BRIEF OF AMICUS CURIAE

Warsaw, 15 September 2017 THE SUPREME FEDERAL COURT Federative Republic of Brazil Precept n 442 BRIEF OF AMICUS CURIAE on compliance of the Penal Code, Decree-Law Number 2.848, arts. 124 and 126, with Brazil s international obligations concerning the right to life and the rights of the child 1. INTEREST OF THE AMICUS CURIAE The Ordo Iuris Institute for Legal Culture (hereinafter: The Ordo Iuris Institute or Ordo Iuris) hereby respectfully submits this brief as an amicus curiae and kindly requests that the Court considers its relevant arguments. The Ordo Iuris Institute for Legal Culture is an independent legal organization incorporated as a foundation in Poland. It gathers academics and legal practitioners aiming at the promotion of a legal culture based on the respect for human dignity and rights. Ordo Iuris pursues its objectives by means of research and other academic activities, as well as advocacy and litigation. Third party interventions by Ordo Iuris have been accepted by Polish and international courts and institutions, e.g. the Polish Supreme Court, the European Committee of Social Rights and the European Court of Human Rights. The Ordo Iuris Institute submitted its opinions to the Venice Commission, the Secretary General of the Council of Europe, Commissioner for Human Rights and the Committee on Political Affairs and Democracy of the

PACE. Moreover, the Ordo Iuris Institute has ECOSOC consultative status with the United Nations. As part of its mandate, Ordo Iuris uses judicial argumentation based on domestic and international law and legal doctrine to contribute to protection and promotion of human rights, including right to life in its every stage, and equal treatment regardless of the disease or degree of disability. The Ordo Iuris Institute has conducted comprehensive legal analysis on international obligations protecting human life. Its analysis of WHO data proves that, in a comparative perspective, permissive access to abortion is correlated with high maternal mortality ratio. The organization has submitted amici briefs related to legal protection of human life to judicial institutions i.a. in Croatia, Chile and Poland. Ordo Iuris studies show that the majority of countries in the world fulfil their international obligations concerning the right to life. Nevertheless, a large group of countries includes in their legal systems doubtful exceptions in this respect, which deprive particular groups of human beings, such as persons with disabilities or persons conceived in unlawful circumstances, of such protection. 123 out of 196 countries include no more than 2 such exceptions in their legal systems. Remaining countries provide for at least three exceptions, most of them allowing abortion on demand. Due to the fundamental importance of the protection of the human life and the enjoyment of all other human rights, the Ordo Iuris Institute presents its position on the compliance of the Fundamental Precept ADPF 442, pursuant to Article 6, 2 of 1999 Law n 9.882 and Article 7 of 1999. In this amicus curiae the Ordo Iuris Institute brief wishes to prove the compatibility of Penal Code, Decree-Law Number 2.848, arts. 124 and 126, with Brazil s international obligations in respect of the right to life and the rights of the child. 2. INTERNATIONAL STANDARDS ON THE RIGHT TO LIFE The Universal Declaration of Human Rights (1948) 1 (hereinafter: the Declaration) states in its preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. 1 UN General Assembly, the Universal Declaration of Human Rights, 10 December 1948, United Nations, http://www.un.org/en/universal-declaration-human-rights/, access: 8.12.2016.

Among those rights the Declaration lists in its article 3 is the right that everyone has to life, liberty and security. It has been noticed in international jurisprudence that legislation permitting abortion raises concerns under Article 3 of the Declaration. A. Verdoodt, who personally discussed provisions of Declaration with many of the original drafters, questions even legality of abortion allowed only in certain cases 2. It must be emphasised that lack of an explicit reference to unborn children in Article 3 does not mean that they are not protected. In 1948, when Declaration was adopted, almost all countries prohibited killing people at the prenatal stage of development. Thus, there was no need to explicitly define when human existence commences, since it was not a matter of the dispute. In the same way any explicit condemnation of euthanasia against the incurable or mentally disabled was not pronounced 3. Consequently, there are no grounds to generally exclude unborn children from protection under the Declaration 4. Following this declaration, in 1959 the UN General Assembly adopted the Declaration of the Rights of the Child (hereinafter: the DRC) 5 containing fundamental principles of children s rights. Among others, the Preamble of the DRC highlights the children s need for special care and protection, including appropriate legal protection, before as well as after birth. The Declaration of the Rights of the Child was followed in 1990 by the UN Convention on the Rights of the Child (hereinafter: the CRC) 6. The CRC confirms the above resolution explicitly recognizing the right to life of the unborn child. Moreover, Article 6 of the CRC together with the preamble 7 guarantees the inherent right to life of every child, holding that States Parties recognize that every child has the inherent right to life and that States Parties shall ensure to the maximum extent possible the survival and development of the child. 2 A. Verdoodt, Naissence et Signification de la Declaration Universelle des Droits de l Homme, Societe d Etudes Morales, Sociales et Juridiques, Louvain-Paris: Edition Nauwelaerts 1964, pp. 95-96. 3 Ibidem, p. 99-100. 4 See also: R. Joseph, Human Rights and Unborn Child,, Leiden-Boston 2009, pp. 47-62. 5 UN General Assembly, the Declaration of the Rights of the Child, 20 November 1959, United Nations, https://www.unicef.org/malaysia/1959-declaration-of-the-rights-of-the-child.pdf, access: 8.12.2016. 6 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3. 7 According to art. 31 (2) of the VCLT, the preamble of a treaty provides necessary interpretive context.

Among universally binding international treaties protecting human rights, special importance shall be attributed to The International Covenant on Civil and Political Rights (hereinafter: the ICCPR) 8. First of all, it must be stressed that ICCPR states in Article 6(1) that every human being has the inherent right to life. The term inherent means an inseparable and permanent quality of a specific reality, which is neither acquired nor lost in the course of its development, but is present in every case in which the reality is so qualified. The inherent and inalienable right to life is an attribute of every human being and international human rights instruments properly recognize it as a primary right 9 which is a precondition for the enjoyment of any other human right. This means Article 6 (1) of the ICCPR protects the life of every human being in every stage of its development, as the inherent dignity of a human person starts with the very first moment of its existence and continues as long as the human continues its existence - neither longer, nor shorter. The ICCPR protects the right to life of every human being, which includes people in the prenatal stage of their development. Moreover, Article 6 of the ICCPR impliedly recognizes the right to life of the preborn child, which is constituted by its full context. Article 6(5) states that The death sentence shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. Such a provision is a consequence of a recognition of the independent status of the preborn child in respect of his or her mother, which was explicitly confirmed during preparatory work on the ICCPR. The travaux préparatoires of the ICCPR as well as UN s reports clearly mentioned that the principal reason that the death sentence should not be carried out on pregnant women was to save the life of an innocent unborn child 10 and was inspired by humanitarian considerations and by consideration for the interests of the unborn child 11. This approach reveals that Article 6(5) of 8 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, access: 20.07.2017. 9 Inter alia: Universal Declaration of Human Rights; the ICCPR; the DRC; the CRC; Declaration of the Rights and Duties of Man, 9th International Conference of American States, Bogota, Colombia, 1948; Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950 (hereinafter: European Convention on Human Rights); Organization of American States, American Convention on Human Rights, Pact of San Jose, Costa Rica, 22 November 1969; Organization of African Unity, African Charter on Human and Peoples' Rights (Banjul Charter) as amended by Protocol adopted in 1998, 27 June 1981; Cairo Declaration on Human Rights in Islam, 5 August 1990. 10 See Travaux préparatoires for the International Covenant on Civil and Political Rights, A/C.3/SR.819, no. 17 and 33 and also A/3764 18. Report of the Third Committee to the 12th Session of the General Assembly, 5 December 1957. 11 See A/2929, Chapter VI, 10. Report of the Secretary-General to the 10 th Session of the General Assembly, 1 July 1955. Preparatory work are considered in accordance with the Article 32 of the Vienna Convention on the

the ICCPR not only protects human beings during the pre-natal period of life but also recognizes them as holders of human rights. When discussing the rights of the unborn child, who is by nature a human being, the only possible moment to which it can be attributed the inception of the child s rights is the moment of conception. This moment, which is a matter of scientific fact 12, determines the beginning of a new human life. The consequence of such a material reality (life either exists or does not) is a formation of an individual right to life of the unborn child and the corresponding obligation of the States Parties to protect that human life. Human life is a continuum that begins at conception and advances in stages until death, irrespective of the name given to these stages (be it: zygote, blastocyst, embryo, foetus, infant, toddler, child, adolescent or adult). Further confirmation of the protection of the life of the unborn child could be found in the ICCPR s prohibition of the discrimination based on birth or status 13. The guarantee of protection for every child does not differ regardless of age, including gestational age. It would be profoundly inconsistent and evidently arbitrary and discriminatory to grant a child different scopes of protection depending on the given moment during the pregnancy. It should be noted that - besides the CRC and the ICCPR - protection of the life of the unborn child is guaranteed indirectly i.a. by: Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, which includes imposing measures intended to prevent births within the group in the definition of genocide 14 ; Article 16 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War 15, which states that the wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect. Also Articles Law of Treaties (United Nations, Treaty Series, vol. 1155, p. 331, [hereinafter: the VCLT]) to be a supplementary means of interpretation. On the other hand another confirmation of this interpretation is found in the fact that a majority of States Parties to the ICCPR at the time of its adoption had laws that prohibited abortion in all cases. 12 K.L. Moore, T.V.N. Persaud, The Developing Human, publ. VII Philadelphia: Saunders-Elsevier, 2003, p. 31; T.V. Daly, The Status of Embryonic Human Life A Crucial Issue in Genetic Counselling, [in:] N. Tonti-Filippini (ed.) Health Care Priorities in Australia: Proceedings of the 1985 Annual Conference on Bioethics, Melbourne 1985, pp. 55 and 191. 13 The ICCPR., art. 24 and 26. 14 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277. 15 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.

76-77 of the First Additional Protocol to the Geneva Conventions 16 and Article 6 of the Second Additional Protocol to the Geneva Conventions 17 calls for avoidance of the pronouncement of the death penalty on pregnant women. 3. AMERICAN CONVENTION ON HUMAN RIGHTS It is crucial to emphasize that the protection of the life of the unborn child is also envisaged in The American Convention on Human Rights (hereinafter: the ACHR), which Brazil ratified in its entirety in 1992 18. The ACHR stipulates in Article 4(1) that Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life 19. This legal rule is clear and unambiguous: abortion should be strictly forbidden. In critical situation, such as a conflict of right to life of two persons, law can allow for situations where the protection of individual life is sacrificed in order to protect another or even equivalent value guaranteed by the provisions of the Constitution. In such cases, there is no doubt as to the norms which exclude the illegality of acts (Article 25 of the Criminal Code necessary selfdefence justification) or of the individual s guilt, even if death of the child is a result of treatment saving the life of the mother when the threat is unavoidable or highly probable. Moreover, article 5 (1) and (2) of the ACHR states that Every person has the right to have his physical, mental, and moral integrity respected. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. Meanwhile, abortion, as a voluntary deprivation of life of a child while developing in mother s womb, by no means can be considered as an object of a subjective right. For this reason, abortion often constitutes torture and thus violates inter alia Article 5 of the ACHR 20. It is especially tangible in cases of the 16 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. 17 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609. 18 Inter-American Commission on Human Rights, Organization of American States, Signatories and Ratifications of American Convention on Human Rights, http://www.cidh.oas.org/basicos/english/basic4.amer.conv.ratif.htm, access: 2.06.2017. 19 Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Organization of American States, http://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm, access: 2.06.2017. 20 It also violates Article 7 of the ICCPR, Article 3 of the ECHR as well as the Article 37 of the CRC, which stipulates No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment..

methods, since dilatation and evacuation are open acts of torture when the foetus, still alive, is dismembered to be pulled out of the womb in pieces 21. These practices along with leaving newborns to die without any care (practiced often in case of late abortions) constitute infanticide, blatant violations of both their human dignity and universal and fundamental human rights, especially Article 6 (1) of the ICCPR ( No one shall be arbitrarily deprived of his life ) and the CRC 22. The above regulations, binding i.a. the Federative Republic of Brazil, oblige all the States Parties to actively protect the human life from the moment of conception. 4. LACK OF COMPETENCE OF THE TREATY MONITORING BODIES TO CREATE BINDING LEGAL NORMS Human Rights Watch in its brief of amicus curiae reiterates views of the UN Committee on Economic, Social and Cultural Rights, the UN Committee on the Elimination of Discrimination Against Women (CEDAW) and the UN Committee on the Rights of the Child, which suggest that international law provide right to abortion 23. Similar statements are made in a number of other amici briefs. In the context of international standards of human rights it should be stressed that recommendations of international human rights bodies such as the aforementioned committees do not legally bind the States Parties. Legal frameworks of each of those bodies are strictly determined by the content of the international conventions approved with the consent of the States Parties. Monitoring committees do not have the right to presume their competences and to act beyond the agreed mandate. In particular, they do not have the power to issue legally binding decisions, have no right to interfere in the internal affairs of the States Parties of the conventions, neither they are entitled to issue legally binding interpretations of conventions or treaties. 21 Scientific evidence proves that fetuses and premature babies can feel pain at least as much as adults. Fetuses are responsive to touch at 8 weeks and have the physical structure to experience pain at 20 weeks. See The Fetal Pain: The Evidence, http://www.doctorsonfetalpain.com/. 22 These practices violate the Article 2 and the Article 24 of the CRC seen in the light of its preamble. Similarily they violate the rights enshrined in the European Convention on Human Rights, notably: the right to life (Article 2), prohibition of the inhuman treatment (the Article 3) and discrimination on any ground i.a. birth. See Petition for the rights of new-borns surviving their abortion submitted to the Parliament Assembly of the Council of Europe on 16th April 2015. 23 See: Human Rights Watch, Pedido de ingresso como amicus curiae (20044/2017) - Pedido de ingresso como amicus curiae, pp. 9-11.

For example, the UN Committee on the Rights of the Child is a body set up under Article 43 (1) of the Convention on the Rights of the Child to monitor the implementation of its provisions by the States Parties. In relations with the States Parties, the Committee may only request "further information relevant to the implementation of the Convention" (Article 44 (4)) and "make suggestions and general recommendations based on information received from the States Parties pursuant to articles 44 and 45 of the present Convention (Article 45 (d)). At the same time, the Committee is completely bound by the provisions of the CRC and is not entitled to issue its legally binding interpretation. The provisions of the CRC do not confer on the Committee the right to issue legally binding decisions interfering with the internal affairs of the States Parties or to the legally binding interpretations of the CRC. Any recommendations or resolutions of the Committee to the States Parties are purely advisory and informative. Recognition of the Committee's right to issue binding interpretations of the CRC would de facto give the monitoring authority the right to change the substance and meaning of the CRC without the consent of the States Parties. It is also worth mentioning the international declaration of human rights experts, known as the San Jose Articles, which states that: Treaty monitoring bodies have no authority, either under the treaties that created them or under general international law, to interpret these treaties in ways that create new state obligations or that alter the substance of the treaties. Accordingly, any such body that interprets a treaty to include a right to abortion acts beyond its authority and contrary to its mandate. Such ultra vires acts do not create any legal obligations for states parties to the treaty, nor should states accept them as contributing to the formation of new customary international law 24. According to the above context any references in opinions, analyzes and amicus briefs to recommendations of treaty monitoring bodies for human rights proving that international conventions obliged the States Parties to provide abortion are at least misleading and raise serious doubts over the impartiality of their authors. Such documents erroneously suggest that binding international instruments create standards for the dissemination and depenalization of abortion. Moreover, the term "reproductive and sexual laws", despite the consensus between the States reached in 1994 at the Cairo International Population Conference, is still the subject of 24 San Jose Articles, http://sanjosearticles.com/?page_id=2, access: 10.07.2017.

interpretation by the communities concerned in promoting abortion. The document signed at the Cairo Conference clearly stated that abortion cannot in any case be perceived as one of the methods of a family planning 25. Despite this fact, attempts are still being made to revise this position. A number of states and organizations postulate universal and legal abortion, arguing that abortion allegedly increases the safety of women s health and life. Such unsubstantiated claims are now formulated against Brazil. 5. EUROPEAN SYSTEM OF HUMAN RIGHTS PROTECTION Protection of the life of the unborn child is guaranteed in other regional human rights treaties and systems, e.g. in Europe, which proves that it is an international, well-developed standard. 5.1. The Council of Europe Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: The European Convention on Human Rights, the European Convention) states: Everyone s right to life shall be protected by law 26. The European Convention on Human Rights does not limit the right to life to people who are already born. Although term everyone has not been defined in the European Convention, travaux préparatoires sheds light on this problem. First versions of Article 2 contained terms each person and all individuals. The drafting committee removed these phrases and replaced with possibly most broad term everyone 27. Consequently, Article 2 shall be construed as broad as possible, to protect the life of everyone, not only born persons, but all human beings, regardless of age or stage of development. Moreover, it must be noted that contrary to false claims presented in the media European Court of Human Rights (hereinafter: the ECHR) never recognized access to abortion as a human right. On the contrary, the ECHR always emphasized that the Convention itself does not guarantee a right to abortion, Article 8 [right to privacy] cannot be interpreted as conferring a right to 25 United Nation Population Found, Programme of Action of the International Conference on Population Development, point 8.25. 26 Council of Europe, Convention for the Protection of Kuman Rights and Fundamental Freedoms, Rome 4, 11.1950, European Treaty Series no. 5, https://rm.coe.int/1680063765. 27 Travaux préparatoires of the European Convention on Human Rights 78-80 (1985), pp. 200 and 240; Travaux préparatoires of the European Convention on Human Rights 8-16, 258 (1975), p. 182.

abortion 28. In all abortion-related cases the ECHR was never concerned with any abstract right to abortion, but with procedural issues the question was how to enforce a right granted by domestic law in the face of opposition, direct or oblique, from public authorities. In the case R. R. v. Poland the ECHR recognized lack of any effective mechanisms which would have enabled the applicant to seek access to a diagnostic service, decisive for the possibility of exercising her right to take an informed decision 29. In Tysiąc v. Poland 30 and P. and S. v. Poland 31 the ECHR was concerned with a lack of effective access to reliable information on the conditions of the availability of service. In A. B. and C. v. Ireland the ECHR stated the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a service 32. In the same case the European Court of Human Rights also confirmed that legislation prohibiting abortion pursued the legitimate aim of the protection of morals, of which the protection of the right to life of the unborn in Ireland was one aspect (para. 227). 5.2. Selected case-law of Constitutional Courts in Europe concerning the protection of life National constitutional jurisdiction in a number of European countries also asserts that the life of an unborn child is protected. In 1997, the Polish Constitutional Tribunal ruled, that the democratic state based on the rule of law considers the human being, as well as goods precious to him as the highest values. Human life is a good, which ( ) must be under constitutional protection at every stage of its development. The constitutionally protected value of human life, including the prenatal stage of development, cannot be differentiated. ( ) Thus, from the moment of conception the human life is a constitutionally protected value. It also concerns the prenatal stage. The Tribunal added that parents cannot decide on having a child when the child is already developing in the 28 A.B. and C. v. Ireland, application no. 25579/05, para. 214. See also: Tysiąc v. Poland, application no. 5410/03, para. 107; R.R. v. Poland,, application no. 27617/04, para. 198; P. and S. v. Poland, application no. 57375/08, para 96. 29 Para. 208. 30 Para 124. 31 Para 111. 32 Para. 267.

mother s womb, as the right to have a child can only be understood in a positive aspect not as a right to annihilate the developing human foetus 33. Moreover, the Polish Constitutional Tribunal clearly attributed this meaning to the right to life, as declared in Article 38 of the currently binding Constitution of the Republic of Poland (at that time it was awaiting entry into force). Therefore, it is highly doubtful, if the premises allowing abortion in specific situations in Polish law are conformant with the Constitution. It must be noted, that the only one premise already reviewed in this respect, namely allowing for abortion due to difficult social conditions until the end of the 12 th week of pregnancy (abortion on demand), was declared unconstitutional. According to the Tribunal, one can decide to have a child when the child is already developing in the prenatal stage, and in this sense it is already owned by the parents. The right to have a child can therefore be interpreted solely in positive terms and not as a right to the destruction of developing human life. The right to make responsible decisions about having children is therefore reduced to the solely negative aspect of the right to refuse to conceive a child. Then, however, when the child has already been conceived, the right can only have a positive aspect. The Hungarian Constitutional Court also prove that the State's duty is to protect human life from its inception and so the right to self-determination could not be supplementary even at the earliest stages of pregnancy 34. The Hungarian Constitutional Court also added that the right to equal dignity coupled with the right to life, ensured that the value of human life could not be legally differentiated 35. According to the German Federal Constitutional Court, the life developing in the womb of the mother is an independent legal value enjoying the protection of the German constitution. Thus, it is the State s duty to protect and foster this life, even against the will of the mother 36. The dean of the Faculty of Law in the University of Bonn, professor Christian Hillgruber states, in reference to the position of the German Federal Constitutional Tribunal that, [a]bortion means the killing of a human being, who has a fundamental right to life and protection of his/her 33 Judgement of 22th May 1996, The Constitutional Tribunal, no. K. 26/96, http://otk.trybunal.gov.pl/orzeczenia/teksty/otk/1997/k_26_96.doc, access: 8.12.2016. 34 Judgement of 17th December 1991, No. 64-91, http://www.codices.coe.int/nxt/gateway.dll/codices/precis/eng/eur/hun/hun-1991-s-003?fn=documentframeset.htm$f=templates$3.0, access: 8.12.2016. 35 Ibid. 36 Judgement of 25th February 1975, Case BVerfGE 39, 1, http://groups.csail.mit.edu/mac/users/rauch/nvp/german/german_abortion_decision2.html, access: 8.12.2016.

dignity. Therefore, on the grounds of German constitutional law, there is absolutely no such thing as an often claimed right to abortion. Rather it is the state s duty to provide appropriate legal protection for the unborn child. On the grounds of the decision of the Federal Constitutional Court, abortion must be viewed as fundamentally against the law and therefore prohibited; and the expectant mother should be legally bound to carry the unborn child until delivery (BVerfGE 39, 1, 44; 88, 203, 253) 37. This state of constitutional law is however not fully envisaged in the statutory regulations. Christian Hillgruber is speaking of the discrepancy between what is and what should be, the dramatic hiatus between the superordinate constitutional law and ordinary legislation which is not observing the preeminence of the Constitution 38. 5.3. International Standards Concerning Non-Discrimination of Disabled Persons In the context of the Brazilian Abortion Law, allowing to perform an abortion e.g. on the basis of a disability of a child (anencephaly), it is also necessary to underline that in the light of the UN Convention of the Rights of Persons with Disabilities (hereinafter: the CRPD) discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person 39. Article 4 of the CRPD obliges the State Parties to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. The disabled should be guaranteed that they are equal before and under the law and entitled without any discrimination to the equal protection and equal benefit of the law (art. 5 of the CRPD). Therefore, an abortion due to a suspected handicap clearly discriminates the unborn, violating the basic rights of people with disabilities, stemming from the CRPD. 6. INFLUENCE OF ABORTION ON WOMEN S HEALTH Both statistical data and medical research prove that abolition of legal protection of human life strongly negatively correlates with the level of protection of women s health. 37 Ch. Hillgruber, German Constitutional Law and the Protection of Human Life in the Prenatal Phase, [in:] A. Stępkowski (ed.), Protection of Human Life in its Prenatal Stage. Intellectual Foundation and Legal Means, Peter Lang: Fankfurt 2014, p. 126. 38 Ibidem, p. 136. 39 UN General Assembly, the Convention on the Rights of Persons with Disabilities, 13 December 2016, United Nations, http://www.un.org/disabilities/convention/conventionfull.shtml, access: 8.12.2016.

Comparing data from countries located in different regions of the world, there is a noticeable difference in maternal mortality ratio (MMR) trends after the level of protection of life is increased or decreased. Guyana, the country which since 1995 has the lowest level of protection of human life in entire South America 40, at the same time has the highest maternal mortality ratio 41. It is also one of only few countries in the world to experience deterioration of the standards of women s health protection since 1990 42. In contrast, in Chile 43, the maternal mortality ratio significantly decreased after the introduction of the law completely banning abortion - within 14 years since abortion was banned in Chile in 1989, MMR decreased by 69,2%. In Mexico, the states protecting human life have an average maternal mortality ratio 23% lower than the rest of Mexican states 44. In the United States in 1990 MMR was lower (1990 12/100.000) than it is today (2015 14/100.000) 45. The increase of maternal mortality in the US coincides with the liberalization of abortion law. Interdependence is also visible in Europe. In Poland, after partial criminalization of abortion in 1993, the maternal mortality ratio decreased from 15 in 1993 to 3 in 2015 46, which is the improvement far exceeding developments in most of the neighbouring countries during the same period. In Western European countries, like Germany or France, where the level of legal protection of human life is much lower, in 2015 MMR was appropriately 6/100.000 for 40 Since 2012 Uruguay is the second country in South America to allow abortion. 41 Trends in maternal mortality: 1990 to 2015 Estimates by WHO, UNICEF, UNFPA, World Bank Group and the United Nations Population Division, World Health Organization 2015, p. 17, http://apps.who.int/iris/bitstream/10665/194254/1/9789241565141_eng.pdf, access: 8.12.2016. 42 Concluding comments of the Committee on the Elimination of Discrimination against Women: Guyana, s. 2, http://www.un.org/womenwatch/daw/cedaw/cedaw25years/content/english/concluding_comments/guy ana/guyana-co-1.pdf, access: 15.9.2017. 43 Maternal mortality ratio in Chile: WHO, UNICEF, UNFPA, World Bank Group, and the United Nations Population Division. Trends in Maternal Mortality: 1990 to 2015. Geneva, World Health Organization, 2015, http://data.worldbank.org/indicator/sh.sta.mmrt?locations=cl&name_desc=false, access: 8.12.2016. 44 E. Koch, M. Chireau, F. Pliego, J. Stanford, S. Haddad, B. Calhoun, P. Aracena, M. Bravo, S. Gatica, J. Thorp, Abortion legislation, Maternal healthcare, fertility, female literacy, sanitation, violence against women and maternal deaths: a natural experiment in 32 Mexican states, [w:] BMJ Open, s. 8, http://bmjopen.bmj.com/content/5/2/e006013.full.pdf+html, access: 8.12.2016. 45 Maternal mortality in 1990-2015: United States of America, WHO, UNICEF, UNFPA, World Bank Group, and United Nations Population Division Maternal Mortality Estimation Inter-Agency Group, http://www.who.int/gho/maternal_health/countries/usa.pdf, access: 15.9.2017. 46 Maternal mortality ratio in Poland: WHO, UNICEF, UNFPA, World Bank Group, and the United Nations Population Division. Trends in Maternal Mortality: 1990 to 2015. Geneva, World Health Organization, 2015, http://data.worldbank.org/indicator/sh.sta.mmrt?end=2015&locations=pl&start=1990&view=chart, access: 8.12.2016.

Germany 47 and 8/100.000 for France 48. The data provided by the World Health Organization indicates that, while before the legalisation of abortion in 1968, maternal mortality ratio in England and Wales was significantly lower than in the Republic of Ireland, since the legalisation allowing for abortion in England and Wales the maternal mortality has been significantly higher than in Ireland, which guarantees high level of protection of life 49. Moreover, a study published in the Medical Science Monitor summarizing results of a research conducted in Denmark on 463 473 women 50 shows short and long-term negative influences of abortion to a woman s health and life. As for early abortion, the risk of maternal death increased 80% in the first year following the procedure. 10 years later the risk was still 40% higher than risk for women who delivered their baby. At the same time, the authors asserted that pregnancy may induce health benefits for women. Delivering the first baby (instead of killing it by means of abortion) decreases the risk of cancer in the breasts, ovaries and uterus. Carrying a child may also contribute to other health benefits due to decreasing unhealthy or potentially dangerous behaviour. An article in The British Journal of Psychiatry in 2011 synthesized 22 researches carried out from 1995 to 2009 and concluded that there was a 81% higher risk of a serious mental problem among women who had undergone an abortion compared to women who delivered 51. Protecting the life of a child at the prenatal stage of its development implies a necessity to protect the life of the mother. Therefore, if the medical treatment directed towards protection of a mother s life will result in the death of the unborn child, such a side effect of the medical treatment must not be understood as abortion depriving the child of his or her right to life. Abortion as an act of protecting the mother s life directed towards taking of the life of a child while developing in mother s womb in order to avoid a double effect, meaning the death of both the mother and the child is not an abortion. Such a double effective medical treatment is 47 Maternal mortality in 1990-2015: Germany, WHO, UNICEF, UNFPA, World Bank Group, and United Nations Population Division Maternal Mortality Estimation Inter-Agency Group, http://www.who.int/gho/maternal_health/countries/deu.pdf, access: 15.9.2017. 48 Maternal mortality in 1990-2015: France, WHO, UNICEF, UNFPA, World Bank Group, and United Nations Population Division Maternal Mortality Estimation Inter-Agency Group, http://www.who.int/gho/maternal_health/countries/fra.pdf, access: 15.9.2017. 49 B.C. Calhoun, J.M. Thorp, P.S. Carroll, Maternal and Neonatal Health and Abortion: 40-Year Trends in Great Britain and Ireland (data for 2003-2013) http://www.jpands.org/vol18no2/calhoun.pdf, access: 8.12.2016. 50 D.C. Reardon, P.K. Coleman, Short and long term mortality rates associated with first pregnancy outcome: Population register based study for Denmark 1980 2004 http://www.ncbi.nlm.nih.gov/pmc/articles/pmc3560645/, access: 8.12.2016. 51 P.K. Coleman, Abortion and mental health: quantitative synthesis and analysis of research published 1995-2009, Br J Psychiatry. 2011 Sep;199(3):180-6, p. 182, http://bjp.rcpsych.org/content/bjprcpsych/199/3/180.full.pdf, access: 8.12.2016.

directed towards protection of the mother and not towards killing the child. It is to be permitted (if not required) by virtue of the mother s right to life as well as by virtue of the right of her unborn child, who is only able to live if she is alive. 7. EXECUTIVE SUMMARY Analysis presented in the amicus curiae brief shows fundamental importance of the legal protection of the human life in the international system of human rights protection. The Ordo Iuris Institute in its position proves that: 1) The binding international human rights treaties do not provide a right to abortion. On the contrary, all norms of international treaties guaranteeing the right to life which are binding for Federative Republic of Brazil, encompass the entire human life, including its prenatal stage of development. Therefore, the American Convention on Human Rights (article 4, section 1), the International Covenant on Civil and Political Rights (art. 6, section 1) and Convention on the Rights of the Child (art. 6 in connection with the preamble) all guarantee the right to life regardless of age of a human being. 2) Recommendations of international human rights bodies such as the UN Committee on Economic, Social and Cultural Rights, the UN Committee on the Elimination of Discrimination Against Women or the UN Committee on the Rights of the Child do not constitute a legal obligation, but only an unbinding suggestion. The aforementioned committees often exceed their competences by construing treaties contrary to their literal meaning in order to promote ideological demands of certain groups and lobbies. For instance, UN committees derive right to kill people in the prenatal stage in their development from the prohibition of torture or a right to protection of private life. It must be highlighted that such opinions constitute a political statement rather than a useful instruction regarding interpretation of international law provisions. 3) Contrary to popular, but false opinions, the European Court of Human Rights never stated that the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees a right to abortion. An analysis of the ECHR s case-law on Article 8 of the Convention demonstrates that each state enjoys a margin of appreciation in its decision to prohibit abortion. 4) There is no scientific evidence that prohibition of abortion negatively affects women s life and health. On the contrary, legal protection of human life from the moment of

conception may correspond with the general improvement of the level of protection of maternal health. 5) Therefore, the is no doubt that articles 124 and 126 of Brazil s Penal Code, Decree- Law Number 2.848, which prohibit voluntary abortion, are not only in full compliance with Brazil s international obligations, but validity these both provisions constitutes the necessary condition of the fulfillment of the norms of binding international treaties.