Fetal Repositioning
Recent Pro-life Legal Victories in Europe
For pro-lifers in Europe, the last months of 2020 and the first of 2021 brought encouraging developments in the courts and other governmental bodies. The most significant gains have come from Eastern Europe, although a meeting in Switzerland was the origin of an important international declaration that has now been issued as an official UN document and signed by over thirty nations. It states plainly that abortion is not a human right. An ongoing legal fight in the UK and a decision in the French Senate also give grounds for encouragement. Let's look at these decisions and declarations in some detail.
Poland & Hungary
On October 22, 2020, the Polish Constitutional Court declared a provision of a 1993 law on abortion unconstitutional on multiple grounds. The provision had made abortion legal in Poland in cases where "prenatal examinations or other medical data indicate a high probability of serious and irreversible disability of the fetus or an incurable life-threatening disease." The Constitutional Court found that the "mere probability" of disability or incurable illness in a fetus was insufficient grounds to deem the mother's interest in avoiding the difficulties of raising a disabled or sick child greater than the child's interest in living. The court also declared that the interest in favor of aborting such a child was "eugenic in nature" and that abortion based on disability constituted both a violation of the right to life and an assault on the dignity of the human person.
Unsurprisingly, the Polish court's decision was soon denounced by the European Parliament. In a statement rich in sloganeering but poor in sound thinking, the Parliament argued—contrary to the explicit assertion in the EU Charter of Fundamental Rights that "everyone has the right to life" (Article 2.1)—that there was a right to abortion that the Polish government was violating. As of this writing (mid-February), the EU Parliament is threatening to withhold funds from Poland in punishment. Both the EU and the BBC mendaciously alleged that Poland's ban on eugenic abortion constitutes a de facto ban on all abortions, an allegation refuted by Archbishop Gadecki of Poznan. But the ban will certainly have the effect of saving the lives of many babies with Down syndrome, who accounted for more than a third of the eugenic abortions performed in Poland in 2019.
The ruling of Poland's Constitutional Court finds echoes in legal developments in the UK and Hungary. In the UK, a case brought before the High Court of London challenges the nation's current abortion law, which allows for the abortion of disabled fetuses beyond the 24-week limit applied to all other cases. This case was still undecided as of February 2021, but the moral principle behind it, as with the ruling in Poland, lies in the affirmation of the inalienable dignity of the lives of the disabled. Legally, the action turns on the weighing of conflicting interests and makes an argument so obvious it should not need making: the interest of any person in continuing to live outweighs every potential interest of those inconvenienced or discommoded by the exigencies attending that person's life.
Precisely this weighing of conflicting personal interests lies at the heart of a "wrongful birth" suit brought in Hungary. The parents of a girl born with a congenital disorder argued that personnel at the attending hospital should have detected their child's disorder before the 20th week of pregnancy, when they would have had the chance to abort her. At issue was a conflict between Hungary's Fundamental Law, which acknowledges the right to life of every human being and explicitly states that the life of a fetus shall be protected from the moment of conception, and a 1992 law that permits eugenic abortion up to 20 weeks of pregnancy.
In October 2020, the Budapest-Capital Regional Court found that the 1992 law conflicted with, and was superseded by, the Fundamental Law, which protects the life of an unborn child of any gestational age. The ruling is likely to be upheld by the Hungarian Constitutional Court, and if it is, the door would be open to a ban on eugenic abortion in Hungary like the one passed in Poland.
The Principles of the EU Convention
The decisions in Poland and Hungary are consonant with—indeed, are arguably required by—international law. To quote from a press release issued by the European Centre for Law and Justice (ECLJ):
On the one hand, prohibiting abortion is in line with international law. The European Court of Human Rights (ECHR) allows states to interpret the right to life in this way, and the International Convention on the Rights of the Child provides for "appropriate legal protection both before and after birth" (Preamble). On the other hand, prohibiting eugenic abortion is not only consistent with, but also required by international law, which in particular enshrines the prohibition of discrimination on the basis of disability. The Committee on the Rights of Persons with Disabilities recalled this in 2018 and the Special Rapporteur on the Rights of Persons with Disabilities [did so] in 2019 and 2020.
An excerpt from the ECLJ's amicus brief in the cases further elucidates this point:
The European Convention of Human Rights contains no ratione temporis limitation [i.e., limitation based on the passage of time] on the scope of the right to life (article 2): it protects everyone. The European Court of Human Rights (ECHR) itself has never redefined (as to reduce) the scope of article 2: it has never excluded in principle prenatal life (nor the end of life) from its field of application. The Court allows the States to determine the starting point of the right to life in their internal legal order and has never judged that, under the scope of article 2 of the Convention, the unborn child was not a person. The Court has always refused, ever since the cases Brüggemann and Scheuten v. Federal Republic of Germany and H. v. Norway, to exclude, as a matter of principle, the unborn child from the scope of the protection of the Convention and to declare that he is not a person in the regard of article 2 of the Convention. Here is a subtlety that needs to be made clear to understand well the articulation between national and conventional orders: the Court allows the States to not give, in their national law, a total protection ratione temporis [based on the passage of time] to prenatal life, but in the conventional order, the Court does not deprive prenatal life from any protection, for, contrary to national laws which allow abortion up to a certain point, "article 2 of the Convention is silent as to the temporal limitations of the right to life" and the Court never judged that the unborn child was not a person.
The sticking point, then, is the link between national law and the international European Convention. The protection of human life, it is rightly argued, cannot be compromised by arbitrary time limitations or by legally declaring the unborn non-persons. Neither legal tactic has yet been affirmed by the ECHR either. The decisions in Poland and Hungary could—and, it is devoutly to be hoped, will—act as the thin end of the wedge in splitting the block of legal stasis on the "conflicting interests" question in favor of the unborn baby. These decisions certainly point toward a tipping of the scales in favor of an unborn child's life over the convenience or comfort of the mother (or both parents), which has been regarded as the predominant interest in the past.
A New Declaration
These legal actions have all taken place or are continuing in the light of the Geneva Consensus Declaration on Promoting Women's Health and Strengthening the Family. Co-sponsored by the United States, Brazil, Uganda, Indonesia, Egypt, and Hungary, and signed by 30 other countries on October 23, 2020, after which it was submitted to the UN General Assembly on December 2, the Geneva Declaration has been hailed as an unprecedented move forward for the international pro-life movement. It does not have binding legal force, but it is hoped that it will have an influence on future UN policy-making on abortion. The alliance of nations signing the Declaration may, however, be disrupted by the Biden administration's commitment to promoting abortion internationally.
France
The most recent affirmation of pro-life principles in government policy came in France. On February 2, the French Senate voted to reject a proposed law commonly called "Surrogacy for All," which would have legalized the donation of egg cells between lesbians living in civil unions, the extraction of egg cells from women who have died ("assisted reproduction post mortem"), and the conservation of egg cells without any overriding medical exigency.
The Senate also affirmed a prohibition on the creation of trans-human chimeras, that is, "the alteration of a human embryo through addition of cells from another species, and the alteration of an animal embryo by addition of human embryonic stem cells." Moreover, a law that would have permitted prenatal diagnostics for the purpose of identifying embryos with chromosomal defects had earlier been rejected by the National Assembly and was not re-introduced.
In rejecting "Surrogacy for All," the Senate sought to create a bulwark against the commercialization of motherhood. Unsurprisingly, the French left, and the LGBT lobby in particular, reacted to the vote with shock and anger. We should expect them to make another attempt at getting pro-lesbian/trans surrogacy legalized as soon as their legal minds can regroup. This may only require reframing and resubmitting the surrogacy law to the current Senate, or it may require making electoral gains in the French legislature first. Meanwhile, we can but pray that morally sane Frenchmen prevail in that struggle.
Pray for Permanence
Likewise, we can pray that morally sane Hungarians, Britons, and Poles continue to make gains in the protection of innocent human life and consolidate those gains they have already made. In any case, recent months have seen the sanctity of human life affirmed in some surprising quarters. May the culture of life win over the broader culture so that victories like these prove lasting.
John D. Martin was born and raised in Indiana, but now lives in Germany with his family. He earned his doctorate from the University of Illinois and has written both academic articles and articles for the popular press, including Touchstone, First Things, Salvo, and The Federalist. His first novel, Charis Colony: The Landing, appeared in November 2020.
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