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The Universal Declaration of Human Rights

Monday 10th December this year marks the 70 anniversary of the adoption of the universal declaration of human rights by the UN general assembly. The declaration of human rights was heavily influenced by several intellectuals at the time who were followers of the thought of St Thomas Aquinas, notably Charles Malik and Jacques Maritain. This blog has previously looked at the intellectual backdrop to the UDHR, but what I would like to focus on here is the position of the UDHR in human society and its importance.

The date of the adoption of the UDHR, 1948, is significant. The second world war had just ended, the world was coming to terms with what had happened, and the horrors of the holocaust were becoming more and more apparent. Historically Germany was a nation with many great philosophers, scientists, mathematicians, musicians, artists etc. Many of its mighty dead helped to educate humanity and bring enlightenment to the world; yet as is clear from the history of the 20th Century, that was no guarantee against the rise of Nazism.

The myth of the enlightenment was that with greater intellectual development and knowledge, there would be greater progress. But no matter how intelligent and understanding we are, the responsibility for acting in a morally worthy manner does not necessarily go with it. Indeed, it is an ever greater tragedy when a great mind falls into moral turpitude since such a great mind should have known better. And the same can be said for any nation with an illustrious past. What the second world war and indeed the 20th Century in general taught us is that the myth of enlightenment is precisely that – a myth. No matter how intelligent and advanced humanity becomes, we still have the propensity for great evil; indeed more so, because the more advanced we become, the more efficient our means for perpetrating evil becomes.

This realisation was one of the driving factors behind the UDHR – enlightenment is not enough to curtail the possible descent into chaos for humanity. With that in mind, it is prudent to devise a set of human rights as a standard by which human dignity is recognised and states are regulated in their treatment of their members: ‘…disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind…’. Effectively, should a state sign up to the UDHR it would be making the statement to the international community that it sees its members as having dignity and will undertake to protect the dignity of its members, or else be held accountable to the international community and not be blight on the conscience of mankind.

It is easy to go through the UDHR and see how the rights it lists are derived (see Human Rights and Human Dignity) but there is one article of the UDHR that is often overlooked, and that is article 30, the final article. This article is not  a significantly meaty article which lays down a fundamental right such as the right to life, freedom, marriage etc, rather it is as follows:

‘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’.

It is understandable that the casual reader would gloss over this article. Having just nailed down the fundamental rights that all humans possess in virtue of being human,  the casual reader may believe this article to be an afterthought suitable only to the legal mind. But if we consider this article, it is supremely important. This is because what it declares is that one cannot take some right in the UDHR and wield it to deny some other right to another person. If one is human, then one has these rights; to deny somebody some of these rights is to deny that they are fully human, and so hold that only some and not all of the rights apply. But this was not the vision of the UDHR: ‘…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Human beings are not a mixture of full and partial humans – they are either human or not. Hence one cannot say ‘because I have a right to X you do not have a right to Y’; this bears upon contemporary issues pertinent to the right to life.

It is undeniable that the unborn are just as human as the fully mature; the process of being born does not magically change one’s ontological status from non-human to human. Hence the unborn child has just as much a right to life as any other human being. Accordingly, the simple protection of the unborn in law does not conflict with the UDHR, in which case one who wants the law to provide for abortion cannot claim that one is entitled to it as a human right, or that one’s human rights are being undermined through lack of access to abortion. Consistent with article 30 then, one cannot deny the unborn its right to life by invoking some other right listed in the UDHR. And so it follows that all attempts to introduce abortion will be attempts that are inconsistent with the UDHR and inconsistent with human rights in general, the most fundamental of which is the right to life. Genuine human rights apply to all humans, and the moment one starts saying that such rights only apply to these humans and not to those ones one denies ‘the inherent dignity and the equal and inalienable rights of all members of the human family’.

Dr Gaven Kerr

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After Birth Abortion

In 2012 Alberto Giubilini and Francesca Minerva published a paper in the Journal of Medical Ethics arguing that given the same moral status or lack thereof between a foetus and a new born baby, the same conditions that would justify the killing of the foetus also justify the killing of the new born. Their argument is structured around what they take to be the fact that neither the new born nor the foetus is a person (a highly disputable assumption), in which case it is not subject to a moral right to life in which case the rights and interests of actual persons, such as the mother, people in society etc, ought to take priority. They consider the potentiality objection to the effect that both the foetus and the new born are potential persons and so should be afforded the rights that all persons have; they reject this objection arguing that no harm is done to a potential person by not allowing such an entity to develop into a person. They also reject the adoption objection to the effect that adoption would be a better option than abortion or after birth abortion since they do not believe that it is straightforwardly true that the mental health of the mother would be better in the adoption case than in the abortion/after birth abortion case; and if in this case the interests of what they take to be an actual person (the mother) should prevail, then after birth abortion should be a valid alternative to adoption.

After birth abortion is a real issue and not just an academic matter; this is because when abortions are carried out post-viability sometimes they are not successful and the doctor along with supporters of abortion are left with a conundrum. On the one hand the mother has approached the doctor for an abortion, and in the majority of cases what this entails is a termination of the pregnancy and the death of the child. But in cases where the abortion is unsuccessful, the pregnancy is only terminated but the child is not dead.

Given that the mother has requested an abortion, does this extend only to the termination of pregnancy or should it extend to the death of the child?

If one holds that an abortion is unsuccessful unless the child’s life is ended, then one is left with the uncomfortable conclusion that the infant born alive should have its life ended; and if one does not recognise the right to life of this infant then one cannot recognise the right to life of any other infant. Hence Giubilini and Minerva’s conclusion follows and abortion, on this view, can be justifiably extended post-birth.

On the other hand, if one holds that in requesting an abortion a termination of pregnancy is sufficient but not termination of life (presumably because the infant born as a result of a failed abortion has a right to life), then one can query why the infant has a right to life only after being born but not whilst in utero. Indeed, the birth of the child is a rather arbitrary limit on the right to life such that an infant born alive after an unsuccessful abortion is no different from the same child in utero just prior to the abortion.

All of this goes to highlight a central feature of Giubilini and Minerva’s argument, and this is that if the right to life is only extended to individuals of a certain maturity or a gestational limit, then any limit to that right is arbitrary and the goal posts can be moved from 12 weeks to 26 week to full term to after birth and beyond. Indeed, once the limitation to the right to life comes to depend on some arbitrary point, the being in question ceases to have any right to life, but merely enjoys the privilege and benignity of those in power over him or her. In reality, the only limit to the right to life is not being the kind of thing subject to such a right. So, human beings are the kinds of things subject to a right to life, and so the limit on that right is that of not being a human. But this entails that the right to life cannot be based on any gestational limit or beyond, in which case the unborn child has as much a right to life as the newborn and beyond.

Dr Gaven Kerr