CYIL vol. 9 (2018)

MARTIN ŠOLC CYIL 9 ȍ2018Ȏ not cited as a reason to prohibit SSA, since it is arguably not in accordance with the general principle of the priority of the individual’s rights over the society’s interest. Therefore, it is reasonable to argue that the legality of abortion based on sex would represent a violation of a fundamental principle of equality between sexes. 43 However abstract this statement may seem, it has practical consequences. The practice of SSA is usually based on the presumption that a woman’s life is, in one way or another, less worthy than the life of a man. In that manner, it sustains all forms of discrimination against women that arise from said belief. Therefore, SSA may not represent a discriminatory act itself, but it supports, and in a certain sense, legitimizes the discrimination against women in society. 44 For this reason, it is easily possible to consider SSA a discriminatory action in the moral or political meaning. It will be more difficult to understand it as a discrimination from the purely legal perspective. Discrimination is a relational concept: people can only be equal (or unequal) in relation to a certain value. 45 It is also usually considered an accessorial concept, which means that it is inherently related to a particular individual right. 46 If an embryo is not recognised as a subject of individual rights, there is no one to be discriminated against, nor is there any individual right the discrimination could be related to. The accessorial nature of discrimination is not accepted absolutely. For example, unlike most international law instruments, including the European Convention on Human Rights (particularly its Article 14; hereinafter “the European Convention”), the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) does not understand the right to equality of the sexes as accessorial. It rather guarantees the equality of men and women as such, without relation to any other particular right. 47 Nevertheless, we can conclude that at least in the context of the Council of Europe’s system of human rights protection, a vague contribution to the society’s perception of the inequality between sexes cannot constitute discrimination in the legal sense. However, this does not mean that SSA would have to be approved, or that it should be legal. Even though the notion of its negative impact on society cannot lead us to 43 This view is held, for example, by Cardiff University’s Derek Morgan. Cited in HERRING, Jonathan. Medical Law and Ethics. 5 th edition. Oxford University Press 2014, pp. 343-344. 44 For example, a Pakistani scholar Farhat Moazam finds it reasonable to argue that sex-selective abortion “legitimises discrimination based on gender, is an affront to human rights and weakens the moral fabric of the entire society”. MOAZAM, Farhat. Feminist Discourse on Sex Screening and Selective Abortion on Female Foetuses. Bioethics. (2004, Vol. 18, No. 3), p. 216. accessed 16 May 2018. 45 See BOBEK, Michal. Commentary to Article 3. In WAGNEROVÁ, Eliška, ŠIMÍČEK, Vojtěch, LANGÁŠEK, Tomáš, POSPÍŠIL, Ivo (eds.). Listina základních práv a svobod. Komentář. [The Charter of Fundamental Rights and Freedoms. The Commentary.] Wolters Kluwer, Praha 2012, p. 100. 46 As we will explain in the next chapter, the scope of these individual rights has undergone a significant development in the European Court of Human Rights case law. However, the basic principle of accessorial nature of discrimination has never been questioned. 47 See its Preamble and Articles 1, 2 (a), 3, and 5 (a). See also HAVELKOVÁ, Barbara. Diskriminační důvody. Pohlaví. [Grounds of Discrimination. Sex.] In BOUČKOVÁ, Pavla, HAVELKOVÁ, Barbara, KOLDINSKÁ, Kristina, KÜHNOVÁ, Eva, KÜHN, Zdeněk, WHELANOVÁ, Markéta. Antidiskriminační zákon. Komentář. [Anti-discrimination Act. The Commentary.] 2 nd edition. C. H. Beck, Praha 2016, p. 66. A vaguely defined duty of the state parties to promote changes in social and cultural patterns is also embodied in Article 12 (1) of the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention).

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