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AMERICAN COMPARATIVE LAW REVIEW
Banning Emergency Contraception in Latin America:
Constitutional Courts Granting an Absolute Right to Life to the Zygote
by Maria Alejandra Cardenas
It is basic scientific fact that there are three different stages of prenatal development. The zygote is “a cell formed by the union of two gametes” (18) an embro is an organism in the “early stages of growth and differentiation that are characterized by cleavage, the laying down of fundamental tissues, and the formation of primitive organs and organs systems; especially: the developing human individual from the time of implantation at the end of eight week after conception” (19) Finally, a fetus is a vertebrate especially after attaining the basic structural plan of its kind; specifically: a developing human from usually two months after conception of birth”(20) Note how the Constitutional Court’s decisions in question, attribute to a cluster of human cells that not yet become an embryo, and even less a fetus, with the full entitlement of a right to life.
Emergency Contraception and the Reasonable Doubt
First of all, it is important to clarify that emergency contraception is a broad term that comprehends a number of birth control methods that can be used to prevent pregnancy after unprotected sex. These methods include: a) the insertion of an intrauterine device (IUD); b) a special dose of ordinary birth control pills; and c) emergency contraceptive pills (hereinafter “ECPs”). (21) However, the decisions examined through this article are all about ECPs, and therefore, whenever I am referring to emergency contraception, I am exclusively referring to ECPs, and more specifically, in the cases of Ecuador and Peru, to ECPs made with Levonogestrel. (22)
The majority of medical literature,(23) drug’s licenses and labels,(24)states that ECPs’(25) mechanism of action could be that of stopping the release of an egg from the ovary (ovulation), prevent the union of sperm and egg (fertilization), or possibly, if fertilization had already occurred, it could prevent a fertilized egg from attaching to the womb (implantation). Some scientific voices affirmed for years that ECPs’ mechanism of action like most of other hormonal contraceptives, was only that of preventing the ovum from being released, or the sperm from reaching the ovum,(26) and others recognized that the mechanism of action of ECPDs was actually not yet fully understood, but that it was likely that it did not work preventing implantation of a fertilized ovum. (27)
Last year, both the International Federation of Gynecology and Obstetrics (FIGO) and the International Consortium for Emergency Contraception released a joint policy statement on Levonogestrel-only Emergency Contraceptive Pills’ Mechanism of Action, excluding the third effect, this is, the prevention of implantation, after many scientific studies found no evidence supporting such possibility. (28) Probably this will mean that in the future, the industry, the medical literature and governmental organizations will adjust their own statements on ECPs’ mechanism of action. Unfortunately, information suggesting that ECPs might prevent a fertilized egg from being implanted in the uterine wall is still circulating.
The three cases in question were substantiated by each of their plaintiffs as challenges against drugs that work as abortifacients. Although technically the plaintiffs recognized (though none of them explicitly) that ECP’s were not abortifacients. This might sound contradictory, but in order to understand it, we need to have a clear idea of what an abortion is. An abortion is the termination of a pregnancy, ergo in order for an abortion to take place, there must have been a pregnancy. Medical science and every major health organization in the world agree that pregnancy only begins at the moment in which a fertilized egg is implanted in the uterine wall.(29) This is why, inter alia the World Health Organization,(30) and the US Food and Drugs Administration(31) have always asserted that ECPs’ are not abortifacients. Thus, while the plaintiffs in the Ecuadorian, Chilean and Peruvian cases claimed that ECPs were abortifacients, they were not claiming that these drugs could terminate a pregnancy. What they were claiming is that ECPs could prevent an already fertilized egg from implantation in the uterine wall, which for them, amounted to the abortion of a human being. This is how all three Courts arrived at a point in their respective decisions in which they had to elucidate whether or not ECPs are abortifacients, what they did instead, was to analyzed whether or not ECPs could prevent a fertilized egg from being implanted in the endometrium, this is, whether ECPs could prevent a pregnancy.
All three Courts had presented before them, scientific evidence rejecting the possibility of ECPs preventing a zygote from implantation. However, given the existence of outdated scientific literature stating the opposite, all three Courts declared the existence of a reasonable doubt. And once they proclaimed the existence of such doubt, taken into account that they had determined the zygote as entitled to a right to life, the three of them decided to apply the pro personae principle. (32) The pro personae principle is a human right principle mandating that, when in doubt, a judge must prefer the interpretation most favorable to the person in danger of having a right violated. Of course, a zygote, is materially not a person, and as the third section of this article will show, before international law it is certainly not legally a person either. Nonetheless, these Courts assumed otherwise, and after adding: a reasonable doubt, the establishment of the zygote as a person entitled with a right to life, and the pro personae principle, they all decided in favor of the plaintiffs, banning or highly restricting emergency contraception. (33)
The Role of International Law
The main treaties applicable and binding to Ecuador, Chile and Peru, containing right to life provisions are the International Covenant on Civil and Political Rights (hereinafter ICCPR), (34) the Convention on the Rights of the Child(35) and the American Convention on Human Rights (hereinafter ACHR). (35) Although all the ICCPR and the CRC expressly have the “person”, or the “human being” as the subject of the rights enshrined on them, in order to clear any doubt in regard to the possibility of these treaties extending a right to life to prenatal life, one only has to consult the preparatory works of each of these treaties to confirm that such possibility was expressly rejected by the vast majority of the drafters. (36)
The ACHR is not as clear, given that article 4.1 which enshrines the right to life establishes 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.” (37) However, the developments that this provision has had by the Inter American Commission on Human Rights (the main AHRC monitory body) reveal that the article did not mean to conferred the same status of a human being to prenatal life, but only to clarify that such stages of life should find protection and that such protection was not absolute, but just general.
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(18) Medical Dictionary Merriam-Webster,
http://www2.merriam-webster.com/cgi- bin/mwmednlm?book=Medical&va=zygote. (last visited Nov, 1, 2009).
(19) Id. http://www2.merriam-webster.com/cgi-bin/mwmednlm. (last visited Nov, 1, 2009).
(20) Id. http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medical&va=fetus. (last visited Nov, 1, 2009).
(21) International Consortium for Emergency Contraception. What emergency contraception?,
http://www.cecinfo.org/what/index.htm. (last visited Nov, 1, 2009).
(22) In the case of Ecuador, the drug banned was “Postinor 2”, and in the case of Chile, the drug “Plan B”. The components of these drugs can be found, respectively at:
(23) WILLIAMS OBSTETRICS 664 (19th ed. 1993).
(24) E.g., United States Food and Drugs Administration (FDA). FDA’s Decision Regarding Pan B: Questions
and answers http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm109795.htm (last visited Nov. 1, 2009).
(25) E.g., CONSUMER INFORMATION. Next ChoiceTM (levonorgestrel) Tablets, 0.75 mg. Emergency Contraceptive.
http://pi.watson.com/data_stream.asp?product_group=1648&p=ppi&language=E (last visited Nov. 1, 2009).
(26) Mariens L, Hultenby K, Lindell I, Sun X, Stabi B, Danilesson K; Emergency Contraception with Mitepristone and Levonogestrel: Mechanism of Action; American College of Obstetricians and Ginecologist, 2002; 100; 1:65-71.
(27) International Consortium on emergency Contraception (ICEC), Policy Statement on Emergency Contraception and Medical Abortion (July 2003)
http://www.cecinfo.org/publications/PDFs/policy/EC_MedicalAbortion_English.pdf (last visited Nov. 1, 2009).
(28) International Consortium for Emergency Contraception (ICEC), How Do Emergency Contraceptive Pills Work to Prevent Pregnancy?,
http://www.cecinfo.org/PDF/ICEC_MOA_10_14.pdf (last visited Nov. 1, 2009).
(29) See e.g., WILLIAMS OBSTETRICS 664 (19th ed. 1993) and Abortion time limits: a briefing paper from the British Medical Association (p. 5)
http://www.bma.org.uk/images/Abortiontimelimits_tcm41-20443.pdf (last visited Nov. 1, 2009).
(30) WORLD HEALTH ORGANIZATION (WHO), Levonorgestrel for Emergency Contraception. Fact Sheet (March 2005).
http://www.cecinfo.org/what/pdf/WHO_EC_factsheet_English.pdf (last visited Nov. 1, 2009).
(31) US Food and Drug Administration. FDA's Decision Regarding Plan B: Questions and Answers.
http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm109795.htm (last visited Nov. 1, 2009).
(32) See e.g., Caso Dacosta Cadogan Vs. Barbados. Corte IDH. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 24 de Septiembre de 2009.
Serie C No. 203. 49.
(33) In the cases of Ecuador, banning the distribution, sale or commercialization of a specific drug (“Postinor 2”); in the case of Peru banning the free distribution of any ECP, and mandating the pharmaceutical companies with ECPs’ drugs on Peru’s market to label their products stating that these drugs could prevent a fertilized ovum from implantation in the uterine wall; and in the case of Chile, banning the free distribution of the ECP drug “Plan B”.
(34) Article 6.1 of the ICCPR enshrines the right to life in the following terms: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
(35) The CRC enshrines in its article 6 the right to life to every child, without establishing in any way that before birth, the fetus or even less, the zygote can be considered as such.
(36) In regard to the ICCPR, See.UN GAOR, 12th Session, Agenda Item 33, at 119 (q), UN Doc. A/3764, 1957. In regard to the CRC, See Convention on the Rights of the Child, adopted Nov. 20, 1989, GA Res. 44/25, Annex, UN GAOR 44th Session, Supp. No. 49, at 166, UN Doc. A/44/49 (1989). Some have tried to construct a right to life before birth relaying on paragraph 9 of the preamble, which provides that “the child, by reason of his physical and mental maturity, needs special safeguards and care, including appropriate legal protection before as well as after birth”. Coming back again to the preparatory works of the treaty, as well as the treaty itself (which only develops rights for after birth), we see that this provision is supposed to be interpreted (as many of its advocates argued) as assuring health, nutrition, support or other measures that States considered appropriate for pregnant women. See UN Commission on Human Rights, Question of a Convention on the Rights of a Child: Report of the Working Group, 36th Session, UN Doc. E/CN.4/L/1542 (1980). For a more in depth discussion on the preparatory works of the treaty in this regard see PHILLIPE ALSTON The unborn child and abortion under the Draft Convention on the Rights of the Child Hum. Rts. Q. 1990;12(1):156-178.
(37) American Convention on Human Rights. OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969). Art. 4.
AMERICAN COMPARATIVE LAW REVIEW