A recent article on the Huffington Post claimed in its title that a United Nations committee had recognized abortion as a human right in the complaint of K.L. against Peru. However, the article misrepresents international law and the actual report. Not only is abortion not a right in international law, no U.N. committee has the right to make it so, or “affirm” it as one.

The Human Rights Committee (HRC) makes recommendations to Member States who have signed the International Covenant on Civil and Political Rights (ICCPR). Under the Optional Protocol to the ICCPR, the Committee can, under limited circumstances, hear complaints against parties to the ICCPR and Optional Protocol for possible violations of the ICCPR’s provisions. The facts described below are taken from the text of the Committee’s views, which can be downloaded here. The facts in the Views were taken entirely from the complainant’s submissions, as Peru did not respond to Committee inquiries.

K.L. was 17 when she became pregnant in 2001 (Views of Human Rights Committee Concerning Communication No. 1153/2003, ¶ 2.1). Tests revealed her child had an abnormality known as anencephaly, a rare disorder in which the skull does not properly form during pregnancy and typical results in the death of the child during pregnancy or shortly after birth (¶ 2.1). K.L.’s doctor advised her of this fact, and told her she could continue the pregnancy or have an abortion under the law, recommending the latter (¶ 2.2). She chose to have an abortion (¶ 2.2).

However, the director of the hospital did not think she met the legal requirements for an abortion (which is permitted if the mother has a risk of death or permanent health damage), and refused to permit the procedure (¶ 2.3). There was no process for her to appeal his decision. K.L. later gave birth to a daughter with a disability who lived four days (¶ 2.7). She suffered depression following this experience, and told the Committee that the government offered her no counseling or psychological care (¶ 6.5). She brought a complaint against Peru under several provisions of the ICCPR, on the basis that she was denied the exercise of a right (to have an abortion authorized under the law) (¶ 3.1) and suffered harm from it.

When a country grants a right, not allowing someone to exercise that right may make it liable under treaties such as the ICCPR. That is what happened here: Peru permitted abortion under some circumstances, but denied K.L. an abortion—and gave her no way to challenge that decision.

The Committee adopted the view that there had been a number of violations. In the Committee’s view, the mental anguish K.L. suffered was due to the refusal to provide her an abortion, and constituted “cruel, inhuman, or degrading treatment” under article 7 (¶ 6.3). Taking K.L.’s allegations as true, there was no valid reason to deny her the exercise of her rights under Peruvian law, which therefore unjustifiably violated her right to private and family life under article 17 (¶ 6.4). The Committee found that the failure to offer counseling violated the obligation to provide special protections to minors under article 24 (¶ 6.5). Because she had no legal remedy (as it was too late for an abortion, and she had had no way to appeal the hospital director’s decision), the HRC also adopted the view that she had suffered a violation under article 2 (¶ 6.6).

The HRC did note that it had previously recommended that Peru “establish exceptions to the prohibition and punishment of abortion,” as its law was not compatible with articles 3, 6, and 7 of the ICCPR (Concluding Observations of the Human Rights Committee to Peru, CCPR/CO/70/PER ¶ 20). But in this case, the Committee failed to find a violations of article 3 based on the evidence presented (¶ 5.3), indicating that this decision was not based on Peru’s prohibition of abortion, and did not examine whether she had suffered a violation of her article 6 right to life (¶ 6.3). The HRC adopted these Views over ten years ago; the only “news” is that Peru has decided to compensate K.L. after all this time.

As WYA has explained in a white paper on reproductive health, international law can only be created by treaty or custom—not by treaty monitoring bodies like the HRC. The ICCPR makes no mention of abortion, and the terms of treaties are to be understood in their ordinary meaning, not expansively (Vienna Convention on the Law of Treaties, art. 31). As many states limit or prohibit abortion, there is no customary law requiring that abortion be legal. Abortion is not a human right, and a UN committee can neither make it one nor “affirm” it as one. The HRC does not have the authority to create international law, and it cannot read rights into international law that are not part of a treaty or custom. This is true even in the Optional Protocol’s complaint mechanism, as reflected in the fact that the Committee publishes “views” on disputes, not legal “decisions.”

K.L. deserved compassion and support. To lose a child is extremely difficult, and the fact that she was young herself and not offered counseling compounds the tragedy. WYA agrees with the HRC that she should have received psychological care. However, although a prenatal diagnosis that a child has a life-limiting condition is an extremely difficult situation, it cannot justify deliberately ending the life of a human being. Programs such as perinatal hospice respect the dignity of the child while offering compassionate assistance to the parents. As a parent support group in Ireland notes, while a child’s medical status may limit their life expectancy, children with severe medical conditions and disabilities are not only “compatible with life,” but also “compatible with love.”

Human dignity is inherent in every human being, no matter her age, medical condition, or disability status. As young people committed to human dignity, we should stand in solidarity with both the parents and the child affected in these circumstances, offering compassionate care to all.