Legislating for Article 40.3.3: Binchy on Dignity and Respect

by Human Rights in Ireland on January 16, 2013

Author: Professor William Binchy

Article 40.3.3 has provoked much critical analysis, but, so far as I am aware, it has never been criticised by anyone who supports the position that  human beings, born and unborn, have equal dignity and entitlement to respect. Of course, if one takes the position that only some human beings are entitled to have their rights respected, Article 40.3.3 will be seen as problematic. It represents a formidable barrier to those advocating the legalisation of abortion based on the choice of the mother to terminate the life of her unborn child.

We live in a curious era. I have little doubt that readers of this blog carnival who access it in future generations will wonder as to how people of obvious goodwill could have blinded themselves to the humanity of the unborn child. The proposition that one should not take the life of an innocent human being is not being challenged in public debate and instead some attempts are made to deny  the human status of the unborn child on account of his or her immaturity and lack of specific capacities. One obvious difficulty with this line of argument is that it proposes arbitrary tests for withdrawing recognition of the humanity of human beings. Children shortly after birth and some very old or disabled people lack many capacities. Are they too to be excluded from full protection of their human rights? The answer given by certain bioethicists is consistent but alarming: they should indeed be exposed to the prospect of having their lives terminated.

A more radical, and again, honest, argument which is only rarely articulated internationally is that abortion does involve the taking of the life of an innocent human being but that it can nonetheless be justified on the basis of the mother’s choice. If we accept this argument, is there any principled basis for rejecting it a priori in other contexts?

In our discussion on human rights, it is worth distinguishing between a normative and a positivist claim. The international reality of how abortion is treated in human rights treaties is an education in diplomatic horse-trading and realpolitik, far removed from a normative analysis of the human rights of unborn children. I witnessed this clearly in New York during the negotiations for the provision in the United Nations Convention on the Rights of Persons with Disabilities which deals with the right to life. It is also a matter of undeniable fact (though rarely if ever acknowledged by those advocating wide-ranging legalised abortion) that the observations made by some members of  the monitoring bodies for international treaties on human rights go beyond anything that represents the established international law on the subject.

At the normative level, it is interesting to find that many of the strongest advocates of human rights don’t actually believe that they have a coherent normative foundation.  Benedicte Dembour has given a frank account of this reality. It would be great if in Ireland we could probe this dimension. At its heart is a wider philosophical debate as to whether any normative propositions are legitimate. Human rights theory, as it is widely represented and understood, involves the normative proposition that every human being has inherent dignity and equal worth. If some of those who advocate human right arguments actually do not subscribe to the normative foundations of human rights theory, is there not an obligation to disclose one’s true philosophical position and seek to defend it?  The result would involve a deep probing of what it is to be human and why it may (or may not) be correct to assert the fundamental value of the human enterprise in all its manifestations, involving human beings of every age, size and capacity.

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