Laws and Polices in Benin, India, Mauritius, Peru and South Africa

ISSUE 5 - 23 June 2003

Here is the latest global update on the creation of an enabling environment for ICPD implementation at the national level. This issue includes laws and policies recently enacted in Benin, India, Mauritius, Peru and South Africa, which relate to various sexual and reproductive health/rights and gender issues.

Benin Adopts Law Incorporating the Broad Concept of Reproductive and Sexual Health Affirmed in the ICPD Programme of Action

On 24 January 2003, Benin's National Assembly adopted Law No. 2003-04 on Reproductive and Sexual Health, which states at the outset that all men and women have the rights to the family planning method of their choice; that they are entitled to methods that are safe, effective, affordable and acceptable; and that women are guaranteed health care during pregnancy and childbirth aimed at preserving the health of the pregnant woman and the newborn. The law further guarantees universal enjoyment of a number of basic reproductive rights, including those to: equality of men and women in matters of reproductive health; reproductive self-determination; free choice in matters of marriage; access to information and education relating to reproductive and sexual health care; access to health services that are of the best possible quality; non-discrimination in access to health care; confidentiality; and security of the person. Responsibility for implementation of these rights lies with the state, local authorities and private individuals through their representatives. Couples and individuals are called upon to promote familial harmony and care for all members of their families, including children and the elderly. Other provisions of the law deal with the administration of reproductive health services, including the creation of primary care and reproductive health services and separate services for adolescent reproductive health care.

The law addresses several reproductive health matters with greater specificity. It states that the full range of legal methods of contraception shall be available upon medical consultation and affirms the right of individuals to decide on the number and spacing of their children and to have the information and means to do so. The law also affirms the legality of manufacturing, importing, selling and publicizing contraceptive methods and states that these activities shall be regulated by decree. The law further declares that abortion shall be legal when a pregnant woman's life and health is in danger, in cases of rape and incest and in cases of fetal impairment. The law pledges special care to those who have a sexually transmissible disease, particularly those living with HIV/AIDS, guaranteeing their right to non-discrimination. Persons who declare that they are affected by HIV/AIDS shall benefit from psychological support, counseling and other services and receive special medical care. Lastly, the law criminalizes the following acts: all forms of sexual violence targeting women and children; female genital cutting and pedophilia; intentional transmission of HIV/AIDS; sexual exploitation and forced prostitution; and forced marriage.

India Amends Medical Termination of Pregnancy Act

On 18 December 2002, India enacted the Medical Termination of Pregnancy (Amendment) Act, amending the Medical Termination of Pregnancy Act of 1971 to achieve two goals: 1) elimination of the performance of abortions by untrained persons and in unhygienic conditions, thus reducing maternal morbidity and mortality; and 2) implementation of suggestions of the National Commission for Women based on experience gained in the implementation of the 1971 Act. Accordingly, the Act increases penalties imposed on clinics performing abortions that are not authorized to do so and on persons performing abortions who are not registered practitioners with requisite experience or training. It also delegates powers to local governments to approve facilities to perform abortions in order to ensure that abortion services are more widely available throughout the country in medically safe conditions.

Mauritius Enacts Sex Discrimination Act

On 10 December 2002, Mauritius enacted the Sex Discrimination Act 2002, with the primary objective of giving effect to provisions of the Convention on the Elimination of All Forms of Discrimination against Women. The Act prohibits: 1) discrimination against persons on the grounds of sex, marital status and pregnancy, including potential pregnancy, in employment, profession, education, the provision of goods, services and facilities, accommodation, disposal of property, sport, associations and clubs; 2) discrimination resulting in the dismissal of employees on the ground of family responsibilities; 3) all forms of sexual harassment in the workplace, educational institutions and in other areas of public activity; 4) the expulsion of pregnant students from school; 5) discrimination in advertising; and 6) the victimization of persons who make complaints of discrimination. The Act establishes a Sex Discrimination Division attached to the National Human Rights Commission, with power to receive complaints regarding alleged infringements of the Act and to make enquiries and determinations. It also allows special measures to be adopted to achieve equality. Persons who violate provisions of the Act are subject to various penalties.

http://mauritiusassembly.gov.mu/bills/2002/bill39.doc

Peru Enacts Law to Protect Workers From Sexual Harassment

On 26 February 2003, Peru enacted comprehensive legislation to prevent and punish sexual harassment (Law No. 27942). The Law applies to public and private employment, educational institutions and military and police institutions. Acts of sexual harassment are defined to include: promises of preferential treatment in exchange for sexual favors; threats requiring behavior that is unwanted and which affects a person's dignity; the use of sexual terms, sexual insinuations, sexual propositions and obscene gestures that are offensive, humiliating, intolerable or hostile; sexual touching or conduct and physical contact that is unwanted and offensive; and hostile or offensive treatment for rejection of the above acts. Private employers are required to adopt measures to train workers about sexual harassment and to remedy any harm caused by such harassment. Employers must ensure that such harassment ceases or they will be required to pay victims restitution. Victims are authorized to institute legal proceedings to end harassment. Public employees, educators, and the military and police who commit acts of sexual harassment are subject to special administrative penalties, and victims are entitled to receive restitution. The Law amends a number of other laws governing various sectors to incorporate provisions to prohibit sexual harassment.

South Africa Issues Guidelines to Prevent Workplace Discrimination Against People Living with HIV/AIDS

On 23 May 2003, the South African Department of Labour issued the HIV/AIDS Technical Assistance Guidelines (the Guidelines), intended to provide employers and other actors with tools to ensure that people living with HIV/AIDS do not face discrimination in the workplace. Employers' duty not to discriminate against people living with HIV/AIDS is affirmed in the Guidelines, as are the following employer responsibilities: to ensure a non-discriminatory work environment; to ensure that HIV testing be done in compliance with the law, with confidentiality assured; to promote a safe work environment and ensure that employees who become occupationally infected with HIV may apply for compensation; to ensure the sustained and equitable distribution of employee benefits; and to protect employees from unfair dismissals and provide for a fair grievance procedure. The Guidelines also offer direction on how to manage HIV/AIDS in the workplace by calling for such employer initiatives as mainstreaming HIV and gender programming, developing institutional mechanisms for responding to HIV/AIDS, determining the impact of HIV/AIDS in the workplace, developing an HIV/AIDS policy, and creating a workplace HIV/AIDS-prevention program.

HIV/AIDS Technical Assistance Guidelines

This newsletter is issued by the United Nations Population Fund (UNFPA) in its capacity as secretariat for the International Parliamentarians' Conference on the Implementation of the ICPD Programme of Action (November 2002, Ottawa, Canada). These dispatches are intended to highlight important developments taking place around the world so that parliamentarians can be kept informed of and learn from the successes, setbacks and challenges encountered by their fellow parliamentarians in other countries and regions in their efforts to promote the implementation of the Programme of Action of the International Conference on Population and Development (September 1994, Cairo, Egypt). It should be noted that UNFPA does not necessarily endorse all of the policies described in this newsletter.

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