were for the first time officially recognised in 1994 at the International Conference on Population and Development in Cairo.364 Those rights are now considered human rights for all people, and include universal access to reproductive health.365 Sexual and reproductive rights can be defined as follows:
363
Cook “International protection of women’s reproductive rights”1992 NYUJILP 644.
364
European Humanist Federation “What are sexual and reproductive health and rights?”2015
EU H 1.
365
101 “The right for everyone to make a decision about their sexual and reproductive health, including the choice to marry and determine the number, timing and spacing of their children; to sexual and reproductive security free from coercion and violence, to be informed and have access to safe and legal family planning services and to have access to health care services enabling women to go safely through pregnancy and child birth.”366
To summarise, every adult mature person has the right to marry and found his or her family. A person can exercise that right in engaging in sexual activities in or outside the marriage environment or by having recourse to ARTs. This right is held to be free from any limitation due to the race, country of origin or religious beliefs.
4.2.2.2 International protection of the rights of children
Various children’s rights are protected under different international instruments. For the purpose of this study, only those rights applicable which are applicable to this study will be discussed. These include the right to life and the right to be free from violence, abuse and neglect. The best interests of the child will also be discussed under this section.
4.2.2.2.1 The child’s right to life
The right to life is protected in many international instruments, including the International Covenant on Civil and Political Rights. In terms of this convention, everyone has the inherent right to life. This right shall be protected by law, and no one shall be arbitrarily deprived of his or her life.367
The right to life is a very important right for all human beings. In view of this it appears reasonable to ask whether the right to life as defined in this instrument as well as in other international instruments can be extended to unborn children. This is
366
European Humanist Federation 2015 EUH 2.
367
102 a very critical question in the context of this study because the victim of all the assisted reproductive adverse effects described in the previous chapter is the unborn child. It is common for the unborn child victim not to survive due to all the manipulations that are done on him or her and most of those who survive are born with several health challenges and birth defects.368
The answer to the question of whether international instruments protect the right to life of an unborn child requires an analysis of the international provision defining the child. The Convention on the Rights of the Child states as follows:
“A child is every human being below the age of eighteen years unless under the laws applicable to the child, majority is attained early”.369
A close look at this provision reveals that the ground for the definition of the child is his or her majority. In this context a child is every human being who is not yet mature according to the laws applicable to the child’s maturity.
This provision also reveals that children who have attained the age of maturity or eighteen years of age are excluded from the definition of “child” for the purpose of the Convention. This would suggest that all other human beings who are younger than eighteen are included in the definition of “child” for the purpose of the Convention. However, this does not yet mean that the unborn child is included in this definition.
An analysis of other provisions of the Convention appears to bring more light on this issue. Article 6 of the Convention states that states parties recognise that every child has the inherent right to life,370 and that states parties shall ensure to the maximum possible the survival and development of the child.371 It can be argued that the survival and development of the child in this provision refer to the born child who
368
See Para 3.4 above.
369
Article 1 of the Convention on the Rights of the Child (1989) (hereafter “the Convention”).
370
Article 6 para 1 of the Convention.
371
103 must develop as well as the unborn child who must survive and be born. Another view is that the intention of the drafters of the Convention was limited to born children, but when one looks at the preamble of the Convention, there is a possibility of confirming that the Convention protects the child’s right to life before and after its birth. In paragraph 9 of its preamble the Convention on the Rights of the Child quotes the 1959 Declaration on the Rights of the Child, which clearly and explicitly states as follows?
“Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth, [and] whereas the need for such special safeguards has been…recognised in the Universal Declaration of Human Rights and in the statutes of specialised agencies and international organisations concerned with the welfare of children…, the General Assembly…calls upon…national Governments to recognize these rights and strive for their observance by legislative and other measures progressively taken…”372
The preamble to the Convention on the Rights of the Child also states that:
“[A]s indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.
In another international instrument, special protection is granted to pregnant women. According to the provisions of the Geneva Conventions (Protection of Civilian Persons in Time of War), people to be considered subjects of particular protection include expectant mothers;373 they are also included among the people who must be transferred to hospitals and other safe zones.374 Pregnant women were also counted among people who must benefit from essentials: food, clothing and tonics.375
372
Preamble to the Declaration of the Rights of the Child.
373
Article 16 of the Geneva Convention (Protection of Civilian Persons in the time of War) of 1949 (hereafter “the Geneva Convention”).
374
Article 14 of the Geneva Convention.
375
104 These provisions tend to protect not only the woman who has in her womb an unborn child but most importantly that child. If the intention was not to protect the unborn child in the womb of her mother, there would be no reasonable ground for giving preferable or special treatment to pregnant women in the time of war. They could be treated as all other civilians. This view seems to be supported by Schabas who maintains that the provision that prohibits the execution of pregnant women was added out of the consideration of the interest of the unborn child.376
To summarise, although in some international instruments the right to life of an unborn child is not explicitly addressed, I do agree with Flood, who concluded his article on the survey of international instruments with regard to the rights of the unborn child by stating the following:
“This essay has argued that existing human rights and humanitarian legal instruments and high-level intergovernmental declarations provide important recognition of the right to life of an unborn child and a degree of protection to that child. They add up to a decided preference for life, even in provisions where unborn children are not mentioned directly but are inevitably among the beneficiaries. These children may be silent and unnamed, but they are there”.377
International law is undoubtedly interested in protecting the potential life of a child while still in the womb of its mother. It can therefore be argued from the discussion above that the definition of the child in international instruments includes the born child as well as the unborn child.
376
Schabas The Abolition of the Death Penalty in International Law 122-3.
377
105 4.2.2.2.2 The right to be free from violence
The child’s right to be free from violence is protected in a number of international instruments, including the Convention on the Rights of the Child. Article 19 of the Convention reads as follows:
“(1) States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child;
(2) Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
According to the Committee on the Rights of the Child, violence can be understood as follows:
“All forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse” as listed in article 19, paragraph 1, of the Convention”.378
It is important to note that the violence as defined above can have several consequences for children who are submitted to it:
378
Committee on the Rights of the Child General Comment No 13 (2011) on the Right of the
Child to Freedom from all Forms of Violence (Art 19) para 3 (hereafter “General Comment
106 “(a) The short- and long-term health consequences of violence against children and child maltreatment include: fatal injury; non-fatal injury (possibly leading to disability); physical health problems (including failure to thrive, later lung, heart and liver disease and sexually transmitted infections); cognitive impairment (including impaired school and work performance); psychological and emotional consequences (such as feelings of rejection and abandonment, impaired attachment, trauma, fear, anxiety, insecurity and shattered self-esteem); mental health problems (such as anxiety and depressive disorders, hallucinations, memory disturbances and suicide attempts); and health-risk behaviours (such as substance abuse and early initiation of sexual behaviour);
(b) Developmental and behavioural consequences (such as school non- attendance and aggressive, antisocial, self-destructive and interpersonal destructive behaviours) can lead, inter alia, to deterioration of relationships, exclusion from school and coming into conflict with the law). There is evidence that exposure to violence increases a child’s risk of further victimisation and an accumulation of violent experiences, including later intimate partner violence;
(c) The impact on children, in particular adolescents, of high-handed or ‘zero tolerance’ State policies in response to child violence is highly destructive as it is a punitive approach victimising children by reacting to violence with more violence. Such policies are often shaped by public concerns over citizens’ security and by the high profile given to these issues by mass media. State policies on public security must carefully consider the root causes of children’s offences in order to provide a way out of a vicious circle of retaliating violence.”379
However, for the purpose of this study, I am interested only in the first group of consequences, because some of them are the result of violence imposed to a child born as a result of ARTs. As stated in chapter three, ART procedures impose
379
107 violence on the resulting child who may be born with physical health problems or birth defects.380
4.2.2.2.3 The right to preserve his or her identity
International law protects the child’s right to preserve his or her identity. The Convention on the Rights of the Child, for instance, contains provisions that protect such right.381 The inclusion of this right was intended to act as a safeguard to preserve the personal, legal and family identity of children throughout the world. It