Access to Safe and Legal Abortion- a Human Right? : A study of the protection for access to Safe and Legal abortion within Public International Law

Detta är en Uppsats för yrkesexamina på avancerad nivå från Stockholms universitet/Juridiska institutionen

Sammanfattning: Abortion is a controversial issue. It is subject of heated debates stemming from morality and ethics. Abortion is also, however, a question of rights. Access to abortion weighs the rights of the foetus against the rights of the mother. Women being denied access to safe and legal abortion due to criminalisation and restrictive abortion laws, is also a matter of human rights. Women die every year as the result of unsafe abortion methods. This thesis focuses on access to safe and legal abortion, and examines if and how public international law protects women’s access to abortion. It addresses the topic of reproductive rights and health, and whether this set of rights constitutes any protection for access to safe and legal abortion. Human rights that are actualised in relation to abortion include for example the right to life, right to privacy and right to health. Relevant provisions in CEDAW, ICCPR and ICESCR are analysed, together with general comments and reports issued by the treaty monitoring bodies of the UN. The second part of the thesis focuses on access to safe and legal abortion under the ECHR and examines relevant case-law from ECtHR on the topic. In addition to the legal dogmatic method, a feminist legal theory is used to critically evaluate whether the current protection of access to safe and legal abortion is sufficient from a women’s rights perspective. The author concludes that public international law does not offer any direct protection of access to safe and legal abortion. Instead, access to safe and legal abortion can be protected indirectly by other human rights. Restrictive abortion laws that results in risking the health and life of the mother can violate women’s human rights. Case-law from the ECtHR shows that European states are under a positive obligation to provide an effective access to abortion under the right to privacy, if the national law guarantees such a right. The result from the discussion based on feminist legal theory shows that public international law fails to recognise the abortion issue as a question of gender equality and discrimination against women.

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