a) Vienna Convention on the Law of Treaties:¹⁰

(...)

Interpretation of treaties.

31. General rule of interpretation. I. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

32. Complementary means of interpretation. They may resort to supplementary means of interpretation, in particular to the preparatory work of the treaty and the circumstances of its conclusion, to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation given in accordance with the article 31:

b) American Convention on Human Rights:¹¹

Article 29. Interpretation Rules

No provision of the present Convention can be interpreted to mean:

Article 30. Scope of Restrictions

The restrictions allowed, in accordance with this Convention, to the enjoyment and exercise of the rights and freedoms recognized in it, cannot be applied except in accordance with laws that are dictated by reasons of general interest and for the purpose for which they have been established.

c) European Convention on Human Rights:¹²

ARTICLE 53 Safeguard for existing human rights. Nothing in this Convention shall be construed as limiting or impairing those human rights and fundamental freedoms that could be recognized under the laws of any High Contracting Party or in any other Agreement to which it is a party.

1. Scientific

First, life can not only be seen from the legal perspective (deontology), it is also a duty to address it from the scientific-biological (ontological) side, since we are human living beings, with our own differences with other species, derived from our essence and existence:

In this regard, it is proper to define reality as indicated by the Inter-American Court of Human Rights (hereinafter, IACHR):

“For purposes of the interpretation of Article 4.1, the definition of person is anchored to the mentions made in the treaty regarding «conception» and “human being”, terms whose scope should be assessed from scientific facts. Of which we totally agree, since many circumstances are transformed when scientific evidence reveals reality, science establishes solid criteria without a position of consensus, as they have been established in some resolutions (case Vo. V. France,¹⁴ case A, B and C vs. Ireland,¹⁵ and the position taken in the case of the Artavia Murillo et al. Case (in vitro fertilization) vs. Costa Rica), or the belief on the basis of intellectual conceptions more or less logical, or subjective ideologies, but on facts experimentally contrasted and empirically demonstrated.¹³

This case was erroneously made by the IACHR in Artavia Murillo et al. vs. Costa Rica resolution, in which the Court interpreted, among other things, Article 4.1 of the American Convention, which establishes the right to life from conception, by which it determined:¹⁶

“Conception» in the sense of article 4.1 takes place from the moment in which the embryo is implanted in the uterus, which is why before this event there would be no place for the application of article 4 of the Convention”.¹⁷

“It is not appropriate to grant the person status to the embryo” ;¹⁸ and

“The embryo cannot be understood as a person for the purposes of Article 4.1 of the American Convention”.¹⁹

However, these statements cause ambiguity and inconsistencies with current science and technology, because although it is true fertilization takes place within the body of women (intracorporeal fertilization), currently it can be performed also extracorporeally, and the embryo, as a product of some assisted human fertilization technique, is left to third parties, who do not have any regulation that limits their actions, they can intervene in an arbitrary way, such as: genetic manipulation, or perform; embryo excisions, interspecific hybrids, cloning, and other interventions possible through science and technology that can affect or destroy this new reality of the human species. In its biological essence, it is one of us in its most incipient stage, and given its human nature, nothing should prevent it from having legal recognition.

The term conception is used since immemorial times in the colloquial language and describes the moment in which the life of a human being initiates, later the term passed to the medical-scientific language. William Harvey²⁰ and Riesco Le-Grand²¹ prior to the discovery of fertilization, refer to the beginning of pregnancy with this term.

The process of fertilization was described in detail in 1852; Nelson was the first to report seeing sperm in an oocyte, in Ascaris species.²² In 1875 Richard Hertwig finished describing other details of the fertilization, and although before, the concept was still used, it was displaced by fertilization, which is technically more specific, so that direct references, especially the definition of conception in the medical-scientific literature of the twentieth century are rather rare.

But in the scientific articles after the discovery of fertilization, where conception is compared with fertilization, they clearly associate them. In 1876 Dr. Ernst Haeckel said: “While we must consider the sperm as a cell, as real as an egg and the process of conception as the fusion of both, we must consider the new resulting cell as an independent and new organism. The mixture of both cells is the child’s germ or new organism that has been conceived.” “The recognition that each human being initiates their individual existence as a simple cell is a solid basis to investigate the genesis of the human being.”.²³

In 1980, Roberto Cruz Coke defines it: “Therefore, the idea of the conception of a human being is directly and unambiguously related to the beginning of his life. The conception is an act, a moment, where a biological process called fertilization takes place. Fertilization is defined as the fertilization of an egg by means of a sperm. That is, the union of a male gamete with a female gamete”.²⁴

This publication written just 11 years after the American Convention on Human Rights, reflects well the thinking of the time. Likewise, it is expressed in recent publications: “This process, which has been called fertilization, represents the beginning of the life of a new human individual”.²⁵

Conception is a term used in science, solely in the PubMed²⁶ database in the heading of medical-scientific articles, more than three thousand references appear, and many of its derivative terms.

It is also enlightening to know the etymological meaning of the verb to conceive: To unite two or more entities to create a third different from the previous ones.²⁷ The answer is evident and shows in a literal way that conception is given at the moment of fertilization, since nothing new is created when implantation takes place.

In general, the medical-scientific literature establishes as a synonym; conception, fertilization and fertilization.²⁸

If we look for the beginning of human life in embryology books, everyone agrees that the beginning of life is fertilization, as we can see in the following quotes:

As it was emphasized, never, as at present, there is more certainty that the embryo is a new individual of the species to which it belongs, and for that matter it is human.

Currently embryology³³, genetics, epigenetics, proteomics and development biology irrefutably show us that from the interaction of gametes (syngamy) we are faced with a new ontological reality, a new individual of the human species³⁴ in development.³⁵ To hold otherwise is not supported from a scientific point of view and therefore is denying humanity to the human embryo, the same could apply also for a seed of a plant or a mammalian egg, which in many cases are protected by the law, from that same stage, for which it would be illogical to protect the human embryo and not recognize its right to life.

Nor can it be established that human life begins with implantation in the uterus, since extrauterine pregnancies (ovarian, tubal or peritoneal) can occur, or through in vitro techniques³⁶, -that allow for embryonic development to take place several days beyond the date on which the implantation occurs under normal conditions in vivo-, in which third parties intervene, where the appropriate means must be provided for its development, prior to its implantation, a fact that confirms the human embryo as a new perfectly identifiable human corporeity, not being a part of the body of the pregnant woman³⁷, revealing the gross scientific error of the resolution of the Inter-American Court.

Recently, diverse investigations have established with reproducible and verifiable scientific evidence, the existing communication between the mother and the embryo that has not yet been implanted; that is, immediately after fertilization during the first three days before implantation. This communication occurs through embryonic vesicles that are captured by the maternal endometrium, demonstrating that there is mother-embryo communication. This mother-embryo crosstalk is part of the independence of the human embryo, confirming that it has an identifiable individuality at a microscopic and molecular level, and therefore it is an individual different from the mother.³⁸ It has also been observed that the embryo, in its pre-implantation phase, modulates, through highly specific signals, the activation of genes in the uterine tubes and in the maternal endometrium (such as HOXA10),³⁹ showing its a capacity as a master regulator of genes, showing its capability for autonomous actions and responses that order specific instructions to the genome of the mother,⁴⁰ as well as an immunological modulation that generates tolerance of the maternal immune system to the presence of the embryo in utero.⁴¹, ⁴²

Science requires testable theories or hypotheses at an experimental level or at some level of empirical reality. It makes the reproducibility of the experiments (method) and its results, a constant, whose findings have withstood more severe refutation tests or could not be refuted, corroborating their findings in multiple experiments. Having testable statements “Testability” (empirical hypothesis) at the level of empirical and reproducible reality.

On the other hand, we are still in a time when legal science advances with nineteenth-century standards in its analysis through expert reports and amicus curiae, which in many ways entails the interests of an ideology. In that sense, and following the principles of exhaustivity and evolution, it has to be corroborated with what current science already has as a solid and consolidated standard.

The American Convention is the most protectionist in regard to the right to life, it establishes its safeguards from the moment of conception and in accordance with the rules of interpretation, it must first be addressed that is understood with the term “conception” -already discussed previously- with reference from the medical and biological scientific literature.

It is important to clarify that the American Convention did not define the term conception, however, it was a subject widely debated. The delegates of Brazil and Costa Rica proposed deleting this point from the final document, however the President of the Convention, Mr. Gonzalo García Bustillos, in his capacity as representative of Venezuela, defended the issue affirming that: “regarding the right to life, from the moment of the conception of the human being, there can be no concessions; a Convention that does not consecrate this principle is unacceptable”. In the end, the point was accepted by majority without modifications.⁴³

The life cycle of the nasciturus has a definite beginning and end. And each one requires, throughout its existence, in a different way and with different intensity, the necessary nutrients and the interaction with the environment in which it develops.

It is a known fact that all the books of developmental biology -used as study references in the fields of Health Sciences around the world- establish that the beginning of human life is the formation of the zygote, so we find it in the commonly used embryology book of Moore and Persuad: “Zygote: totipotent cell of great specialization that constitutes the beginning of all human beings as unique individuals. It contains chromosomes and genes that are derived from the mother and father.” Or in another mandatory reference book by Carlson: “All higher animals begin their lives from a single cell, the fertilized egg (zygote). The zygote represents the initial point in the history of life or ontogeny of the individual. In its broadest sense, ontogeny refers to the total duration of an individual’s life.”

Simple logic tells us that each living being is necessarily and individual of the species that gave rise to it, therefore the being that comes from a human man and woman must be a human being. The ontogenetic law also points out that in multicellular organisms the onset is unicellular and that development always goes from the simple to complex. Thus, every human being initiates in this way.

Each living being has a life of its own, with a beginning and an end; and a temporary development in which it is completed, grows, adapts to diverse circumstances and transmits life. From this perspective, the beginning of an individual’s life can be defined as a constitutive process.⁴⁴

The early embryo can be distinguished by biological markers that also indicate the fate that will follow. In addition to the molecules that interconnect the membranes specifically in the different stages, each of the cells of the early embryo has a spatial and temporal history as different cells of a single organism. It´s a growth is accompanied by differentiation, and that organic growth is the unitary vital function that makes that cellular set an organism.

The condition of the organism supposes a living being that works in an organized and integral way, so that the whole is greater than the sum of its parts.⁴⁵ Fertilization triggers a series of processes in the embryo that are characterized by their independence and physiological autonomy, among these is the expression of genes that regulate the harmonic and directed development of all embryonic development, which are absolutely not dependent of the mother.⁴⁶

Austriaco integrates the philosophical and biological perspectives into a definition of the concept: “Philosophically, an organism can be defined as a complete living substance, with its own internal principle of movement and change, which directs it towards its natural perfection, and scientifically, as a discrete unit of living matter that itself follows a path of robust development, which in turn manifests the specific self-organization of its species”.⁴⁷ Goodwin⁴⁸ has a similar conception: with fertilization and zygote formation, the life a new individual of the human species begins, with a continuous and predictable development that ends in the complete formation of the organism, according to what was said in advance, the zygote within its genetic information, is already a directed organism to develop within its characteristics of its own identity, which in the case of generating from human gametes, is consequently an organism of the human species.

This assertion is so accurate that it is already being applied in embryo selection for assisted reproduction techniques. Three parameters define which morphology corresponds to the degree of intrinsic viability of the blastocyst in vitro; and they refer, as it is obvious, to the organization according to the axes designed with the polarization of the zygote: a) a cavitation initiated on day 4, which originates an eccentric cavity; b) the cavity expands and aligns with the region of the internal cell mass delimited by a layer of trophoectoderm, and c) the morphology of the internal cell mass presents a single origin. On the contrary, the degree of viability decreases drastically if vacuoles are formed before the expansion and even more if degenerative foci are formed in this zone.

Even, the “definition of the human embryonic secretome has the potential to expand our knowledge of embryonic cell processes, including the complex dialogue between the development of the embryo and its maternal environment”.⁴⁹

While it is true that definitions are established on the same human reality: embryo, fetus, child, adolescent, youth, adult, etc., is only and exclusively to determine a range of development within the same individual, to establish a parameter of study, since life is a continuum, there cannot be an ontological leap from pre-human to human, we are always the same, but manifesting the conditions of each stage of development, and for such development to be the most human and coherent, the most appropriate means for health must be provided.

In this sense and following the medical principle “primun non nocere” (first, to do no harm), medicine has expanded its scope of care from the maternal ward; currently fetal programming and Barker’s theory⁵⁰ establish that there is sufficient evidence to support the concept that: «health, which we will enjoy the rest of our lives, is determined, to a large extent, by the conditions in which we develop within the maternal cloister «. Where “Programming” is the key word to determine: health or illness, during the phase spent in the womb.⁵¹

There is enough evidence to consider that the programming of health for the rest of life, is done according to the conditions in which our stay in the maternal womb unfolds, this being probably as important as our genetic load, that determines our mental and physical performance for the rest of our lives.⁵² Currently, as an example of the importance of this stage, an homologation of nutrients used in Petri dishes is being proposed to be established for embryonic development in vitro.

Additionally, in medicine, where health, personal integrity and life of all people are safeguarded, progress is made in fetal medicine, where among many diagnostic tools, the use of ultrasound allows us to see the fetus and consider it a patient.

As an example, in 1963, the first blood transfusion directly to the fetus was successfully achieved. It was the first time that it was demonstrated that the fetus⁵⁴ was susceptible to diagnosis and treatment and, therefore, with the right to be considered a patient. In 1970, Scrimgeour introduced the concept of fetoscopy in prenatal medicine.⁵⁵

The Fetal Treatment Program at the University of California, directed by Harrison, Golbus and Filly, worked during the seventies to establish guidelines that should be considered in all prenatal procedures.⁵⁶

In 1982, the International Fetal Medicine and Surgery Society (IFMSS)⁵⁷ was founded, a forum for surgeons, perinatologists and other health professionals, aimed at sharing work experiences, this society oversees the Journal of Fetal Diagnosis and Therapy.

In the Journal of the American Medical Association, publish the paper “The fetus as patient: Ethical issues”, which suggests a list of 33 congenital diseases susceptible to treatment in the fetal stage, seven of which could be resolved with intrauterine surgery.⁵⁹

The prestigious Williams Obstetrics Manual defines the fetus as a patient, with full rights to be treated.⁶⁰

In summary, the fetus is defined as a patient, not in terms of viability, but as an individual susceptible to scientific observation whose diseases are susceptible to diagnosis and treatment.⁶¹

The advancement of science enables better care from the beginning of human life, this is updated with the studies that are now made of the biochemical elements that contain the Petri dishes, looking for nutrients that are needed by the pre-implantatory embryo, for the adequate development during that specific stage of its existence.

To deny what scientific evidence reveals, on an idealistic criterion, is untruthful and voluntarist.

With the adjective voluntarist we refer to the mentality of those who, with their behavior and with their words, affirm: this is so because I say it, and I am also proud of lacking rational arguments.

With the pervious facts it is possible to recognize that the embryo and human fetus is one of our species in its most incipient state, which deserves due respect and recognition of their humanity, it is illogical that it is not even granted protected species status that other species have in their same stage of life, such as seeds, larvae or eggs, considering that the human being has a special value called human dignity.⁶²

On the other hand, in no part of General Comment No. 36 the extension of the protection of human life is seen, the human life of the fetus is underestimated, as a “product” (paragraph 9)⁶³, objectifying human reality as if it were a thing or product, and even leaving ambiguity in the criteria, unleashing a eugenic position or impeding to continue the life of a person with a disability.

The fallacious argument of provoking eugenics to have a decent life (paragraph 2)⁶⁴, or to avoid the suffering or pain of women to reach a full-term pregnancy (paragraph 9) or to not allow people with disabilities to be born, for not having a decent life option, apart from being a psychological defense mechanism for those who adduce it, is based on a false premise. People with disabilities, per se, are not born unhappy, nor are they unhappy about their disability, especially if it is genetic. It is the adult psychological predisposition that pushes the sentence of unhappiness to be met. If all starts by being unhappy, even unconsciously, we will end up doing actions that will make that person feel unhappy. This fact is well established in developmental child psychology.⁶⁵ Instead, the attitude of unconditional acceptance that is love, starts doing everything to make you happy, and in this way significantly supporting the development of a strong and mature personality of affected people.

The elimination or discrimination of a person prior to implantation; as it is with Down syndrome (trisomy 21), with Turner syndrome⁶⁶ (monosomy X), or Klinefelter⁶⁷ (Trisomy XXY), where the majority of patients live a normal and productive life;⁶⁸ moreover, humanists like Nicholas James Vujicic and Hirotada Ototake, with the tetra-amelia syndrome, were born without legs and arms, and according to the ideology of perfection, they would be perfect candidates for abortion; however, and a contrario sensu, following the lex artis ad hoc, the treatments and supports necessary for its inclusion must be provided.

Justifying the death of these people in the first stage of their existence, is to grant a false right, consists in a mere exercise of the “law of the strongest”, which may well be a majority of consensus of experts, democratically elected parliamentarians, or a jurisdictional decision of one or a few. It is pure discretion of those who hold power, who sanction their supposed right to trample on the weakest, who in this case lacks any possibility of defense. Authorities who cannot be the ultimate source of good and evil.

The current social model considers that the problem is not in the person with disability, but in the social factors that generate their exclusion. To the extent that the barriers that prevent people with disabilities from leading an autonomous life and having the same opportunities as other citizens disappear, disability ceases to be a factor of exclusion. In this way, disability is understood as another manifestation of human frailty that should not impede, as long as possible, a full life. Accepting abortion due to the risk of a future disability implies the regression to an anachronistic and, above all, discriminatory conception of disability.

On this criterion, in 2011, five UN agencies⁶⁹ jointly prepared a report to denounce the practice of selecting the sex of the unborn through selective abortion, present in many countries of the world. In the same year, the Committee on the Rights of Persons with Disabilities made public some considerations on the report presented by Spain on the degree of compliance with the Convention, where it reproaches Spain for how it deals with disability in the current regulation on the abortion. It says that each State is free to establish its own regulation on abortion but rejects that a reason to consider abortion as lawful is disability.⁷⁰

In that extension of the right to life, avoiding the death of any member of the human species; currently in many countries of the world, early embryos, product of assisted human fertilization and afterwards cryopreservation, are being adopted by infertile couples to support their continuity of life and be a socially born child, respecting the nature of the human embryo.

In the United States the first donation (should we say adoption, since only things are donated) programmed for embryos by a private organization, within the Snowflakes program and promoted by the Nightlight Christian Adoption, was carried out in 1997. In Australia, it has been operating for more than two decades.⁷¹

In New Zealand, it was approved in 2005.⁷² In Spain, it was the Marqués de Barcelona Clinic, headed by Dr. López Teijón, the first to offer the adoption of embryos,⁷³ to solve the problem posed by having accumulated thousands of frozen embryos at that same clinic.

In the United States, according to data provided by the Centers for Disease Control and Prevention, in 2007, 67% of the 430 fertility clinics in that country offered embryo donation.

The number of children born as a result of this practice does not seem to be very high. Nightlight stated in 2010 that there were 480 donor families with 378 adoptive families. The frozen donated embryos were around 3075. In that same year (2010), they reported that 242 children had already been born and that 19 adoptive families were currently waiting for another 24 children.⁷⁴ According to Collard, until 2008, in the United States, less than 200 embryo adoption cycles had been carried out, and until 2010, the last year in which there is reliable data from that country, less than 1,000 embryos had been donated. In England, between 1992 and 2009; 1218 children were born by embryo donation, and in 2010; 269 women opted for it.

The National Committee of Bioethics of the Italian Council of Ministers issued a document entitled “L’adozione per la nascita”,⁷⁵ in which ethically values the adoption of embryos, highlighting the values of solidarity, generosity and responsibility that should characterize it.

The Report of the Ethical Committee of the American Society of Reproductive Medicine (ASRM) of 2009,⁷⁶ is favorable to the adoption of embryos to express their ethical goodness for the construction of families, which are also agreed by other Bioethics committees.⁷⁷ This same Society also stated that “the sale of embryos is ethically unacceptable by itself”, but the altruistic donation may be licit.

Fernando Pascual⁷⁸ states that the adoption of embryos can be a licit alternative for those who want and cannot have children, only on the condition that the process of adopting a frozen embryo is carried out as it is done in the adoption of children without parents. If this were not the case, it would be possible to facilitate the adoption of embryos by catalog, for reasons of race, sex, etc.

These facts are omitted by the Committee, doing a regressive act, on this particular.

No cause can produce an effect superior to itself. What is clearly understood is that the embryo is already and has everything to be, it is just necessary to provide the environment suitable for its development, it has no ontological transformation of something to someone, it only has its morphological and biological transformations in conformity with its development and essence.

In this journey and how it emerges from the scientific evidence, the embryo is a new individual of the human species and updated under the principle agere sequitur esse (the act follows the being), it is shown that the human being is restructured in its form, but not in its essence.

It is important to remember that biology shows us that during the process of forming a human being, there is no qualitative leap, the biological body is always the same from its beginning, the only thing that changes is the degree of development. On the other hand, contemporary philosophical anthropology affirms that human beings are inseparable from their corporeity, which means that biological life cannot be separated from human life. We cannot say that we are in the presence of a body of a being of the human species, biologically speaking, but we can say that we are in the presence of a human being, a person.

Finally, it is important to point the erroneous statements of those who⁷⁹ maintain that the beginning of human life comes into existence at a certain time after fertilization, saying that:

Therefore, with the well-founded contribution of science, today there are no arguments to discuss the condition of human life from the zygote stage, simply because there are no genes of first, second, or third category to define life.»⁸⁵ The zygote is an actual human being in the first phase of its existence. This statement is important when assessing human life and its legal protection.

It is important to consider what Spaemann said: “The question of when human life is protectable is the second issue to be addressed.” A possible answer is: It is not plausible to put a limit to say: here it begins to be protectable. In this sense, that all those who try to establish such a beginning arrive at very different results.⁸⁶ Some say that since the implantation (sentence of Artavia Murillo and others vs. Costa Rica), others say that since birth (in the case of Hoerster), others state that only from the moment the individual reaches self-consciousness (i.e., a two-year-old child would not yet have the right to life). The issue of when life begins to be protectable is raised capriciously. Let’s consider what Kant says: “For practical reasons, we are presented with the idea that the human person starts from fertilization. It is not a metaphysical thesis about the immortality of the soul, which begins at that moment -it could equally be said that it begins later- but the question is the expression of ignorance. We can only add that the human person identifies with the human being himself, so that, at the moment when life begins, it begins to be protectable. Everything else is arbitrariness.”

2. Human dignity

“When human beings, in the weakest and most defenseless state of their existence are; selected, abandoned, murdered or used as pure” “biological material”, how can we deny that they are treated not as a “someone”, but as “something”, thus placing into discussion the very concept of human dignity?”⁸⁷

The issue that concerns us, is the cornerstone between the approach to the value of the person and fundamental rights, where all legal instruments in the field are recognized and supported; that is human dignity.

“If we are aware that we are hungry, hunger really begins not with the awareness of it, but with the hunger itself that was first unconscious, and then becomes conscious hunger. Analogously, we all say: “I was conceived on such a date, and then I was born in such another one, in such epoch and day”. And the children ask their mother: What happened while you were carrying me in your womb? The personal pronoun “I” refers not to a conscious self, which in the maternal cloister none of us had, but to the incipient life of the human being, who would later learn to say “I” and because other human beings are saying “you” before you can say “I” by yourself. Even if that being never learned to say «I» for disability reasons, the title of son, daughter, brother or sister in a human family belongs to him, and thus, in the family of Humanity, which constitutes a community of people. There is only one reliable criterion regarding human personality: biological belonging to the human family”.⁸⁸

Currently, the same can be said of the preimplantation embryo, as in the case of Noe Benton Markham, where sixteen months before his birth (January 16, 2007), his life had been threatened by the winds and rain of Hurricane Katrina. Trapped in a flooded hospital in New Orleans, Noah depended on the counter-clockwork of seven Illinois conservation police officers and three Louisiana State police officers, who used barges to rescue him and get him out of harm’s way. Although many New Orleans residents tragically lost their lives during Hurricane Katrina the following days, the account of Noah’s rescue is one of the many stories of heroism in the midst of that national disaster.⁸⁹ Noah has the honor of being one of the younger inhabitants of New Orleans who were rescued from Katrina: when the police officers entered the hospital where he was trapped, Noah was an embryo frozen in liquid nitrogen containers along with another four thousand embryos, similarly it can be said of many cryopreserved embryos up to 12 years before.

We are “someone” and not merely “something”. “Human dignity is a supreme, irreducible with absolute value, proper to the personal condition. In effect, “dignitas est de absolute dictis”, dignity corresponds to those who affirm themselves in an absolute way, that what is a principle or starting point to arise from itself, to lean on itself”.⁹⁰

The being that we are, self-reveals itself as “dignified”, as non-instrumentalizable, allows our practical reason to discover a concrete categorical imperative as the primary norm for the moral life. This imperative was explicitly enunciated for the first time by Emmanuel Kant that with great insight explains the following:

“Assuming there was something whose existence in itself possesses an absolute value, something that as an end in itself could be a foundation of a possible categorical imperative, that is, of a practical law. I maintain the following: the human being and in general every rational being exists as an end in itself, not simply as a means to be used discretionally by this or that will, but both in the actions oriented towards oneself and in the directed towards other rational beings, the human being must always be considered at the same time as an end. All the objects of inclination only have a conditioned value, if the inclinations and the needs sustained in them were not given, their object would be worthless. But, as for sources of needs, the inclinations themselves are so far from holding an absolute value to be discarded by their own value, that it must rather suppose the universal desire of any rational being to be totally free of them”.⁹¹

Let’s look first at the preimplantation embryo or the neonate. Many would say they are only potential people. Namely, that a zygote or a new born may or may not become people. But this can only mean two things:

On the above, it is noteworthy that Recommendation 1046 of the Council of Europe stating that the human embryo and fetus must be treated in all circumstances with due respect for human dignity. In this regard, the Universal Declaration of Human Rights links inalienable rights with the intrinsic dignity of man, while the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights establish that human rights derive from the dignity inherent to the human person.⁹²

In Spanish, inherent means -for the Royal Spanish Academy-⁹³ that which by its nature is so linked to something else, that it cannot be separated. And inherence is the union of inseparable things by their nature. In English it has the same meaning according to the “Oxford English Dictionary”.⁹⁴ Same criteria apply with French language.⁹⁵

In that position, and following the evolutionary principle of Human Rights, the ruling of the Court of Justice of the European Union, of October 8, 2011,⁹⁶ stresse “it would be a serious attack against human dignity, which is recognized as present in the embryo”. More recently, on August 27, 2015, the Grand Chamber of the European Court of Human Rights issued its ruling in the Parrillo vs. Italy case (Application No. 46470/11), which after reviewing its previous pronouncements, recalled that the human embryo cannot be reduced to a possession.

“Recapitulating that the human embryo is a necessary or sine qua non condition for the life of an adult human individual with an inherent dignity.”

However, Michael Kloepfer tells us: “If in reality the question of a constitutional good at the highest level makes sense, then this is the life and not the dignity of man”.⁹⁷ However, as it has been described up to now, and since it is inherent, they are consubstantially intertwined.

Therefore, the specific theme of human rights will be based on the values established in a specific historical community and the ends that it seeks to achieve, provided that the very essence of the dignity of the human person is respected as an inescapable principle, as an end on itself, otherwise we could not speak of the human being but of any other thing, even when it is just and useful.⁹⁸ On this point, what is stated as ontological dignity is reaffirmed, likewise it coincides with Gomez Maximo, pointing out “With this I wish to state that every human person has rights because they are, and they must be recognized and guaranteed by the State without any social, economic, legal, political, ideological, cultural or sexual discrimination. But, at the same time, I want to emphasize that these rights are fundamental, that is, that they are linked to the idea of dignity of the human person”.⁹⁹

On what has been explained, it is intuited that there is an objective dignity, this is the point of departure; that is, the inherent dignity of the human person. That is why it is about inviolable rights.

With discrimination on qualitative or quantitative issues, such as capacity, autonomy, feeling, conscience, it is possible to establish criteria that discriminate against people, there are plenty of historical and recent examples to illustrate how adult and capable human beings have been denied all kinds of rights and even not being considered human beings. Slaves, Jews, women, those belonging to a certain religion or race, children, etc., have been denied their dignity, and currently embryos, fetuses, people who have a severe disabilities or are in a so-called vegetative state, for different reasons, being considered as things, disqualifying them as rights holders. The philosopher R. Spaeman reflects on this by saying: “Someone will never be something”.¹⁰⁰

3. Legal assessment

The explicit recognition of a human right, and especially that of life, is the most noble activity that a State can carry out, because it grants spheres of protection to all people and limits public powers.

The indispensable presupposition of every right is life; it is the ontological basis and condition of all other rights. It turns out that the law in general and human rights in particular, involve the normative integration of human relations within the social context, and by virtue of its fair content, involves integrating the three aspects or elements that complement each other in the legal experience, this is, the normative aspect (the Law as a norm), the factual aspect (the Law as a social fact) and the axiological aspect (the Law as justice). In this case, creating norms without the end of justice, being irrational and justifying actions, without a sense of a life according to human nature and its end, would be like going back to the stone age where the law of the strongest governed, having to consider four essential axes in all legal reflection: the inalienable right to life, since it depends on the exercise of other rights, the equality of all human beings in dignity, their personal condition, and adequate biological development according to its stage of existence, as well as its autonomy to reflect and decide freely. Everything that violates, limits, or cancels any of these great pillars must be avoided or effectively counteracted.

In this context and following the argumentative and substantial line of the right to life, we can cite, among others, the following instruments that form the corpus iuris of human rights in accordance with the Vienna Convention on the Rights of Treaties of 1969, where it is noteworthy taking into account that the legal value of these instruments and their meaning cannot be inferred only from the letter of the law, but also from the interpretation that the ad hoc tribunals make of it and from the useful effect that they enjoy, in this way, this right is contextualized, and guidelines and obligations are set for the States Parties to respect, promote, and protect these rights, such as:

Universal Declaration on the Human Genome and Human Rights

Article 1

The human genome is the basis of the fundamental unity of all the members of the human family and of the recognition of their intrinsic dignity and diversity. In a symbolic sense, the human genome is the heritage of humanity.

Article 2

Article 11

Practices that are contrary to human dignity, such as cloning for the purpose of reproduction of human beings, should not be allowed. States and relevant international organizations are invited to cooperate to identify these practices and to take appropriate action at the national or international level to ensure that the principles set forth in this Declaration are respected.

Universal Declaration on Bioethics and Human Rights

Considering that UNESCO has a role to play in the definition of universal principles based on common ethical values that guide scientific advances, technological development and social transformation, in order to identify the challenges that arise in the field of science and technology, taking into account the responsibility of current generations for generations to come, and that issues in bioethics, which necessarily have an international dimension, should be treated as a whole, based on the principles already established in the Universal Declaration on the Genome Human and Human Rights and the International Declaration on Human Genetic Data, and taking into account not only the current scientific context, but also its future evolution.

Bearing in mind also that the identity of a person includes biological, psychological, social, cultural and spiritual dimensions.

Whereas it is desirable to develop new approaches to social responsibility to ensure that the progress of science and technology contributes to justice and equity and serves the interest of humanity,

General dispositions

(...)

Article 2. Objectives

The objectives of this Declaration are:

Principles

(...)

Article 8. Respect for human vulnerability and personal integrity

When applying and promoting scientific knowledge, medical practice and related technologies, human vulnerability should be taken into account. Particularly vulnerable individuals and groups should be protected, and the personal integrity of these individuals should be respected.

Article 16. Protection of future generations

The impact of life sciences on future generations, in particular on their genetic constitution, should be duly taken into account.

Regarding the best interests of children, the American Convention in its article 19. Rights of the Child, establishes: Every child has the right to protection measures that his condition as a minor requires from his family, from society and of the state. The Court also points out that girls and boys have the rights that correspond to all human beings -minors and adults- and also have special rights derived from their condition, to which correspond to specific duties of the family, society and the state.¹¹²

General Comment 5, General measures of implementation of the Convention on the Rights of the Child; points out the need for a perspective based on the rights of the child to ensure the application of the Convention, based on the General principles identified by this body: the best interests of the child, non-discrimination, the right to life, survival and development.

On the other hand, highlights the omission of the Committee in the pronouncement of art. 6.5 of the Covenant, which states: “The death penalty shall not be imposed for crimes committed by persons under 18 years of age, nor shall it be applied to pregnant women,” which is supported under the International Covenant on Economic, Social and Cultural Rights (ICESCR) in its article 10: “Special protection must be granted to mothers during a reasonable period of time before and after childbirth”.

In this international instrument, special protection is given to the mother due to her pregnancy status, in order to protect the nasciturus and the conformation of the family in the best possible way, which is confirmed by the U.N. Doc. E / C.12 / 2000/4,¹¹³ on the application of said Covenant, General Comment 14, The right to the enjoyment of the highest possible level of health (article 12 of the Covenant), which in the following establishes:

“II. Obligations of the Participating States... Basic Obligations... 44. The Committee also confirms that the following priority obligations include the following: a) Ensure maternal (prenatal and postnatal) and child health care; (...) ”

On the other hand, on the instruments for the protection of children, the following can be observed:

Declaration of the rights of the child

Recognizing that the child is a human being who, due to his condition, even needs due legal protection, both before and after birth, of special protection and care, and of the express recognition of his rights, the Member States of the UN wanted to express the Rights of the Child in a Special Dedicated Declaration, expressly and exclusively to children, as the most important group of human beings among the men and women of the world, urging parents, men and women individually and private organizations, local authorities, and national governments to recognize these rights and fight for their observance with legislative measures adopted progressively, proclaimed the Declaration of the Rights of the Child, which protects the human life of children thus:

(...) Considering that the child, due to his lack of physical and mental maturity, needs special protection and care, including due legal protection, both before and after birth,

(...)

Children’s rights convention

Preamble

(...) Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, due to his lack of physical and mental maturity, needs special protection and care, including due legal protection, both before and after birth.”

(...)

Article 1

For the purposes of this Convention, a child is understood to be any human being under eighteen years of age, (...).

Article 6

In summary, it can be known from the international instruments referred to that:

It should be noted that human rights treaties are complementary to each other. Therefore, the reading must be unitary, which allows to reach the interpretation of each right recognized from different perspectives and with different degrees of approach, even within a global system. Otherwise we would be admitting the possibility of contradictions between the same treaties, or the disparate effect of them on the rights and constitutional guarantees that come to perfect or complement.

As complementary to each other, treaties are perfected among themselves, in the sense of the fullest and most perfect recognition of the right in question in a given circumstance.

“The rule of the complementarity of treaties with each other and with the constitutional text is of special importance”.¹¹⁵

It is noteworthy that without a doubt the right to life occupies a special place in the list of the fundamental rights of the human person. Even when the doctrine affirms that all human rights have equal value,¹¹⁶ when examining specific cases of violations of this right, the competent international bodies do not hesitate to highlight the specific nature of the right to life.

In its General Comment on article 6 of the International Covenant on Civil and Political Rights, the Human Rights Committee qualified it as:

“The supreme right for which no suspension is authorized, even in situations that endanger the life of the nation”.¹¹⁷

Since then, the Committee has reiterated the phrase «The right to life is the most essential of these rights».¹¹⁸ It is also indicated in the project.

For its part, the Inter-American Court of Human Rights (IACHR), on a recurring basis, states in its rulings related to this right, the parameters of protection that must be adopted by the States Parties to make it effective:

“This Court has indicated that the right to life plays a fundamental role in the American Convention, as it is the essential corollary for the realization of other rights. The States have the obligation to guarantee the creation of the conditions that are required so that violations of this inalienable right do not occur and, in particular, the duty to prevent their agents from violating it. The fulfillment of the obligations imposed by Article 4 of the American Convention, related to Article 1.1 thereof, not only presupposes that no person is deprived of his life arbitrarily (negative obligation), but also, in light of his duty to guarantee the full and free exercise of human rights requires that States adopt all appropriate measures to protect and preserve the right to life (positive obligation). This active protection of the right to life by the state not only involves its legislators, but also every state institution ... ”.¹¹⁹

The IACHR Court has used a more subtle and careful language in addressing this issue, noting:

“If due process of law, with its set of rights and guarantees, must be respected in any circumstances, its observance is even more important when the supreme good that all human rights declarations and treaties recognize and protect is at stake: human life”.¹²⁰

In the same way, it points out that the recognition of other rights depends on safeguarding the right to life. “By not respecting the right to life, all other rights disappear, since the owner is extinguished.”¹²¹

“The right to life is a fundamental human right, whose enjoyment is a prerequisite for the enjoyment of all other human rights. If not respected, all rights have no meaning. Because of the fundamental nature of the right to life, restrictive approaches are not admissible”,¹²² and “states have the obligation to guarantee the creation of the conditions that are required so that violations of this inalienable right do not occur”.¹²³

If not respected, all rights have no meaning. Due to this nature, restrictive approaches are not admissible. In accordance with article 27.2 of the Convention, this right form part of the non-derogable nucleus, since it is enshrined as one of those that cannot be suspended in cases of war, public danger or other threats to the independence or security of the States Parties.¹²⁴

Likewise, the following paragraph is reiterated in the body of jurisprudence issued by the Inter-American Court of Human Rights itself:

“In virtue of this fundamental role assigned to it in the Convention, States have the obligation to guarantee the creation of the necessary conditions so that violations of this inalienable right do not occur, as well as the duty to prevent their agents or individuals attempt against it. The object and purpose of the Convention, as an instrument for the protection of the human being, requires that the right to life be interpreted and applied in such a way that its safeguards are practical and effective (effet utile)”.¹²⁵

On the other hand, the Inter-American Commission on Human Rights (CIDH) has been emphatic in recognizing the special nature of the right to life. In a decision adopted in 1996 expressly states:

(...) the Inter-American Commission on Human Rights must emphasize (...) that the right to life, understood as a fundamental right of the human person enshrined in the American Declaration and in various international instruments at a regional and universal level, has the status of jus-cogens.¹¹⁶

“The concept of jus-cogens» adds the IACHR derives from a higher order of norms established in ancient times and that cannot be contravened by the laws of man or nations”.¹²⁷ According to the IACHR, in a more recent decision:

“The right to life is widely recognized as the supreme right of the human being and conditio sine qua non for the enjoyment of all other rights”.¹²⁸

The interpretation of conformity by article 31.1 of the Vienna Convention, of the aforementioned article 6.1 of the ICCPr, consists of “respecting ... (the) life” of its owner. That is the “object and purpose” of that norm, which means that it was established so that it really reached what it was persecuted for and not to be left without content.

In his second sentence and after a point in a row, “this right will be protected by law”. And that “no one can be deprived of life arbitrarily”, that is, in accordance with what was understood by arbitrariness on the date of the Convention and is understood even now, that is, that it is not an “act or proceeding contrary» to justice, reason or laws, dictated only by will or caprice”.¹²⁹

Particularities on the Paragraphs (9 And 10) Inexacts, Ambiguos Or Incongruent With Article 6.

Paragraph 9:

“9. Although States parties may take measures to regulate interruptions of pregnancy, such measures should not result in the violation of a pregnant woman’s right to life or her other rights under the Covenant, including the prohibition of cruel treatment or punishment, inhuman or degrading. Therefore, legal restrictions on the ability of women to request abortion should not, inter alia, endanger their lives or subject them to physical or mental suffering in violation of Article 7.¹³⁰ States Parties must provide safe access to abortion to protect life and physical integrity. The health of pregnant women and in situations in which carrying a pregnancy to term would cause the woman substantial pain or suffering, especially when the pregnancy is the result of rape or incest or when the fetus suffers from a fatal deterioration. States Parties cannot regulate pregnancy or abortion contrary to their duty to ensure that women do not have to perform unsafe abortions. [For example, they should not take measures such as the criminalization of pregnancies by unmarried women or the application of criminal sanctions to women who undergo an abortion or against the doctors who help them to do so, when they are expected to increase significantly the use of unsafe abortions. Nor should States parties introduce humiliating or excessively burdensome requirements for women who wish to undergo abortion. The duty to protect the lives of women against the health risks associated with unsafe abortions requires States Parties to guarantee access for women and men, and adolescents in particular, to information and education about the options reproductive systems and a wide range of contraceptive methods. States Parties must also ensure the availability of adequate prenatal and post-abortion care for pregnant women.” It cannot be proposed that the abortion be performed, due to certain circumstances of the fetus and in an ambiguous way, which can create confusion and violates the principle of penal taxation.

In combination with was previously mentioned with people with disabilities, this group (disabled people) has repeatedly denounced that the selection against embryos with disabilities directly damages both unborn patients, as well as adults and those already born. This community has qualified the measures of prenatal diagnosis and elimination of patients, not only as eugenic measures in general, but has denounced them as a genetic genocide.¹³¹

The current proposal promotes abortion only for cases of “severe disability”, this type of measures is usually a euphemism that can lead to increasingly extreme positions that may end up being applied and even in an almost obligatory way, in all cases, of greater or lesser disability in the unborn, as Wasserman showed in 2012, using advanced techniques to prevent his birth.¹³²

On the contrary, it is important to reaffirm that patients with disabilities contribute positively to society, to families, to their friends and even to the economy. They contribute not because of their disability, but “... because along with their disabilities come other characteristics of personality, talent and humanity that make disabled people full members of the moral and human community”.¹³³

It is important to mention that this vision against people with disabilities violates the United Nations Convention on the Rights of Persons with Disabilities, in particular:

Article 10 states that: “The States Parties reaffirm that every human being has the inherent right to life and must take all necessary measures to ensure effective enjoyment by persons with disabilities based on equity with others.”

Article 25: “The States Parties recognize that persons with disabilities have the right to enjoy the best standard of health without discrimination based on their disability.”

The nasciturus, in its different stages, (zygote, embryo, fetus), despite the degree of cellular and organ specialization, is vulnerable, fragile and dependent on another to perform their vital functions, unable to fully exercise their sensitivity, intellection and locomotion, that is, temporarily disabled. (It is not known if any of these disabilities will last over time or only be resolved after a maturation that takes time). Therefore, the nasciturus is entitled to legal protection by the State given their condition (temporary or permanent) of disability.

In this regard, it must be said that it is currently shown as an endoxa, as a common place, at least legally, in the current international legal frameworks. Currently, there is a rise in pro-people with disabilities movements for many other reasons, and that is another good argument for the rights of the nasciturus.

However, is it appropriate to consider the nasciturus as disabled? This admits at least two approaches. One strictly anthropological and another legal. Regarding the legal terrain, the Mexican law in force (General Law for the inclusion of people with disabilities, of May 30, 2011), following almost completely the text of the UN, defines the person with a disability as: “XXI . Person with Disability. Any person who, due to congenital or acquired reasons, has one or more deficiencies of a physical, mental, intellectual or sensory nature, whether permanent or temporary and which, when interacting with the barriers imposed by the social environment, may prevent their full and effective inclusion, on equal terms with others.” Under this definition, effectively, the nasciturus is perfectly defined as a person with temporary disability (sensory, mental, locomotive, without freedom to feed or fend for itself), so it can benefit from the protection that these frames offer. Thus, all eugenic practice becomes a formal practice of discrimination, especially when the legal subject in question is even more vulnerable because of their age and their impossibility of autonomy and individual independence in the most basic planes of survival.

But let’s see, the anthropological problem behind the legal problem. Following closely the critical iuspositivism of Luigi Ferrajoli,¹³⁴ there is a fourfold relationship between the Law and the “differences”: a) Hobbesian, where there is a legal indifference of differences are not protected or violated, they are simply ignored. b) legal differentiation of the differences. Some are valued over others. c) legal homologation of the differences. The differences are suppressed in order to maintain an abstract equality that ignores them. d) legal assessment of differences, where differences are protected, the equal right of all to the affirmation and protection of their own identity is sought, by virtue of the equal value associated with all the differences that make each person an individual diverse from all others and from each individual a person like all others.

Ferrajoli’s guarantee approach can be complemented with the Levinasian theory of vulnerability and reinforce that there must be a legal assessment of this difference that occurs on the nasciturus. In fact, the person before birth and a long time afterwards is an independent but extremely fragile organism.¹³⁵ Its difference based on vulnerability makes it a specific subject of law, it must be assisted by a special guarantee, since, in case of potential conflict of rights, its difference makes it the weakest party, and therefore, the privileged party.

For Levinas, the vulnerability of the other is the obverse of the same reality whose reverse, for me, is the imperative whose negative formulation is not to kill¹³⁶ and the affirmative is, in Hebrew, hineni, “here I am”, that is, a permanent responsibility for doing everything that is on our part to make the other live.

On the other hand, the good effect should not be achieved through the bad; the presumed freedom -is updated with a component of responsibility of the mother- and cannot be proclaimed unambiguously, since it affects a third party or, at least, a value such as life, different from the rights, values and interests of the pregnant woman herself, understanding that circumstances that are not planned should be addressed with education and social support. Likewise, the penalties considered should not be criminalized, but implemented with a perspective of restorative justice and psychosocial support.

“The natural bond of the nasciturus with its mother, is based in a relationship of special nature of which there is no parallel in any other social circumstance”, abortion, should be understood as a social, family and state failure; For its part, the European Parliament and the Consultative Assembly of the Council of Europe establish that abortion must be eradicated.¹³⁷

Abortion has irreversible consequences; whose social dimension affects the foundations of relational coexistence. But it also has a biological dimension, so it must be considered from the perspective of biology, medicine and health.

The Commission on Population and Development¹³⁸ pointed out:

“12 ... reducing the use of abortion by increasing and improving family planning services and, in cases where abortion is not illegal, adequate training and equipment for health service providers and other measures to ensure that abortion is safe and accessible, recognizing that in no case should abortion be promoted as a method of family planning or prevention and treatment of sexually transmitted diseases ...”

As an alternative to this policy, it would be necessary to carry out a series of social policies for maternity protection and specific support to women who have difficulties in continuing pregnancy and are forced, against their wishes, to make the decision to abort due to the lack of resources or third-party pressure, being itself a real situation of violence. As well as access to justice, where the criminal is really punished, providing a useful effect of rights.

The objective is to protect “life, both of the woman and the unborn, as well as the proper development of pregnancy and the resolution of conflicts.” This is carried out in an extraordinarily delicate moment for the pregnant woman: when she has already expressed her decision to undergo an abortion, either because her life seems to be in danger, or because the pregnancy has been the result of sexual assault.

On the other hand, concepts such as legal or voluntary interruption of pregnancy, lack a definition or contents of a standard, these concepts are an euphemism, since when establishing the term interruption (action and effect of interrupting), and interrupt is to cut the continuity of something in time,¹³⁹ which for the case is understood as “a temporary suspension of the pregnancy”, it can be illustrated with any intrauterine intervention such as a bifid spine surgery, megabladder, intrauterine transfusion, etc., different from abortion that does not interrupts, but ends pregnancy.

In general, the legislation must always consider three aspects: guarantee the protection of all legal rights in question, promote the possible good and reduce the possibility of double effect that is sometimes inevitable.

The jurist as well, has the duty of a correct and responsible exercise of fairness, prudence, calm deliberation, and authentic practical wisdom.

Resolution 1607/2008 adopted in the Parliamentary Assembly by the Council of Europe, states that the evidence shows that the adequate strategies and policies regarding sexual health, including education for young people in sexuality and relationships, appropriate to their age, leads to less recourse to abortion.

The legalization of abortion, together with social pressures and ideological interest of specific groups, can be a pressure factor on women and motherhood, and by establishing a new right, it can justify a threat to the nasciturus.

Physicians may face pressure to recommend prenatal genetic studies and even abortion, since they are the ones who can determine the probabilities of congenital defects of the nasciturus in its first weeks of development, these studies that are still probabilistic, combined with the possibility to abort freely in any given week, generate a new problem of pressure on the doctor to recommend abortion at the mere risk of a diagnostic error. Considering the case that abortion is permitted, the probabilities of the various prenatal studies to know the health of the child and the social standards of the biologically desirable child (eugenics), pressure is placed on the parents or the pregnant woman and more so the doctors under a supposed malpractice within the so-called “wrongful birth”, accusing the doctor, that by not having recommended the prenatal genetic study, the parents missed the opportunity to abort the nasciturus, which was born with malformations, as was the case with Perruche in France.

In contrast, the promotion of maternal health has been a key concern for public health policymakers worldwide on the recommendation of the United Nations (UN) that proposed the Millennium Development Goals (MDGs). The fifth goal focuses on improving maternal health; The UN required all member states to reduce maternal mortality by 75% by 2015. However, as of 2015, the reduction of maternal deaths has not been achieved and is still far from this figure. New complementary social or public health policies have been promoted to support a new post-MDG agenda, but to be effective they must be supported by scientific evidence.

For example, maternal mortality in Mexico has decreased globally by 22% in the last decade, from 48.6 to 37.7 per 100,000 live births. Abortion has never been the main causes of death. In fact, in a detailed study published in the International Journal of Women’s Health, about 98% of maternal deaths were unrelated to an illegal induced abortion, which has an occurrence of approximately 1 per 100,000 live births.¹⁴⁰ The main causes of mortality were hemorrhage, hypertensive syndromes of pregnancy, indirect causes and other external causes unrelated to pregnancy. Regarding maternal deaths and the legal status of abortion, a detailed investigation of maternal deaths in the 32 Mexican states divided into two groups was published in the British Medical Journal Open, based on the penal codes in force in each state: 14 states (including Mexico City) classified with more permissive legislation and 18 states classified with less permissive legislation.¹⁴¹ Interestingly, it was observed that states with less permissive legislation exhibited on average 27% fewer total maternal deaths and 47% fewer induced abortion deaths compared to states that exhibited more permissive legislation for the period from 2002 to 2011.

Through multivariate statistical analyzes, the authors demonstrated that before the abortion laws, the differences between states were explained by other factors known to impact on maternal health such as the level of education of women of reproductive age in each state, state fertility rate, access to prenatal care, professional delivery care, availability of obstetric emergency units, safe drinking water and sewage coverage, prevalence of intimate partner violence against women and individual risk factors. The authors stressed the need to control for these factors in other studies before concluding that abortion laws may have some effect on maternal mortality rates.¹⁴² No study controlled by multiple confounding factors has shown that more permissive abortion legislation has an independent effect on the rate of maternal death.¹⁴³ In the investigations conducted in Mexico,¹⁴⁴ as in another natural experiment previously conducted in Chile¹⁴⁵ and published in the journal PLoS One,¹⁴⁶ it was concluded that a more permissive abortion legislation has no direct impact on maternal mortality rates and does not diminish them either, being its effect rather null.¹⁴⁷

Maternal mortality is not increased by the legal restriction of abortion, nonetheless it is related to the lack of access to many basic services and other social factors that are currently neglected in public policies impacting human development indicators such as:

It is known that taking care of these factors is fundamental to generate favorable conditions for a decrease in maternal mortality. It has been scientifically confirmed that these factors have a serious impact on maternal deaths, so they must be comprehensively addressed by those responsible for creating and implementing public health policies taking into account indicators of human development.

In the elaboration of public health policies, it is very important to consider that the legal status of abortion is not the central issue for a leading-edge discussion regarding women’s well-being, rather, it is hostile and not the solution for all cases. The main issue to be addressed in order to have an impact on better health conditions for women of reproductive age is attention in different scopes of development. In the investigations aforementioned, the authors, experts in epidemiology, public health, obstetrics, gynecology, medicine, surgery and sociology recommend seven specific interventions:

Finally, as it has been discussed and made known in previous lines, the following statements can be made -even through common sense- regarding the embryo’s individuality, diversity and differences with the mother’s body:

Paragraph 10

“10. [While recognizing the fundamental importance of human dignity in personal autonomy, the Committee considers that States parties should recognize that people who plan or attempt suicide can do so because they are going through a momentary crisis that may affect their ability to make irreversible decisions, such as ending his life. Therefore, States should take appropriate measures, without violating their obligations under the Covenant, to prevent suicides, especially among individuals in particularly vulnerable situations. At the same time, States Parties [may allow] [must not prevent] medical professionals from providing medical treatment or medical means to facilitate the termination of the lives of [catastrophically] affected adults, such as the mortally injured or terminally ill, who experience severe pain and physical or mental suffering and wish to die with dignity. In such cases, States Parties must ensure the existence of sound legal and institutional safeguards to verify that medical professionals comply with the free, informed, explicit and unambiguous decision of their patients, in order to protect patients from pressure and the abuse.”

The new paradigm of legal positivism is an object of reflection in the current collapse of society, by the disappearance of otherness and strangeness.¹⁴⁹

The hypertrophic approach of present-day systems, information systems, communications, production¹⁵⁰ and now of the law, is losing its human imprint, seeking to justify and nourish human passions, burying the nobility of the personal spirit that limits all people of individualistic self-destruction, rather, we must build on differences and human empathy.

We punish ourselves, with the violence of dissuasion, pacification, neutralization, control, of the soft violence of extermination. Therapeutic, genetic or communicational violence: violence of consensus, which now impacts on ideologies reflected in the laws. This violence is viral, in the sense that it does not operate frontally but by consanguinity, by contagion, by chain reaction and from the first moment it attacks our entire immune system.¹⁵¹

Where now Nietzsche’s sovereign man is about to become a mass reality: there is nothing above him that can indicate who he should be, because he considers himself the sole owner of himself. “We have invented happiness; the last men say”¹⁵²

In this way, he is only subject to himself and any limitation to his immanentist possibilities is aggression and intolerance, permeating now as supposed human rights, trying to captivate as a siren song, subtly not mentioning that it is encouraged as euthanasia or assisted suicide.

In this regard, the World Health Organization (WHO) defines it as that “action of the doctor that deliberately causes the death of the patient”.¹⁵³ and, the World Medical Association in the Declaration on Euthanasia establishes it as the deliberate act of ending the life of a patient, even if it is by his own request or at the request of his relatives, which is contrary to ethics. This does not prevent the doctor from respecting the patient’s desire to let the natural process of death take its course in the terminal phase of illness.¹⁵⁴ Disrupting doctors deontological positioning of attending life, personal integrity and health of human beings, with the best possible means, alleviating any type of disease and alleviating their suffering and their family’s anguish, thus respecting their dignity.

At this point, physicians will have to put aside their conscience and subsequent objection, to become an executioner “certified” by medicine, demanding that his own will becomes an automaton of the wishes of a third party and coerced by a legal norm, without really analyzing as scientist that takes care of human health, or if there is a vice in the patients consent, derived from depression, disability, abandonment or other vulnerable circumstance, as well as seeking to offer the patient new therapeutic options available from the most recent advances of medicine.

In this way, it is clear that euthanasia goes against human life, using the intervention of a third party, being the antithesis of the “Right to life”, recognized as a primary human right. In that strong sense of this human right, comes to tell us that the expression “have a right” means that another or other people have a duty towards its safeguard and the opposite would be unfair.

To ponder the degree of precision of a human right, not only logical-deductive associations can occur, but also justificatory or instrumental associations that belong to the world of practical reasoning can occur and are impossible to grasp in the formal ties of logical-deductive reasoning. Raz¹⁵⁵ calls them “core-rights”, which are those rights constituted by the normative system, as distinguishable from derivative-rights that are those that can be considered to be implied by the core-rights and therefore, are susceptible of being obtained deductively from these; the right to life is one of them, not the right to die, which would be the opposition (antinomy).

For a right to have the character of Human Right, some formal structural features are required, not depending on consensus.

The first that is discoursed is “universality”; It means that they are ascribed to all human beings and requires, that specific circumstances, conditions o contexts are to be ignored, because such rights have a vocation to be ascribed to all. It suffices that the minimum requirement of being “human being” is met, in that sense, we have to separate human rights from the scope of the positive legal system. Because in effect, we do not talk about rights that some have, and others don’t, depending on the legal system. We all share the same rights

Therefore, the characteristic of human rights is to establish the existence of general obligations and not so much on special obligations, that is, obligations of all and not so much on merely positional obligations. Obligations tend to be differentiated into negative “not doing, omitting” and positive ones, they are obligations to do, to perform an action and the first one is relational coexistence, based on the common good.

The second formal feature is the presumed “absolute” character of Human Rights. This idea makes a direct reference to what in general terms has been called its importance,¹⁵⁶ and what lies under that condition is the idea of strong moral demand or, as Richards says: “the urgent, demanding and intransigent nature of human rights”.¹⁵⁷ Now, if it is said that the right to life is not absolute, it is by its weighting on the same level, in that way is how is legitimate defense is safeguarded, derived from an unjust act.

Human rights are the kind of strong demand that they are, not because they have corresponding obligations, but on the contrary, the obligations are strong precisely because human rights carry a constitutive force by themselves.¹⁵⁸ And if that force does not derive from the obligation component, it must necessarily derive from the other component, that is, from the good, from the qualified assessment of the situation or state of affairs that it attempts to guarantee.

The right to life is linked to the ontological principle of the instinct of conservation, which must be safeguarded on the basis of human relational coexistence, just as they are protected in palliative care.

The third formal feature is that they are “inalienable”, for the majority of those who have analyzed the issue, it means that it cannot be taken or stolen from the person, and the rights are to be inalienable because all without exception, are holders of them (and therefore no one could be deprived of them). Those two features are related especially with the universal and absolute character of Human Rights, and not with the idea of inalienability in the strict sense.

When Grotius designs the passage from the state of nature to civil society, it is posed, starting a tradition that will be legendary, the problem of what natural rights individuals renounce when entering such a society. For him there is no doubt that individuals renounce the natural right of self-defense or natural right to punish but situates the problem in the broader framework of the renunciation of freedom.¹⁵⁹

It is about the problem of giving up certain rights on the part of its own owners. What Grotius is suggesting is that, even if one can logically think of a possibility of absolute renunciation in the very notion of voluntary and free pact, one can only choose the soft interpretation, or as it has been called using Quine’s idea, the charitable interpretation that individuals could not do such barbarity.

If we accepted the former idea, slavery would come to be justified by a theory of natural rights. We cannot, therefore, interpret the pact in that way. And from this arises the issue of the inalienability of basic rights: its formulation means that we cannot think of them as something that can be renounced by the owner’s own will. What American theorists wanted to do, was establish an absolute restriction to the idea of consenting to be deprived of a basic right. They thought, on the contrary, that one could never speak of rights in that sense, the kind that would say that an individual act of consent supposed their disappearance.¹⁶⁰ And this cannot be identified, as it hastily has been done, with the idea that human rights cannot be justifiably displaced.

The formal meaning here is how to express the idea that human rights are inalienable even by their holders.

In that sense when speaking of universality, we have seen how a human right supposed the affirmation of a good of such importance for the individual that this constituted a sufficient reason to impose obligations on all others, and the absolute, is the force that given to that right towards all people, and its inalienability as the application of the normative technique of the obligation or immunity to the holder of the right. Just as everyone has the obligation to respect each other’s right or lack the power to alter that right, the owner himself is obliged to respect his own rights being, we could say, immunized normatively against himself.

Finally, according to “Noëlle Lenoir, dignity is the source of all rights, therefore it is a pre-legal concept; it can be considered as the foundation on which the rights of the human being are based. In this same position, Jürgen Moltmann points out: “The root and the common bond of the various human rights is human dignity.”.¹⁶¹ Inherent value to the human person, for his axiological position.

The legalization of euthanasia and assisted suicide will result in unjust structures, which consist of the distribution and stratification of people, groups and various elements within a social organism, so that unfair situations are consolidated. Circumstances of discrimination, abuses, and justifications without consent of all the co-implicated, or because they are not in a position to make the correct decisions, acting against human dignity and in a regressive manner within human rights, also creating a right not contemplated in any convention, rather an antinomy by consensus of a few.

Moreover, it is contrary to the lex artis ad hoc of medicine, as observed, among others, in the following instruments:

Principles Of European Medical Ethics. Doctor’s Commitment