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sentence of Article 4(1) draws its understanding of the unborn’s right to life from the first
sentence, which declares that every person has this right. This means that the Convention not
only declares that unborn children have a right to life, but also that they are persons. In this
particular regard Article 4(1) allows no other interpretation, since its first sentence refers to the
right of every person to have his or her life respected and the second prescribes an obligation to
protect this right of the person, in general, from the moment of conception. Any attempt to
restrict the scope of the concept of person to some later starting point—whether before, at the
moment, or after birth—is excluded by the clear language of Article 4(1).
The foregoing assertions can be buttressed by other norms in the Pact of San José,
which exhibit a general trend in the Convention in this regard. For instance, Article 1(2)
establishes that “[f]or the purposes of this Convention, ‘person’ means every human being.”
This norm, which has no counterpart in the European Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention or ECHR) or in the ICCPR,
reinforces the unborn child’s personhood, since it is very difficult to contest the fact that
embryos and fetuses belong to the human species. 18 Another norm is Article 4(5), which forbids
the application of capital punishment to pregnant women, since this rule was not established in
favor of the mother (whose basic rights are put to an end with capital punishment), but rather in
favor of the developing child. 19 Besides, the American Convention is not the only human rights
treaty to make explicit declarations regarding the unborn, since the ninth paragraph of the
Preamble of the Convention on the Rights of the Child also does so. Quoting the Declaration
of the Rights of the Child, it declares that “the child, by reason of his physical and mental
it happens with the International Convention on the Elimination of All Forms of Racial Discrimination, with the
Convention on the Elimination of All Forms of Discrimination Against Women and with the Convention on the
Rights of Persons with Disabilities.
18 It cannot be said that this rule wishes to clarify that women are protected by the Convention, since there
has never been any doubt in this regard, and because the American Treaty does not use the word men when referring
to persons. An author who contests the unborn’s humanity is Philip Alston, who also considers that in
international law “there is no precedent for interpreting either that term [child], or others such as ‘human being’ of
‘human person,’ as including a fetus.” He, nevertheless, considers that Article 4(1) of the American Convention
specifies its intention of considering the unborn as a human being. Philip Alston, The Unborn Child and Abortion
Under the Draft Convention on the Rights of the Child, 12 HUM. RTS. Q. 156, 170 (1990). But see RITA JOSEPH, HUMAN
RIGHTS AND THE UNBORN CHILD (2009) (citing various sources of international law as affirming the unborn as a
human being).
19 This is similar to the right established in art. 6(5) ICCPR. According to the travaux préparatoires of this
latter Convention, “[t]he Principal reason for providing […] that the death sentence should not be carried out on
pregnant women was to save the life of an innocent unborn child,” A/3764 118, reprinted in THE RIGHT TO LIFE
IN INTERNATIONAL LAW, 53 (B. G. Ramcharan ed. 1985).