The Lingua Franca of Reproductive Rights: The American Convention on Human Rights and the Emergence of Human Legal Personhood in the New Civil and Commerce Code of Argentina
University of Miami International and Comparative Law Review, Vol. 23, 2016
55 Pages Posted: 27 Jul 2017
Date Written: May 1, 2016
The debate in law around the moment that legal personhood comes into being within a legal order strongly impacts the enjoyment of reproductive and sexual rights of individuals in Latin America. A salient element of these debates is that all the parties, on either side of the ideological spectrum, have structured their claims around a global language: the language of (human) rights. This article will draw on that language as a framework for studying the recent developments of the debates around the beginning of legal personhood and assisted reproductive techniques (ARTs) in Argentina. Recently, the National Congress of Argentina has approved the unification of the National Civil Code with the National Commerce Code. This important legal reform entailed several changes to the general principles of private law and family law. In fact, in the congressional (and media) debates around the drafting and approval of the reformed Code, the determination of when legal personhood begins and what are its effects for the legal regime of ARTs have been among the issues that provoked heated disagreements. This debate was sustained in the lingua franca of human rights agreed in the Inter-American Human Rights System, namely, the American Convention on Human Rights. What has been the object of these debates around the beginning of legal personhood and ARTs in the new Argentinean Civil Code? Did Argentinean Representatives learn anything from the experience of past debates in the Region on how to regulate the beginning of legal personhood and ART’s in a way that respects and protects human rights of individuals? This article argues that the text of the new Civil and Commerce Code failed to accommodate discourses about when life begins under a reasonable lingua franca of human rights. It also explains that a proper framing of such legal status must not entail moral or ontological foundations that would render the imposition of a belief or life plan on others. In light of that, the paper proposes a reading of the text that is consistent with international human rights case law.
Keywords: Reproductive Rights, Assisted Reproductive Techniques, Legal personhood, Argentina, Human Rights Law
JEL Classification: K30, K36, K10
Suggested Citation: Suggested Citation