This is the question to which the European Court of Human Rights (ECHR) is obliged to answer in the case Kruzmane vs. Latvian. Chocked by the nature of this question, European associations specialized in disability mobilize to make their voices heard, those of disabled persons, of their families, often forgotten whereas they are the first concerned with this violent stigmatization.
The case Anita Kruzmane
A Latvian woman gave birth to a Down syndrome baby girl. She prosecuted her physician in her country claiming to not have been in a position to abort her daughter due to the lack of a screening test. The national jurisdictions did not support her claims reporting that the physician did propose this test. Then Miss Kruzmane referred the case to the ECHR considering that the rejection of her claims by the Latvian jurisdictions infringes her fundamental right to the respect of private life. She puts forwards that this fundamental right includes a right to decide to abort due to health condition of the unborn child. If the ECHR accedes her demands, she would judge that the fundamental right to the respect of the private life would include that of resorting to the prenatal “screening – elimination” process of disabled child. But this “process” is none other than an elimination process of children considered as “non-conform“, in other words eugenics of disabled people. For the ECLJ1, “This claim –converting eugenics into a human right – can seem crazy, but not so as to chock straightaway the Court, or it would have rejected for non-respect of admissibility criteria or abuse of rights […]. There is no doubt the case KRUZMANE […], is used strategically to intend developing the ‘rights’ to abortion and eugenics. Eugenics, after abortion, is in the process of social normalization: those who still see the inhumanity of these practices are more and more rare“.
The challenge of the case
Stigmatization of a human group based on its genome
The “pregnancy-screening-elimination” process already generates serious eugenic drifts in many member states. The case Kruzmane vs. Latvia goes further: registering as a fundamental right the right to kill Down syndrome children before their birth will lead to stigmatize a human group selected based on its genome, to purely and simply deny their humanity and to make available the mechanism of their elimination to each woman.
Seeing the medical termination of pregnancy (MTP) as a right
We should note that the MTP, authorized in most of national legislations is a possibility given to the woman only if a medical agreement is given. Thus it is up to medical professionals to accept or not this type of termination of pregnancy considering the seriousness of the child disease. This medical decision is justified by the necessity to prevent from eliminating unborn children for subjective reasons. This is one of the guarantees against eugenics. Thus if, in the national legislations of member states, the MTP is not a right but an exception after medical authorization, how could it be placed to the rank of fundamental right?
Encouraging the financial market of genetics in defiance of the humanity
Finally, beyond the moral aspect of this case, it is a red carpet that will be rolled out to the market of genetics and tests merchants. Because what will work for Down syndrome will work for any detectable pathologies before the birth as well as for genetic predispositions. The stakes are high since it targets half of the global population: women.
Establishing a legal frame for abortion for the 47 member states
Recognizing a “right to kill for health condition” as a “human right” would be a revolution. This is the first time the ECHR is led to decide whether the life of an ill person worth living. But the decisions of the ECHR have a particularly strong impact, because they establish principles member states cannot bypass. Faced with these serious stakes, European associations gathered under the label “stopeugenicsnow2“. Through an online registration, they remind that “it is the systematic elimination of Down syndrome children in Europe which is the true infringement of human rights“, they call for “the awareness of the European Court and institutions so that they recognize the humanity and protect the right to live of Down syndrome and disabled people“. They ask the ECHR to “reaffirm the principle of the prohibition of eugenics as well as the obligation of the States to protect the life of any people, including that of disabled persons before their birth.”
1. European Center for the law and justice, international non-governmental organization dedicated to the protection of human rights in Europe third party in the case.