Reproductive Rights as Human Rights
1
Fulfill
Respect
Limits
Derogation
Broadens Enforcement Possibility
WHO's Human Rights-Based Approach to Indicators in Relation to the Reproductive Health Strategy
State Obligations -
Family Planning
“take positive measures that enable and assist individuals and communities to enjoy the right to health… create, maintain and restore the health the population”
General Comment No. 14, ¶37
Creates State Obligations
“refrain from limiting access to contraceptives and other means of maintaining sexual and reproductive health, from censoring withholding or intentionally misrepresenting health-related information”
General Comment No. 14, ¶34
Structural Indicators
Process Indicators
Outcome Indicators
Give services to married and unmarried women?
Percentage of people with access to comprehensive family planning services.
Percentage of primary health-care facilities providing comprehensive family planning services (full range of contraceptive information, counseling and supplies)
Required third-party authorization for women to receive family planning services?
Does the national essential medicines list include condoms and hormonal contraceptives?
Percentage of women with access to abortion and/or post-abortion care.
Fundamentally Linked
Protect
Percentage of service delivery points providing abortion and/or post-abortion care.
Percentage of women at risk of pregnancy who are using (or whose partner is using) a contraceptive method.
Does State law allow abortion?
Percentage of practitioners trained in abortion/post-abortion care.
Percentage of maternal deaths attributed to unsafe abortion.
Is there a State plan of action to prevent unsafe abortion and provide post-abortion care?
Health Policy Impacts Human Rights
Human Rights Impact Health
“States are obliged to ensure that harmful social or traditional practices do not interfere with access to pre- and post- natal care and family planning”
General Comment No. 14, ¶35
Why Should We See Reproductive Rights as Human Rights?
"by all appropriate means"
Freedom
from FGM
Margin of Appreciation
Freedom from Sexual Violence
Derogation
Pre- and Post Natal Care
“Every State has a margin of discretion in assessing which measures are most suitable to meet its specific circumstances.”
General Comment No 14,¶53
"public morality varies over time and from one culture to another, a State which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community."
Siracusa Principles ¶27
Family
Planning
Information on: Maternal Health, STIs, and Family Planing
What do Reproductive Rights Include?
Create Obligations
A v Minister for Immigration & Ethnic Affairs
Open Door and Dublin Well Woman v Ireland
Cases Using Margin of Appreciation/Derogation
the "margin of appreciation" enjoyed by the government of a country, such as China, entitling it to adopt effective measures to limit the growth of its population, with inevitable consequences for the rights of individuals of reproductive age.” ¶2
“The restriction thus pursued a legitimate aim of the protection of morals…national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life.”
¶63-68
Tysiac v Poland
What does this mean for reproductive rights as human rights?
"fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation" ¶111
How Did Reproductive Rights Develop?
General Comment No. 14 - 2000
Local Context
Subject to HR Constraints
Cairo Conference - 1994
CEDAW - 1981
ICESCR - 1976
¶ 14 "The provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child" may be understood as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services, and access to information, as well as to resources necessary to act on that information.
Reproductive health is a state of complete physical, mental and social well-being in all matters relating to the reproductive system and to its functions and processes. It implies that people have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this is the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility, which are not against the law, and the right of access to health-care services that will enable women to go safely through pregnancy and childbirth.
Article 12
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness
L. C. v Peru
Finding a Balance
ICESCR - Kenya - Concluding Observations (2008)
Peru violated “article 12, to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning” ¶18.11
Cases/Observations Without Margin of Appreciation
“ensure affordable access for everyone, including adolescents, to comprehensive family planning services, contraceptives and safe abortion services” ¶33
ICESCR - Nicaragua - Concluding Observations (2008)
“urged to review its legislation on abortion and to study the possibility of providing for exceptions to the general prohibition on abortion in cases of therapeutic abortion or pregnancies resulting from rape or incest…and recommends that the subjects of sex education and family planning methods be discussed openly in the school curriculum” ¶26-27