COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS HOLDS DAY OF GENERAL DISCUSSION ON SEXUAL AND REPRODUCTIVE HEALTH
The Committee on Economic, Social and Cultural Rights today held a Day of General Discussion to discuss the Committee’s draft General Comment on the right to sexual and reproductive health. The Committee held thematic discussions with distinguished panellists on the concept of the right to sexual and reproductive health; normative aspects of this right; and cross-cutting issues concerning sexual and reproductive health rights.
In introductory remarks, Jaime Marchan Romero, Committee Chairperson, noted that all the rights under the International Covenant on Economic, Social and Cultural Rights were rights that could be acted upon in court if they were violated, therefore the General Comment should be as specific and detailed as possible to help courts enforce these rights.
Rocio Barahona-Riera, Committee member and Rapporteur for the formulation of the General Comment on sexual and reproductive health, said that States had the obligation to introduce the gradual protection of economic, social and cultural rights and they must observe all rights deriving from the Covenant. It was necessary, therefore, for them to understand fully the content of these rights and the right to sexual and reproductive health was part and parcel of human rights and its enforcement was fundamental to preserving human dignity.
During the panel discussion on the concept of the right to sexual and reproductive health, panellists said that it was important for States to understand the constellation of human rights surrounding sexual and reproductive health and their obligations in protecting these rights, therefore they could use the guidance of this Committee in this regard. Speakers also pointed out that women often suffered from multiple forms of discrimination such as age, religion, race or class and addressing and eradicating these multiple forms of discrimination in State policies and practices was of the utmost importance. Cultural traditions and customs were often used to nullify the enjoyment of sexual and reproductive health rights and the Committee was urged to take this into consideration when drafting the General Comment.
In the ensuing interactive debate, speakers noted that the Committee should not try to legalize abortion through the backdoor by saying that abortion was part and parcel of the right to sexual and reproductive health. Another speaker said the right to health was especially important, but this particular Covenant did not include any right to sexual and reproductive health, including abortion, and as such the Committee should not elaborate a General Comment on this subject. A Committee member felt it was important to note that people should not assume that the Committee had decided one way or the other on the issue of abortion; it was a difficult subject, but it was only following a lengthy debate that the Committee would formulate a General Comment so all contributions and input would be welcomed on such a sensitive topic.
In the second panel discussion on the normative aspects of the right to sexual and reproductive health, panellists pointed out that shortcomings in the sphere of sexual and reproductive health would often give rise to human rights violations that went beyond the remit of the Covenant, so this discussion was just one piece of the puzzle and a holistic, comprehensive and inclusive approach to the issues was imperative as this process went forward. Health systems had obligations related to the promotion, protection, and comprehensive care of sexual and reproductive health because States parties delegated to them the execution of the right to health through the promotion and improvement of the overall health status of individuals, families, communities and societies at large.
In the interactive debate that followed speakers noted the widespread sterilization of people with disabilities and the fact that they were often deprived of sex education and thus could not make informed decisions. Another speaker noted the need for the General Comment to address the specific needs and rights of adolescents and young people, as well as those of sex workers and transgendered people. Another speaker said that in terms of making abortion safer, the question was making it safer for whom; safer for the mother or safer for the unborn child? One could not speak of the rights of the mother, without speaking of rights of the unborn child and rights of the father as well.
In the afternoon the Committee continued its discussion with two additional panels, one on the cross-cutting issues concerning the right to sexual and reproductive health, and the other on the conclusions that could be drawn from the day’s discussion.
During the panel on cross-cutting issues, speakers said that inadequate laws on domestic violence, legalization of marital rape, non-availability of safe contraceptives, lack of availability or access to quality obstetric facilities, coercive family planning policies and forced sterilization policies were some examples reflecting the continuum of sexual and reproductive health violations that women experienced in both the private and public spheres. It was also noted that violations of the right to health included the adoption of legislation or policies which were manifestly incompatible with pre-existing domestic or international legal obligations in relation to the right to health. There were many such laws in place that specifically affected sexual and reproductive health and which targeted marginalized groups.
During the interactive dialogue concerning this topic people noted that there was a wide range of issues that needed to be addressed in this General Comment and it was incumbent upon the Committee to address them, but the speaker urged the Committee not to allow the process to be usurped by the abortion debate. This was a topic that required comment, but it should not subsume all the other issues that needed to be addressed.
In the last panel of the day, drawing conclusions on the day’s discussion, experts said that women and adolescents needed to be at the heart of this General Comment and links needed to be made between sexual and reproductive health and medical ethics, for example informed consent and conscientious objection. This debate had often been driven by morals and religion rather than scientific information and public policy frameworks.
In the interactive debate, a speaker asked that low-income and rural women be remembered during the drafting of this General Comment, and encouraged the Committee to adopt a robust and broad definition of equality so that it was substantive, with the rights holder at its centre, and looked not only at State action but at State inaction as well.
The next public meeting of the Committee will be at 10 a.m. on Friday, 19 November, when it will adopt its concluding observations and recommendations on the country reports which it has considered this session and officially close its forty-fifth session.
Introductory Statements
JAIME MARCHAN ROMERO, Committee Chairperson, said today’s discussion would lead to a General Comment which would be General Comment No. 22. The General Comments issued by the Committee were extremely useful tools not only to explain the rights contained in the International Covenant on Economic, Social and Cultural Rights, but also in helping States implement these rights. The right to sexual and reproductive health was implicit in Article 12 of the Covenant, but this General Comment would make it more explicit. The purpose of today’s discussion was also to identify violations of sexual and reproductive health rights so that in cases of violations, rights holders could seek redress and obtain compensation. It was only when a right was clearly identified that it was possible to initiate proceedings and that violations became actionable. All the rights under the Covenant were rights that could be acted upon in court if they were violated, hence the importance of today’s proceedings. The Chairperson said the General Comment should be as specific and detailed as possible, to help courts enforce these rights and laws. Speakers today would identify violations of sexual and reproductive health rights around the world that had had devastating effects on women and girls.
ROCIO BARAHONA-RIERA, Committee Member and Rapporteur for the Formulation of a General Comment on Sexual and Reproductive Health, said that everyone gathered here today was part of a community working to affect change, and every small step helped to protect the lives of human beings throughout the world. Maternal mortality was a multifaceted issue and these various dimensions were taken into account at the conference on the Millennium Development Goals. These events showed a clear vision from the world community on what it meant to combat these problems and to combat violations of the right to sexual and reproductive health. States had the obligation to introduce the gradual protection of economic, social and cultural rights and they must observe all rights deriving from the International Covenant. It was necessary therefore for them to understand fully the content of these rights and these rights must be implemented and increasingly applied. The right to sexual and reproductive health was part and parcel of human rights and its enforcement was fundamental to preserving human dignity.
Ms. Barahona-Riera said this General Comment had been drafted with the input of various stakeholders and would be drafted in the same form and layout as previous General Comments. The definition of sexual and reproductive health rights would be based on the definition given during the International Conference on Population and Development and would contain three elements that were considered essential to the enjoyment of human rights. These included the capacity to reproduce; the exercise of one’s right to reproduction; and the exercise of one’s right to full sexual and reproductive health without risks. It was therefore necessary to ensure that individuals had control of their sexual and reproductive health. For example, one must not be a victim of coercion, discrimination, or violence and there must be equality between men and women. The integrity of human beings must be respected and the right to be informed must also be observed.
Ms. Barahona-Riera said that access to safe and effective means of contraception must be available as well as access to safe and comprehensive services. Pregnant women should have access to safe and legal abortions, and the Committee was increasingly addressing harmful traditional practices such as female genital mutilation as impediments to the exercise of the right to sexual and reproductive health in their general observations.
Statements Regarding the Concept of the Right to Sexual and Reproductive Health
ALICIA YAMIN, of Harvard University, said that despite the increasing attention paid to this topic, it continued to be under covered by national and international communities. In order for this General Comment to be effective, it should reinforce the existing laws and definitions that were also widely accepted.
Ms. Yamin said that the definition of sexual and reproductive health was well established through international consensus documents. The rights to access to information, equality between men and women and access to services were also implicit in these definitions. The General Comment should also stress that sexual and reproductive health rights were integral and indivisible from other human rights such as economic, social and cultural rights and civil and political rights. The General Comment also provided an opportunity to clarify the nature of States’ legal obligations to respect, protect, and fulfil the right to sexual and reproductive health. The General Comment should also address extraterritorial obligations of States which could provide assistance to other States that had limited capacity to meet their obligations, and also how trade practices and other interactions affected the right to sexual and reproductive health.
The General Comment should also outline minimum levels of sexual and reproductive health goods and services such as skilled health professionals, access to information and free services when possible. Ms. Yamin said that this General Comment should also address gaps in General Comment 14 and other international statements on sexual and reproductive health, including health systems and the role they played in the provision of sexual and reproductive health services. This General Comment should also address the broader social determinants of sexual and reproductive health such as gender based discrimination and cultural norms as well as criminalization of the provision and use of sexual and reproductive health services and criminalization of sex work and other sexual activity that prevented people from accessing care and information.
Lastly, Ms. Yamin said the General Comment should require the establishment of systematic and effective monitoring and accountability systems to assess outcomes and States’ policy efforts, including policy commitments and resource allocation. Judicial remedies had also proved critically important in this arena.
CATHERINE D’ARCANGUES, of the World Health Organization, noted that sexual and reproductive health were clearly grounded in human rights and no other area of health was so deeply affected by socio-cultural norms, gender issues, inter-personal relationships and religious beliefs. Also, no other area of health was so dependent on the realization of the rights to: equality and non-discrimination, education, the highest attainable standard of physical and mental health, social security, protection of the family and children, and benefits from scientific progress.
In the provision of healthcare, there were discriminatory aspects such as poverty which were common to various areas of healthcare, but sexual and reproductive health was unique because this was the only area of healthcare in which marital status, age, sexual orientation, gender identity or HIV status could be used to deny care. It was therefore important for States to understand the constellation of human rights surrounding sexual and reproductive health and their obligations in protecting these rights and in reaching the Millennium Development Goal of universal access to reproductive health by 2015. The States could use the guidance of this Committee on advancing this right using a human rights framework.
Ms. D’Arcangues went on to say that particular areas of consideration should include family planning with access to correct, evidence-based information and a full range of contraceptive methods, including emergency contraception and the elimination of financial and legal barriers to sexual and reproductive health services. In terms of adolescents, States should offer comprehensive and objective sexuality education that was age appropriate, starting in childhood and continuing through adolescence as well as access to sexual and reproductive health services without parental consent according to their evolving capacity and when in their best interest, in line with principles of privacy and confidentiality. There should also be safe and accessible services for abortions when permitted by law, broader legal grounds for safe abortion and regulations governing providers’ exercise of conscientious objection. Other issues that needed to be addressed included the decriminalization of sexuality related issues and consensual sexual activity among adults such as same sex sexual activity, sex work, HIV transmission, and sex outside of marriage. Evidence showed that criminalization led to stigmatization and violence, limited access to services and generated poor health outcomes.
RAJAT KHOSLA, of Amnesty International, said that the realization of sexual and reproductive health rights depended on the enjoyment of a range of interrelated human rights such as the right of choice in marriage, the right to religion and conscience and the elimination of gender based discrimination. The enjoyment of this right also required a full range of information and services, and a selective interpretation of these rights would not work. Mr. Khosla emphasized that non-discrimination was key to the enjoyment of these rights as well, so the elimination of gender stereotyping and discrimination was key to ensuring these rights. Women often suffered from multiple forms of discrimination such as age, religion, race or class and acknowledging, addressing ad eradicating these multiple forms of discrimination in State policies and practices was of the utmost importance. Cultural traditions and customs were often used to nullify the enjoyment of sexual and reproductive health rights and the Committee should take this into consideration when drafting the General Comment.
Mr. Khosla then turned to remedies and guidance for States. This General Comment could further explore accountability in health systems and how this could address sexual and reproductive health rights. For example, the issue of conscientious objection was the result of unregulated healthcare professionals who denied treatment and services to women based on their beliefs. These professionals should be held accountable for the violation of the rights of women and girls.
Interactive Debate on the Concept of the Right to Sexual and Reproductive Health
During the interactive debate, Committee members noted that judicial remedies should be at the centre of States’ approaches to ensuring sexual and reproductive health rights. A Committee member asked the panellists to expound on what would be a selective interpretation of the General Comment so that this could be avoided as the comment was drafted. The representative from the World Health Organization was asked to outline in more detail what exactly that organization did to promote sexual and reproductive health rights, as well as provide further data on the assertion that the criminalization of HIV/AIDS transmission was ineffective and hindered women’s rights. The panellists were also asked if there was anything missing from the definition of sexual and reproductive health that was currently in the draft General Comment.
State party representatives said that it would have been helpful to have this meeting more highly publicized so that State party representatives could attend and participate. One speaker said that the debate already seemed skewed and was going in the direction of abortion and they said that the Committee should not try to legalize abortion through the backdoor by saying that it was part and parcel of the right to sexual and reproductive health. Another speaker said the right to health was especially important, but this particular Covenant did not include any right to sexual and reproductive health, including abortion, and as such the Committee should not elaborate a General Comment on this subject. The next speaker said that this topic was not part of the text that was approved in the framework of this Covenant nor were some of these elements topics for the Universal Periodic Review.
Responding to some of the comments from State party representatives, a Committee member said that the Committee welcomed input from States parties and they were surprised by the comment that States parties had not been included in the discussion of this General Comment; that was the purpose of the meeting today. The speaker also asked that people not assume that the Committee had decided one way or the other on the issue of abortion; it was a difficult subject, but it was only following a lengthy debate that the Committee would formulate a General Comment so all contributions and input would be welcomed on such a sensitive topic. The speaker also said that just because the right to sexual and reproductive health was not explicitly noted in the Covenant did not mean that the Committee could not write a General Comment on this issue. Nowhere in the Covenant was the right to clean water mentioned, yet the Committee had written a General Comment on this topic so it was empowered by the language of the Covenant as signed by the States to take on various issues. Another Committee member said that abortion was a component of this right in the sense that it had an impact on maternal mortality since many women died from unsafe abortions.
Another State party representative underlined their State’s position that the issue of abortion was part of the right to life and for them this right began at conception and thus could not be considered as access to a service. This State did not consider abortion as part of the right to sexual and reproductive health. Another State representative agreed that the right to sexual and reproductive health could not include abortion. A speaker commented that the definition of sexual and reproductive health as established in Cairo did not include the right to abortion and the Committee on the Rights of the Child noted that these rights began at conception so the right to life and the rights of the child also had to be respected. Another State party representative said that in that country sexual and reproductive health was seen as part of human development starting at work and ending at death and required a multi-sectoral and integrated approach to health with a mainstreamed gender perspective.
Representatives of non-governmental organizations noted that the Convention on the Rights of Persons with Disabilities could provide some guidance for this Committee when drafting the General Comment. Another speaker said that women needed clean water and access to safe obstetrical care to help reduce maternal mortality. Another non-governmental organization representative asked how the General Comment would make the link between the sexual and reproductive health of the mother and the child’s right to health.
States speaking during the interactive debate included Egypt, Pakistan, Honduras, Malta, Chile, Luxembourg, Lebanon, and Nicaragua. Representatives from the non-governmental organizations International Disability Alliance, Canada Silent No More, and Save the Children also spoke.
In concluding remarks, RAJAT KHOSLA, of Amnesty International, said that it had become clear that this General Comment touched on multi-faceted and important subjects that would not be addressed by a one size fits all approach. One could not separate the right to sexual and reproductive health from human rights. He said that no one was calling for access to abortion on demand, but what was being called for was the decriminalization of abortion, as no girl or woman should be put in jail for having had an abortion and thousands of women should not die every year due to unsafe abortions so it was important to have this dialogue.
CATHERINE D’ARCANGUES, of the World Health Organization, said that in terms of what the World Health Organization does in the arena of sexual and reproductive health, WHO provided country reports on sexual and reproductive health to treaty monitoring bodies and was collecting information on such jurisprudence worldwide. It also provided evidence globally and in regions and about countries to support Committee considerations. In terms of the criminalization of HIV transmission, Ms. D’Arcangues said that this was a problem because HIV transmission was difficult to ascertain and led people away from testing. The World Health Organization also monitored abortions worldwide and it would publish its latest data soon. The findings showed that the more restrictive the legislation was, the more likely women were to partake in unsafe abortions so legislation did not stop people from having abortions, but rates of abortion were lower in places where women had access to education, information and services. The rates of safe abortions were going down, but not the numbers of unsafe abortions.
ALICIA YAMIN, of Harvard University, spoke about the concern regarding selective interpretation of the General Comment, and she said that prostitution and abortion were good examples of how the application of the General Comment could be limited. She noted that the General Comment should resist the urge to avoid those topics because there were contentious issues. No one was arguing for abortion on demand, but there were already standards that had been adopted by this Committee and other bodies which outlined cases in which abortions should be permitted.
Statements Regarding the Normative Aspects of the Right to Sexual and Reproductive Health
SOFIA GRUSKIN, of Harvard University, said the articulation of the right to sexual and reproductive health was needed for States and making non-discrimination in the right to healthcare a key component was also important. The title of the General Comment had clear implications from a legal perspective that needed to be thought out and it had implications for what needed to be prioritized. Ms. Gruskin cautioned against a title that would have a negative effect by narrowing the understanding of sexual and reproductive health rights and what these obligations looked like. In terms of core obligations, Ms. Gruskin said she was concerned that suggesting a minimum package of sexual and reproductive health services in a General Comment would leave some gaps in the range of topics that should be covered by sexual and reproductive health. These topics included not only access to information but also female genital mutilation, sexual identity and orientation, sexual exploitation, sexual harassment, honour killings, gender based violence and many other areas.
In terms of progressive realization, Ms. Gruskin said the General Comment would help ensure that efforts were seen as a continuum and would encourage States to keep improving in this area rather than seeing the standards outlined as a ceiling and assuming that everything had been accomplished once they reached a certain point.
LUZ MELO, of the United Nations Population Fund, focused her intervention on vulnerable and marginalized groups in the arena of sexual and reproductive health. Persons with disabilities were not only less likely to receive general information on sexual and reproductive health services, including family planning services, but should they become pregnant, they were also less likely than their non-disabled peers to have access to prenatal, labour and delivery and postnatal services. The Convention on the Rights of Persons with Disability required States parties to incorporate disability-sensitive measures into mainstream service delivery and to provide disability specific services that were necessary to support the inclusion and participation of persons with disabilities, which also applied to sexual and reproductive health services.
Turning to indigenous peoples, Ms. Melo said that they lacked access to healthcare not only because of their physical isolation, but also because their concerns were not taken into consideration in national priorities and frameworks. Intercultural human rights approaches to sexual and reproductive health responded to the need of ensuring that indigenous peoples had their right to sexual and reproductive health respected, protected and fulfilled by preserving their notions of disease, associated with their worldviews, traditional knowledge, cultures and traditional practices while guaranteeing that the principles of availability, accessibility, good quality and acceptability were met.
With respect to older persons, Ms. Melo noted that they were consistently among the poorest in all societies. There was a general assumption that older persons were not or should not be sexually active, which not only contributed to stereotyping and stigmatization, but it also prevented them from accessing services and information. Older persons were fully entitled to access to preventive and curative care, including rehabilitation care and sexual and reproductive health information and services. It was important for health systems to integrate the sexual and reproductive health needs for older persons, including requiring medical personnel to be sensitive and respectful of the needs and dignity of older persons.
RAFAEL MAZIN, of the Pan American Health Organization, said that reproduction was but one of the facets of human sexuality. It could be a gratifying and pleasant experience when desired, wanted and free of physical risk and harm. However, it could also entail considerable distress and suffering when unintended or surrounded by conditions such as poverty, coercion or distress. State parties delegated to their health systems the execution of the right to health through the promotion and improvement of the overall health status of individuals, families, communities and societies at large. Thus, health systems had obligations related to the promotion, protection, and comprehensive care of sexual and reproductive health.
Mr. Mazin said that the obligations of health systems in the realization of sexual and reproductive health rights included: empowering people to make free, informed, non-coercive decisions about their sexuality and procreation; providing equitable access to people-centred care for sexual and reproductive health through the lifespan; making it possible for people to participate in decisions affecting their health; improving the sexual health status of individuals, families and communities through specific, effective interventions; defending the population against threats to all facets of sexuality and procreative functions; and protecting people against the financial consequences of poor sexual and reproductive health.
In terms of measures that health systems could take to ensure the realization of sexual and reproductive health rights, Mr. Mazin outlined several actions, including: recognizing, treating and supporting victims of sexual or gender violence; transferring healthcare providers and medical employees who denied care based on their personal principles; providing safe alternatives to clandestine services; protecting the right to privacy of service users; providing the necessary information for people to make informed decisions; broadening reproductive health programs to address concerns and problems related to sexuality; identifying and correcting discriminatory practices based on gender, orientation, age, expressed identities or any other personal features related to sexuality; and recognizing and denouncing mutilation practices, including involuntary sterilization.
LEAH HOCTOR, of the International Commission of Jurists, pointed out that shortcomings in the sphere of sexual and reproductive health would often give rise to human rights violations that were beyond the remit of the Covenant, so this discussion was just one piece of the puzzle and a holistic, comprehensive and inclusive approach to the issues was imperative as this process went forward.
In terms of violations of this right, there were legal and regulatory frameworks that impeded the enjoyment of human rights in the sphere of sexual and reproductive health. These included laws and regulations that were directly discriminatory on prohibited grounds and that explicitly targeted sexual and reproductive health, for example limiting access to sexual and reproductive health services or limiting access to age appropriate information, advice and services. This also included laws that criminalized adultery, sex outside of marriage or same sex sexual activity.
In terms of the protection of such rights, Ms. Hoctor said that violations of this sort encompassed a failure to ensure a legal framework was in place to effectively prevent certain conduct by private actors that undermined and interfered with sexual and reproductive health. This would also include failure to take adequate steps to prevent, investigate, and assure appropriate accountability in respect to third party conduct which impaired the enjoyment of human rights in the sphere of sexual and reproductive health.
Turning to the State obligation to fulfil these rights, Ms. Hoctor said that violations of this obligation would arise when States failed to design, put into place or implement a holistic and inclusive national health policy that adequately and comprehensively included sexual and reproductive health. This would also include failures to ensure that appropriate and good quality sexual and reproductive health care information and services, including contraception, were accessible and available to everyone and free from discrimination on prohibited grounds.
Interactive Debate
During the interactive debate on the normative aspects of the right to sexual and reproductive health, a State party representative said that maternal mortality in that country was reduced at the same time that a law restricting abortion was passed and a reduction in the maternal mortality rate did not depend on liberalization of laws allowing abortion. Another speaker sounded a note of caution about the expansion of language that had already been negotiated by State parties. This representative said it was a fallacy that liberalizing abortion laws led to lower maternal mortality or lower abortion rates. In terms of making abortion safer, the question was making it safer for whom; safer for the mother or safer for the unborn child? The discussions today should not focus just on rights but also family values and attendant responsibilities. One could not speak of the rights of the mother, without speaking of rights of the unborn child and the rights of the father as well.
Non-governmental organizations noted the widespread sterilization of people with disabilities and the fact that people with disabilities were often deprived of sex education and thus could not make informed decisions. Another speaker said there was a need for the General Comment to address the specific needs and rights of adolescents and young people, as well as those of sex workers and transgendered people.
Speaking during the interactive debate were representatives from Poland and Nigeria and representatives from the International Disability Alliance and the Youth Coalition for Sexual and Reproductive Rights.
Statements from Panel on Cross-cutting Issues Concerning the Right to Sexual and Reproductive Health
CRAIG MOKHIBER, of the Office of the High Commissioner for Human Rights, introduced the panel by saying that this was an important discussion that would look at how poverty, criminalization, detention, disabilities, age and a host of other cross cutting factors increased vulnerability and diminished or denied entirely the right to health.
MADHU MEHRA, of Partners for Law in Development, focused her intervention on the cross-cutting issue of discrimination and the structural frameworks of national and transnational policies that were needed for the realization of sexual and reproductive health rights. Ms. Mehra said that even as the principle of non-discrimination was reiterated in all treaty law, its realization continued to be a struggle. Women’s inequality was a fundamental obstacle to the realization of these rights. Gender roles for women and men were socially constructed to sustain patriarchal male privileges over female labour, body and reproduction. Such coordination and control over women was achieved through a value system and allocation of stereotypical roles and relationships that institutionalized inequality in the family, community and the market. This social construction often influenced law and policy, thus interlocking discrimination in private and public spheres in a continuum.
Ms. Mehra said that inadequate laws on domestic violence, or poor implementation, legalization of marital rape, non availability of safe contraceptives, lack of availability or access to quality obstetric facilities, coercive family planning policies and forced sterilization policies were some examples reflecting the continuum of sexual and reproductive health violations from the family to the State. Women’s ability to determine if, when and the number and spacing of children required decision making and negotiation capacity that was ultimately predicated on gender equality and empowerment. Just as women’s subordination had adverse implications for the exercise of rights to sexual and reproductive health, the health sector could become a site of discrimination and violence for women, through culturally incompatible approaches, abuse by health providers and lack of sexual and reproductive health services for women with disabilities, lesbians, transgendered persons, single and young persons.
Ms. Mehra went on to say that the right to health was not limited to the absence of disease, but to the underlying economic, social and environmental determinants that enabled a healthy life that included the right to food, adequate housing conditions, the right to water, education, employment and livelihood. National policies reflected a State’s priorities and directly impacted the resource allocation toward the fulfilment of obligations to respect and fulfil socio-economic rights across gender, age, class and cultural disparities. Broader policy areas on economic development, growth, industry, mining displacement, rehabilitation, agriculture, defence, conflict management, trade, science and technology also impacted the State’s ability to allocate resources to economic, social and cultural rights. The right to sexual and reproductive health also needed to focus on the interconnectedness of transnational policies of all entities, including those of corporations, the global market, multilaterals and philanthropic aid. For example, the biogenetic futures market as well as the surrogate industry and the sale and donation of human embryonic matter, eggs and tissue extended patriarchal control and use of female reproductive labour from poorer women in the north and south.
KAREN STEFISZYN, of the University of Pretoria, said that the relationship between violence against women and HIV was established. This relationship was closely linked to women’s sexual and reproductive health rights in many ways, including with respect to their ability to have control over and decide freely and responsibly the matters related to their sexuality and reproductive health free of coercion, discrimination and violence. Women were vulnerable to HIV infection as a result of their unequal status with men whereby they were often unable to control when they engaged in sex and to insist on safe-sex practices to protect themselves from HIV infection and other sexually transmitted infections. Sexual violence placed women at risk of contracting HIV and was a widespread violation of women’s human rights, cutting across numerous rights such as non-discrimination, dignity, life and health.
With respect to stigma and discrimination against women living with HIV/AIDS, Ms. Stefiszyn said that people living with HIV were often victims of discrimination. Stigma and discrimination were also among the main drivers of the HIV epidemic and women living with HIV often experienced stigma and discrimination in many unique, gendered ways and often in relation to their sexual and reproductive health. Stigmatized as “vectors of disease”, HIV-positive women had been subjected to forced or coerced sterilization by healthcare workers on the basis of a perception that HIV-positive women should not exercise their right to decide freely on when to have children and the number and spacing of children.
Ms. Stefiszyn said that violations of the right to health included the adoption of legislation or policies which were manifestly incompatible with pre-existing domestic or international legal obligations in relation to the right to health. There were many such laws in place that specifically affected the sexual and reproductive health and which targeted marginalized groups. Gay, lesbian, bisexual and transgender persons were driven away from HIV prevention, treatment and care programmes, as well as sexual reproductive health services in climates where they were deemed criminals. Sex workers and injecting drug users confronted similar barriers to accessing health care related to HIV prevention, treatment and care. While the Committee had already emphasized that health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population without discrimination, this was not the case in many States and had a detrimental effect on effectively responding to the HIV pandemic.
Interactive Debate
A Committee member asked the panellists what they expected to see from the General Comment and what they hoped the comment would contain. They realized that the social structure was an issue, but they had to focus on the legal obligations of States under the Covenant. Another Committee member asked the panellists to comment on the importance of the disaggregation of data. A Committee member noted that in terms of birth control there seemed to be religious convictions on one side and the rights of men and women to choose when they had children.
A representative from the United Nations Children's Fund (UNICEF) said that UNICEF promoted a multi-sectoral approach to sexual and reproductive health including promotion of education and access to reliable methods of family planning as well as information. Another speaker pointed out that many aspects of reproductive health were left out including breast cancer, the reproductive health of men and children and the rights of the child. There was sex selection prior to birth and selection prior to birth based on disabilities, as well as partial birth abortions that were done in cases other than situations where the mother’s life was at risk. One person’s idea of a restrictive law was another person’s idea of a protective law. International law recognized that from conception onward a person’s rights had to be protected and respected, especially when rights were in conflict. Another speaker pointed out that children who were the result of violence should not be aborted, as the rights of the mother ended where the rights of the child began. Many people had opinions about rape and incest, but many women regretted aborting children who were the result of rape or incest.
A representative from the Office of the High Commissioner for Human Rights noted that it was important to emphasize the rights of people with disabilities in a General Comment. The Convention on the Rights of Persons with Disabilities contained a number of articles relevant to this General Comment.
Another speaker said they had submitted a paper challenging the right of this Committee to issue a General Comment containing any language regarding abortion. The Convention on the Rights of the Child said that the child was protected from the pre-natal stage onward. There was no such right as a right to an abortion and this Committee was not empowered to reinterpret the Convention. Another speaker said that women’s subordination and lack of power led to early pregnancies which endangered their health and prevented them from deciding from themselves when to have children and the spacing of these children. Another non-governmental organization representative said that criminalization of consensual sex impacted two interrelated aspects of sexual and reproductive health rights by impeding access to health services and creating barriers of stigmatization and fear. Laws criminalizing consensual sex also violated the right to privacy and dignity.
Someone else pointed out that breastfeeding was part of reproductive health and thus more information should be made available about it and women should be supported in breastfeeding as it was beneficial for the mother as well as the child. The next speaker said that religious and cultural experts should have been invited to shed light on the various views concerning abortion.
A representative from the World Health Organization said that there was a wide range of issues that needed to be addressed in this General Comment and it was incumbent upon the Committee to address all these issues, but the speaker urged the Committee not to allow the process to be usurped by the abortion debate. This was a topic that needed to be addressed but it should not subsume all the other issues that needed to be addressed.
A representative from Joint United Nations Programme on HIV/AIDS (UNAIDS) said the Committee would need to say very clearly what it was planning to cover in the General Comment. Sexuality apart from reproduction should also be addressed as it raised many rights issues for young people, for single people, for people outside of marriage and others.
A Committee member asked attendees to trust the Committee to make informed decisions and they ensured that while every idea would be listened to, not everything would go into the General Comment. The reason they decided to draft a General Comment on this topic was because there was a need for one as evidenced by today’s discussion. Another Committee member said that this was not a General Comment on abortion, but rather its purpose was to flesh out States’ obligations.
A speaker from a non-governmental organization said that there were studies that showed that the criminalization of services had a chilling effect on lawful services.
Speaking during the interactive debate were representatives from the United Nations Children's Fund, the Office of the High Commissioner for Human Rights, the Society for the Protection of Unborn Children, the World Organization for Pre-Natal Associations, Save the Children, the International Commission of Jurists, the International Baby Food Action Network, Catholic Women of the World, the Centre for Reproductive Rights, the World Health Organization, the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Federation for Women and Family Planning, Human Rights Law Resource Centre, as well as several independent consultants.
In concluding remarks, MADHU MEHRA, of Partners for Law in Development, said that it was important to address underlying social constructions, gender stereotyping and cultural practices which were at the root of many of these issues. Social subordination of women allowed for abuse in both the private and public spheres, such as in the family and by official entities such as the healthcare system.
KAREN STEFISZYN, of the University of Pretoria, noted that nothing they had talked about today had been left untouched by the expansive body of jurisprudence established by the treaty bodies. There was no reason why the Committee on Economic, Social and Cultural Rights could not continue to expand on jurisprudence in this way and expand and consolidate on the issue of sexual and reproductive health. In terms of reconciling birth control with religious beliefs, Ms. Stefiszyn said that by virtue of ratifying the treaty they had acknowledged that the rights contained therein were universal rights and not culturally relative.
Statements from Panel Regarding Conclusions on the Day of General Discussion
DAINUS PURAS, Committee Member, Committee on the Rights of the Child, said that the cross cutting nature of the subject of this General Comment was very relevant to the issues covered by the Convention on the Rights of the Child such as the rights of children and adolescents to healthy development.
The Committee on the Rights of the Child urged States parties to develop and implement programmes that provided access to sexual and reproductive health services and respect for the rights of adolescents to privacy and confidentiality. Sexual education in schools was one of the important issues discussed during dialogues with States parties and raised in the Committee’s concluding observations, as well as measures to protect children and adolescents from harmful practices such as early marriages and female genital mutilation. The Committee was raising these and other important issues related to sexual and reproductive rights in the context of the right of children to healthy holistic development, addressing all components of development as equally important. Children, in the spirit of the Convention of the Rights of the Child and in the view of the Committee, were holders of their rights and as their capacities were evolving, rights to sexual and reproductive health should be no exception.
The Committee on the Rights of the Child was also fully aware of challenges and obstacles in the field of sexual and reproductive rights which remained the most sensitive and controversial issue in international human rights law. Some of these challenges and controversies were even more visible when issues of sexuality and reproductive health were related to children and adolescents. The Committee had raised concerns in its concluding observations in the cases of policy shifts that restricted, for example, the scope of sexual and health education for adolescents or denied access for adolescents to confidential services. Such policy shifts were usually a deliberate expression of ideological attitudes of governments, and not the effect of the lack of resources. This difference in attitudes about how to best promote and protect the rights of children and adolescents indicated the need for consensus on crucially important human rights principles and effective measures for their implementation. The initiative of the Committee on Economic, Social and Cultural Rights to draft and adopt the General Comment on the right to sexual and reproductive health, which was supported by the Committee on the Rights of the Child, could be an important step in this direction.
DUBRAVKA SIMONOVIC, Committee Member, Committee on the Elimination of Discrimination Against Women, said that the Convention on the Elimination of Discrimination Against Women was a gender specific instrument that protected women throughout their lifecycle and implicitly included girls. Although it was gender specific, its goal was the recognition and achievement of de jure and de facto equality of women and men or substantive equality, which was to be achieved by a policy of elimination of all forms of discrimination against women. The Convention contained several articles that called for specific actions against discrimination directly related to the right to sexual and reproductive health. Some of them were further elaborated in the Committee’s general recommendations.
The Committee on the Elimination of Discrimination Against Women had adopted 28 General Recommendations, some of which were particularly relevant for the right to sexual and reproductive health. For example, the Committee’s General Recommendation No. 24 on women and health explained that women’s right to the enjoyment of the highest standard of health must be secured throughout the whole lifecycle in equality with men. It elaborated that the right of all women to control all aspects of their health, in particular their own fertility, was basic to their empowerment. It also explained that it was discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women. For instance, if health services providers refused to perform such services based on conscientious objection, measures should be introduced to ensure that women were referred to alternative health providers.
In its concluding observations, the Committee on the Elimination of Discrimination against Women had repeatedly expressed concern over the high rates of maternal mortality. It has linked the high rates of maternal mortality to the lack of access to and insufficient availability of comprehensive reproductive health services and lack to quality post-abortion care for complications resulting from unsafe abortions. It had also made the connection between insufficient access to contraception and high rates of abortion. The Committee had also recommended that States increase access to reproductive health services and contraceptives, ensure that births were attended by trained professionals, take measures to avoid women’s reliance on abortions as a means of birth control and to take measures to protect women from unsafe abortions. Also in its concluding observations, the Committee had expressed concern regarding sex selective abortions and recommended the adoption of national legislation prohibiting it and monitoring its implementation. It had also called for the implementation of comprehensive strategies to overcome traditional stereotypes regarding men’s role in society which resulted in preferences for sons.
XIMENA ANDION, of the Centre for Reproductive Rights, said that it was well established in international human rights law that sexual and reproductive health rights were human rights. At the national level in many countries many courts and national human rights institutions were also developing standards on reproductive health. There was a vast set of jurisprudence that the Committee could call upon when drafting this General Comment. With this General Comment the Committee had the opportunity and the responsibility to consolidate and advance existing standards on sexual and reproductive health rights and it was well placed to do break ground and be in the forefront of this issue.
The issues that needed to be sorted out were multi-faceted and complex, especially since it was being developed after the passage of the Optional Protocol. Ms. Andion identified what she felt were challenges that lay ahead in drafting this General Comment included: how to ensure that the General Comment was comprehensive and provided a holistic approach to sexual and reproductive health rights; how to make the General Comment a dynamic and living instrument as new data was always becoming available and new technologies and science were always being developed; and how to make sure that the General Comment was not too prescriptive.
Ms. Andion said that she also felt that the title was an important issue and she agreed with an earlier speaker that issues should not be left out of the General Comment just because they were controversial. The Committee also needed to decide how topics of conversation would be woven into the General Comment and there were additional issues that needed to be more fully addressed such as the accountability of health systems that had not been tackled in General Comment 14. Women and adolescents also needed to be at the heart of this General Comment and links needed to be made between sexual and reproductive health and medical ethics, for example informed consent and conscientious objection. This debate had often been driven by morals and religion rather than scientific information and public policy frameworks.
Interactive Debate
A Committee member pointed out that they always worked to make their documents dynamic and they would call upon all the jurisprudence and work done by other treaty bodies to aid them in their work.
A State representative said that sexual and reproductive health was considered an integral part of the right to health and having a General Comment would not only clarify the obligations of States in this regard, but on a practical level it would also help in preparing their reports for the treaty bodies. The speaker also raised the issues of access to medicines and other goods, universal coverage and healthcare and how healthcare systems could help in this, and international cooperation.
A representative from a non-governmental organization asked that low-income and rural women be remembered during the drafting of this General Comment. The Committee was encouraged to adopt a robust and broad definition of equality so that it was substantive with the rights holders at its centre and that it looked at State action as well as inaction.
Speaking in the interactive debate were representatives from Brazil and the non-governmental organizations the National Network for Economic, Social and Cultural Rights and the Centre for Equality Rights in Accommodation.
Concluding Comments
ROCIO BARAHONA-RIERA, Committee Member and Rapporteur for the Formulation of a General Comment on Sexual and Reproductive Health, said the right of everyone to enjoy full sexual and reproductive health was a fundamental right. States needed to adopt proactive focused programmes, policies and measures designed to facilitate the enjoyment of everyone to sexual and reproductive health, particularly for marginalized groups.
JAIME MARCHAN ROMERO, Committee Chairperson, thanked everyone for their productive participation. The Chair said that the mural in the room had been a great inspiration for him in terms of how to build a General Comment; people working from all corners of the world to build something. The concerns of everyone had to be respected and taken into account and there had been a rich discussion about this. The Chairperson did not believe that this would be a controversial General Comment as rights were not controversial; the difficulty lay in the implementation.
For use of the information media; not an official record
ESC10/018E