CYIL vol. 9 (2018)

PAVEL CABAN

CYIL 9 ȍ2018Ȏ

I. Introduction In July 2017, during its 120th session, the Human Rights Committee (HRC) finalised its first reading of the draft General Comment No. 36 on article 6 of the International Covenant on Civil and Political Rights (ICCPR), on the right to life. 1 For the first time, 2 the General Comment on this Article should contain paragraphs explicitly mentioning practices of abortion and euthanasia. In draft paragraph 9 of the General Comment, the HRC, i. a. , states that “measures designed to regulate terminations of pregnancy … must not result in violation of the right to life of a pregnant woman or her other rights under the Covenant, including the prohibition against cruel, inhuman and degrading treatment or punishment”, which means that “any legal restrictions on the ability of women to seek abortion must not, inter alia, jeopardize their lives or subject them to physical or mental pain or suffering which violates article 7” (on the prohibition of torture and cruel, inhuman or degrading treatment or punishment). The HRC adds that “States parties must provide safe access to abortion to protect the life and health of pregnant women, and in situations in which carrying a pregnancy to term would cause the woman substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or when the foetus suffers from fatal impairment”, and that “States parties may not regulate pregnancy or abortion in a manner that runs contrary to their duty to ensure that women do not have to undertake unsafe abortions.”. 3 As regards assisted suicide and euthanasia, paragraph 10 of the draft General Comment contains also the following text: “States parties [may allow] [should not prevent] medical professionals to provide medical treatment or the medical means in order to facilitate the termination of life of [catastrophically] afflicted adults, such as the mortally wounded or terminally ill, who experience severe physical or mental pain and suffering and wish to die with dignity”. 4 The above draft general comments were subject of quite strong criticism by several States, as well as by some non-governmental organizations. Concerning draft paragraph 9, States criticized, for example, “a huge leap in logic” concerning the (alleged) causal link between “any legal restrictions on the ability of women to seek abortion” and the fact that “a pregnant woman undertakes unsafe abortion”. 5 As regards draft paragraph 10, it was mentioned, i. a. , 1 The complete text and other relevant information concerning the preparation of the draft General Comment are available at http://www.ohchr.org/EN/HRBodies/CCPR/Pages/GC36-Article6Righttolife.aspx (visited on 2 June 2018). 2 The previous HRC’s General Comments on the right to life, prepared in 1982 and 1984, did not mention the issues of abortion and euthanasia. 3 In this regard, the HRC refers to its General Comment No. 28 on Article 3 of the ICCPR (The equality of rights between men and women), adopted on 29 March 2000, according to which “States parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions”, and , i. a ., to Concluding Observations on Jamaica (2011; CCPR/C/JAM/CO/3, para. 14), where the HRC stated that it “is concerned at the prohibition of abortion, which compels pregnant women to seek clandestine and harmful abortion services” and concludes that Jamaica “should amend its abortion laws to help women avoid unwanted pregnancies and not to resort to illegal abortions that could put their lives at risk”. 4 The HRC adds that in such cases, “States parties must ensure the existence of robust legal and institutional safeguards to verify that medical professionals are complying with the free, informed, explicit, and unambiguous decision of their patients, with a view to protecting patients from pressure and abuse.” 5 Japan’s comments on the draft General Comment No. 36 (“…Even if a State party prohibits abortion, it does not necessarily require a pregnant woman to undertake unsafe abortion, thus it would only be in extremely

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