HEALTH LAW & POLICY WORKSHOP

presents

 

Joanna N. Erdman and Martin Hevia

 

THE RIGHT AGAINST CRUEL, INHUMAN AND DEGRADING TREATMENT:

TERMINATION OF AN ANENCEPHALIC PREGNANCY

 

Thursday, January 29, 2009

12:30 – 2:00

Solarium (room FA2) Falconer Hall – 84 Queen’s Park

 

This article focuses on the unique emergence of concepts of cruel, inhuman and degrading treatment (CID Treatment) in the case law on lawful termination of anencephalic pregnancy. The article examines select cases before domestic courts in Argentina, Brazil, Ireland, and international human rights bodies, namely the Human Rights Committee in a case against the government of Peru and the European Court of Human Rights in a case against the government of Ireland. While most of the cases do not explicitly consider a right to be free from CID Treatment under constitutional or international law, concepts of the prohibition on CID Treatment are reflected in the invocation of legal provisions that protect individuals against state conduct causing serious physical or psychological harm. These concepts are most often employed to justify the termination of anencephalic pregnancies as lawful. Two dominant lines of reasoning are evident. The first line focuses on the nature of the pregnancy, the anencephalic condition. Emphasis is placed on non-viability and its implications for the legal regulation of abortion premised on the protection of prenatal life. Concepts of CID Treatment apply primarily to state action, the forcing of a woman to continue the pregnancy without justification. The second line focuses on the effect of the pregnancy on the woman’s life or health regardless of state justification. Concepts of CID Treatment apply primarily to the woman’s experience of pregnancy, in particular the physical and mental health effects of state denied abortion care, conceived as a form of health care.

 

Joanna N. Erdman, BA (Toronto) 2001, JD (Toronto) 2004, LLM (Harvard) 2006, is Co-Director of the International Reproductive and Sexual Health Law Programme and Director of the Health Equity and Law Clinic at the Faculty of Law, University of Toronto. Joanna has published in the areas of access to reproductive health care, Canadian and comparative health policy and human rights law. Her primary scholarship concerns sex and gender discrimination in the regulation, structure, and financing of health systems. Joanna teaches at the Faculty of Law, University of Toronto, and guest lectures at the Joint Centre for Bioethics (University of Toronto) and Osgoode Hall Law School. She also serves on the advisory boards of several organizations. Joanna is a member of the Law Society of Upper Canada.

 

Martin Hevia, Abogado (Universidad Torcuato Di Tella) 2001, SJD (Toronto) 2007, Global Fellow, International Reproductive and Sexual Health Law Programme, Faculty of Law, University of Toronto, 2009; Post-Doctoral Fellow, Escuela de Derecho, Universidad Torcuato Di Tella. Martín has published in the areas of legal theory, comparative law, and reproductive rights. His primary scholarship concerns the philosophical foundations of both civil and common law, reproductive and sexual health law, and legal and political philosophy. Martín teaches at the Escuela de Derecho, Universidad Torcuato Di Tella in Argentina and was a Fellow in Comparative Law and Political Economy at Osgoode Hall Law School, York University. He was the first Editor-In-Chief of Revista Argentina de Teoría Jurídica and Co-Editor-In-Chief of the

Journal of Law & Equality (2004-2006).

 

A light lunch will be served.

 

 

For more workshop information, please go to our web site at http://www.law.utoronto.ca/healthlaw/index.htm or contact Nadia Gulezko at n.gulezko@utoronto.ca