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Derecho a la vida con#b0355.docDoctor Leonel Antonio Fernández Reyna
Presidente de la República Dominicana
Dr. Reynaldo Pared Pérez
Presidente de la Asamblea Nacional Revisora
Honorable President of the Dominican Republic: We, the undersigned national, regional and international organizations and networks express our concernwith regard to the negative impact the adoption of Article 30 will have on women in the DominicanRepublic. Article 30 was approved on April 21, 2009 by the Dominican National Congress in the firstreading of the modification of the national constitution.
The adoption of the article, which would establish the right to of life from the moment of conception,could make it unconstitutional to use contraceptives such as the Intrauterine Device (IUD), emergencycontraception, and could make lifesaving abortions illegal. Moreover, approval of Article 30 is likely toprohibit modification of the penal code to allow decriminalization of abortion, even abortions performedfor risk to the life and health of the woman, or when a pregnancy is the result of rape or incest. Theintroduction of the constitutional amendment Article 30 is widely understood to bolster efforts tocriminalize abortion and contraception.1 The passage of this constitutional measure will represent a regression in ensuring fundamental humanrights such as the right to life, the right to health, the right not to be subjected to inhuman and degradingtreatment and the right not to be subjected to discrimination on the ground of sex.
Constitutional Protection of Life at Conception: Potential Consequences
The protection of the right to life at conception conflicts with international human rights law and thefundamental rights and freedoms enshrined in the draft constitution. Around the world, internationalbodies and legislatures are increasingly taking action to lessen legal restrictions on abortion, recognizingthe need to save women’s lives and protect women’s human rights. A provision protecting the right tolife from conception in the constitution could undermine any future efforts by the Dominican Congress toadvance law to be in line with international consensus and human rights documents.
The protection of life at any stage before birth in a country’s constitution can hinder women’s access toabortion, even when her life is at risk. Of the 13 countries with constitutions that protect life at variousstages before birth, ten of these countries’ abortion laws totally ban all abortion. Under the terms ofArticle 30, health professions, who are entrusted with an ethical and moral responsibility to save lives,would be subject to legal and criminal sanctions if they performed lifesaving abortions for pregnantwomen suffering from illnesses that imperil their lives. The majority of national constitutions andinternational human rights instruments protect the right to life after a person has been born.
1 “Dominican Republic: Constitutional and penal reforms should enhance women's rights, not limit them,” AmnestyInternational, April 4, 2009.
Constitutional protection of life at conception could create a barrier to access to contraception. Intra-uterine devices (IUDs), emergency contraception and other hormonal contraception—including pills,hormonal IUDs, implants and injectables—could violate a fertilized egg’s right to life. Thesecontraceptive methods prevent pregnancy in most cases by preventing ovulation or fertilization.
However, IUDs can sometimes prevent implantation of a fertilized egg.2 There is also some evidence thatemergency contraception and other hormonal contraception may prevent implantation.3 Activists and government officials who wish to restrict access to contraception are aided by constitutionalprotection for the right to life at conception, which would give claims such as these a strong legal basis.
A lawsuit could be brought claiming that under the constitution, IUDs, emergency contraception andother hormonal contraception violate the right to life.
Legal Arguments against Right to Life from Conception
The United Nations Human Rights Treaty Monitoring Bodies have interpreted the rights to life, healthand non-discrimination, and the right to freedom from cruel, inhuman and degrading treatment orpunishment, as requiring state parties to allow access to abortion where necessary to protect the woman’shealth. These bodies have continually advised state parties to amend national laws on abortion to permitabortion where necessary to protect the woman’s life or health. 4 The Universal Declaration of Human Rights (UDHR) begins with the statement, “All human beings areborn free and equal in dignity and rights” (Art.1). Human rights treaties to which the DominicanRepublic is a party protect the right to life after birth. The history of the negotiations (travauxpréparatoires) of the UDHR indicates that “born” was used intentionally to exclude any application ofhuman rights before birth. Similarly, the records of negotiations of the International Covenant on Civiland Political Rights (ICCPR) and the Convention of the Rights of the Child show that attempts torecognize the right to life before birth during the writing of the treaty were rejected. The preamble of theConvention on the Elimination of All Forms of Discrimination Against Women (CEDAW) alsorecognizes that “all human beings are born free and equal in dignity and rights.”5 2 Contraceptive Myths and Realities, International Planned Parenthood Federation, available athttp://www.ippf.org/Templates/Myths.aspx 3 Kubba AA, White JO, Guillebaud J, Elder MG. The biochemistry of human endometrium after two regimens of postcoitalcontraception: a dl-norgestrel/ethinylestradiol combination or danazol. Fertil Steril 1986:45:512-6; Ling WY, Wrixon W, Zayid I,Acorn T, Popat R, Wilson E. Mode of action of dl-norgestrel and ethinylestradiol combination in postcoital contraception. II.
Effect of postovulatory administration on ovarian function and endometrium. Fertil Steril 1983;39:292-7; Yuzpe AA, ThurlowHJ, Ramzy I, Leyshon JI. Post coital contraception—a pilot study. J Reprod Med 1974; 13:53-8.pdf; Statement on ContraceptiveMethods. Washington DC: American College of Obstetricians and Gynecologists, July 1998.
4 United Nations Human Rights authorities have identified the human rights implications of unsafe abortion and the need forgovernments to review their restrictive abortion laws. In addition, in 1994, 179 government signatories to the Programme ofAction of the International Conference on Population and Development (ICPD) agreed that “all governments and relevantintergovernmental and non-governmental organizations are urged to strengthen their commitment to women's health, to deal withthe health impact of unsafe abortion as a major public health concern….” The Platform for Action of the 1995 Fourth WorldConference on Women at Beijing reaffirmed the ICPD Programme of Action and called upon governments to “review lawscontaining punitive measures against women who have undergone illegal abortions.” 5 The committees of experts that oversee CEDAW and the ICCPR have recognized that by restricting abortion, governmentsdiscriminate against women. The Committee overseeing the Convention on the Elimination of All Forms of Discriminationagainst Women in General Recommendation 24 states, “When possible, legislation criminalizing abortion should be amended, inorder to withdraw punitive measures imposed on women who undergo abortion.” The Human Rights Committee issued GeneralComment 28 on Article 3, the equal rights of men and women, calling upon States Parties, “when reporting on the right to life In addition to contravening international human rights law, Article 30 will also contravene the wishes ofthe Dominican people. A July 22, 2009 poll by Gallup-Hoy found that 79.8% of respondents believe thata woman should be allowed to terminate a pregnancy if her life is in danger. Moreover, the majority ofcitizens, 73%, believe that abortion should not be addressed in the constitution but rather through thepenal or the health codes. 6 Recommendations
We respectfully ask you to consider the above issues during your deliberations of the constitutionalreforms in the second reading. The constitution must guarantee the full range of human rights for womenand girls. There cannot be a regression in these rights.
The Dominican Government must take all necessary measures to ensure that safe and legal abortionservices are accessible without unreasonable restrictions to all girls and women who require it in cases ofpregnancy resulting from rape or incest and in circumstances where continuation of pregnancy wouldput the health or life of the woman or girl at risk.7 To conform to international human rights law and be in line with most constitutions of the world, theconstitution of the Dominican Republic must not recognize the right to life before birth. We thereforerecommend ensuring that passage of Article 30 of the proposed constitution should take place only whenthe language protecting life from conception is removed.
protected by article 6,” to inform the committee of "any measures taken by the State to help women prevent unwantedpregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions.
6 “Mayoría: el aborto es inmoral pero aceptaría por salvar a la madre,” http://www.hoy.com.do/el-pais/2009/7/22/286351/Mayoria-el-aborto-es-inmoral-pero-aceptaria-por-salvar-a-la-madre 7 “Dominican Republic: Constitutional and penal reforms should enhance women's rights, not limit them,” AmnestyInternational, April 4, 2009.
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