Your defense makes you a co-perpetrator.
Human rights and reproductive self-determination
The modern basis of human rights
All of the legal issues discussed above regarding domestic law arising from provider-patient relations fit within a framework of international human
rights law. The legal duty to respect human rights has recently evolved to become a major component of international law, which historically was
known as the Law of Nations. This body of law binds states and international institutions rather than individuals as such, but states are legally bound
to ensure that their domestic practices conform to international human rights standards and that the conduct of individuals in violation of human rights
will be investigated and remedied by state action. States must also take preventive action where human rights violations by individuals or private
organizations may reasonably be anticipated.
Human rights law goes beyond the oversight of clinical management of patient care, since it addresses the responsibilities of states to ensure that
individuals in need of health care services have reasonable access to physicians and others competent and equipped to deliver them. The wider
framework of international law also governs the responsibilities of states to maintain public health, and to promote appropriate research into the
advancement of sexual and reproductive health. For instance, while human rights obligations to promote or, at a minimum, permit access to the
benefits of scientific progress tend to focus on biological, physiological and related sciences, they also apply to social sciences relevant to sexual and
reproductive health.
The modern basis of commitments to human rights is the 1948 Universal Declaration of Human Rights. This was developed within the United
Nations to add substance to its Charter, dating to 1945, which observed that a purpose of the new organization was "to reaffirm faith in fundamental
human rights, in the dignity and worth of the human person, [and] in the equal rights of men and women." Legal force is given to the Universal
Declaration through a series of leading treaties.
Treaties of legal force include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural
Rights and regional treaties such as the European Convention on Human Rights, the American Convention on Human Rights and the African Charter
on Human and Peoples' Rights. In addition, several international treaties are directed to the relief of injustices individuals may suffer on account of an
innate characteristic of theirs. These treaties include the International Convention on the Elimination of All Forms of Racial Discrimination, and the
Convention on the Rights of the Child. These are applicable to, among other more obvious interests, the protection of reproductive and sexual
health. Most directly relevant, however, is the Convention on the Elimination of All Forms of Discrimination Against Women (the Women's
Convention), which explicitly addresses human rights regarding family planning services, nutrition during pregnancy and information and education to
decide the number and spacing of children.
The United Nations has given momentum to legal developments concerning sexual and reproductive health through its sponsorship of international
conferences. Most immediately relevant are the 1994 International Conference on Population and Development, held in Cairo, and the 1995 Fourth
World Conference on Women, held in Beijing. The resulting Cairo Programme of Action and the Beijing Declaration and Platform for Action
provide the basis for development of standards that provide substance to international human rights expressed in the sometimes abstract language of
international human rights conventions (30) .
International human rights treaties establish committees whose functions are to monitor states' compliance with the obligations states have accepted.
Under the Women's Convention, the Committee on the Elimination of Discrimination Against Women (CEDAW) receives periodic reports that
states must submit to show how they have brought their laws, polices and practices into compliance with the Women's Convention. To assist
countries in their reporting obligations, CEDAW has developed a series of General Recommendations (31). These Recommendations develop the
standards of performance applicable to measure compliance with human rights norms. General Recommendations are somewhat akin to regulations
developed by administrative agencies under national legislation. Several interesting symposia have begun to focus on the factors that might be
considered in developing a General Recommendation on women's right to health, including sexual and reproductive health. (32)
In addition to General Recommendations, CEDAW agreed in 1995 to use the Cairo Programme in developing performance standards (33) to
determine whether states are in compliance with their obligations under Article 12 of the Convention to
"take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure ... access to
health care services, including those related to family planning ... pregnancy, confinement and the post-natal period, granting free
services where necessary, as well as adequate nutrition during pregnancy and lactation."
Applicable human rights
Rights to reproductive health and self-determination may be protected through several specific legally established human rights. Which rights are
most relevantly invoked and how they are shown to have been violated depend on the particular facts of an alleged violation, and on the underlying
causes of reproductive or sexual ill-health. The rights addressed below are not exhaustive, but indicative of rights that may be developed to advance
reproductive interests. The Table following the notes to this Discussion Paper shows provisions of different international instruments that are relevant
to the protection and promotion of reproductive interests.
Rights are interactive in that each depends in greater or lesser degree on observance of others. For instance, rights to information, central to legal
principles of informed and free choice in health care, often depend on observance of the rights, particularly of children, to education and literacy. As
human rights laws come to be applied more vigorously to reproductive interests, a variety of ways of applying rights will emerge to serve
reproductive and sexual health.
The following discussion shows ways in which specific rights may be applied to protect reproductive interests. The discussion also addresses how
the Cairo Programme, Beijing Platform and the CEDAW General Recommendations have been used and can be further used to develop the
standards by which to measure compliance with these rights.
The right to life and survival
The Cairo Programme reaffirms that "everyone has the right to life" (Principle 1). A strong case can be made to apply this right to the lives of the
estimated 580,000 women each year world-wide who die of pregnancy-related causes, in order to hold governments accountable for their failure to
achieve significant reductions in national rates of maternal mortality (34) . Governments agreed through the Cairo Programme and the Beijing
Platform to reduce maternal mortality by one half of their 1990 levels by the year 2000, and by a further one half of the year 2000 levels by 2015
(Cairo para. 8.21 and Beijing para. 106(i)).
International human rights law requires states to protect women in motherhood. Article 25 of the Universal Declaration of Human Rights explains
that "motherhood ... [is] entitled to special care and protection". Article 10 of the International Covenant on Economic, Social and Cultural Rights
requires states to accord "[s]pecial protection ... to mothers during a reasonable period before and after childbirth." Article 12 of the Women's
Convention requires states to
"ensure to women appropriate services in connexion with pregnancy, confinement and the post-natal period, granting free services
where necessary, as well as adequate nutrition during pregnancy and lactation."
Article 11 of this Convention recognizes the right "to protection of health and to safety in working conditions, including the safeguarding of the
function of reproduction."
The root causes of maternal mortality are complex, ranging from lack of contraception and trained birth attendants to women's unequal status in
society that results in poor nutrition and schooling and in early marriage (35). In order to apply human rights effectively to hold a government
accountable for neglecting the high rate of maternal mortality in a community, the causes of maternal mortality in that community have to be
understood. If the causes are multifaceted, which is often the case, then in addition to the rights discussed below, the right to life may be invoked to
require remedy of causes. If, however, the predominant cause is lack of trained birth attendants, the right to the highest attainable standard of health
might be more appropriately invoked to require governments to provide services. This may be so particularly in developing countries, where World
Health Organization data indicate that only about 55% of women at delivery have a trained birth attendant, meaning a health worker who has
received at least the minimum of training necessary to provide women support at these critical times (36).
Women's lack of effective means of birth spacing and fertility control endangers their survival and health. All pregnancies and births carry some
health risks, but these are higher when pregnancies are ill-timed (too early or too late in a woman's reproductive life, or too closely spaced) or
unwanted. Without obstetric care, women who give birth before age 18 are three times more likely to die in childbirth than women aged between 20
and 29 under similar circumstances; for women aged over 34, the risk of maternal mortality is five times as high.(37) Safe motherhood would be
assisted through comprehensive reproductive health care, including contraceptive services (38), and, on women's request, lawful, safely conducted
terminations of ill-timed or high risk pregnancies. Further, evidence shows that if births were spaced and timed when women wanted them, the right
to life of the child would also be promoted, since overall child mortality in many countries might be reduced by more than 20% when mothers
survive childbirth.(39)
The WHO estimates that approximately 20 million unsafe abortions occur every year, resulting in approximately 80,000 maternal deaths (and
hundreds of thousands of disabilities) (40). Sexual abstinence is an obvious way to avoid unwanted pregnancy. However, since sex is a natural part
of life and many women lack the power to determine when they have intercourse, contraception is a necessary alternative. Contraception, however,
offers no guarantee against failure. For women who wish to terminate pregnancy, safe abortion and contraceptive after-care are necessary to reduce
the risk of maternal death.(41) For the first time at a UN Population Conference, the Cairo Programme called on governments to recognize unsafe
abortion as a leading cause of maternal mortality and a "major public health concern" (para. 8.25). The call for safe abortion was underscored by
the Beijing Platform (paras. 97, 106(j) and (k)), and fits within the established legal framework that requires governmental attention to advances in
public health services.
The Cairo Programme recognizes that women's survival of pregnancy is an issue of women being "equal in dignity and rights" (Principle 1). If
women are to be equal with men, governments have at least the same obligation to prevent maternal death as to prevent death from disease.
Maternal mortality should not be aggregated with disease, of course, since pregnancy is not a disease, although its occurrence and childbirth may
aggravate an existing disease. Equity requires more protection against the risk of maternal mortality than against disease, since maternity is the basis
of family and community growth, and is often encouraged as a social benefit. Tolerance of high rates of maternal mortality shows the injustice of how
little many societies, at all stages of economic development, value the lives of women.
The contrasting rates of maternal mortality between rich and poor countries show a greater disparity than exists for any other public health indicator.
Almost 99% of maternal deaths occur in developing countries, and the life-time risk of maternal death is as high as 1 in 20 for women in parts of
Africa, compared to 1 in 4,000 for women in North America.(42)The magnitude of the differentials in maternal deaths between developing and
developed countries is a challenge to the universality of human rights, even though the Cairo Programme and the Beijing Platform emphasize that
"the human rights of women ... are an inalienable, integral and indivisible part of universal human rights"(Cairo Principle 4, Beijing para. 10).
Given the magnitude of maternal deaths, it is remarkable that so few legal claims have made their way to courts to require that governments take all
appropriate measures to identify the causes of maternal mortality in their respective countries and take precautionary measures necessary to prevent
further maternal deaths. It seems that there is only one reported case concerning a maternal death, which was before the European Commission of
Human Rights. The case was held inadmissible for technical reasons. The Commission did take the opportunity, however, to emphasize that Article
2 of the European Convention on Human Rights, which states that "everyone's right to life shall be protected by law," has been interpreted to require
states to take steps not only to prevent intentional killing, but also to take measures necessary to protect life against unintentional loss.(43)
The right to liberty and security of the person
States apply individuals' right to liberty and security of the person to reproductive health and self-determination in a variety of ways. Through the
Beijing Platform, governments recognize women's interests in liberty by agreeing, for instance, to consider "reviewing laws containing punitive
measures against women who have undergone illegal abortions" (para. 106(k)). Some courts have addressed abortion by finding restrictive criminal
abortion provisions unconstitutional on the ground that they violate women's right to liberty and security. For example, the Supreme Court of
Canada declared a restrictive criminal abortion provision to violate women's right to security of the person. (44) Several Constitutional Courts,
including those of Austria (45), France (46), Italy (47) and the Netherlands (48), have found that liberal abortion laws, challenged by proponents of
the interests of fetuses, are constitutional because they are expressions of women's right to liberty.
Government regulation of population growth may violate the liberty and security of the person by compelled sterilization and abortion (49), or, at the
other extreme, by criminal sanctions against individuals' resort to contraception, voluntary sterilization or abortion. (50) CEDAW's General
Recommendation 19 on violence against women calls on States Parties:
"to ensure that measures are taken to prevent coercion in regard to fertility and reproduction, and to ensure that women are not forced
to seek unsafe medical procedures such as illegal abortion because of lack of appropriate services in regard to fertility control."(51)
The potential to suffer abuse of rights is often greater among women from minority and low-income communities, indicating the care to respect
individuals' human rights that must be applied in delivering family planning and other services in such communities. Control of reproduction in such
communities in the United States, for instance, has been attempted through suspect means, such as courts offering low-income women offenders
early release from imprisonment on probation if they accept long-acting contraceptive implants.(52) Medical removal of implants that women
accepted, even without being coerced or induced to accept them, may be difficult. One study in Bangladesh, for example, reported that 15% of
women with contraceptive implants have to make at least three requests for removal.(53) The Cairo Programme affirms and the Beijing Platform
reaffirms that "the principle of informed free choice is essential to the long-term success of family planning programs [and that] any form of coercion
has no part to play" (para. 7.12, Beijing paras. 106(g) and (h), 107(e)).
The right to liberty and security of the person has yet to be effectively applied to hold governments accountable for neglecting to enforce laws
prohibiting the practice often referred to in the literature as female circumcision or female genital mutilation (FGM). In one form or another, FGM is
practised in about 40 countries, mostly in East and West Africa and parts of the Arabian Peninsula. Prevalence varies in these countries from 5% to
almost 98%.(54) With immigration of populations from these regions, Europe and North America are now experiencing the reproductive and
medical consequences of the practice, and also demands on health care professionals to perform it within immigrant families. World-wide, on
average about 6,000 girls are circumcised every day.(55) Where practised, FGM is supposed to attenuate sexual desire, thus "saving" young girls
from sexual temptation, and preserving their chastity and married fidelity.
Governments agreed to enforce the prohibition of FGM under the Cairo Programme and the Beijing Platform (Cairo paras. 4.22, 5.5, 7.40, Beijing
paras. 124(i), 283(d)). The Cairo Programme urges governments "to prohibit [FGM] wherever it exists and to give vigorous support to efforts
among non-governmental and community organizations and religious organizations to eliminate such practices" (para. 4.22). The Beijing Platform
underscores the importance of education, particularly of parents, to aid understanding of the harmful health consequences of the practice (para.
277(d)). Similarly, in its General Recommendation 14, CEDAW urges States Parties to "take appropriate and effective measures with a view to
eradicating the practice of female circumcision", including for instance, dissemination of information, provision of educational and training programs
and support for women's organizations working to eliminate harmful traditional practices.(56)
Related to the right to liberty and security is the right to freedom from torture and from inhuman and degrading treatment. The Beijing Platform
recognizes that women are raped and subjected to multiple forms of violence, including sexual torture, because of their low status in society and
their sexual vulnerability, and calls on governments for effective preventive measures (paras. 135 and 107(q)). Consequences of rape and sexual
violence account for about 5% of the global disease burden in women,(57) stimulating various health and professional organizations to address the
problem.(58) International human rights tribunals have upheld criminal punishment of men who had raped or attempted to rape their wives.(59)
The Beijing Platform condemns "torture, involuntary disappearance, sexual slavery, rape, sexual abuse and forced pregnancy" (para. 135). Forced
pregnancy occurs when abortion following rape is legally denied, practically obstructed or unacceptable to victims themselves on religious or cultural
grounds. The Cairo Programme urges governments
"to identify and condemn the systematic practice of rape and other forms of inhuman and degrading treatment of women as a
deliberate instrument of war and ethnic cleansing and take steps to assure that full assistance is provided to the victims of such abuse
for their physical and mental rehabilitation" (para. 4.10)
The Inter-American Commission on Human Rights' Report on the Situation of Human Rights in Haiti under the Raoul Cedras Administration, for
instance, similarly determined that rape and abuse of Haitian women were violations of their right to be free from torture and inhuman and degrading
treatment, and of their right to liberty and security of the person.(60) In a case against Turkey, the European Court of Human Rights found that the
rape and ill-treatment of a 17-year old woman of Kurdish ethnicity by government security forces while she was in detention constituted torture and
inhuman and degrading treatment.(61) |
