Article 39 of the Istanbul Convention
Author(s): Scott Douglas Jacobsen
Publication (Outlet/Website): The Good Men Project
Publication Date (yyyy/mm/dd): 2018/06/30
Article 39 – Forced abortion and forced sterilisation
Parties shall take the necessary legislative or other measures to ensure that the following
intentional conducts are criminalised:
a performing an abortion on a woman without her prior and informed consent;
b performing surgery which has the purpose or effect of terminating a woman’s capacity to
naturally reproduce without her prior and informed consent or understanding of the
procedure.
The Istanbul Convention is an important document not only for the equality of the sexes, but also for the protection of women from culture, community, society, and fundamentalist religion opposed to bodily autonomy.
In the convention, the equality of women with men comes, in Article 39, in the form of prevention of female genital mutilation. In the examination of the two starting terms, we find the forced abortion and the forced sterilization as the opening terms. With the forced abortion, an adult woman, typically, cannot be forced to have an abortion.
This should include the coercion from a partner, family, or community because, as an adult, a woman has a right to bodily autonomy. The “forced” portion of “forced abortion” creates a foundation for consent with the violation inherent in the vernacular: “forced.” Then the “sterilisation” or, more properly in the context of the readers here, “sterilization” prevents women from ever becoming mothers.
It rejects the option of a person’s life. Women become unequal in this sense. Also, this founds another basis for the violation of bodily autonomy and, indeed, integrity. With consent implied in the first line and bodily autonomy and integrity integrated into the context as well, we come to the next line of Article 39 of the Istanbul Convention.
The relevant parties, for whenever and whoever, will create legislation for the criminalization of the abortion of a woman, as described in (a), without prior and informed consent. Prior and informed consent refers to two-party consent. The first with “prior” being the woman in question know beforehand what is going on, where, when, how, and so on. Basically, the woman has an idea as to what will happen to her in order to make a prior choice.
She is not being randomly taken for an abortion in blunt terms. The second with “informed” implies the knowledge of the woman who can make a choice with said knowledge. Together, the “prior” and “informed” mean before the actions are taken on the woman’s body regarding abortion or sterilization the woman in question must know ahead of time and have had made an informed choice in the matter.
Without those two, the abortion or the sterilization process violates the Istanbul Convention in Article 39. In fact, the nations around the world beholden to the convention have to criminalize that too. Women have the right. If someone argues against the right, they argue against women, whether from family, tradition, partner, culture, religion, or other excuses for the violations of women’s rights.
(b) is intriguing:
b performing surgery which has the purpose or effect of terminating a woman’s capacity to
naturally reproduce without her prior and informed consent or understanding of the
procedure.
The focus is on the prior and informed consent from before. However, this comes with an additional premise of “understanding the procedure” and keeping intact the woman’s ability to naturally reproduce. These are important, nuanced, and widely unimplemented provisions for the rights of women. They should know and be knowledgeable of everything beforehand.
This includes the procedure for her. These conventions and declarations are not to be trifled with, nor are the fundamental rights of women, or the responsibility of the international community to protect the bodily autonomy and integrity of women. It seems easy for some to mock or denigrate the work of the international community or the UN.
However, the conceptualization of rights is new. These are newer than the Divine Right of Kings, the Commons, the Charter of the Forest, the Ten Commandments, and the Golden Rule’s variations. In this, the important of the instantiation of new and more considered to the time’s standards is important.
Bear in mind, many in the world would prefer an ethic oriented around the fundamentalist interpretations of the Quran with Islamism or of the Bible with the Christian Dominionists or Reconstructionists, where this comes from the idea in Genesis 1:28 with God providing dominion over the Earth to Mankind.
Much of humankind differs of that interpretation, in particular, most of the world. The international secular consensus or universalist ethics provides the basis for individual and collective belief and the protection of the individual integrity and autonomy of the person. In the cases here with the Istanbul Convention and others, we find the protection of the integrity and autonomy of the individual woman.
That amounts to something worth protecting and within a modern context, as in human rights. Thus, to stand for the rights of others, as a man for women, you can then stand for the eventual protection of your own rights but also the rights as a concept worth valuing.
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One can find similar statements in other documents, conventions, declarations and so on, with the subsequent statements of equality or women’s rights:
- The Universal Declaration of Human Rights in the Preamble, Article 16, and Article 25(2).
- Convention Against Discrimination in Education (1960) in Article 1.
- The International Covenant on Economic, Social and Cultural Rights (1966) in Article 3 and Article 13.
- The Istanbul Convention and Article 38.
- Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).
- The Declaration on the Elimination of Discrimination Against Women (1993).
- Beijing Declaration(1995).
- United Nations Security Council Resolution 1325 (2000).
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000).
- The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa or the “Maputo Protocol” (2003).
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In-Sight Publishing by Scott Douglas Jacobsen is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. Based on a work at www.in-sightpublishing.com.
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