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Paolo Carozza testimony to Inter-American Court of Human Rights in Beatriz v. El Salvador — Transcript

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0:00your excellencies it is very appropriate
0:03that we begin here with the central
0:05importance of the principle of human
0:07dignity
0:08international human rights law confirms
0:11without exception that the recognition
0:13and protection of the equal Dignity of
0:15every human being
0:17is the Cornerstone of all human rights
0:20as the guarantor of human dignity in the
0:23inter-american system this court has
0:25affirmed many times
0:26that the equal rights of all human
0:28beings flow from their equal dignity
0:32without this stable ground human rights
0:35would become illusory and arbitrary
0:38belonging only to those human beings
0:40whose value is already acknowledged
0:44and not to those whose value is ignored
0:46and rejected by those who have power
0:50status and principle
0:52on which all international human rights
0:54law rests can be understood to have four
0:57essential qualities
0:59first of all human dignity is universal
1:02it belongs to every human being solely
1:05by virtue of being biologically and
1:08genetically a member of the human
1:10species
1:12this is an objective and scientific
1:14basis not one based on any ideological
1:17or philosophical or religious category
1:19of who counts fully as a human being
1:23for example it's not based on the theory
1:25that the worth of a human being depends
1:27on a sufficient rationality or
1:29Consciousness or autonomy or on a moment
1:32of insolvement
1:35secondly human dignity is equal
1:38court has affirmed many times in its
1:40seminal judgments on equality the
1:42intimate relationship between human
1:44dignity and the youth kogan's principle
1:46of non-discrimination
1:48dignity does not come in degrees
1:51with some human beings being more
1:53dignified than others nothing could be
1:56more antithetical to the very idea of
1:58Human Rights
2:00thirdly human dignity is inherent it is
2:03not conferred by any power or by the
2:05state or by the law not by majoritarian
2:09social conventions or by the will and
2:11choice of any other person
2:14and for the same reason fourth human
2:16dignity is inalienable no one can lose
2:19or be stripped of her inherent human
2:22dignity by anyone or anything else
2:25therefore no condition of weakness
2:27vulnerability illness disability or
2:30incapacity or failure to be recognized
2:33as a person in the law can deprive a
2:35human being of their essential dignity
2:39now these four dimensions of dignity
2:41have clear implications for their rights
2:43at stake in this case they entail that a
2:45mother and her child born or unborn
2:48including both Beatrice and her daughter
2:51are equal bearers of dignity
2:54that cannot change simply because one of
2:56them is ill or disabled or less
2:58developed or more vulnerable
3:00any more than it could change because
3:02one human being is of a different gender
3:04or race or sexual orientation or social
3:08class than another
3:11that equal human dignity in turn
3:13requires states to respect and protect
3:15the equal human rights of every human
3:18being and the right to life as noted
3:20frequently in this Court's jurisprudence
3:22is the first of those rights because
3:24without it all other rights are null and
3:28meaningless
3:30the text of article 4.1 of the
3:32convention places it Beyond any
3:34reasonable dispute that in the
3:36inter-american human rights system human
3:39beings are holders of the right to life
3:41from the moment of conception even
3:43before birth
3:45the explicitness of that text makes
3:48inter-american human rights law
3:50distinctive
3:52in accordance with the international law
3:53of treaties that intentionally
3:55distinctive language must be interpreted
3:58in a way that will give it meaning and
4:00util
4:03in addition
4:04this court has repeatedly and
4:06consistently held first of all that the
4:08right to life must be interpreted in an
4:10extensive way allowing for no
4:13restrictive interpretations in
4:15accordance with the pro-persona
4:16principle
4:18it is held that their state has broad
4:20range of Duties to protect their right
4:21to life including against Violence by
4:23other private parties
4:25and it is held that there may never be
4:27any discrimination among the subjects of
4:30the right to life
4:32in some under the American Convention as
4:34interpreted by this court
4:36both a pregnant woman and her child in
4:39utero are entitled to the affirmative
4:42simultaneous and equal protection of the
4:46right to life by the state
4:49now article 4.1 does also specify that
4:52that right must be protected in general
4:54from the moment of conception how should
4:57we understand that expression
5:00the expression cannot be understood to
5:03mean partially
5:05or incrementally or gradually or subject
5:07to exceptions or conditional on the will
5:10and choice of another person
5:12that would effectively empty the right
5:15of any content exactly the opposite of
5:17giving it
5:19would contradict the object and purpose
5:21of both Article 4 and of the treaty as a
5:24whole
5:25and it is manifestly incompatible with
5:27the principle of non-discrimination
5:29in short it would constitute I believe
5:31the very definition of arbitrariness
5:36now instead more consistently with the
5:38object and purpose of the convention and
5:40with its travel Preparatory
5:42I think we must understand the
5:44expression in general as intending to
5:47Accord an important degree of discretion
5:49to States
5:51to determine the exact forms and methods
5:53of exercising their duties to protect
5:56life prior to birth
5:58this includes discretion regarding
6:00whether and in what circumstances to
6:03employ criminal penalties
6:05or instead to use alternative means to
6:08protect the human lives of both mother
6:10and child that are present
6:12in other circumstances this court has
6:15always required criminal penalties in
6:17the protection of the right to life to
6:19my knowledge without exception it is the
6:21paradigmatic necessary method
6:24however in this case
6:26article 4.1's expression in general does
6:30I believe modify that obligation to
6:32impose criminal penalties and it allows
6:34States permissively but not mandatorily
6:38to employ other measures so as long so
6:40long as they are in general
6:42oriented towards protecting human life
6:46but in whatever way the state may
6:48specify and carry out its duties to
6:49protect the right to life under the
6:51convention those duties do pertain
6:53simultaneously to both the mother and
6:55the child from the moment of conception
6:58I believe a little reflection will show
7:01us that any other conclusion will only
7:03result in deep and unsustainable
7:06contradictions in this Court's
7:09jurisprudence and in the law of the
7:10inter-american system
7:12for example it's hard to imagine that
7:15this court would ever be willing to
7:16affirm
7:17that among human beings who hold the
7:19right to life the state may be willing
7:22to choose to protect some more than
7:24others
7:27or to prefer the life of one person over
7:29the life of another or to declare that a
7:31life plan or a dignified life of someone
7:34who for example has a mental disability
7:36whereas in the final stages of her life
7:38is of less importance than that of any
7:41other human being
7:44nor could it be possible for this court
7:46to set aside its commitment to the use
7:48kogan's principle of non-discrimination
7:50in order to accept arbitrary
7:52differentiations in the protection of
7:55human dignity and human life
7:57being based on a human being's age or
8:00stage of life or illness or mental
8:02capacity
8:04the court cannot
8:06uniquely restrict its extensive
8:09interpretation of the right to life with
8:10respect to prenatal human life
8:13without introducing de facto exceptions
8:15to the pro-persona principle
8:18it would result in human rights law
8:20becoming pro-persona for some but
8:23anti-persona for others
8:26and finally this court has always
8:29laudably been the champion of the human
8:31rights of the most vulnerable and
8:33marginalized members of our societies
8:36how could it accept
8:38some human beings vulnerabilities could
8:40be a justification for granting less
8:43protection to their rights
8:47each of these positions contradicts in
8:49very fundamental ways the most cherished
8:51building blocks of this Court's Corpus
8:53euris of Human Rights over the past 40
8:56years
8:57now there is an alternative the
8:59alternative is to affirm unequivocally
9:01that the duty of states is to protect
9:03equally and simultaneously the human
9:06rights of both women and children born
9:08and unborn
9:10that is the path that is the most
9:12coherent with the promise of universal
9:14human rights
9:15it is the most consistent with the
9:17explicit and distinctive text and
9:19requirements of the American convention
9:22and it is the only approach that takes
9:24seriously the obligations of
9:26non-discrimination the expansive
9:28pro-persona interpretation of the right
9:30to life
9:31the duties of states with respect to
9:33those rights and the interdependence and
9:35indivisibility of all human rights
9:38such a judgment by this court
9:40would be bold and transformative it is
9:43true
9:43you would set our societies On A
9:45radically New Path in which the promise
9:47of universal human rights would finally
9:50be capable of overcoming the polarizing
9:52divisions that have plagued this area of
9:55law for so long
9:57thank you very much
10:27yes of course I've been a scholar of
10:30human rights in both public
10:31international law and comparative
10:32constitutional law for the last 30 years
10:36in that time I've published many books
10:39and articles on various aspects of Human
10:40Rights including the leading textbook on
10:42the protection of Human Rights and
10:44Regional systems
10:45the last 27 years of that time I've been
10:48a professor of Law and of political
10:49science at the University of Notre Dame
10:51in Indiana in the United States
10:53where I've also directed the human
10:55rights program directed The doctoral
10:57program in international human rights
10:59law and was the director of the Kellogg
11:01Institute for International Studies
11:04I have also taught at other universities
11:06as a visiting basis from time to time in
11:08the United States including Harvard
11:10University universities throughout
11:12Western Europe and universities in Latin
11:14America and in Africa
11:16I um have also had the privilege of
11:20being able to serve on important human
11:22rights bodies outside of the academic
11:24context I was a member of the commission
11:26the inter-american commission on human
11:28rights and its president in 2008 and
11:302009
11:31and I'm currently a member of the
11:34European commission for democracy
11:35through law better known as the Venice
11:37commission and was elected to be part of
11:40the executive leadership of that
11:42commission as well
11:43foreign
11:59yes as I indicated in my opening remarks
12:01uh I I am aware of no case of revolving
12:05violations of the right to life in which
12:07this court has ever refrained from
12:09obliging the state to investigate and
12:12punish with criminal laws the
12:13perpetrators of the violence
12:16um it's most obvious of course in cases
12:18of gross violations of human rights such
12:19as the series of amnesty cases where
12:22criminal law is required but it's
12:24present in a variety of other cases
12:25involving the right to life as well
12:26including cases for example touching
12:29upon medical malpractice
12:33intervention
12:45well I will be very Frank and not try to
12:47hide things uh I was as I said in my
12:50opening remarks and said very clearly in
12:51my written uh um report as well I I
12:56believe that incremental or gradual is
12:59nothing less than arbitrary there are no
13:01clear and objective lines that protect
13:04the right to life and it ends up
13:06emptying the right of any content in
13:08practice
13:10um and therefore I believe that that
13:12part of the artavia decision
13:15simply must be regarded as erroneous it
13:18is inconsistent with every other
13:20decision that I know of on the right to
13:22life in this court uh in not granting an
13:25expansive interpretation of that right
13:27and in not granting affirmative duties
13:29of the state with respect to that right
13:31now
13:33um fortunately I I think that it is also
13:37the case that that that statement
13:40interpreting the words in general in the
13:42artavia decision were in fact not
13:45necessary to the outcome of the case
13:48the court had already decided that case
13:50on the basis of a conclusion that an
13:53unimplanted human embryo is not yet at
13:57the stage of conception and therefore
13:58not a holder of the right to life under
14:00article 4.1 so everything that it says
14:02after that is just obedredicta and not
14:04necessary to the holding of the case so
14:06I do believe that the court can correct
14:08what I regard as a grave error in uh the
14:12in otavia without actually affecting the
14:15important result of that case
14:18circumstances
14:27well I I mean importantly the first the
14:30first starting point needs to be the the
14:32treaty basis that we're working on uh
14:34the the American convention on human
14:36rights as I said is distinctive it's
14:38different from all the treaties that
14:40those bodies are interpreting in
14:42explicitly calling for protection of the
14:44right to life prior to birth
14:46and therefore there's a problem of
14:49comparability already from the start
14:52um now that said I think we also have to
14:54look carefully at what those uh
14:57different committees and uh and other
14:59bodies have in fact said uh sometimes
15:02cases such as KL versus Peru at the
15:06human rights committee
15:08um are sometimes understood as
15:11fostering a development of a right to
15:14abortion I don't think they should they
15:16are properly read that way that case and
15:18comparable cases and other systems like
15:20the tysiak casein in the European system
15:24or even the friendly settlement in the
15:26Purina case in the inter-american system
15:28all those cases are based on the fact
15:30that the domestic law has already
15:33provided for uh certain uh legal
15:38applicability legal access to abortion
15:41and the issue in that case was the
15:44arbitrary interference of someone with
15:48what was guaranteed to them under
15:49domestic law so we can set those aside
15:51as well I think at least with regard to
15:54your question
15:55um so so then that that leaves
15:57recommendations which we we know are
15:59there that also say uh tend towards
16:04saying at least in some limited ways
16:06abortion should be recognized at an
16:08international level as well
16:10what do we make of those I I first of
16:12all we I think we should um remember
16:14that there are recommendations they're
16:16not Holdings of a court and that
16:19difference does matter uh there's
16:21there's a reason those treaties were
16:23structured in such a way as to not
16:25provide them with something like the
16:27inter-american court of human rights
16:28that has definitive and binding
16:30interpretive Authority and so to treat
16:32recommendations the same way that we
16:34treat judgments I think is not only
16:36faithful to international law but is not
16:39helpful to to affirming and maintaining
16:42the authority of those bodies that
16:43actually do have jurisdictional
16:45authority like this one
16:47um and so what we need to do we need to
16:49I believe uh look at those
16:51recommendations in good faith one by one
16:54take them seriously and ask do they have
16:57Merit they're not binding simply by the
17:00say so of the committee they may be
17:03persuasive based on the Merit of the
17:04position
17:06in these cases I I think there are good
17:08reasons to think that the positions are
17:10not persuasive in part because the very
17:13treaties that they're purporting to
17:15interpret say nothing about human about
17:18abortion and on the contrary provide
17:21very expansive statements about the
17:23right to life in the case of the
17:25convention on the rights of the child
17:26even affirming in its introduction in
17:28its Preamble that it is intended to be
17:31protecting human children prior to birth
17:34as well as afterwards and the second
17:36reason to to be doubtful of their of
17:39their persuasiveness is that we can find
17:41no examples not even in soft law of ways
17:47in which the community of Nations has
17:49endorsed these principles and regarded
17:51them as binding in fact the only
17:52Authority the closest Authority we have
17:54to a comprehensive statement to the
17:56community of Nations which was issued at
17:58the Cairo conference on population and
18:00development says very explicitly they do
18:03not recognize an international right to
18:05abortion
18:07stratas
18:14well thank you I mean clearly I I would
18:16not want to be understood to say that uh
18:18a a dynamic or evolving interpretation
18:20is is not uh appropriate um it's been an
18:24important part of this courts and uh
18:26jurisprudence since the beginning
18:28um and uh and has a significant value
18:32um but it is important to remember that
18:33the the the evolving or dynamic
18:35interpretation that a court engages in
18:37is something that is supplemental to and
18:39must be consistent with the treaty it it
18:42starts from first of all what are we
18:44interpreting it's not interpreting an
18:46empty space or error
18:49um and it needs to be consistent with
18:51that and and therefore it cannot
18:52contradict the treaty this court has
18:55said as much in if nowhere else it at
18:57least I I know of one example in its
18:59advisory opinion on juridical personhood
19:02where it says very clearly the treaty
19:04restricts the extent to which we can
19:06engage in interpretation that is not
19:08faithful to the text itself
19:16conductor
19:31foreign
19:38I'd make two observations but they're
19:41interrelated
19:43the first one is that the Commission in
19:45its merits report in the matter
19:48uh has uh has failed to recognize that
19:53article 4.1 and the right to life is in
19:56fact engaged and present on behalf of
19:58The Unborn human being
20:01it refers to a state's interest in
20:05potential life
20:07a state's interest in potential life is
20:09a very different thing from a right to
20:11life under the convention
20:13so framed in that way it makes the
20:17calculus quite different right a human
20:20right on one side a state interest in
20:23potential life on the other side so so
20:25if we first recognize that there is a
20:28human life present
20:29then it changes the calculus quite a bit
20:32I think or it ought to
20:34so now secondly the Second Step then
20:36would be to to take then more explicitly
20:38what you have asked me
20:40does that calculus change
20:42just because
20:44one of the human beings in it is
20:48disabled even perhaps disabled to the
20:50point of not being able to survive
20:52outside the womb for more than a short
20:54time
20:55and I think the answer must be no uh the
20:59answer must be now
21:01um just to I think to illustrate why
21:03perhaps the easiest way to do so is to
21:05imagine uh someone who is in the
21:09terminal stages of life and has only
21:12days or hours or even minutes to live
21:15we would never say that such a person
21:17has lost the right to life
21:20or the or human dignity and that in
21:23those final moments because that life is
21:24no longer viable that it could be killed
21:27or tortured or poisoned or dismembered
21:31and so equally I I think the same is
21:34true of a disabled child prior to birth
21:37in terms of non-discrimination or to a
21:41child who is already born but in just in
21:46in conditions of incapacity
21:49foreign
22:07[Music]
22:20well well first of all I I think just as
22:23a factual matter is a great reductive
22:25position
22:27um because it seems to me clearly the
22:29case that even an unborn child is
22:31involved in society in important ways or
22:34receives Medical Care interacts in
22:36various ways with the environments
22:38um now I'm not I'm not competent to
22:40testify to the fetal development of of
22:43human life but that seems to me
22:45self-evident
22:46um uh and and moreover it that that that
22:50affirmation is consistent with what the
22:53committee on the convention of the
22:54rights of the child I'm sorry the
22:56committee on the rights of persons with
22:57disabilities has itself affirmed uh
23:00taking the position explicitly that a
23:04selective abortion of human fetuses with
23:08disabilities even when those
23:10disabilities are going to be fatal to
23:12the child constitutes discrimination
23:15under the treaty
23:17um so clearly rejecting that position
23:19and and it's reasonable that that that
23:21that that the committee would reject
23:23that position because conceptually
23:24underneath it what is it saying it's
23:26saying that a person's dignity and
23:29rights depend on whether they're they're
23:31accepted by Society I mean that that's
23:34exactly the opposite of what we're
23:35trying to affirm when we affirm human
23:37rights I believe
23:39professor
23:41is
23:51I I don't believe there is any
23:53legitimate foundation in international
23:55law to conclude that restrictions on
23:59abortion are per se or could be deemed
24:01to be per se violations of the right to
24:04be free from torture
24:06but for starters I think the juridical
24:08elements are simply absent uh the the
24:10intentionality uh the the the illicit
24:14aim and so forth
24:16um of those right violations are not
24:18present here
24:20in addition
24:22a conclusion about those violations I
24:24think needs to be done necessarily at
24:27the concrete level of facts of a case
24:30um and not in the abstract
24:33so for example even in the the TCR
24:35versus Poland case at the European Court
24:38of Human Rights uh the court found a
24:42violation of the treaty insofar as the
24:45state prevented the petitioner from
24:48accessing legal rights to abortion under
24:51polish law but then went on to look at
24:54the specific facts of the case to say
24:55and conclude that it did not violate
24:57article 3 of of that treaty or
24:59constitute torture in other words
25:02um so I know that the the
25:04um the special reporters as you said at
25:07least one perhaps two have made very
25:10Broad and generic allegations to this
25:12regard I don't think that they really
25:14have
25:15um any basis in international law at
25:18least of all in any way that has been
25:20supported by the states
25:23representative
25:31Professor Representatives is
26:01I to to be quite blunt I have a hard
26:03time seeing how that position is
26:05anything other than saying that the
26:08rights of a human being are conditional
26:10on whether
26:12they are accepted by some other person
26:14and in particular by a person who has a
26:17very extensive power and control over
26:20that life and I don't I don't believe
26:22that is compatible really with the the
26:24basic foundational principles of human
26:26rights at all to say that my life and my
26:29rights are dependent on somebody else's
26:31choice or will
26:33president
26:38um
26:41[Music]
26:56nice to see you again and I'm going to
26:59the questions in Spanish
27:02um
27:08sir
27:23foreign
27:29I think that's one important reason to
27:31doubt that the statements of the
27:35Committees uh recognizing abortion are
27:37in fact valid and persuasive ones it's
27:40one reason it's not the only reason
27:43um I think for example if customary
27:46international law were to develop in the
27:48practice of States having opinion Juris
27:51and incorporating things that that might
27:53be a way also of adding a different
27:55argument as well so so that's one
27:58important data point but it's not the
27:59only one
28:01respect
28:22the court has done so in ways that build
28:24on the rights that are present and
28:27though don't contradict the text of the
28:29of the treaty and the explicit rights
28:31that are already granted and recognized
28:33so it's very different to say there's a
28:35right to truth than there is to say
28:37there's a right that's been granted by
28:39the convention and by the states and
28:42we're going to take it away
28:45foreign
29:25associated
29:31well I mean I would say it
29:34um I wouldn't say always and in any case
29:38right um in principle yes it could uh as
29:42long as it's consistent with the other
29:43rights that are present as long as it's
29:46consistent with the text that's what the
29:47court has done that's how it's
29:48approached the question of evolving
29:49interpretation
29:51um that's not to say necessarily that
29:53every such proposal to do so is
29:57necessarily well reasoned argued uh
30:01juridically founded and so forth right
30:03so to say that an evolving
30:06interpretation of the treaty is possible
30:08is very different from saying that this
30:11particular or that particular proposal
30:13to take an evolving interpretation is in
30:16fact correct or persuasive
30:18at the end of
30:20this is
30:31it depends on what you mean by an in
30:34absoluto right
30:36um I think it it does mean that there
30:39can never be an intentional and direct
30:42uh purposeful taking of that life
30:46um but it is also the case that as we
30:49know and as I've been I imagine uh in
30:52the discussion in this courtroom uh
30:54during this day that uh there are
30:56situations where the life of the
30:59pregnant woman is also at stake and uh
31:02so if if what you mean is by by absoluto
31:05is that there can be uh no termination
31:10of a pregnancy even when a woman's life
31:13is clearly directly at stake in that
31:16then no I would not agree with that
31:19a
31:25massage
31:39absolutely oh no
31:43well again I think uh yes there has to
31:47be in the sense that one has to define
31:49absolute very carefully here right in
31:51the sense that it cannot be the
31:53intention and the goal and the aim of an
31:57intervention even if it's called Health
31:58to kill the child right there can be
32:02Health interventions that might pose
32:04risks to the child
32:07um and then very careful calculations
32:09and Prudential judgments have to be made
32:11how great is that risk what is the
32:13potential benefit in particular is it
32:16necessary are there other ways of
32:18achieving the same goals
32:20um and one has to bear in mind that uh
32:22you know Health can come in degrees but
32:25life cannot so if one takes a life it is
32:30the extinguishment of All rights uh
32:33rendered null and meaningless as this
32:34court has said is
32:44permissively
32:56I think there's an affirmative
32:57obligation always to return to the
33:00health of the child as well as to the
33:01health of the mother
33:03um and so and so there's always a
33:05question of how can you try to do both
33:07how can you maximize both right and it's
33:10not simply saying we're going to set
33:11aside one and pretend it's not there in
33:14order to maximize the health of the
33:15other right so that will mean for
33:17example in some circumstances
33:20um you know uh uh
33:22undertaking a cesarean section right uh
33:25and a premature delivery in order to try
33:28to save the life of the or the serious
33:31health implications of the mother while
33:34still attending to the life of the child
33:36that's very different from saying for
33:38example at the same stage of of uh of
33:42gestation that what we're going to do is
33:44engage in
33:47um a deliberate killing of the child as
33:49opposed so to put it a different way you
33:52know the question of a termination of
33:54pregnancy and the question of the the
33:56killing of a human being are juridically
34:00distinct
34:02foreign
34:37yeah certainly again you know even not
34:40as a medical expert of course I
34:42recognize that they're very complex
34:44medical decisions about what exactly are
34:48the risks that are being posed uh it's
34:51always a certain prediction an
34:54assessment both sides what would be the
34:57consequences of a particular
34:58intervention and so I think it is almost
35:01by definition impossible to answer that
35:03question in the abstract
35:05and I believe that that is precisely why
35:09it was the case that in drafting article
35:114.1 the states that did already
35:14incorporate some exceptions to criminal
35:17uh penalization of abortion did insist
35:21on maintaining language that would allow
35:23them to have a certain degree of
35:24discretion precisely because it's not
35:28it's not uh
35:30there isn't a good word in English
35:33for international law at a at a generic
35:38level to be trying to resolve those
35:40conflicts so as a general matter those
35:43are exactly the kinds of things that are
35:44left to the discretion of the states to
35:47try to regulate in complex ways in their
35:49medical systems
35:51conflicted
36:00uh I mean different states do it in
36:03different ways right and international
36:05law doesn't prescribe a single way to do
36:07it
36:14um
36:16[Music]
36:21relevante
36:25well in all medical interventions
36:27informed consent is an important
36:29principle right a principle that is
36:32essential to human rights to autonomy to
36:35human dignity and so in that sense yes
36:43thank you
36:47much
37:09I don't think
37:12Professor carrots
37:16um
37:21sobre
37:23Elder protection
37:27duties protect equally and
37:29simultaneously
37:32science
37:43efficient
38:11okay
38:12universe
38:40America
38:41de la madre
38:48in exactly in the complex judgments that
38:51I was referring to in relationship to
38:53the last question from the petitioners
38:55council I think it's implicit in the
38:57answer what I will make explicit now
39:00which is of course scientific
39:02information judgments the best available
39:05of course we all we all know that
39:07medical judgments can be uncertain as
39:09well and are always based on limited
39:12information and limited understanding of
39:14what might happen and so but the best
39:17information that is available of course
39:19should feed into the judgment and help
39:21inform
39:22uh What treatments is going to be
39:25available and what is and what are the
39:27likely outcomes of those treatments I
39:29would not say that it goes so far as to
39:31say what is the moral obligation to
39:34provide the best Treatment available
39:38simultaneous
39:49personas
39:51friend
39:52is
39:57possible
40:06paracio
40:15is
40:40right I think I understand the question
40:43better now thank you
40:45um and perhaps it might be useful to put
40:48it this way uh
40:51science as I said has to inform the
40:54judgment about what is needed medically
40:56what the likely effects of an
40:58intervention are what the comparative
41:02implications of particular interventions
41:04would be on the mother and the child so
41:07when I say equally and simultaneously it
41:09doesn't mean doing the same things to
41:10both right the medical treatment has to
41:13take into account who the patient is in
41:16in both cases and so in all these ways
41:19Medical Science informs the Judgment but
41:22it's also important to remember what
41:23medical science can't do
41:25right it is not it is not science that
41:29tells us that a human life is valuable
41:33science has nothing to say about the
41:35value of a human life
41:38and so it's not science that can tell us
41:41that a child that is not viable Beyond a
41:45few hours outside the womb has no value
41:47there's no dignity that's not a
41:49scientific statement at all and it can't
41:51be it's categorically outside the realm
41:54of science to make that affirmation
41:59president
42:05[Music]
42:07this is
42:10Professor Buenas
42:16yes
42:31yes but let me add a little bit of an
42:34explanation to it only because of the
42:37word uh
42:38I think has to be weighed carefully
42:43yes it's certainly true that in order to
42:46save the life of a pregnant woman where
42:49it's clear that that that is the the the
42:53medically appropriate intervention
42:55sometimes immediately without without
42:58even further analysis or judgment
43:00because it's an emergency let's say for
43:03example again
43:04the medicine is a little bit beyond me
43:06but even the little things that I know
43:07let's say it's an ectopic present
43:09pregnancy right I think we all know that
43:11those pregnancies need to be terminated
43:14as quickly as possible in order to save
43:16the life of the mother I I think that's
43:18entirely appropriate and consistent uh
43:21with uh with the the the duties of the
43:25state to protect life in these cases yes
43:28foreign
43:54dos
44:00well it but there it already gets a
44:03little bit more complicated than for
44:04example in the ectopic pregnancy right
44:06because let's say for example the tumor
44:09that needs to be treated has been
44:10discovered at a time period in the in
44:14the gestational time where it would be
44:16possible to actually prematurely deliver
44:18the baby alive
44:20then there is an affirmative obligation
44:22to attend to the health and life of the
44:24child as well right or there might be
44:27more than one I you know I myself am a
44:30cancer survivor I was given many options
44:31to my chemotherapy and some were more
44:34severe than others informed consent of
44:36the woman might involve questions about
44:38saying this is a form that would
44:40definitely kill the child in your womb
44:43this is one that might not but it also
44:45might be less effective how are we going
44:47to make that judgment so as the cases
44:50get more complex there will be ways
44:52certainly in which the state can
44:55reasonably not the state I'm sorry the
44:57the the the the pregnant woman and the
45:00medical care provided by the state so
45:02indirectly the state can take steps to
45:05protect the life and health of the
45:07unborn child as well even in these
45:09severe cases where the life of the
45:11mother is at stake
45:15of course
45:20Pandora
45:29yes and again let me because I didn't
45:32clarify before I I think the the the
45:35word waiting componentacion balancing is
45:40uh is an uneasy one right because
45:44um it is not weighing the value of one
45:47or the other the rights of one another
45:48or so so much as saying uh what we're
45:51trying to do is is uh save one to the
45:55extent it's possible we will save the
45:57other or protect the health of the other
45:58uh but where that is an a you know an
46:02indirect consequence of the intervention
46:06um then it it is acceptable as a
46:09juridical matter and I as as an ethical
46:12matter I believe

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