UNFPAState of World Population 2002
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CHAPTER 1:
Reproductive Health
and Human Rights



Photo:Mark Edwards/Still Pictures

 

"States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and . . . shall ensure . . . [t]he same right freely to choose a spouse and to enter into marriage only with their free and full consent; . . . [and the] same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means [needed] to exercise these rights. . . ."

–Article 16, Convention on the Elimination of All Forms of Discrimination Against Women



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.