Reproductive Rights Research Paper

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Reproductive rights recognize that the sexual and reproductive health of both women and men requires more than scientific knowledge or biomedical intervention. It requires recognition and respect for the inherent dignity of the individual. Reproductive rights refer to the composite of human rights that protect against the causes of ill health and promote sexual and reproductive wellbeing. An international consensus definition of the term, adopted at the 1994 United Nations International Conference on Population and Development (ICPD) in Cairo, Egypt, states that:

reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents, and other 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 their right to make decisions concerning reproduction free of discrimination, coercion, and violence, as expressed in human rights documents. (United Nations, 1994, paragraph 7.3)

While reproductive rights also address the health needs of men, they are more critical for women. A major burden of disease in women relates to their reproductive capacity and the unequal treatment of women because of their gender.

The Evolution Of An International Consensus

Human rights are defined in domestic laws, national constitutions, and regional and international treaties. Human rights embody norms that guide clinical care, health policy making, and wider social interactions. Moreover, human rights serve as standards that enable individuals to hold governments and other institutions accountable for violations of the embodied norms.

Rights In The Service Of Health, Welfare, And Development

Sexuality and reproduction were long governed by religious and political ideology, enforced through criminal law. Individual control over these matters was regarded as threatening to moral values, gender hierarchies, and family security. Birth control, abortion, and certain forms of sexual behavior were, and in many countries remain, defined as crimes against morality (Cook et al., 2003).

Empirical evidence of the dysfunction and harmful health effects of punitive laws contributed to the adoption of policies that promoted individuals’ interests in their own health and welfare. At the 1968 International Conference on Human Rights in Tehran, Iran, reproductive health became a recognized subject of international human rights. Governments affirmed that ‘‘[p]arents have a basic human right to determine freely and responsibly the number and spacing of their children’’ (United Nations, 1968, paragraph 16). Public health and welfare interests were recognized as best served by individuals’ free and responsible decision making.

The health and welfare rationale garnered support in international development debates regarding fertility reduction. In 1974, the first World Population Conference in Bucharest, Romania, promoted the reformulated basic right of ‘‘all couples and individuals … to decide the number and spacing of their children and to have the information, education and means to do so’’ as an effective tool to achieve population and development goals (United Nations, 1974, paragraph 14f ). At the 1984 International Conference on Population in Mexico City, Mexico, this language was reaffirmed (United Nations, 1984).

Rights In Respect Of The Inherent Dignity Of The Individual

During the United Nations Decade for Women (1976–85), a growing international women’s rights movement also advocated for the right to reproductive decision making. While adopting the language of Tehran, Bucharest, and Mexico City, the movement articulated a different rationale to support the right. In 1975, the World Conference of the International Women’s Year affirmed that ‘‘[t]he human body, whether that of woman or man, is inviolable and respect for it is a fundamental element of human dignity and freedom’’ (United Nations, 1976, Art. 11). The right to decide matters related to sexuality and reproduction derives from this respect for women’s dignity and freedom. The conception of sexual and reproductive health from the perspective of women as equal and autonomous individuals was reaffirmed at subsequent international women’s conferences in Copenhagen, Denmark (1980) and Nairobi, Kenya (1985) (United Nations, 1980, 1985).

In 1979, the United Nations General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (the Women’s Convention) (United Nations, 1979). The treaty codified the right to reproductive decision making as a legally enforceable right. Prior to the Women’s Convention, recognition of the right was limited to international conference documents that bind governments politically but not legally.

Article 16.1 of the Women’s Convention specifically guarantees to women, on the basis of equality with men, 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 to enable them to exercise these rights.

In the tradition of the international women’s movement, the right is recognized as an important end in itself. It serves the sexual and reproductive health needs and preferences of individual women. It is a human right premised on the inherent dignity of the individual.

The 1993 United Nations World Conference on Human Rights in Vienna reflected the transformation of women’s interests from the periphery to the center of human rights discourse. Women’s rights were recognized as ‘‘an inalienable, integral and indivisible part of universal human rights’’ (United Nations, 1993, paragraph 18). The Conference reaffirmed:

on the basis of equality between women and men, a woman’s right to accessible and adequate health care and the widest range of family planning services, as well as equal access to education at all levels. (United Nations, 1993, paragraph 41)

An International Consensus On Reproductive Rights

At the 1994 International Conference on Population and Development in Cairo, Egypt, a human rights perspective was adopted in the development context. In a paradigm shift, the ICPD Programme of Action departs from the instrumentality of rights in the service of demographically based targets. It promotes policies that respect women’s inherent dignity, recognizing individual women’s perceptions, needs, and circumstances as the basis for reproductive decision making. The ICPD Programme of Action expressly acknowledges that:

[t]he empowerment and autonomy of women and the improvement of their political, social, economic, and health status is a highly important end in itself. (United Nations, 1994, paragraph 4.1)

As defined in the ICPD Programme of Action, reproductive 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 … free of discrimination, coercion and violence. (United Nations, 1994, paragraph 7.3)

More broadly, reproductive rights include the ‘‘right to attain the highest standard of sexual and reproductive health,’’ defined as:

a state of complete physical, mental and social wellbeing .. . in all matters relating to the reproductive system and to its functions and processes. (United Nations, 1994, paragraph 7.2)

Reproductive health further encompasses sexual health and:

a satisfying and safe sex life … the purpose of which is the enhancement of life and personal relations. (United Nations, 1994, paragraph 7.2)

The promotion of these rights became:

the fundamental basis for government and community-supported policies and programmes in the area of reproductive health, including family planning. (United Nations, 1994, paragraph 7.2)

and the normative standard against which to assess government action.

At the 1995 Fourth World Conference on Women in Beijing, People’s Republic of China, governments reaffirmed their commitment to the ICPD Programme of Action, and extended the definition of reproductive rights to recognize that:

[t]he human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality … free of coercion, discrimination, and violence. (United Nations, 1995, paragraph 96)

The Beijing Platform for Action further recognizes that:

[i]n most countries, the neglect of women’s reproductive rights severely limits their opportunities in public and private life, including opportunities for education and economic and political empowerment. The ability of women to control their own fertility forms an important basis for the enjoyment of other rights. (United Nations, 1995, paragraph 97)

By 2004, over 90% of governments committed to the ICPD Programme of Action and the Beijing Platform for Action had adopted legislation or implemented policies in furtherance of the consensus objectives (United Nations, 2004).

Since 2000, the United Nations Millennium Development Goals (MDGs) have become the primary international development framework. The MDGs include: poverty eradication, improvement in education, promotion of gender equality and women’s empowerment, reduction of child mortality and improving maternal health, and the combating of HIV/AIDS. In 2006, the United Nations General Assembly adopted ‘‘universal access to reproductive health by 2015’’ as an explicit target under the MDG framework (United Nations, 2006).

The Protection Of Reproductive Rights As Human Rights

Reproductive rights are protected through a composite of human rights guaranteed in national laws, constitutions, and regional and international treaties. Their content and meaning are informed by the ICPD Programme of Action and Beijing Platform for Action. Article 12(2) of the Constitution of the Republic of South Africa, for example, guarantees everyone ‘‘the right to make decisions concerning reproduction’’ (Government of South Africa, 1996). Albania, Benin, and Mali adopted the ICPD Programme of Action definition of reproductive health into national law (Republic of Albania, 2002; Mali, 2002; Benin, 2003).

Professional and ministerial guidelines also ensure the protection of reproductive rights. The International Federation of Gynecology and Obstetrics, through its Committee for the Ethical Aspects of Human Reproduction and Women’s Health, issued ethical guidelines on the duty of providers to respect women’s rights (FIGO, 2003). The Brazilian Ministry of Health published Guidelines for the Prevention and Care of the Consequences of Sexual Violence Against Women and Adolescents to ensure women’s access to appropriate legal abortion services when pregnancy results from rape (Brazil, 1998).

Reproductive rights may be divided into three broad categories of rights: (1) rights to reproductive self-determination, (2) rights to sexual and reproductive health services, information, and education, and (3) rights to equality and nondiscrimination.

Rights To Reproductive Self-Determination

Rights to reproductive self-determination recognize women as autonomous agents with authority to make sexual and reproductive decisions free from interference, discrimination, coercion, and violence.

As explained by the Committee on Elimination of Discrimination against Women (CEDAW), the right of nondiscrimination obligates governments to:

refrain from obstructing action taken by women in pursuit of their health goals .. . includ[ing] laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures. (CEDAW, 1999, paragraph 14)

For example, several treaty-monitoring bodies have called on governments to review criminal laws that restrict access to abortion. Where evidence discloses that high rates of maternal deaths are related to restrictive laws, the Human Rights Committee regards the maintenance of such laws and the lack of access to safe, legal abortion services as a violation of a woman’s right to life. The Human Rights Committee held the Peruvian government in violation of multiple rights under the International Covenant on Civil and Political Rights (the Political Covenant) (United Nations, 1966a), including freedom from cruel, inhumane, and degrading treatment, for denying a 17-year-old a legal abortion despite evidence of danger to her life and health following the diagnosis of an anencephalic fetus (Karen Llontoy v. Peru, 2003).

The Protocol on the Rights of Women in Africa, which supplements the African Charter on Human and Peoples’ Rights (Organization of African Unity, 2003), explicitly requires governments to take all appropriate measures to:

protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus. (Art. 14(2) (c))

Since the 1990s, abortion law reform has been achieved in several countries. The Constitutional Court of Colombia recently liberalized a criminal prohibition to render abortion legal in cases of fetal malformation, rape, and risk to the life or health of the woman (Republica de Colombia, Corte Constitucional).

Rights to self-determination address interferences in decision making by both state and private actors, including husbands and parents. CEDAW advises that governments:

should not restrict women’s access to health services … on the grounds that women do not have the authorization of husbands, partners, parents, or health authorities. (CEDAW, 1999, paragraph 14)

Under the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1950), a UK law that permits women to terminate their pregnancies without spousal authorization was upheld as protective of women’s right to privacy (Paton v. United Kingdom, 1980).

The Committee on the Rights of the Child, which oversees adherence to the Convention on the Rights of the Child (CRC) (United Nations, 1989) by state parties to the Convention, encourages governments to ensure access to health services in a manner consistent with the evolving capacities of the child, and not according to strict age limitations. Best practice guidelines issued by the UK Department of Health, in accordance with the CRC General Comment on HIV/AIDS and the rights of the child (CRC, 2003, paragraph 17), emphasize privacy rights and professional duties of confidentiality in the provision of adolescent sexual and reproductive health services (Department of Health, United Kingdom, 2004).

Governments are further obligated to ensure that women can exercise their rights to reproductive self-determination free from discrimination, violence, and coercion. Forced sterilization policies violate women’s rights to bodily integrity and freedom from torture or other cruel, inhumane, or degrading treatment. The Committee on the Elimination of Racial Discrimination (CERD), which oversees adherence to the Convention on the Elimination of All Forms of Racial Discrimination (United Nations, 1965) by state parties to the Convention, encourages governments to investigate and punish perpetrators of coercive sterilization policies and to provide compensation for victims. Under a friendly settlement facilitated by the Inter-American Commission on Human Rights, the government of Peru recognized responsibility for violating rights to life, physical integrity, humane treatment, and equality for the forced sterilization of an indigenous woman and her subsequent death following a substandard surgical operation (Maria Mamerita Mestanza Cha´vez v. Peru, 2003).

Recognizing that reproductive decision making occurs within broader constraints of family, community, and state, women’s effective exercise of rights to reproductive self-determination depends on their full and equal status in civil, cultural, economic, political, and social life. The Women’s Convention obligates governments to take all appropriate measures to eliminate social and cultural patterns and practices that perpetuate notions of women’s inferiority. The Convention on the Rights of the Child requires governments to take measures to abolish traditional practices harmful to children’s health, including child and forced marriage (Art. 24.3). Enacting and implementing a minimum legal age of marriage at 18, as recommended by both the CRC and CEDAW, enables young girls to delay childbirth and to decrease risks associated with premature pregnancy and childbirth (CRC, 2003, paragraph 20; CEDAW, 1994, paragraph 36).

Rights To Sexual And Reproductive Health Services, Information And Education

As elaborated by the Committee on Economic, Social and Cultural Rights (CESCR), the right to health under the International Covenant on Economic, Social and Cultural Rights (United Nations, 1966b), encompasses an entitlement to the information, education, and means necessary to realize the highest attainable standard of sexual and reproductive health. This includes:

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. (CESCR, 2000, Paragraph 14)

The right to health obligates governments to ensure that health facilities, goods, and services related to sexual and reproductive health are available in sufficient quantity, accessible to everyone without discrimination, acceptable (respectful of medical ethics and culturally appropriate), and of good scientific and medical quality (CESCR, 2000, Paragraph 12).

Rights to sexual and reproductive health services may thus require increased expenditure or the redistribution of public resources to improve efficient access to and quality of services. Pursuant to the right to life under the Political Covenant, the Human Rights Committee has required governments to adopt ‘‘positive measures’’ necessary to preserve life, including the provision of essential obstetric care to reduce high rates of avoidable maternal death. Under the country’s constitutional rights to life and health, the Supreme Court of Venezuela required the government to reallocate budgets to provide access to antiretroviral therapy within the public system (Cruz Bermudez et al. v. Ministerio de Sanidady Asistencia Social, 1999). The Constitutional Court of South Africa similarly required the reasonable provision of treatment to pregnant women with HIV/AIDS under the constitutional right to health (Minister of Health v. Treatment Action Campaign, 2002). Rights to health services further encompasses the right to effective participation in all political processes, including the setting of spending priorities and the evaluation of government budgets, which affect sexual and reproductive health.

In addition to timely and appropriate health care, the right to health extends:

to the underlying determinants of health, such as … access to health-related education and information, including on sexual and reproductive health. (CESCR, 2000, Art. 11)

The Women’s Convention explicitly recognizes a right of:

[a]ccess to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning. (Art. 10(h))

Rights To Equality And Nondiscrimination

Reproductive rights are guaranteed to everyone without discrimination on the basis of marginalized status, including, for example, poverty, age, sex, race, ethnicity, disability, health or marital status, geography, and sexual orientation. CESCR recognizes that, where services are not provided on principles of substantive equality, states are in violation of the right to health (CESCR, 2000, Art. 12).

Substantive equality requires that governments do not impose burdens or withhold benefits on the basis of presumed group characteristics unrelated to an individual’s health needs. CERD regards targeting for mandatory HIV testing on the basis of national origin or race as a form of discrimination.

Substantive equality further requires governments to recognize and address particular health needs of population subgroups. The CEDAW Committee recognizes that societal factors determinative of health status vary between women and men and among women themselves (CEDAW, 1999, Art. 6). Governments are obligated to address these differences. Under the International Convention on the Elimination of All Forms of Racial Discrimination, a woman’s inability to access appropriate reproductive health-care services because of her race, color, descent, national, or ethnic origin violates the right of nondiscrimination.

Conclusion

Reproductive rights refer to a composite of human rights guaranteed in national laws, constitutions, and regional and international treaties that can be applied to protect against the causes of ill health and promote sexual and reproductive well-being. These rights may be broadly divided into three categories: (1) rights to reproductive self-determination, (2) rights to sexual and reproductive health services, information, and education, and (3) rights to equality and nondiscrimination. Rights to reproductive self-determination recognize women as autonomous agents with the authority to make sexual and reproductive decisions free from interference, coercion, and violence. Reproductive rights also encompass entitlements to the means necessary, including health facilities, goods, services, information, and education, to realize the highest attainable standards of sexual and reproductive health. Reproductive rights further guarantee that all couples and individuals have the right to decide freely on matters related to their sexual and reproductive health, and the means to do so, without discrimination and on the basis of substantive equality. While reproductive rights are instrumental to achieving population, health, and development goals, they are important in themselves. Reproductive rights, as all human rights, are intended to protect the inherent dignity of the individual.

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