Reproductive Rights International Framework: Informed choice before sterilization

(This is the first paper in this series. The second will deal with the barriers to Reproductive Rights)

Women, be it in a positive or negative connotation, have always had an immense role to play in the population of the world- from the ages of monarchy where the woman bore the heir to the throne and determined the legacy of any dynasty, to the world wars where she has been referred to as a ‘child bearing machine’ or even the modern day woman who is involved in in-vitro fertilization, to ‘rent a womb’ surrogacy controversies.

Reproduction seems to have always been a controversial issue. The woman has been revered as a mother and in some cultures chastised for being infertile or unable to bear a son. Often womanhood has been reduced to motherhood and over the years the choice to reproduce and control of the population have gotten inter-mingled. It was only around 1990s when there was a shift in policies which focused on population control to freedom of choice to reproduce and bodily integrity.  The cultural permissibility of the right to reproduce or not to reproduce has been a contentious and sensitive issue. It touches upon traditions, religion, science and has contours which have a bearing on International Obligations.

The development of the right to health not only under the International Covenant on Economic, Social and Cultural Rights (ICESCR) but also the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Convention on the Rights of the Child (CRC) has indeed touched upon female and adolescent reproductive rights. The WHO has engendered a human rights based approach to reproductive health and rights. The report on ‘Health in the Post 2015 Agenda’ specifically states that sexual and reproductive health and rights (particularly universal access to contraceptives) must be addressed. Particular emphasis is laid on safeguarding these rights for young people who require special attention and are the next generation of adults. Further gender and development debates deal with issues of body politics and radical feminists have been seen to tackle these issues in a ‘pro-choice’ regime.

Further, at the national level most countries have domestic legislations and policies that regulate access to and availability of contraceptives. Abortion is still criminalized in certain domestic jurisdictions and adolescents having access to information on safe sex, let alone reproductive rights, is considered immoral. Pre-marital sexual relations is still a taboo and the realization of these right has overall been slow and with much to be achieved in terms of the services provided. Though in the international scheme of things reproductive rights has come to be construed as a human right, it remains to be seen how far this right has percolated to the national level not only by means of legislation but more importantly in terms of implementation.

In India the shocking deaths of women at a sterilization camp has raised these issues again. Chhattisgarh which is in news mostly for tragic reasons was back on front pages of national dailies throughout past week. Botched sterlisation tragedy of 11 November in Bilaspur, Chhattisgarh, which claimed lives of more than dozen women has been covered widely. Analyses were done from various angles such as medical negligence, management failure, tribal sterlisation ban violation, women’s reproductive rights and partisan political chicanery, though something far basic and pervasive was left unsaid (read the appeal to the Chief Justice of India). The debate revolves not only around the fact that the sterilizations being done treat women like cattle and are unsanitary but more importantly why women are not given a choice of other forms of contraception. Another parallel debate that has evolved is why not concentrate on male vasectomies which are much safer, quicker and faster.

This paper does not claim to cover all the issues related to the realization of reproductive rights, as it is indeed a vast sea. Hence this will be a series. The first will identifythe existing frameworks internationally. The subsequent will deal with the barriers and related issues. There is indeed inter-linkage between reproductive and sexual rights, however, this paper will focus mainly on the reproductive aspect mentioning the aspect of sexual rights only wherever necessary. The paper will look at reproductive rights in the larger scheme of things focusing on contraception including emergency contraception and safe abortion care. The importance of access to information, education, counseling in terms of contraception and availability of it, especially in regard to adolescents, will be stressed with use of the CRC. Further it shall be argued that women with unwanted pregnancies, married or unmarried, should be offered reliable information and compassionate counseling- pre and post, including information on where and when a pregnancy may be terminated legally. This paper strongly advocates that it is indispensible to reproductive rights that abortion is de-politicized and de-criminalized. Where abortions are legal, they must be safe: public health systems should train and equip health service providers and take other measures to ensure that such abortions are not only safe but accessible. In all cases, women should have access to quality services for the management of complications arising from abortion.

The recent Draft Medical Termination of Pregnancy (Amendment),Bill 2014, India proposes to allow abortions until 24 weeks in exceptional cases.Abortion at any stage if substantial foetal abnormality is detected. Read story here. This bill will indeed arose debate.

EXISTING FRAMEWORK: Internationally

From the discourse of Various International Agencies below the common elements that emerge are the following: Reproductive health rights are indeed seen as human rights. These rights include the overall well being of women and protect the ability to choose to reproduce or not. These rights guarantee access to health care services without discrimination. For the effective implementation of these rights due regard has to be given to sociological factors, eliminating those that are harmful to reproductive health, while advocating for better policies and programmes to strengthen health and social systems to support good reproductive health. In order to have an effective right to reproductive health the underlying challenges in every State need to be ascertained and conquered in order to provide a comprehensive health care system.

What are Reproductive Rights:

Reproductive Rights are not seen as stand-alone rights. Instead Reproductive Rights have been discussed as an integral part of the Right to Health. The human rights based approach reveals an integral relationship between reproduction and health that serves to protect reproductive rights as well as realize reproductive health. Broaching these issues via the lens of the right to reproductive health has allowed for wider acceptance by States. Reproductive health is addressed as an integral element of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

International human rights conventions do not explicitly recognize the human right to reproductive health, but instead recognize certain aspects of this right. Reproductive health has been seen as the total well being in all matters relating to the reproductive system. Reproductive rights refers to the right of people to have a satisfying and safe sex life and implicit in the definition  is the right of women and men to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so. International reproductive health meetings and initiatives have bolstered this idea, however, the recognition of reproductive health as a human right remains in “flux, its development unfinished, its contours uncertain, and its widespread international acceptance tenuous.”

• ICPD/Cairo Programme:

In 1994, the United Nations International Conference on Population and Development (ICPD) in Cairo adopted a Programme of Action that took a broad view of women's sexual and reproductive rights. It was the first international policy document to promote the concepts of reproductive rights and reproductive health. The conference saw a significant paradigm shift from population policies which focused only on reduction in population growth to now encompassing issues of reproductive health and rights of women. The Cairo Programme defined Reproductive health that indicates, men and women have the right 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 appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant. Further, in regards comprehensive health care it was to also include access to safe and legal abortion. However, the Cairo conference side-stepped the controversy on the legal status of abortion by considering it only in the context of the right to health and as a back-up means to failure of contraception or as a recourse in times of danger to the mothers health.

As a result of the staunch opposition against abortion made by several countries and the Holy See, the preambular para 1.15 of the Cairo programme declares that the Cairo Conference “does not create any new international human rights”.

Another criticism was that in order to achieve a consensus at the international level the concept of reproductive rights was left open to interpretation by diverse cultures of various countries in different economic situations. These differences in culture, financial situation and implementation were not sufficiently addressed by the Cairo Conference. Hence, though the Cairo Programme was indeed a step forward in the field of reproductive health and freedom, due to this shortcoming it was very difficult to progress from the words of the declaration on paper to ‘on the ground’ situations.

• Beijing Declaration and Platform for Action:

The Fourth World Conference on Women was held in Beijing in 1995. It re-affirmed and strengthened the 1994 Cairo consensus on women's reproductive health and rights and provided that the right to reproductive health gives rise to a governmental duty to ensure the availability of reproductive health services and remove existing legal barriers to reproductive health care. The Beijing conference produced two documents; the Beijing Declaration and the Beijing Platform for Action. These instruments re-affirmed the principles adopted in Cairo's Programme and went further to recognise reproductive rights under international law. These rights include: (1) access to population and family planning services; (2) safe legal abortions; (3) prevention and control of HIV/AIDS and other sexually transmitted infections; (4) legal protection from harmful traditional practices affecting reproductive health including female genital mutilation; and (5) criminalisation of domestic violence against women including sexual violence in the private sphere.

From the Cairo Programme and Beijing Declaration and Platform it is clear that reproductive health is broader than the narrow concepts of fertility regulation and family planning. While Cairo Programme and Beijing Declaration and Platform are not legally binding they have a significant authority as these were endorsed by a vast majority of governments. These documents were subsequently endorsed by the UNGA resolutions.

Further the notion of reproductive health is shaped not only by medical conditions but also by social forces i.e. it is indispensible that the reproductive rights of women and men and the social behavior and cultural practices are sufficiently addressed in order to have a positive effect on reproductive health. Reproductive rights cannot be achieved in isolation and in the absence of other basic, economic and social rights such as food, shelter, health, social security, livelihood and education, elimination of poverty and renunciation of inequitable and discriminatory development.

• WHO Perspective:- focus on core content

According to the WHO, the definition of reproductive health adopted at the Cairo Programme makes reproductive health unique because the services required in order to successfully implement this right extends to years prior and even post reproduction. WHO states reproductive rights are linked to socio-cultural factors, gender roles and the respect and protection of human rights.

All social rights are considered to have a minimum core content in order to make it an enforceable right, which, according to some authors, remains an absolute requirement to qualify as a human right. According to the WHO, the five core aspects of reproductive and sexual health are:

• improving ante-natal, perinatal, postpartum and newborn care;
• providing high-quality services for family planning, including infertility services;
• eliminatingunsafe abortion;
• combating sexually transmitted infections including HIV, reproductive tract infections, cervical cancer and other gynaecological morbidities; and
• promoting sexual health.

• CEDAW Perspective:- focus on non-discrimination

With respect to women's right to reproductive health, it is important to take a closer look at the standards prescribed by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

According to Article 1, women are entitled to protection against discrimination on the basis of sex in the public and private sphere. It is crucial that non-discrimination cover the private sphere as well, because women are particularly vulnerable to sexual violence and other harmful practices by spouses, family members, and others acting within the private sphere.

Gender discrimination refers to discrimination against women because of their sex.  One of the causes of gender discrimination, among others (ignorance, prejudice, wrong information etc.), is underestimating or overestimating the importance of women's childbearing capacities. Women are often subject to disease, disability, and premature death, due to gender discrimination.

The primary aim of CEDAW is to eliminate all forms of discrimination against women. According to Article 2, State Parties should take “appropriate means” to achieve this aim and integrate the principle of equality.

Additionally, the Human Rights Committee has stated that Article 26 of the ICCPR prohibits discrimination in respect of rights enshrined in the Covenant itself and also to human rights outside the Covenant. In its General Comment on Non-Discrimination, the U.N. Human Rights Committee reaffirmed the special nature of Article 26 of the ICCPR. Analogous to this, the CEDAW further tries to eliminate stereotyped roles for women. These stereotypical roles are one of the obstacles in the path to enhancement of health equality between women and men. The reduction of womanhood to motherhood is a sign that a society fails to acknowledge the equality of human beings.

CEDAW also provides that States parties must take appropriate measures to eliminate discrimination against women in the field of health care.According to Article 12 of CEDAW,

“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.

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”.

Pursuant to Article 12, States are obliged to take the following concrete steps:

• services for sexeducation;
• counseling and means to prevent unintended pregnancy;
• treatment for unwantedpregnancy; and
• prevention of sexually transmitted diseases and other manifestations of sexual and reproductive dysfunctions, including infertility.

Further, the committee on CEDAW which is the treaty monitoring body, in its general recommendation on women and health, declared that States parties “should ensure universal access for all women to a full range of high quality and affordable health care, including sexual and reproductive health services”.

It must be noted that the privacy of women has to be respected, ensuring that the women’s choice is based on free will and informed consent with access to the latest medical techniques and procedures. These services should, moreover, contribute to the elimination of gender discrimination and the removal of female stereotypes both inside and outside the health care sector.

• ICESCR:- focus on health

Ever since the First World Conference on Women in Mexico in 1975 the importance of health issues of women has been growing. As discussed above the CEDAW explicitly obligated States Parties “to take all appropriate measures” to promote and protect the health of women. Article 12 of the CEDAW complements the gender-neutral health provision of the ICESCR.  Further the Cairo programme is also influenced by a rights-based approach to health issues.

The General Comment (GC) No. 14 on the right to health is detailed and the normative content includes sexual and reproductive freedom. The Committee interprets the right to health, as defined in article 12.1, as an inclusive right extending to access to health-related education and information, including on sexual and reproductive health.

Article 12.2, includes the right to maternal, child and reproductive health. It requires 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. Para 16 of GC No. 14 deals with STDs and reproductive health in that context. Para 21 deals with women and the right to health, it discusses a need to develop and implement a comprehensive national strategy to eliminate discrimination against women and include policies to provide access to a full range of high quality and affordable health care, including sexual and reproductive services. It further elaborates on the removal of all barriers interfering with access to health services, education and information in the realm of reproductive health. It is stresses on the importance of undertaking “preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights”.

Para 23 while dealing with right of adolescent states that the realization of their right to health depends on the development of youth-friendly health care, which respects confidentiality and privacy and includes appropriate sexual and reproductive health services. This is highly controversial in light of religious and cultural traditions of certain countries where pre-marital sex is a taboo therefore elaboration of these rights is considered against their laws and moral/religious beliefs.

However sexual and reproductive behaviours during adolescence (between the ages of 10 and 19) cannot be ignored due to increase in teen pregnancy and as adolescents engage in sexual activity at a much younger age. Without appropriate education relating to safe sex and use and access to contraceptives this behavior is risky, both within and outside marriage. Adolescents are often subject to peer pressure to have sexual relations, and without appropriate sexual and reproductive health services they would be unable to protect themselves against unintended pregnancy and sexually transmitted infections. Further, pregnancy carries a high risk of maternal mortality and morbidity for very young girls. Over 1200 million adolescents worldwide are in need of appropriate sexual and reproductive health services and this has become an increasingly important aspect for realization of reproductive rights.

• MDGs: focus on maternal mortality

The MDGs are a UN multilateral worldwide programme to halve global poverty by 2015. The current MDGs, adopted in 2000, include eight international development goals. Out of the eight MDG goals the following three are directly related to reproductive health:

• improvematernalhealth,
• reducechildmortality and
• combat HIV/AIDS and other diseases

The following four goals are also closely related to health- eradicating extreme poverty and hunger, achieving universal primary education, promoting gender equality and empowering women and ensuring environmental sustainability.

The specific targets relating to reproductive health are 1) to reduce by three quarters, between 1990 and 2015, the maternal mortality ratio 2) to reduce by two thirds, between 1990 and 2015, the under-five mortality rate and 3) to have halted by 2015, and begun to reverse, the spread of HIV/AIDS.

The language used by the MDGs does not refer to reproductive rights in the sense of the Cairo programme i.e. to choose freely as to the number and spacing of children instead it focuses on providing health services. Therefore it remains neutral as to the national laws and cultural issues and pushes forward the ideal of achieving highest attainable level of health. Moreover, the goal to reduce maternal mortality could be used as an entry point to tackle inequalities in the health sector.

The target 5b of universal access to reproductive health was only included in 2007 and there is yet much to be achieved to realize this goal. The progress to date-:

• While the proportion of births attended by a skilled health worker has increased globally, fewer than 50% of births are attended to in the WHO African Region.
• Despite a significant reduction in the number of maternal deaths — from an estimated 543,000 in 1990 to 287,000 in 2010 — the rate of decline is just over half that needed to achieve the MDG target by 2015.
• In 2008, 63% of women aged 15–49 years who were married or in a consensual union were using some form of contraception, while 11% wanted to stop or postpone childbearing but were not using contraception.

Further, the Millennium Development Goals Report 2010 brought bad news as it stated that progress in terms of adolescent pregnancy and contraceptive use, had slowed and that aid for family planning as a proportion of total aid to health had declined sharply between 2000 and 2008.

In keeping with the above targets, unsafe abortion can be dealt with under improving maternal health. To achieve the above targets urgent measures such as strengthening family planning, and making them available and accessible, need to be taken. Advocacy for changing legal provisions which criminalise abortion is required. Where the law provides for safe abortion services, effort should be taken to train health-service providers in the latest techniques. Further, post-abortion care for women must be made available as well as counseling to achieve the highest attainable level of health.

There is no doubt that poor women who are unable to afford health care services are at a high risk of maternal mortality and require a comprehensive system of health care throughout their life cycle. There are economic concerns here as well as cultural and social ones pertaining to appropriateness of the technology for different groups of women in their specific life stages and what is acceptable to them.

Further, systemic changes are required in terms of access and finance for health care services in order to tackle maternal mortality and morbidity. Maternal health is in this aspect a political and economic policy issue rather than a purely medical issue.

Hyperlink WHO, ‘Reproductive health strategy to accelerate progress towards the attainment of international development goals and targets (hereinafter Reproductive health strategy, 2004),’ adopted by the 57^th World Health Assembly (WHA) in May 2004, available, accessed on 2 August 2013.