Is there hope for the unborn child with disability in Europe?

Abortion rates for prenatal diagnoses of Down syndrome, the most common chromosomal abnormality, are high: nearly 100 per cent in Iceland, 98 per cent in Denmark, 80 to 90 per cent in Norway, and 90 per cent in the United Kingdom. In the United States, it is 67 per cent.

Across Europe, legislation regarding abortion violates the most fundamental rights of disabled people. In October 2017, the Committee on the Rights of Persons with Disabilities stated that “laws which explicitly allow for abortion on grounds of impairment violate the Convention on the Rights of Persons with Disabilities (Art, 4, 5, 8)”. In one month, the Committee will have the opportunity to uphold its commitment and recommend Poland and Bulgaria to change its legislation on abortion.

The “disability” ground for abortion is about ending the life of an unborn child who does not perfectly correspond to what society considers “healthy” or “desirable”. Furthermore, it influences our perception of people with disability and sends a clear message: unborn children with a potential disability are not full members of our society and rights bearers just like every other person. Therefore, legal provisions that allow abortion on the grounds of “disability” compromise the rights of people with disabilities.  

Article 3 of the Convention of the Rights of People with Disabilities (CRPD) enshrines non-discrimination as one of the principles governing the Convention, while Article 5 CRPD explicitly provides that States ‘recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law’. Moreover, Article 7 (1) CRPD explicitly prohibits the discrimination of children with disabilities and oblige States to ensure that they enjoy ‘all human rights and fundamental freedoms on an equal basis with other children’.

During its next session (27 August – 21 September 2018), the Committee will consider how States, including Bulgaria and Poland, implement these rights nationally. It is in the context of this reporting procedure that the Committee has recommended a modification of the abortion legislation in Spain, Hungary, Austria, and the United Kingdom.

In Bulgaria, abortion can be performed legally within a twelve weeks limit. However, when there is a presumption that the child will be born with a disability, the limit is extended to twenty weeks. Similarly, Polish legislation specifically allows abortion when medical opinion indicates that the child might be born with a disability, and applies a different timeframe to such abortions.

In Poland, by 2016, the number of abortions performed under the Polish law had risen from 159 in 2002 to 1,098 cases—a rise of 600 per cent. And yet, it is not even the growing number of abortions that speaks the loudest. Out of these 1,098 abortions, 1,042 were performed because the child was potentially disabled. Over 37 per cent of abortions performed on the grounds of disability happened because of the possibility of the child having Down syndrome.

Legislation is not the only source stigmatizing persons with disabilities. The Committee on the Rights of Persons with Disabilities has identified antenatal screening policies as potentially discriminatory against unborn persons with disabilities. It recommended States to “address stigmatization through modern forms of discrimination, such as a disability-selective antenatal screening policy that go against the recognition of the equal worth of every person”.

It is important that the Committee continues to condemn selective abortion on the grounds of disability in national legislation and policies across Europe, since other institutions refuse to do so.

All Member States and the European Union itself have ratified the UN Convention on the Rights of Persons with Disabilities. While the EU has no competence to regulate abortion, it has committed itself to the protection and promotion of the substantive rights enshrined in the Convention, including equality and non-discrimination (Article 5) and the right to life (Article 10). And although the European Parliament positioned itself as a defender of the most vulnerable, such as children with disabilities, its failure to prevent acts that end the lives of children with disabilities, because of their disability, right here in Europe undermines its overseas proclamations.

In March 2018, the European Parliament condemned ‘mercy killing’, a practice in Uganda whereby parents of disabled children kill or ‘allow them to die’ by denying them medical attention because of the belief that these children are better off dead than living with a painful and incurable disability. The resolution strongly condemned what it describes as the “unjustifiable and inhumane killing of children and new-borns with disabilities”. It therefore called upon the Commission and Member States to support all stakeholders in Uganda in the formulation and implementation of policies addressing the needs and rights of persons with disabilities, “based on non-discrimination and social inclusion, and equal access to healthcare and other social services”.

Yet, none of the European institutions condemn the discrimination of disabled people through abortion policies and legislation in Europe or abroad. To the contrary, a few months ago, in a resolution on the rule of law and democracy in Poland, the European Parliament “strongly criticised any legislative proposal that would prohibit abortion in cases of severe or fatal foetal impairment.”

Life with a disability can certainly be a challenge for any person and their family. However, there are many examples of those living with disabilities leading exceptionally fulfilled and fruitful lives. Therefore, no legislation or policy should use the additional challenges related to raising children with disabilities as a justification for laws that fail to respect human dignity and violate international law. To the contrary, in its fight against stigmatization and discrimination of persons with disabilities, the Committee should continue to condemn abortion policies. Indeed, what would be a better place to start than acting against the stereotypical view of disability as incompatible with a good life.

Alice Neffe, Legal Counsel for ADF International.

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