By: Pablo A. Proaño
We have already analyzed the arguments against the object of the Abortion Regulation Law in Ecuador and the constitutional protection of the unborn, contained in the claims of unconstitutionality that the Ecuadorian Constitutional Court is currently reviewing.
It is also important to consider the text approved by the Ecuadorian National Assembly gave abortion in this country the status of a fundamental human right. This status was withdrawn by the presidential veto, which became the new text of the law, leaving abortion in rape cases as a medical procedure.
The question here is simple: is abortion a fundamental human right or it’s not? To answer this question, we have to briefly analyze the source of human rights and a little bit of legal theory on rights.
There exist several legal approaches to the significance and source of the concept of “human rights”. One of them considers human rights as the consequence of social and political achievements, mostly with a significant amount of violence. Another conception of it is that human rights have their roots in human dignity, which is true from a religious, philosophical and maybe an anthropological one, but it’s definitely not the end of the line.
In fact, exclusively from a legal perspective, there is only one source for recognition and guarantee of human rights, and in fact for every right, which is consensus. Consensus leads to the positivism of law, to write down the object of consensus. Consensus leads people to gather together and right Constitutions for their countries. Consensus leads to gathering nations together and signing documents such as the Universal Declaration of Human Rights, or several treaties such as the American Convention of Human Rights.
In our current positive legal systems, rights have to be explicitly recognized by a legal document, such as an International Treaty, a Constitution, an authorized ruling or even a law in some cases. This might be the only way to assure that a State will compel itself to guarantee and protect determined attribution as a human right.
So the first question becomes easier to answer: if human rights should be explicitly recognized on a legal document to exist from a legal perspective, what is the status of abortion on national and international legal documents?
Despite the fact that each State has the freedom to recognize abortion as a human right or not, it is important to consider that there is no international obligation that leads states to recognize abortion as a human right. It is not considered as such in any International Treaty, and the opposition of many States to recognize this status leads to a lack of international consensus and therefore international costume.
The fact that some UN committees and international organizations such as the WHO encourages the decriminalization of abortion and even its promotion is not a binding opinion to States, and imposes no obligation to recognize abortion as a human right. If any country does so, it will be under its own sovereignty.
Ecuador, thanks to the presidential veto, does not recognize abortion as a human right, and considering the lack of social consensus on the topic, the Constitutional Court should not rule in favor of it.
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