The Embryo’s Right to Life in Georgia and the World
The recognition of the right to life and its restriction is one of the most controversial issues in the modern world. International laws on human rights recognize the right to life, but in most cases it is unclear from which particular moment that right is protected, and ranges anywhere from the moment of impregnation to the moment of birth. The European Commission on Human Rights has refrained from defining the moment of the right to life in the context of abortion. There are only a few laws which clearly recognize the moment of impregnation as the beginning of the right to life. The issue of children’s rights before birth is found in the Convention on the Rights of the Child which was signed by Georgia in 1994. It clearly and explicitly recognizes a child’s right to legal protection before the birth. Based on this norm and with due consideration to the principles of the Convention, many countries have developed legislation which secures a child’s right to life under certain conditions.
Although the rights of the embryo are one of the most pressing issues in the legal sphere in the modern world, no comparative-legal research had been carried out in Georgia. Recently TSU Associate Professor Vasil Gonashvili and TSU Law Faculty student, Nino Khizanishvili prepared a study entitled “The Right to Life of the Embryo (Comparative Analysis)”, which they presented at the International Conference on Practical Science on May 24, 2013. The conference was dedicated to the 80th anniversary of the Akaki Tsereteli State University in Kutaisi. The study was published in the conference annals and has been included in the TSU syllabus on Human Rights. A research proposal for further study has been submitted to the Rustaveli National Science Foundation.
The research was based on key international legal acts, judicial precedents, the legislation of 190 countries and relevant legal acts of Georgia. According to the study, the legislation of some countries actually prohibits any interference in the right to life of the embryo and all forms of abortion are banned. The six countries include Malta, The Vatican, Dominican Republic, El Salvador, Nicaragua and Chile. Most countries allow abortion in certain cases. The legal principles of interference in the embryo’s right to life can be divided into four main considerations: medical, social, ethical and eugenic.
Medical indications. There are situations where medical considerations cause termination of a pregnancy because there is a serious risk to the mother’s life and health. This is the most common reason evoked in most countries. The threat to health can mean possible harm to the mother’s physical and/or mental health, as in Austria, Belgium, Finland and Germany. The threat to the mother’s life as a medical consideration is so important that many countries (46) take only this indication into consideration, while a mother’s decision or other reasons are not considered. Most of these countries are in the Americas and in Africa. Some countries (15) cite the risk to both health and life of the mother as a reason to terminate pregnancy, without considering other indications.
Social indications. Social-economic circumstances, e.g. the poor economic conditions of a family are taken into consideration, for example when it is impossible to meet minimal living conditions for a child or to provide a normal upbringing (examples include Iceland, Israel, Italy, Japan). Social indications are not used independently by any country as an indication for abortion, but are used in conjunction with other indications.
Ethical indications. When the context wherein a child has been conceived contradicts general moral considerations--for example, as a result of criminal violence such as rape was used—are considered as groups for abortion. This is the case with Finland, Brazil and Japan; and in the case of incest in Romania, Poland, Iceland, Ethiopia, New Zealand, and Bolivia. Abortion is allowed for ethical indications only, in four countries (Brazil, Sudan, Mali and Bhutan). In other countries it is used in conjunction with other indications.
Eugenic indications. When there are high risks that a child with physical defects will be born sometimes eugenic indications are used in conjunction with medical indications. Countries include Finland, Great Britain, Austria, Czech Republic, France and Italy.
In some countries legislation allows the termination of a child’s life before birth if the mother is underage or overage. This model implies the joint existence of medical and ethical indications and can be met, for example, in Israel, where this method is used with respect to the women below 17 and above 40; as well as in Estonia – below 15 and above 45; and in Romania where only an upper margin exists– above 45.
Categorization of countries by the periodicity of termination of embryo life upon the mother’s decision is as follows:
1. When the abortion is prohibited at any stage of embryo development regardless of mother’s desire (the six countries indicated above);
2. When the abortion upon mother’s decision is prohibited at any stage of embryo development, except of the existence of certain indications. In this case, the abortion will be considered illegal at any time, if there are no principles envisaged by legislation.
3. When the abortion is considered legal at an initial stage of embryo development, in case of mother’s desire, while the termination of a child’s life in a consequent period is allowed only in case of existence of certain indications established by the legislation. This model is mainly found on the European continent and in the Commonwealth of Independent States (CIS). The study reveals that abortion is allowed at the next stage of embryo development upon mother’s decision at different stages. For example, in Portugal and Turkey (without the existence of other indications) during the first 10 weeks of embryo development; in Estonia – 11 weeks; Austria, Denmark, Czech Republic, India and Norway – 12 weeks; Italy – 13 weeks; Spain, France, Romania, Belgium, Germany – 14 weeks; Sweden and Switzerland – 18 weeks; Japan and Great Britain – 24 weeks.
4. When the abortion is deemed legal at any stage of foetal development at the mother’s desire, but there are no indications defined to terminate an embryo’s life.
The authors have analyzed the indications for abortion worldwide. Given the relevant international conventions, on the American and African continents abortion is basically prohibited even in case of a mother’s desire and to the contrary is only allowed in cases of serious risks to a woman’s life. The indications in Europe are relatively liberal and abortion is legal in more circumstances, indeed in most countries of western and central Europe, it is allowed at any time. In some European countries it has certain time limits; however the principles of abortion function almost everywhere. A unique picture is observed in the CIS counties where abortion upon the mother’s decision is possible only in the 1st trimester, while in the 2nd trimester it is allowed only in case of relevant indications.
Georgian Legislation on the Rights of the Embryo
According to Georgian legislation, voluntary termination of pregnancy, in terms of its periodicity, is divided into two types: voluntary termination of pregnancy when the embryonic age is not more than 12 weeks, and other termination indications when the embryonic age is between 12 and 22 weeks. The Georgian legislation does not allow the abortion after 22 weeks.
For embryos less than 12 weeks old, a pregnancy can be terminated on demand by a pregnant woman, but only at an authorized medical institution and by a certified doctor. Pregnancy termination after 12-22 weeks is more complicated and the existence of certain indications is required. If a pregnant woman appeals the decision, the medical indications of abortion should be determined by a commission. Georgian legislation does not consider indications such as physical or other defects. It remains unclear how a case can be resolved when serious health defects are diagnosed for a fetus aged 12-22 weeks. Therefore, the researchers recommend that the commission be authorized to study the existence of eugenic indications on the basis of an application submitted by the mother, which will become the basis for abortion in cases revealing health defects among children aged 12-22 weeks in utero.
In Georgia no social indications are considered for termination of pregnancy.
Georgian legislation includes some indications that do not fall under any of the four main groups. For example the death of a husband during the pregnancy of a wife; the imprisonment of a woman or the father; divorce during pregnancy; in cases where there is already a child with disabilities in the family; pregnancy of an unmarried woman.
According to Georgian legislation, ethical indications are included in a category of “non-medical indications”: pregnancy from rape, and a court ruling on the termination of or restriction of parental rights. Since 2007, only pregnancy resulting from rape has been omitted from these indications, and only when it is recognized by a court.
Georgian legislation also considers the indications of termination of pregnancy related to the age of the mother, e.g. she has a right to ask for an abortion if she is under 15 or over 45.
In conclusion, although Georgian legislation partly corresponds to key European standards, it needs amending. In particular, a 12-week embryo is sufficiently developed to determine its gender, which means parents are able to request abortions according to sex selection motives. The authors of this report believe that the only efficient way to avoid unethical motives being used by parents is to lower the 12-week limit. A human embryo is defined as such until its eighth week, then after that time it is called a fetus. A mother should be able to terminate any pregnancy upon her own decision until about eight weeks after fertilization. This proposal is in line with international standards, based on the analysis of approximately 200 countries: abortion upon a mother’s decision is prohibited in 69% of the countries; 15% of the countries allow abortion at the mother’s request in the first trimester, while 16% allow it at any time.
In the authors’ opinion, termination of pregnancy within an 8-22 week period should be possible only in cases where a) mother’s life or health is threatened (medical); b) a child has a serious birth defect (eugenic); or c) a woman was impregnated by rape or incest (ethical).