How to Invent New Rights

Late in November, the Women’s and Gender Equality Committee of the European Parliament gave its stamp of approval to the Estrela Report on Sexual and Reproductive Health and Rights. (Yes, there are acronyms for all of that.) On Tuesday, December 10th, the Report was (again) put before a plenary session of the Parliament for a vote. To be fair, some changes had been made: The creepily vague language about the need for “taboo-free” sex education to be provided in an “interactive atmosphere between students and educators” was gone.

The call for abortion to be recognized as a human right within the EU, and for member states to provide compulsory sex education for all children, even in the face of parental objection, however, remained.

The report was ultimately voted down , much to the outrage of its proponents, and thanks in part to work by such groups as CitizenGo and European Dignity Watch . Its contents are, however, instructive, indicating as they do the outlines of the current European conversation on the life issues. While the report contained (as a nod to official, if aging, EU policy) a single, laconic line stating that “in no case must abortion be promoted as a family planning method,” (Item 31) it is hard to square this with the predominant language. “Sexual and Reproductive Health and Rights”—SHSRs—says the report, “are basic rights for women and men which should not be restricted on religious grounds.” (25) And these most definitely include the “right” to an abortion: “women have the right to decide freely and responsibly the number, timing and spacing of their children, as established by international human rights law.” (27)

What is most on display here is a kind of incoherence: the confusion that inevitably arises when the ending of the life of a powerless human person is presented as the fundamental human right of another and more powerful human person. The report shows a sort of tortured desire for some kind of good, some kind of affirmation of human dignity: Wonderfully, it calls on Member States to “implement policies and measures aimed at preventing people from having abortions for social or economic reasons and providing support to mothers and couples in difficulty.” (32) In its discussion of EU member states’ foreign development assistance programs, it contains commendable and strongly-worded calls for the end of forced abortions and sexual violence, and urges member states to work for the provision of prenatal and maternal healthcare supplies, and care for HIV patients. It condemns sex-selective abortion and female infanticide, although one wonders exactly why, and exactly how it intends member states to go about addressing what it calls the “root causes of son preference” in benighted native cultures that don’t understand all about human rights the way that most EU countries do.

Most importantly, the report does demonstrate an apparently genuine desire to reduce the number of abortions. At one point it even commends to the attention of the EU “examples of Member States combining the liberal legislation of abortion with effective sexuality education, high-quality family planning services and the availability of different contraceptives which combine lower abortion rates and higher birth rates.” (AK) But this moment of apparent pro-natalism is offset when, later on, the report notes that “being able to choose to have fewer children, with more time between births, potentially enables families to invest more in each child’s education and health.” (26)

The writers of the report are, perhaps, most disturbed by the fact that “even when legal, abortion is often prevented or delayed by obstacles to the access of appropriate services, such as the widespread use of conscientious objection, medically unnecessary waiting periods or biased counselling”; and calls on Member States to “regulate and monitor the use of conscientious objection in the key professions, so as to ensure that reproductive healthcare is guaranteed as an individual’s right.” The right to conscientious objection is—sort of—affirmed in itself, but the report stresses that it is “an individual right and not a collective policy.” This implies that it cannot be the policy of “religion-based hospitals,” in which hotbeds of moral suasion, the report is worried, “medical staff are coerced into refusing SRHR services.” (34)

An occasional glimmer of sanity breaks through: The Report calls upon the member states to end the forced sterilization of Roma—that is, Gypsies—and disabled women, which is apparently—can this be true?—an ongoing policy in some EU states. The report also regards the availability of “pornographic and degrading content” to children to be damaging, and “the sexualization of young girls” to be a problem: Indeed, the damage is something that it sees it as a role of compulsory school-based sex education to help overcome. (52, 53)

But these moments of coherence only highlight the glaring inconsistencies. The report envisions a Europe where the damage wrought by internet porn and skanky Abercrombie ads is repaired by school-based “compulsory, age-appropriate and gender-sensitive sexuality and relationship education, provided in a mixed-sex setting, for all children and adolescents.” One hates to make old arguments, but if this education teaches (as other sections of the report make clear that is must) the familiar doctrines about how very wrong it is to impose any kind of normative standard on the many forms that peoples’ desires can take, on what basis does it exclude pornography or the sexualization of young girls as legitimate forms of the varied human sexual appetite?

Essentially, this is a set of sexual Geneva conventions: You never knew it, but not only do you have the right to minimal standards of treatment if you ever become a prisoner of war, but when you were five, you had the right to learn at school all kinds of things about what some people like to do in bed, and if your parents thought that really they’d rather you didn’t hear about that stuff at school, or at least not yet, they were . . . well, they were violating your rights.

They—parents, that is—do have some role, the report admits. Specifically, they are magnanimously invited to participate in developing their children’s sex ed programs as “stakeholders.” This bit is worth quoting in its entirety: The issuing committee “stresses that the participation of young people, in cooperation with other stakeholders, such as parents, in the development, implementation and evaluation of the programmes is vital for comprehensive sexuality education to be effective.” It also, however, after the half-pause of a semi-colon, “encourages the use of peer educators in sexuality education as a good way to lead to empowerment,” and suggests that governments—as really the much more crucial “stakeholders”—consider using social marketing techniques to promote contraceptive use. (40)

But really parents’ primary presence in the document is not as cooperative “stakeholders,” ready (perhaps) to help write ideas about promoting IUD use on a whiteboard in a conference room somewhere. Their primary presence is as problems. The report calls on the Member States to provide “adolescent-friendly sexual and reproductive health services which are in accordance with age, maturity and evolving capacities, which do not discriminate on the grounds of gender, marital status, disability, or sexual orientation/identity, and which are accessible without the consent of parents or guardians.” (44)

Had it passed, the report would, of course, have been non-binding, and it recognized this, to its chagrin. However, despite the irritation of national sovereignty, the writers of the report still saw some light. “[E]ven though it is a competence of Member States to formulate and implement policies on SRHRs,” says the report, “the EU can [make policy] . . . to support better implementation of . . . sexual and reproductive rights legislation.” It can, in other words, position itself as a pedagogue, upstream of the actual member state legislatures, declaring as a matter of Europe-wide policy what is or is not a human right, and “calling on” member states to bring their legislation into line with what are now the human rights norms that every civilized nation agrees on. It also called on Member States which still have unaccountably restrictive abortion laws to not enforce them: to ensure that healthcare professionals who perform abortion and abortion-related services were not prosecuted or penalized. (36)

Although this attempt failed, the rapporteur, Edite Estrela, an MEP from Portugal, remains as the head of FEMM (The Women’s and Gender Equality Committee—there’s that acronym I promised) Having . . . discerned? willed into existence? . . . this new set of rights, it seems probable that the committee will be persistent in its attempt to have them recognized. They are, after all, according to the language of the report, “universal”—applicable to all men, women, and children, at all times, throughout human history, by the very nature of man. If they have been (until now) both unrecognized and unfulfilled, surely that is an injustice that cries out for redress.

Only imagine: The ten-year-old Frederick Douglass was denied the right to learn from a state employee about condom use. His parents were not consulted as “stakeholders” in his sexual education. The eight-year-old Charlemagne; the seven-year-old Hammurabi; the five-year-old Jane Austen were alike denied the right to a free lesson on IUD insertion. The time has come, this committee has decided, for these wrongs to be righted.

Welcome to the new debate. It’s going to be an interesting ride.

Susannah Black is a freelance writer and native New Yorker. She has been a contributor to Front Porch Republic and is an editor at Solidarity Hall , and is presently editing an anthology of essays on various Third Way and traditionalist conservative figures of the nineteenth and twentieth centuries.

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