Development is a practical matter, and the concept of rights has a very practical
application. Acceptance of the right to reproductive health has created an international
standard against which practice can be measured. This is valuable in a shrinking world
where people as well as resources flow easily across local and national boundaries, taking
their values, cultures and traditions with them. International standards can also promote
national acceptance of reproductive rights. Culture and tradition are valuable defences
against external domination and can be positive forces binding societies together. But
they have also been used to force women into a subordinate role, damage their health and
minimize their contribution to the family, the community and the nation.
This chapter sets out the legal framework for reproductive
rights, discusses specific rights for sexual and reproductive health, and concludes with a
section on legal and policy reforms to promote reproductive rights.
The Legal Framework
Rights to reproductive and sexual health fit into the
internationally accepted framework of human rights; they are implied by long-established
rights to life and survival, liberty and personal security, to equal treatment, to
education, to development, and to the highest attainable standard of health, among others.
The United Nations' institutional mechanisms for protecting human rights offer powerful
support for legal, political and social actions intended to empower individuals, ensure
reproductive health and address population and development concerns.
Countries from all cultures and at all stages of development have
affirmed human rights as central to social and economic development, and to international
cooperation. Although discussion of individual rights has grown out of a largely European
approach to social philosophy, human rights is not a specifically "Western"
concept. Discussion of the relationship between the individual and the social or economic
unit is part of everyday discourse in virtually all cultures. There are considerable
differences, however, in the interpretation of rights: some emphasize collective rights;
others are inclined to stress individual rights.
Under
international human rights treaties, states must refrain from interfering with individual
freedoms, and take active steps to promote the exercise of rights. |
The international approach to human rights derives from principles
recognized in the United Nations Charter and the Universal Declaration of Human Rights.
Specific descriptions of rights and freedoms have developed over the decades. The United
Nations' current emphasis on human-centred development strategies is firmly rooted in the
founders' explicit recognition of equal rights and fundamental freedoms for individual men
and women, and their emphasis on protecting the basic dignity of the person. |
A distinction is drawn between human rights treaties which are
binding on all states that accept them (but usually have to be ratified by a minimum
number of countries before coming into force), and the consensus decisions of
international conferences and other assemblies. These do not have binding force, but are
expressions of the world's conscience. Thus the Convention on the Elimination of
Discrimination against Women is a binding treaty ratified or acceded to by 154 states,
while the ICPD Programme of Action is an international consensus. This consensus, however,
has been reinforced by similar consensus at international meetings including the 1995
World Summit for Social Development and the Fourth World Conference on Women.
Under international human rights treaties, states are both obligated
to refrain from interfering with individual freedoms, and required to take active steps to
promote the exercise of rights.1 Rights violations can result from direct action by the state, or from
states' failures to promote, protect and defend rights; in the latter case, clear
standards are needed to define states' minimum obligations. Another category of violations
involves discriminatory practices which do not offer equal protection to all.
Human Rights Instruments
The Preamble of the rights, human fundamental UN Charter
(1945) reaffirms "faith in in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small". The Charter recognizes that
one purpose of the United Nations is:
"To achieve international cooperation in … promoting and
encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language or religion."2
The Universal Declaration of Human Rights (1948) further
elaborated the principles of the Charter. Shaped by inputs from the Commission on Human
Rights and the Commission on the Status of Women, the Declaration set forward "a
common standard of achievement for all peoples and all nations" for ensuring
fundamental political, social, economic and cultural rights and freedoms. It recognized
"the inherent dignity" and the "equal and inalienable rights of all members
of the human family" as "the foundation of freedom, justice and peace in the
world", and reaffirmed the Charter's "faith in fundamental human rights, in the
dignity and worth of the human person and in the equal rights of men and women."3
An extended series of General Assembly and Economic and Social
Council rulings refined the definitions of basic rights, particularly women's rights.
After two decades, in an effort to reinforce the Universal Declaration and further specify
particular responsibilities, the international community agreed to two additional treaty
covenants: the International Covenant on Civil and Political Rights (often referred
to as the Political Covenant) and the International Covenant on Economic, Social and
Cultural Rights (often referred to as the Economic Rights Covenant). Both entered into
effect in 1976.4
The development of dual covenants reflected the politics of the time
and the prior history of rights discussion. Civil and political rights were stressed by
nations whose political traditions and current ideology emphasized the rights of
individuals vis-à-vis the state. States more concerned with general development stressed
economic, social and cultural rights, and group rights over individual rights. Both
documents, however, incorporated core understandings based on the Universal Declaration,
including the right of women to be free of all forms of discrimination, freedom of
assembly and association, and family rights (the right to marry and found a family and the
right to a private and family life).
Article 12 of the Economic Rights Covenant recognizes "the
right of everyone to the enjoyment of the highest attainable standard of physical and
mental health." It obligates states to take all steps necessary to reduce stillbirth
and maternal mortality, and to create the conditions to assure medical services to all and
medical attention in the event of sickness.
The Optional Protocol to the Political Covenant enables individuals
from participating states to make complaints about rights violations, and obligates states
to respond if violations are found.
While all nations in 1948 adopted the Universal Declaration of Human
Rights, many have not ratified the Political and Economic Rights Covenants. A number of
other states have expressed various reservations which condition their approval of
specific components in light of their social and cultural particularities. Under the
covenants, member states may claim exceptions on specific grounds, but must justify any
actions which would otherwise be rights violations, and the exceptions must be codified in
law with appropriate procedural safeguards.
Binding regional human rights treaties have also been
adopted. The European Convention was adopted in 1950 and entered into force in 1953; the
European Social Charter of 1961 entered into force in 1965.5 The American Convention6 and the
African Charter7 were enacted after the Political and Economic Rights Covenants; each
integrated the two varieties of rights into a single document. The international community
has also elaborated legal frameworks addressing specific situations and problems, notably
racial discrimination, discrimination against women, violence against women and the rights
of children.
The Women's Convention,8 adopted by the General Assembly in
1979, sought to address pervasive social, cultural and economic discrimination against
women. This document set clearer definitions and standards than the earlier covenants and
expanded the protections against discrimination. In particular, it recognized that because
socially defined gender roles9 differ, provisions against discrimination and abuse cannot simply require
equal treatment of men and women; there must be a more positive definition of
responsibilities that applies appropriate rights standards to all. Similarly, the
convention recognized the need to examine rules and practices concerning gender in society
to ensure that they do not weaken rights guarantees.
The Women's Convention also recognized that states must act to
eliminate violations of women's rights by private persons, groups or organizations. It
compels states to work to eradicate discrimination in all its forms, including
disadvantages conferred by gender roles.
The Convention on the Rights of the Child10
recognized states' responsibility to extend a broad set of rights guarantees to children.
It also reaffirmed the right to family planning services, recognized by prior conventions
and conferences. This convention compels states to confirm that they are making efforts
towards realizing its provisions. Nearly all states have ratified this convention,11
making it a strong tool for holding governments accountable on human rights issues.12
Article 24 of the convention obligates states "to ensure
appropriate prenatal and post-natal health care for mothers." It also calls on them
to take "all effective and appropriate measures with a view to abolishing traditional
practices prejudicial to the health of children." Article 34 says states must
"undertake to protect the child from all forms of sexual exploitation and sexual
abuse." Article 12 guarantees to the child the right to expression; Article 13,
information; and Article 14, association. Article 17 states that the child should have
access to information "aimed at the promotion of his or her social, spiritual and
moral well-being and physical and mental health."
Monitoring Compliance
Countries that have ratified human rights treaties are required to
report regularly on actions they have undertaken to ensure the exercise and enjoyment of
the specified rights. Established bodies monitor the implementation of rights instruments;
for example, the Human Rights Committee monitors compliance with the International
Covenant on Civil and Political Rights and receives complaints from individuals whose
rights have been violated, while the Committee on the Elimination of Discrimination
Against Women (CEDAW) monitors implementation of the Women's Convention.13
The human rights bodies offer recommendations and interpretations to
assist in treaty monitoring, review and evaluation. These recommendations can take several
forms. Some clarify treaty provisions, for example, by specifying actions states, groups
or individuals should take. The monitoring body may define standards and recommend actions
needed to protect or expand a right.
Thus, a 1994 CEDAW recommendation14 found violence against women
within families to violate the "right to non-discrimination against women in all
matters relating to marriage and family relations." It called for a variety of
responses, such as criminal penalties and civil remedies in domestic violence cases;
outlawing the "defence of family honour" as a justification for assault or
murder; services to ensure the safety of victims of family violence; rehabilitation
programmes for perpetrators of domestic violence; and support services for families where
incest or sexual abuse has occurred.
The monitoring bodies also specify what countries should include in
their periodic reports on treaty compliance (e.g., all available data on the incidence of
each form of family-related violence).
In addition to committees that monitor compliance with specific
treaties, the UN system includes other human rights commissions, working groups and
reporting systems. Special working groups and special rapporteurs, for example, examine
various issues globally or in specific countries for the Commission on Human Rights. The
Commission on Human Rights reports to the Economic and Social Council (ECOSOC) and,
through the High Commissioner for Human Rights, to the UN Secretary-General.
After the content of an international treaty is negotiated, states
agreeing with the consensus may sign the document and submit it for national ratification.
States may submit formal reservations to specific provisions. There is a wide variation in
the number of countries signing or ratifying the various human rights conventions, and in
the number and scope of reservations.
The growth in the number of member states of the United Nations
since the Universal Declaration of Human Rights was adopted in 1948 means that states
sometimes accede to treaties that they had no part in negotiating initially. However, the
interpretation of the obligations embodied in the various treaties is under constant
review through the various monitoring bodies. The treaties' relationship to practical
development issues is also subject to review through the mechanisms of international
discussion.
Consensus Decisions of International Conferences
Human rights understandings are expressed in the consensus
agreements of international conferences as well as treaties. Both human rights conferences
and those in other sectors have addressed reproductive health concerns.15 While
the conference documents are not legally binding, the human rights treaty monitoring
bodies can take their recommendations into account, for example, in setting standards, and
making interpretations and recommendations with regard to their respective treaties. As
expressions of international consensus, the conference agreements are also strong advocacy
tools which can influence the formulation of national laws and policies.
One recent international human rights instrument emerged from the
1993 World Conference on Human Rights.16 The Vienna Declaration and
Programme of Action declared human rights to be a universal norm, independent of the
standards of individual nation states.
| The Vienna agreement emphasized that the rights of women and girls
are "an inalienable, integral and indivisible part of human rights," requiring
special attention as part of all human rights activities. It urged that increased priority
be given to "the eradication of all forms of discrimination on grounds of sex,"
and to the eradication of all forms of gender-based violence. It called on the General
Assembly to adopt the Declaration on the Elimination of Violence Against Women (the
Assembly did so on 20 December 1993) and appoint a rapporteur to monitor the issue.17 |
As expressions of international
consensus, conference agreements are strong advocacy tools which can influence the
formulation of national laws and policies. |
The conference called for universal ratification of the Women's
Convention by the year 2000, and encouraged states to withdraw reservations inconsistent
with the aims of the convention.
Vienna also affirmed that women should enjoy the highest standards
of physical and mental health throughout their lifespan. It reaffirmed the principle of
equality between men and women, and the right to equal access to all levels of education.
And it acknowledged women's right to accessible and adequate health care and the widest
range of family planning.
The 1994 International Conference on Population and Development
affirmed that universally recognized human rights standards apply to all aspects of
population programmes.18 The ICPD Programme of Action stressed that "the right to development is
a universal and inalienable right and an integral part of fundamental human rights, and
the human person is the central subject of development."19 It
set out the context and content of reproductive rights (see next section). Paragraph 7.3
spelled out the underlying precepts:
"[R]eproductive rights embrace certain human rights that are
already recognized in national laws, international human rights documents and other
relevant United Nations consensus documents. These rights rest on the recognition of the
basic right of all couples and individuals to decide freely and responsibly the number,
spacing and timing of their children and to have the information and means to do so, and
the right to attain the highest standard of sexual and reproductive health. It also
includes the right of all to make decisions concerning reproduction free of
discrimination, coercion and violence as expressed in human rights documents.
"In the exercise of this right, they should take into account
the needs of their living and future children and their responsibilities towards the
community. The promotion of the responsible exercise of these rights for all people should
be the fundamental basis for government- and community- supported policies and programmes
in the area of reproductive health, including family planning. . . ."
The rights of women are central to the Programme of Action:
"Advancing gender equality and equity and the empowerment of
women, and the elimination of all kinds of violence against women, and ensuring women's
ability to control their own fertility, are cornerstones of population- and development-
related programmes. The human rights of women and the girl child are an inalienable,
integral and indivisible part of universal human rights. The full and equal participation
of women in civil, cultural, economic, political, and social life at the national,
regional and international levels, and the eradication of all forms of discrimination on
grounds of sex, are priority objectives of the international community."20
| The Fourth World Conference on Women in Beijing in 1995
reaffirmed and strengthened the Cairo consensus. Much of the ICPD language on reproductive
health and rights was incorporated directly into the FWCW Platform for Action.21
Paragraph 92 notes: "Good health is essential to leading a productive and fulfilling
life, and the right of all women to control all aspects of their health, in particular
their own fertility, is basic to their empowerment." Paragraph 96 states: "The
human rights of women include their right to have control over and decide freely and
responsibly on matters related to their sexuality, including sexual and reproductive
health, free of coercion, discrimination and violence." The Platform for Action
called on governments to "ensure equality and non-discrimination under the law and in
practice" by taking action to protect these rights.22 |
"The human rights of women
include their right to have control over and decide freely and responsibly on matters
related to their sexuality, including sexual and reproductive health, free of coercion,
discrimination and violence." |
Components of Reproductive
and Sexual Rights
A basic set of reproductive rights, including rights to sexual and
reproductive health, is implied by the rights recognized in international human rights
instruments.23 The protection of these rights is a central focus of the United Nations
Population Fund as well as the World
Health Organization24 and the International
Planned Parenthood Federation.25
Discussion of the right to survival/right to life 26 in
international human rights jurisprudence has concentrated mainly on legal safeguards
against arbitrary execution by the state. Some legal experts have argued that it also
applies to the women who die of pregnancy-related causes. To address this right,
governments would be required to foster the provision of services to reduce maternal
mortality. Reduction of maternal mortality is a national goal embraced by both the ICPD
and the Fourth World Conference on Women.
Analysis of the root causes of maternal mortality also implies
obligations to: provide basic and higher education (enabling women to make better use of
medical information and medical services); improve the status of women (reducing early
marriage and higher-risk pregnancy, and enabling women to make their own health care
decisions); expand access to pregnancy care, trained birth attendants and emergency
obstetric services; provide quality family planning services to allow effective birth
spacing; provide education for healthy sexuality, gender equality and responsible
parenthood; and reduce reliance on unsafe abortion.
The right to liberty and security of the person27
implies reproductive self-determination, the right to enjoy and control one's sexual and
reproductive life, with due regard to the rights of others.28 The practice of female genital
mutilation violates the security of the person. Liberty rights also guarantee the right to
informed consent in medical interventions. Several constitutional courts have held that
compulsory sterilization and abortion violate this right.29 Criminalization of contraception
and voluntary sterilization also violate individual liberty and security rights.
The Beijing Platform for Action condemns "torture, involuntary
disappearance, sexual slavery, rape, sexual abuse and forced pregnancy."30 The
ICPD Programme of Action condemns the systematic practice of rape and other degrading
treatment of women as deliberate instruments of war.31
The right to the highest attainable standard of health
implies a right to have access to health care of the highest possible quality, including
care related to sexual and reproductive health, protection from practices harmful to
health, and a right to counselling and impartial information to allow informed decisions.
The right to family planning, a key component of
rights in reproductive and sexual health, has been acknowledged, clarified and expanded in
both human rights instruments and international declarations since 1968 (see Box 10).
The right to marry and found a family32
implies a government obligation to offer services for the prevention and treatment of
sexually transmitted diseases, since these are a leading cause of infertility.
The right to a private and family life33
includes the right to make autonomous and confidential choices in regard to whether and
when to have children.
The right to the benefits of scientific progress34
implies a right to have access to available reproductive health care technology, including
quality contraceptive methods which are safe and acceptable.
The rights to receive and impart information and to freedom of
thought35 are applicable in demonstrating that everyone (including adolescents and the
unmarried) have a right to information and counselling about family planning methods and
service availability.
Fulfilment of women's right to education36 is
one of the most important means of empowering women with the knowledge, skills and
self-confidence necessary to participate fully in the development process. Education
enables women to respond to opportunities, to challenge their traditional roles, and to
change their life circumstances. Promoting the education of women and girls contributes to
postponement of the age of marriage, and to a reduction in the size of families.
The right to non-discrimination on the basis of sex37 is
violated by laws and practices that prevent women but not men from taking decisions
(including reproductive health decisions) without their spouses' consent; by policies
limiting girls' rights to stay in school (when they are pregnant, for instance); by family
practices favouring sons over daughters with regard to nutrition, health care and
education; and by prenatal sex selection and female infanticide.
The right to non-discrimination on the basis of age38
implies, among other things, that young people have the same rights to confidentiality
with regard to reproductive health care as adults, and that women beyond reproductive age
should have access to health services.
Reforming Laws and Policies
As international concern for sexual and reproductive rights and the
basic human rights which underpin them has mounted, a growing number of states have begun
to incorporate the protection of these rights into national laws, constitutions and
institutional procedures. Laws have been revised in such areas as family law, protection
against violence, non-discrimination and health rights. National constitutions in Colombia
and South Africa, among others, explicitly guarantee certain reproductive rights. The
Ugandan constitution was recently revised to recognize the priority of human rights for
women over traditional and local laws.
To advance this process, reproductive rights abuses and harmful practices must be exposed
and condemned wherever they occur, so that policy makers, the media and the public will
understand the need to take action.
There is very little available information documenting the degree to
which legislation protecting sexual and reproductive rights is actually applied. The gap
between legal promise and reality can be quite large. In virtually every society legal
protection is uneven; it may vary with gender, class, ethnicity, education or cultural
background; the wealthy and the powerful usually exercise options denied to others.
Abortion services, even where legal, may be unavailable to the poor; where abortion is
illegal it may be available to those who can pay.
Alongside legal reforms, many governments are revising their
population and development strategies to emphasize individual needs and rights. Instead of
focusing on fertility reduction, population policies are increasingly focusing on meeting
a range of reproductive health needs, while embracing the ICPD's recognition that
population dynamics and distribution are closely connected to education, the empowerment
of women, protection of the environment, and prospects for sustainable development.
At the same time, as the ICPD Programme of Action advocated, civil
society is playing an expanding role; a broad range of non-governmental
organizations—human rights groups, health activists, local community groups,
religious organizations, public service groups and women's groups—are involved in
efforts to protect reproductive health and rights. (See Special Report on implementation of the ICPD Programme of Action.)
Among useful actions to strengthen reproductive rights protections
is lobbying governments to withdraw their reservations to the Women's Convention. Another
important advocacy effort is to support an optional protocol that would increase
accountability and add a mechanism allowing groups and individuals, as well as states, to
report treaty violations to CEDAW.
If governments are to be made
accountable for neglecting or violating reproductive rights, the consensus of Cairo and
Beijing needs to be integrated into the treaty monitoring process. |
If governments are to be made legally accountable for neglecting or
violating reproductive rights, the consensus of Cairo and Beijing needs to be fully
integrated into the treaty implementation and monitoring process. Each of the treaty
monitoring bodies could make general recommendations or provide advice on how states
should report on reproductive and sexual health and rights under their respective
treaties. |
In addition, the UN specialized agencies are proposing various
indicators for monitoring progress towards the goals of recent international conferences
including the ICPD and the Beijing conference; this work could be coordinated with the
standard-setting activities of the human rights treaty bodies.
Why Rights Matter
Accepted standards of human rights are their own justification.
Additionally, a number of global trends add to the urgency of strengthening international,
national and local commitments to common standards of human rights, including reproductive
rights.
- The rapid urbanization process under way globally is bringing
people from various backgrounds and cultures and with different attitudes and practices
into closer and more extensive contact. The incorporation of consensus-based human rights
safeguards into national legal systems and social institutions is vital to fostering
social integration within nations.
- Similarly, international and internal travel and migration are
accelerating, facilitated by easier transport and communication. At the same time, wars
and other emergencies are sending millions of persons across borders and displacing many
more within nations. These developments require common understandings of the fundamental
rights and protections accorded to all individuals. Protecting indigenous traditions and
judging customary practices transplanted into new settings also require common standards
for evaluation. A human rights perspective provides these standards.
Cases involving such issues abound. Recent examples include the 1996 United States
decision granting political asylum to a woman who faced female genital mutilation if
deported to her native Togo, and an unsuccessful bid by a group of immigrants to have FGM
performed by French medical services.
- The increasing complexity of government and decentralization
of decision-making and administration within nations require common guidelines and
standards of obligations and responsibilities. Human rights understandings can supplement
and reinforce national law and procedures in ensuring basic protections. Their
incorporation in health service guidelines, for instance, can help ensure that local
authorities respect rights and act effectively to increase access to health information
and services.
- Strengthening the institutions of civil society, which exist
between state systems and the basic units of society, is increasingly recognized as vital
for sustainable development. Stronger civil institutions can function best in a climate of
commonly understood rights and can serve as mediating mechanisms which demand and monitor
the protection of rights.
- The collapse of civil administration has become too common a
feature of today's world. The commitment of the international community to basic human
rights can strengthen the credibility and legitimacy of international efforts in conflict
and post-conflict situations and protect the innocent from the predation of the powerful.
Stronger mechanisms, within and between nations, governmental and civic, can assist the
redress of grievances arising from rights violations and provide those wronged a basis for
claims to assistance.
- The growing influence on national life of transnational entities
such as international corporations and financial institutions makes it increasingly
difficult for individual nations to regulate the activities of these bodies to the
satisfaction of all concerned. Human rights agreements offer a basis for standards which
can be applied across the board to the activities of transnationals and may form part of
codes of international practice. Human rights arguments bolster the claim, for example,
that transnationals should not reduce investments in contraceptive development and other
reproductive health research.
- International human rights understandings serve as standards for
evaluation and reflection in times of rapid social change. Social and cultural
change is always a dynamic and selective process, mediated by prior understandings,
beliefs and practices. The transformations in many nations' social, political, economic
and demographic patterns call for common understandings for constructive and integrated
change. Firm agreement on human rights standards provides a basis for assessing both
tradition and innovation.
|
