Protection of families and reproductive rights

The protection of families is recognised in article 23 of the ICCPR and section 17 of the Victorian Charter of Human Rights and Responsibilities. Since families are the fundamental unit of society, the well-being of society depends on them. This means, for example, that the maintenance of a family unit is a powerful mitigating factor in sentencing. It also means that deportation of non-citizens should be avoided where to do so would break up a family. The right to a family life also has consequences for reproductive rights, including abortion.

Reproductive rights

Liberty Victoria’s position on reproductive rights starts from a number of core premises.

• that women and couples have the intellectual and moral capacity to make decisions about their own fertility; and
• that the law governing reproductive rights should rest upon, and recognise, Australia’s obligations under international human rights instruments, specifically the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

In respect of reproductive rights the relevant international instruments and provisions are:

• The Universal Declaration of Human Rights (UDHR) Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 3: Everyone has the right to life, liberty and security of person. Article 12 : No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence; and
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 12 (1): States Parties shall take all appropriate measures to eliminate all discrimination against women in the field of health care in order to ensure, on the basis of equality of men and women, access to health services, including those related to family planning. Article 16 (1): States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

Liberty Victoria believes that implicit in these provisions is the individual’s right to determine the course of their life including childbearing. Together these provisions support the position that men and women should exercise their own reason and conscience in relation to their own fertility. However these international instruments do not form part of Australia’s domestic law.

Abortion

The right to determine the course of her life, and to exercise the right to security and liberty is an integral part of a modern woman’s struggle to assert her dignity and worth as a human being. Consequently, the decision whether to continue or terminate a pregnancy is a moral decision that must ultimately be made by the woman concerned. Liberty Victoria believes that laws which seek to constrain the exercise of reproductive rights are an interference with bodily integrity and dignity, personal autonomy and a breach of an individual’s right to security and liberty under international law. They are also a breach of an individual’s right to privacy. As the US Supreme Court explained in Eisenstadt v Baird if ‘the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child’. Laws relating to reproductive rights are generally a matter for the State or Territory Parliament. Different jurisdictions in Australia have different approaches. Liberty Victoria believes that the guiding principles for any legislation concerning reproductive rights including abortion should be the international human rights principles outlined above.