Chromosomal Cleansing: The Unrecognized Genocidal Trend

Chromosomal Cleansing: The Unrecognized Genocidal Trend

Abstract

The prenatal screenings and healthcare provisions for fetuses continue to evolve. These

screenings can detect more than just gender: healthcare providers can also determine whether a fetus is carrying Down syndrome. The technology results in increased rates of abortions for fetuses who carry Down syndrome. This paper argues that the increased abortion rates risk becoming a genocidal trend for an unborn population unable to defend themselves. While the definition of genocide does not encompass abortion of unborn babies carrying Down syndrome, the paper analogizes between genocide in other contexts and this increasing practice in order to criticize the use of prenatal screening which results in the loss of many lives.

Introduction

In 2004, countries across the globe began implementing prenatal screenings in healthcare routines for pregnant mothers-to-be.[1] These new protocols require blood tests, known as the quadruple screen, and are designed to determine whether a pregnant woman’s fetus is at an increased risk for certain genetic or physical conditions.[2] Medical experts can determine whether a fetus is at risk for Down syndrome based on these blood sample results.[3] Due to the availability of these procedures, there is a risk that abortions targeting fetuses with Down

syndrome may increase. In fact in Iceland, “[s]ince prenatal screening tests were introduced … in the early 2000s, the vast majority of women—close to 100 percent—who received a positive test for Down syndrome terminated their pregnancy.”[4] The termination rate of fetuses with Down syndrome in countries like Iceland has become so widespread that, if these countries’ rates continues to rise, persons with Down syndrome may not exist in future generations.[5]

Genocide became an internationally recognized crime through the United Nations’ Convention on the Prevention and Punishment of the Crime of Genocide (the Convention).[6] Within this recognition, genocide has been defined as “acts committed with the intent to destroy, in whole or in part a national, ethnical, racial or religious groups.”[7] However, as it currently stands, the classes named in the Convention fail to extend protections to more specific classes of persons, including persons with Down syndrome. Despite the fact that the widespread termination of Down syndrome fetuses is not recognized as genocide according to the standards set forth in the Convention, it is nevertheless purposeful chromosomal cleansing. To prevent this trend from continuing, persons with Down syndrome must be afforded legal protections.

Therefore, in order to extend legal protections to classes not currently recognized, the

Convention should expand its definition of protected classes of persons, rather than festering within its rigorous blind spot and continuing to allow groups that fall outside the definition to be targeted for extermination.[8] If the Convention continues to allow the purposeful termination of the Down syndrome group, what unprotected group will be targeted next?

I. The Quad Screen and Increased International Abortion Rates

The quadruple screen has become a standard assessment utilized by the medical industry as a procedural measurement for pregnant women.[9] This assessment measures the hormones and proteins in a mother’s blood stream to detect whether a fetus is at an increased risk for neural tube defects, otherwise known as spina bifida.[10] It can also detect an increased risk of trisomy 18, a chromosomal abnormality otherwise known as Down syndrome. While the medical

industry insists these blood screenings are preventative assessments to aid in informing and preparing an expectant mother, this preparatory mechanism is becoming a destructive platform. Specifically, the American College of Obstetricians and Gynecologists issued a Practice Bulletin guideline that implemented screenings in order to specifically detect fetal chromosomal

abnormalities, including Down syndrome.[11] The guidelines emphasize that all women, regardless of age, should be offered first trimester aneuploidy screening and amniocentesis examinations in order to provide a more comprehensive recommendation about the health of a fetus.[12] Since the introduction of these practice guidelines, an estimated 80–90 percent of women abort fetuses that test positive for Down syndrome.[13] In 2014 alone, 639 American women terminated their pregnancies after the fetus tested positive for Down syndrome—a 34 percent increase since 2011.[14]

The United States is not the only country with staggeringly low Down syndrome births. In 2015, the termination rates for fetuses testing positive for Down syndrome increased to 77 percent in France, 98 percent in Denmark,[15] 90 percent in the United Kingdom,[16] and 100 percent in Iceland.[17] These numbers mean “an entire category of human beings faces extermination in societies that claim to prize tolerance and diversity above all.”[18] Overall, the global Down syndrome population has decreased by 8 percent in the last two decades,[19] which may ultimately result in countries wholly eradicating the disability by 2030.[20]

A. Staggering Numbers, Positive International Regards

The increased depopulation of Down syndrome has received great international praise, and has even been accredited to the evolving pursuit of future medical and healthcare advances.

Bioethicist Dr. Niels Uldbjerg, from Aarhus University in Denmark, describes this trend to be a “fantastic achievement” as the number of newborns with Down syndrome has begun

approaching trifling numbers.[21] Additionally, Senior Advisor at the Court of Auditors in France, Jean Marie Le Méné, claimed abortion for medical purposes is “paving the way for transhumanisim.”[22] While speaking at a European health seminar, Le Méné praised the employment of public health policies geared toward elective abortions that are being

systematically reimbursed through health insurance providers in order to “improve and reduce the number of births of children with disabilities.”[23]

The health care system in Iceland provides counselors at hospitals in order to assist women deciding whether to abort a fetus that has a medical condition.[24] One counselor at the

Landspitali University Hospital, Hegla Sol Oladasdottir, stated that she believes these abortions are a positive decision.[25] In an interview, Oladasdottir went on to say:

We don’t look at abortion as a murder. We look at it as a thing that we ended. We ended a possible life that may have had a huge complication … preventing suffering for the child and for the family. And I think that is more right than seeing it as murder—that is so black and

white. Life isn’t black and white. Life is grey.[26]

Life, including suffering, should not be considered grey. When society begins believing that life is merely grey we begin to step into a “mindset [that] is the fruit of culture that fails at every level to comprehend the dignity and value of each human child, regardless of how many chromosomes he or she possesses.”[27]

B. The Elimination of Suffering

Proponents for the elimination of fetuses with Down syndrome largely justify their stance on the elimination of suffering. To illustrate, in response to a woman’s question as to whether to carry a fetus with Down syndrome to full term, biologist Richard Dawkins tweeted it would be

“immoral to bring [the fetus] into the world if you have the choice.”[28] In support of his statement, Dawkins relied on the principle of “reducing overall suffering whenever possible—in this case, that of individuals born with Down syndrome and their families.”[29]

Dawkins is not the only person who champions this suffering-reduction principle. In statements supporting the Freedom of Choice Act, Hillary Clinton defended late-term abortions for children with genetic abnormalities on the basis of medical necessity.[30] Clinton went on to state that an unborn child that might have a condition like Down syndrome would make death preferable to a life of suffering.[31] This conversation, however, has not been reserved for society’s elite. At a women’s march in Washington D.C., layperson attendees indicated that when it comes to children being born with Down syndrome, “a child would be better off dead than alive but not cared for.”[32] One attendee went on to say, “[w]hether [this] is okay in the big picture, I think is less important that the question of the individual right … [a]nd so I support each of the women that made that decision … whatever the consequence of that [is].”[33]

Aborting fetuses with Down syndrome is believed to reduce suffering,[34] but suffering from disease, disability, or impairment cannot be eradicated through death. In fact, women who elect to abort fetuses arguably suffer more than a person living with Down syndrome. For example, France banned advertisements featuring Down syndrome individuals who expressed happiness about their lives in an attempt to ease the minds of mothers whose pregnancies tested positive for Down syndrome.[35] The French government reasoned that the “children’s smiles would disturb the conscience of women who had lawfully made different personal life choices—seeing their joy would upset women who had aborted their Down syndrome children.”[36]

There is no denying that raising a child with Down syndrome poses its own unique set of challenges. However, “people [living] with Down syndrome, and the families who care for them, suffer less than might be supposed.”[37] In a survey of 284 people living with Down syndrome, almost 99 percent of participants indicated they were happy with their lives, while 97 percent of participants indicated they liked who they were.[38] Additionally, Commentary interviewed multiple people living with Down syndrome.[39] One woman said, “I’m happy. I’ve got an amazing life. I’ve got a boyfriend. I got a job as a golf coach.”[40]

Additionally, “studies have suggested that families of these children show levels of well-being that are often greater than those of families with children with other developmental disabilities, and sometimes equivalent to those of families with nondisabled children.”[41] Data shows that the divorce rates of parents of children living with Down syndrome were “lower on average than that in families with children with other congenital abnormalities and in those with a nondisabled child.”[42] Another study revealed 88 percent of persons who had younger siblings with Down syndrome “reported feeling that they themselves were better people,”[43] because of their sibling.

Even the international legal community recognizes that people living with disabilities, including Down syndrome, are an integral piece to the health and well-being of their communities. On December 13, 2006, the United Nations adopted the Convention on the Rights of Persons with Disabilities (CRPD).[44] In the CRPD’s preamble, State Parties to the convention recognize the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social, and economic development of society and the eradication of poverty.[45]

“In whatever moral calculation [persons] may wish to make, these facts deserve to be accorded their full weight.”[46] Despite the large misconception that links suffering to living with a disability, the data and testimony of those living with Down syndrome, their families, and international law, show that persons living with Down syndrome are not, in fact, suffering.

C. “Wrongful Life” – A Legal or Financial Complaint?

Also, proponents for the elimination of Down syndrome utilize a mothers’ wrongful life claim to encourage abortions for Down syndrome fetuses. Essentially, mothers bringing this claim may allege that physicians failed to properly advise and encourage the mother to terminate a

pregnancy when the fetus had Down syndrome. Based on this failure to inform, the parents may claim that they did not take appropriate steps to abort the pregnancy, which has now forced their child to live a wrongful life.

A wrongful life claim for a child living with Down syndrome does not establish that the child has actually suffered a legally cognizable injury.[47] Jeffery Botkin noted:

Whether it is better to never have been born at all than to have been born with even gross deficiencies … surely the law can assert no competence to resolve the issue … not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering.[48]

The loss of enjoyment of life is not a measure of damage that the law can reasonably apportion because there is no articulable standard of what is a life without suffering. Absent establishing

actual harm with reasonable certainty, the law cannot recognize a claim that only apportions damages based on subjective speculation.

Moreover, a wrongful life argument appears to be founded in financial concerns. The American Journal of Medical Genetics examined the “out-of-pocket costs to families for the medical care of children and adolescents with Down syndrome.”[49] Researchers concluded that children living with Down syndrome cost “less than $100 a month more than the costs for care of a typically developing child.”[50] In fact, average households incurred an additional $1014 a year—$84 a month—in medical expenses for a child living with Down syndrome, compared to a “typically developing child.”[51]

While the study’s authors noted that emergency room visits or prescriptions might be additional factors in a family’s monthly medical expenditures, the authors expressed their hopes that the results of the study would provide “an additional, helpful piece of information,”[52] to those struggling with the idea of increased expenses. One author further noted that “[p]arents today have an array of financial planning and investment

options—including special needs trusts—so I hope our findings can help families better prepare for their own financial futures.”[53]

In allowing wrongful life claims, society demonstrates that, in the spirit of frugality, it would rather point blame at some of the most happy to be alive instead of acknowledging the jovial spirit cultivated by those living with Down syndrome. While there are many financial options for families and individuals living with special needs, it is the ultimate obligation of a child’s parents to be willing to recognize and overcome the many economic misconceptions

inappropriately tacked onto these persons with Down syndrome. Therefore, as a claim based on assumptions that does not provide specific legal injuries to be remedied at law, wrongful life claims on behalf of individuals living with Down syndrome ought to be void.

D. A Flawed System

Recently, European insurance companies have begun implementing improvements into public health policies geared toward elective abortions of children with disabilities.[54] These improvements are based on three factors: technical feasibility, calculated cost-of-living for a person with disabilities, and the potential child’s aversion to weakness.[55] If a potential child substantially meets these factors, the child is considered imperfect and its birth is considered a misfortune to welcome.[56] The founders of this standard believe that with increased

accessibility of advanced technology, unfortunate births can be avoided, thereby replacing restoration and order back into society and happiness in the family.[57] Regarding Down syndrome specifically, the quad screen is able to detect approximately 81 percent of affected fetuses, leaving 19 percent of fetuses with Down syndrome undetected. [58] While these screenings may be able to identify whether a fetus has a higher risk for a potential chromosomal or growth defect,[59] it should not be the only basis for aborting a child.[60]

Arguably, these new medical and insurance standards suggest that increased testing and termination of fetuses with genetic conditions stem from express fears misperceived

people predisposed to certain conditions, and the repression of socially undesirable behavioral or physical traits.”[62] Also, geneticist Dr. Kari Stefansson believes that abortion rates reflect a relatively heavy-handed genetic counseling.[63] Dr. Stefansson went on to say, “[y]ou’re having impact on decisions that are not medical in a way. I don’t think there is anything wrong with aspiring to have healthy children, but how far should we go in seeking those goals [is] a fairly complicated decision.”[64]

International agreements answer Dr. Stefansson’s concerns by providing persons living with disabilities the same legal and health protections as those living without disabilities. For example, the CRPD’s preamble specifically states “discrimination against any person on the basis of a disability is a violation of the inherent dignity and worth of the human

person.”[65] This umbrella of protection applies not only to those with relatively mild

symptoms, but also extends to “those who require more intensive support.”[66] The CRPD goes on to clarify in Article 5(1) and (2) that:

States Parties [must] recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law [and] States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.[67] A human being, whether they have a disability or not, will always depend on others for

emotional, financial, and physical care until their death. “Too often, the non-disabled make false assumptions regarding the subjective experiences of people with disabilities and chronic illnesses [in order] to justify their own policy preferences.”[68] When life is allowed to be determined by subjective factors, human beings are no longer seen as valuable simply because they are human beings.[69] Instead, each person necessarily earns their value by meeting certain requirements set by society.[70]

II. Genocidal Stages as Applied to the Down Syndrome Group

With ties dating back to ancient times, genocide is a matter with which mankind continues to grapple. Genocide became an internationally recognized crime at the United Nations’ Convention on the Prevention and Punishment of the Crime of Genocide (the

Convention).[71] The Convention describes genocide as the “destruction of a nation or of an ethnic group.”[72] This description is not intended to constrain the means, application, or interpretation of genocide.[73] Instead, this definition provides a global framework for crimes aimed at depopulating particular groups.[74]

Generally speaking, genocide is associated with shocking and horrifying events surrounding mass killings. However, the definition of genocide also includes acts with lesser quantitative impact. Raphaël Lemkin, an international lawyer who termed the word and definition of “genocide” stated:

Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations

of the life of national groups, within the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the

individuals belonging to such groups.[75]

This explanation demonstrates that “genocide” applies not only to broad or repeatedly committed actions, it may also apply to single acts directed at particular individuals. Each act, no matter how grand or minute, should not go without its proper recognition.

Furthermore, genocide has been distinguished as evolving in ten identifiable intervals.[76] Acts are not required to meet every enumerated stage in order to be classified as genocide. Instead, the more stages an act reaches, the more the action begs to be classified as genocide. For now, the termination rate of fetuses with Down syndrome has not yet risen to all stages of genocide. For example, one stage of genocide is the classification stage, wherein the targeted group is distinguished into an “us versus them” mentality by ethnicity, race, religion, or

nationality.[77] Through this distinguishing the group then falls subject to the next stage, symbolization.[78] Inevitably, labels or definitions will be placed on groups based on

membership. But a distinguishing difference of the classification stage of genocide is when the acts of classification and symbolization are combined with hate, resistance, and are ultimately geared toward dehumanization, arguably, the first step toward genocide has been met.[79] In the case of fetuses with Down syndrome, the classification stage begins with the quad screen and determining whether a fetus has one of three genetic variations: trisomy 21, mosaic trisomy 21, or translocation trisomy 21.[80] Once the fetus has been established as containing such a genetic variation, they are then symbolized as “them” with the distinguished name: Down syndrome. This is done with the specific intent to point out those who have an involuntary and incontrollable genetic variation of twenty-first chromosome, as different than others. More specifically, when this classification is used for the purposes of targeting and separating

“normal” fetuses from “Down syndrome fetuses,” the name becomes a symbol for the purpose of dehumanization and depopulation. Rather than using the name to acknowledge the diverse qualities the group contributes to society, the Down syndrome name becomes a means of separating “us” from “them,” through the classification and symbolization of a group that is considered to be an otherwise undesirable child.

Another example is the persecution stage, which identifies and separates the victims based on the group’s discrimination.[81] The quad screen clearly demonstrates that the Down syndrome group is easily identified through blood tests at the earliest onset of the fetus’s life. When the Down syndrome group is identified through the quad screen, medical professionals and parents alike are able to separate the children they believe to be normal from those determined not to be normal. In turn, this opens the door of opportunity for the Down syndrome group to be picked off, and subjected to the staggering statistics discussed above. Therefore, the classification based on the twenty-first chromosome evolves into symbolizing the group, through the name Down syndrome, which enables proponents of aborting fetuses carrying Down syndrome an ample opportunity to improperly persecute this group.

The final stages of genocide are the extermination stage and the denial stage. The extermination stage results in the ultimate act of the mass killing of the victim group. Mr. Stanton notes that such acts under this stage are those that are intended to destroy the particular group.[82] Once the extermination stage has been met, the perpetrating group ultimately begins engaging in the denial of any such exterminating activities taking place.[83] Arguably, there have been

purposeful acts to exterminate the Down syndrome group for decades. The concerted efforts of medical practitioners and pregnant women in countries such as Iceland is evidence of a distinct and coordinated scheme to completely destroy this particular group. Additionally, this

intentional group destruction is being denied as extermination evidenced by the opinions of Hegla Sol Oladasdottir and Mr. Dawkins. With astonishing international termination rates, there is no denying that laypersons and medical professionals alike are becoming more and more desensitized toward the extermination and depopulation of the Down syndrome group.

Overall, genocide evolves in subtle waves with different stages and degrees of identification. As shown, palpable stages of genocide are alive among us today. Whether it meets the legal

threshold or not, this genetic depopulation is a growing genocidal trend. However, as it currently stands this group is not afforded any legal protections to combat the trend. Therefore, the United Nations must consider expanding the definition of genocide to encompass this group.

III. The Genocide Threshold and the Current Convention Protections Article III of the Convention states, “[i]n the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part a national, ethnical, racial or religious group, such as: (a) [k]illing members of the group … (d) [i]mposing measures intended to prevent births within the group.”[84] The introduction of the Convention “finally provided the basis for the emergence of a norm of customary international law which renders genocide punishable. As such, the crime of genocide is subject to universal jurisdiction.”[85] Despite its initial innovation, “the definition and the scope of the crime of genocide as a proscription of customary international law has developed well beyond the confines dictated by the wording of the Convention itself.”[86] Thus, as crimes and genocide have evolved, the Genocide

Convention must also evolve in order to provide protections to those groups who are not named in the document.

The Convention specifically names four categorically protected groups: national, ethnical, racial, or religious groups.[87] From a strictly positivistic approach, only those who fall precisely within those categories of the Convention can be subjected to genocide.[88] The language of the Convention restrains the law from offering protections to a number of unnamed classes. For example, the Convention does not extend protections to the different categorizations between the Rwandan Hutu and Tutsi groups.[89] “While these two factions of the Rwandan population share the same nationality, race, and by and large, the same religion they technically are not classified as distinct ethnic groups because they share the same language and

culture.[90] However, it is clear that the distinction and divide between the Hutu and Tutsi is based on material means and social status in the community.[91] While protections may be afforded to Rwandans as a whole based on the overly broad definition of ethnic group, the Convention fails to protect the distinct factions arising deep within a single ethnic group.

At this point, the Down syndrome group does not fall within any one of the four named classes of the convention. The Down syndrome group does not meet the religious criteria because the classification is based on a chromosomal abnormality, not a religious tenet.[92] The group is not an ethnic group because the class is not based on common culture or

background.[93] Furthermore, the group cannot be classified as a national group because a common country of national origin does not define Down syndrome.

Genocide is a present reality for the members of the Down syndrome group, and absent any concrete protections, could be the ultimate destruction of this group. Currently, the overbroad provisions of the Convention fail to protect narrow groups not named in the Convention that are potential victims of specific actions designed to destroy them.[94] Therefore, the Convention must be marginally expanded in order to protect those narrow groups subjected to genocidal acts.

IV. Convention Reform and Defining Political Groups

In its rigor, the Convention “unlike any other international legal instrument limits the protected classes.”[95] The international law community has slowly acknowledged these rigorous limitations on the named classes in the Convention. In 1978, the “report of the Special

Rapporteur on genocide concluded that the Convention lacked effective international measures to prevent and punish genocide.”[96] Less than a decade later, the same Special Rapporteur’s report

[r]eached similar conclusions, determining that all too much evidence continued to accumulate that acts of genocide are still being committed in various party of the world … and in its present form, the Convention … must be judged inadequate. Further evolution of international measures against genocide [is] necessary and indeed overdue.[97]

The Special Rapporteur went on to recommend that additional “measures should be incorporated into a supplementary Convention or Protocol.”[98]

As the Special Rapporteur acknowledges a necessary expansion of law, the international tribunals have also chosen to break away from the restrictive class membership limitations by applying marginally expansive interpretations of the Convention. In The Prosecutor v. Jean-Paul Akayesu, the tribunal “avoided relying on analogical interpretations because of the

constraints generally recognized in its application to criminal law founded on the adage nullum crimen sine lege.”[99] For the first time in history, the international tribunal broke away from the strenuous application of genocidal crimes classified by the Convention, and recognized rape as a component of genocide.[100] In doing this, the tribunal noted, “genocide is distinct from other crimes inasmuch as it embodies a special intent of dolus specialis. Special intent of a crime is the specific intention, required as the constructive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged.”[101]

It must be noted that calling for marginal expansion of the Convention is not intended to dilute the true essence of the definition of genocide. Rather, marginal expansion seeks to afford

protection and recognition to those groups, like Down syndrome, who have suffered at the hands of unjust genocidal acts. As Matthew Lippman suggests:

Article II restricts the scope of the Convention to racial, religious, ethnical, and religious groups. One alternative is to afford protection to any coherent collectivity [that] is subject to persecution. A more modest proposal is to protect political groups and possibly women, homosexuals, and economic and professional classes. Political movements, in particular, have historically been victimized and, like religious groups, are typically united by a common code and vision. The failure to protect political groups permits regimes to claim that their genocidal acts are aimed at decimating dissidents, rather than ethnic or religious groups.[102]

The case of The Prosecutor v. Jean-Paul Akayesu demonstrates the tribunal’s ability to recognize a non-named form of specific intent in order to carry out the crime of genocide. Moreover, this decision conveys an international willingness to marginally expand the protective standards of the Convention. Groups like Down syndrome should find hope knowing that the tribunal has marginally expanded the application of the law once before, and it may have the ability to do it again.

Another hopeful horizon for unnamed groups is the amendment or addition of political groups into the language of the Convention. United Nations General Assembly Resolution 96(I) proposed a broader approach when defining genocide by stating:

[g]enocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.[103]

In addition to this amended definition, the Resolution also suggested recognizing genocide when “racial, religious, political, and other groups have been destroyed, entirely or in part.”[104] Political groups are defined as those individuals “belong[ing] to the group on an involuntary basis, or … automatically by birth in a continuous and often irremediable manner.”[105] The commonality between the four named groups is measured by their representation of,

“institutional communities … that by their inner nature are destined to encompass their members to an intensive degree, continuously or at least for a considerable part of their life, and in such a way independent of their will.”[106]

The Down syndrome group is analogous. Down syndrome is the result of involuntary genetic mutations in utero, falling precisely within the reasoning extended to political groups. Persons with Down syndrome are without remedial measure to undo the involuntary genetic modification and will operate within this group for the remainder of their lives, independent of their

will. Under the suggested definition, the addition of political group would homogeneously fall under the general fundamentals of the named group of the Convention, by representing a continuous named group independent of the group’s will.

Originally, the term “political group” was “perceived to be too broad; therefore, the protections offered under Article II of the Convention on Genocide continue to be limited to four

they “lack[ed] the necessary homogeneity and stability,” of the other names groups[108] and was too broad in nature. However, the decision to exclude political groups has denied millions of lives legal protection against genocidal acts.

Taken together, the Convention’s two major drafting compromises—the exclusion of political groups and the elimination of universal jurisdiction over the crime of genocide—resulted in a legal regime that insulates political leaders from being charged with the very crime that they may be most likely to commit: the extermination of politically threatening groups. As such, the Genocide Convention is more pertinent as a retrospective condemnation of the Nazi enterprise than as a forward-looking guide for the application of the full international prohibition of genocide.[109]

A heavily debated political group has been the lesbian, gay, bisexual, transgender, and queer (LGBTQ) group. Discussions at the Rome Conference revealed that this particular political group lacked protections under the Rome Statute.[110] As a precautionary measure, the Rome Statute’s delegation incorporated a gender definition in the Statute to prevent the continued denial of protections to a group defined because of their involuntary status.[111] Since this inclusion, the international legal community has refused to subject:

[persons] to ridicule of contempt merely on account of their (involuntary) gender-based orientation is as much a crime against humanity as was condemnation of persons to an inferior status in a public life because of their (involuntary) racial extraction [.][112]

The delegation also emphasized that the gender definition inclusion “will not preclude the extension of the definition of genocide to protect persons constituting an “institutional community” by virtue of their sexual orientation.”[113]

Similarly, the Down syndrome group is a class of persons specifically distinguished by the involuntary mutation of their chromosomes while in utero. It is impossible to refute the notion that these persons, and their parents, have absolutely no control over the development and

reproduction of additional chromosomes. Furthermore, the Down syndrome group is included in an “institutional community” as a part of the larger group of persons living with

disabilities.[114] As a recognized international institutional community based on the

involuntariness of their genetic make-up, the inclusion of a gender definition in the Rome Statute should be that much more persuasive for extending protections to genetically involuntary

attributes, including the Down syndrome group. Additionally, while the CRPD does provide persons with disabilities a large amount of protections, unlike the inclusion of the gender

definition in the Rome Statute, it does not afford the same potential genocidal extensions in order to protect persons with disabilities.

The international legal community has recognized gender-based groups and persons with disabilities as requiring legal protections. Now, it must be willing to extend the spirit of the CRPD to current genocidal standards. Prior expansion of the definition of genocide and the addition of gender-based groups in the Rome Statute demonstrates the potential for extending protections to groups based on an involuntary selection of genetic make-up.

If the international legal community continues to permit preferential selection of groups for protection, then we deny the right of existence to entire human groups.[115] The law should not be permitted to select at will which groups are worthy of protections based on involuntary characteristics. The evolving elasticity of current international standards to include recently discussed political groups, based on an involuntary basis, should persuade lawmakers when considering the extension of the same protections to the Down syndrome group.

Conclusion

Historically, the “use of science in the search for human perfection has been at the root of some of our greatest atrocities in terms of respect for human life, individual humans, and human rights.”[116] As it currently stands, society is approaching what could become one of the greatest unspoken atrocities of this generation. Regardless of these clear warnings of genocide, people with Down syndrome are not legally protected in this genetic elimination fight. There must be marginal expansion of the Convention in order to afford the Down syndrome group legal protections. If proactive steps are not taken in the early phases of this chromosomal cleansing, the medical community may continue their actions against a greater scope of persons beyond the Down syndrome group.

[1]. Christian W., Down’s Syndrome Heading for Extinction in Denmark, CPH Post Online (Oct. 20, 2015, 9:44 AM), http://cphpost.dk/news/down-syndrome-heading-for-extinction-in-denmark.html.

[2]. BabyCenter (June 2015), https://www.babycenter.com/0_quad-screen-second-trimester-prenatal screening_1487.bc.

[3]. Id.; See also Christian W., supra note 1.

[4]. Julian Quinones,”What kind of society do you want to live in?”: Inside the country where Down syndrome is Disappearing, CBSN on Assignment (Aug. 14, 2017, 4:00 PM), https://www.cbsnews.com/news/down-syndrome-iceland/?linkId=40953194.

[5]. See generally Christian W., supra note 1 (predicting that, if the current trend continues, Denmark’s Down syndrome population will be extinct in thirty years). [6]. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention].

[7]. Id. The Convention goes on to define said acts as:

[K]illing members of the group; using serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.

[8]. Beth Van Schaack, The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot, 106 Yale L.J. 2259, 2261 (1997).

[9]. BabyCenter, supra note 2. [10]. Id.

[11]. Matthew Diehr, The State of Affairs Regarding the Counseling for Expectant Parents of a Child with a Disability: Do ACGO’s New Practice Guidelines Signify the Arrival of a Brave New World?, 53 St. Louis U. L.J. 1287, 1288 (2009).

[12]. Id. at 1288–89. [13]. Id.

[14]. Tim Stanley, Down’s syndrome People’s Risk ‘Extinction’ at the Hands of Science, Fear, and Ignorance, The Telegraph (Jan. 18, 2016, 9:45 AM), http://www.telegraph.co. uk/news/2016/03/22/downs-syndrome-people-risk-extinction-at-the-hands-of-science-fe/. [15]. Quinones, supra note 4.

[16]. David Harsanui, Pro-Choicers Should Explain Why They Think Eugenics is Acceptable, The Federalist (Aug. 16, 2017), http://thefederalist.com/2017/08/16/icelands-eradication-syndrome-raises-inconvenient-questions-pro-choicers/.

[17]. Quinones, supra note 4.

[18]. Sohrab Ahmari, Down syndrome Speaks, Commentary (Aug. 23, 2017), https://www.commentarymagazine.com/politics-ideas/down-syndrome-speaks/. [19]. Diehr, supra note 11 at 1289.

[20]. Christian W., supra note 1 (Denmark could be Down syndrome free within thirty years).

[21]. Margaret Soomerville, Deselecting Our Children, National Right to Life News Today (Dec. 18, 2013), http://www.nationalrighttolifenews.org/news/2013/12/deselecting-our-children-2/#.WYt57XeGNsN.

[22]. Abortion for Medical Reasons: Towards Assumed Eugenics, Gènéthique: The First Bioethics News Website (July 12, 2017), http://www.genethique.org/en/abortion-medical-reasons-towards-assumed-eugenics-67949.html#.WYdTs9PytsO.

[23]. Id.

[25]. Id. [26]. Id.

[27]. Alexandra Desanctis, Ohio is Right to Ban the Abortion of Babies with Down syndrome, Nat’l Rev. (Dec. 19, 2017 at 4:00 PM), http://www.nationalreview.com/ article/454746/ohio-down-syndrome-abortion-ban-moral-necessity.

[28]. Jamie Edgin & Fabian Fernandez, The Truth About Down Syndrome, N.Y. Times (Aug. 28, 2014),

https://www.nytimes.com/2014/08/29/opinion/the-truth-about-down-syndrome.html. [29]. Id.

[30]. Descanctis, supra note 28. [31]. Id.

[32]. Lisa Bourne, Why Women’s March Attendees Explain Why they Support Aborting Down syndrome Babies, Life Site (Jan. 25, 2018 at 12: 40 PM), https://www.lifesitenews.com/ news/womens-march-attendees-explain-why-they-support-aborting-down-syndrome-babi. [33]. Id.

[34]. Holly Christensen, The Problem with Down syndrome Abortion Ban, Akron Beacon Journal (Dec. 28, 2017 at 11:38 PM), https://www.ohio.com/akron/lifestyle/holly-christensen-the-problem-with-the-down-syndrome-abortion-ban.

[35]. Descantis, supra note 28. [36]. Id.

[37]. Edgin, supra note 29.

[38]. Peter Saunders, 99 percent of People with Down’s Syndrome Happy with their Lives, Don’t Abort Them, LifeNews (Oct. 18, 2013 at 1:51 PM),

http://www.lifenews.com/2013/10/18/99-of-people-with-down-syndrome-happy-with-their-lives-dont-abort-them/#.

[39]. Ahmari, supra note 18. [40]. Id.

[41]. Id. [42]. Id.

[43]. Id.

[44]. Convention on the Rights of Persons with Disabilities, Dec. 13, 2006, 2515 U.N.T.S. 3, https://treaties.un.org/doc/publication/unts/volume%202515/v2515.pdf.

[45]. Id. at 71, para. m. [46]. Edgin, supra note 29.

[47]. Jeffery R. Botkin, Prenatal Diagnosis and the Selected Child, 30 Fla. St. U. L. Rev. 265, 269 (2003).

[48]. Id. at 270 (quoting Becker v. Schwartz, 386 N.E.2d. 80 (1978).)

[49]. Medical Care of Child with Down syndrome Children Probably Not a Financial Burden for Most Families, MedicalXpress (Dec. 14, 2016), https://medicalxpress.com/ news/2016-12-medical-child-syndrome-financial-burden.html.

[50]. Id. [51]. Id. [52]. Id. [53]. Id.

[54]. Abortion for Medical Reasons: Towards Assumed Eugenics, Gènéthique: The First Bioethics News Website (July 12, 2017), http://www.genethique.org/en/abortion-medical-reasons-towards-assumed-eugenics-67949.html#.WYdTs9PytsO. [55]. Id. [56]. Id. [57]. Id. [58]. Id. [59]. Id.

[60]. Generations must be mindful that pre-natal screenings are not a guarantee that a fetus has normal chromosomes. See BabyCenter, supra note 2.

[62]. Maha F. Munayyer, Genetic Testing and Germ-Line Manipulation: Constructing a New Language for International Human Rights, 12 Am. U. J. Int’l L. & Pol’y 687, 688–90 (1997).

[63]. Quinones, supra note 4. [64]. Id.

[65]. Supra note 47, at § h. [66]. Id. at § j.

[67]. Id. at art. 5(1), (2). [68]. Ahmari, supra note 18.

[69]. Amy Hall, Down’s Syndrome Births in Denmark May Disappear by 2030, Stand to Reason Blog (Aug. 26, 2011 at 12:55 PM), http://str.typepad.com/weblog/2011/08/

denmark-sets-eugenics-goal-for-2030.html. [70]. Id.

[71]. Genocide Convention, supra note 6.

[72]. Id.; see also Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government Proposals for Redress 79 (1944).

[73]. See generally Lemkin, supra note 72. [74]. Id.

[75]. Lemkin, supra note 72 (emphasis added).

[76]. Gregory H. Stanton, The Ten Stages of Genocide, Genocide Watch,

http://genocidewatch.org/genocide/tenstagesofgenocide.html (identifying ten identifiable stages of genocide as classification, symbolization, discrimination, dehumanization, organization, polarization, preparation, persecution, extermination, and denial).

[77]. Id. [78]. Id. [79]. Id.

[80]. Down Syndrome: Trisomy 21, Am. Pregnancy Ass’n, http://american pregnancy.org/birth-defects/down-syndrome/.

[81]. Stanton, supra note 76. [82]. Id.

[83]. Id.

[84]. Genocide Convention, supra note 6.

[85]. Johan D. van der Vyver, Prosecution and Punishment of the Crime of Genocide, 23 Fordham Int’l L.J. 286, 287.

[86]. Id.

[87]. Genocide Convention, supra note 6. [88]. Vyver, supra note 85, at 304. [89]. Id. at 303.

[90]. Id. at 303–04. [91]. Id.

[92]. Stanton, supra note 76. [93]. Id.

[94]. Vyver, supra note 85, at 303. [95]. Van Schaack, supra note 8, at 2261.

[96]. Matthew Lippman, The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later, 15 Ariz. J. Int’l & Comp. L. 415, 463 (1998).

[97]. Id. at 464. [98]. Id.

[99]. Vyver, supra note 85, at 304; see also Rwanda: The First Convicted for Genocide, U.S. Holocaust Memorial Museum, https://www.ushmm.org/wlc/en/article.php?Module Id=10005200 (Jean-Paul Akayesu was the first Rwandan government official to be tried and convicted of the crime of genocide based on his calculated political and social agenda in joining the war efforts.).

[100]. See generally, Rwanda: The First Convicted for Genocide, U.S. Holocaust Memorial Museum, https://www.ushmm.org/wlc/en/article.php?ModuleId=10005200.

[101]. Ewelina U. Ochab, Never Again: Legal Responses to a Broken Promise in the Middle East 28 (2016).

[102]. Lippman, supra note 96, at 464.

[103]. The United Nations General Assembly Resolution (Official Report, Dec. 11, 1946). [104]. Ochab, supra note 101, at 31–32.

[105]. Vyver, supra note 85, at 305. [106]. Id.

[107]. Ochab, supra note 101 at 31–32. [108]. Van Schaack, supra note 8, at 2264. [109]. Id. at 2269.

[110]. Vyver, supra note 85, at 305. [111]. Id.

[112]. Id. (“Killing such people, or causing serious bodily or mental harm to them, or deliberately inflicting on them conditions of life calculated to bring about their physical

destruction in whole or in part … with the intent to destroy that community in whole or in part, is as much an act of genocide as was the slaughtering of Tusti by the Hutu community of

Rwanda.”).

[113]. Id. at 305–06.

[114]. This recognition comes via the United Nations adoption and ratification of the CRPD in 2006.

[115]. Lippman, supra note 96.

[116]. Margaret Soomerville, Deselecting Our Children, Nat’l Right to Life News Today (Dec. 18, 2013), http://www.nationalrighttolifenews.org/news/2013/12/deselecting-our-children-2/#.WYt57XeGNsN.