Barriers/Challenges and Related Issues to Reproductive Rights

Following from the first article there are several barriers in the way of realizing the right to reproductive health. Some of these challenges are real and can be overcome by appropriate funding and change at a national policy level and with proper implementation of the effective policies in place. For example issues dealing with clinical care, level of health systems and training of healthcare practitioners. Other challenges are political and have made the implementation of the Cairo Programme problematic. One such challenge is that the opponents of reproductive rights have construed reproductive rights to refer only to abortion rights and right to have same sex partnerships. This has proved to be a major obstacle with the major opponents being social conservatives, religious groups as well as the Catholic Church.

Other barriers refer to social issues that are often interrelated with economic conditions as well as criminal and legal restrictions.

Opinions :

Dr. Sushma Pankule, Vice President, WILPF India

"When we look at the tragedy that underwent in Bilaspur, there are several questions which need to be answered by the authorities, with respect to the reproductive rights of women. Whether these women were informed about the risks that go hand in hand with the sterilization process? Whether their due consent was obtained? How educated were they and what was their family background? How many children did these women have and how many of these children were girls? When would they have reached menopause? Were all medical tests such as BP and hemoglobin content checked before they were brought to the operation table?

All these issues should've been addressed before targeting them for such a large scale sterilization camp and if these weren't adequately addressed, then the camp did lack proper safeguards and guidelines for the safety of the women."

Ms. Ruth Manorama, President of National Alliance of Women 

“Reproductive rights of women are their basic human rights.  The Bilaspur tragedy is clear evidence that health conditions and rights of women have not improved in this country. We’ve always spoken about the glory that India has achieved, but the reproductive rights are still not guaranteed to women. The medical and health facilities need to be improved. Basic necessities need to be addressed. Their right to health must be the responsibility of the state.

This incident is a failure of the system. We don’t know how they will even get compensated of the life they have been robbed of.’’

Kerry McBroom, Director of the Reproductive Rights Initiative at the Human Rights Law Network

‘’There were clear rights violations of women involved in the sterilization camp in Bilaspur. Access of contraceptive services, this is a part of basic human and fundamental rights, part of several International treaties of which India has been a signatory and an entitlement under several schemes. Reproductive rights have been infringed on that huge a scale.’’

Barriers/Challenges from a global point of view :

• Poverty and gender inequities:

Social and economic conditions play a significant role in determining women’s sexual and reproductive health. Inequities related to gender including violence against women have an adverse effect on these rights. If the woman hails from the lower strata of society it is more likely that she will face reproductive ill health. These women also often face violence during pregnancy, premature labour and malnutrition issues which lead to several complications during child birth and can even lead to maternal mortality. Poverty is associated with inequitable access to health services and disproportionate benefit in the public health care system to the richwith little or no access to modern techniques to the poor.

Further traditional views about sexuality, such as looking at sex only as a means for procreation, are obstacles to the provision of sexual and reproductive health services. This anachronistic view leads to lack of services such as no reliable information or sex education, lack of access to contraceptives, thereby leading to a higher spread of STDs. These views have an especially damaging impact upon adolescents.

• Adolescents’ exposure to risk:

In most countries pre-marital sex is a taboo, cultural practices including child marriage, female genital mutilation, and early sexual initiation pose strong barriers to reproductive rights.Adolescents will significantly influence the post-2015 agenda as well as the global health scenario. Empowering adolescents in their health development, including healthy sexual and reproductive health practices will better equip them to make informed choices for themselves and their communities.

It is to be noted that at the International level the CRC provides for several provisions which safeguard the rights of the child to reproductive health. Article 2 prohibits discrimination on several grounds, including sex or “other status”;Article 13 ensures children the right to impart and receive information of all kinds; Article 28 ensures every child’s right to education and Article 24 recognizes the right of the child to the enjoyment of the highest attainable standard of health.

Further, at the International Level the literature is replete with the positive affirmation in regards access to information for adolescents. The Committee on the Rights of the Child, General Comment 1 on the aims of education[1]states education encompasses skills required to “develop a healthy lifestyle, good social relationships and responsibility, critical, creative talents, and other abilities which give children the tools needed to pursue their options in life.” General Comment 3 on HIV/AIDS and the Rights of the Child emphasizes the critical role of education in providing children with information that contributes to increased awareness regarding HIV/AIDS and hence empower them to protect themselves from the risk of infection. The Committee states that such information, should not be censored, withheld, or intentionally misrepresented in any way.

General Comment 4 on Adolescent Health and Development in the Context of the Convention of the Rights of the Child discusses the obligation of State parties to ensure that all adolescents, both in and out of school, have access to information on how to protect their sexual and reproductive health. It encourages relevant topics in school curricula and the need for adolescents to be involved in youth dissemination of information programmes through various community organization and media.The Committee encourages states parties to provide adolescents information on family planning and contraceptives and remove all barriers hindering adolescents’ access to information on STIs.  It also reminds states parties of their obligation to provide adolescent girls with access to information regarding the harm that can result from early marriage and early pregnancy. The Committee states that education programs should include initiatives to change cultural views about adolescents’ and other taboos surrounding adolescent sexuality.

The latest General Comment 15 on the right of the child to the enjoyment of the highest attainable standard of health further bolsters the need for providing sex education, information and reproductive health care services to adolescents. It states children’s right to health consist of freedom to control “one’s health and body, including sexual and reproductive freedom to make responsible choices” and entitlements of access to facilities, goods, services. It encourages States to allow children to consent medical procedures such as HIV testing and sexual and reproductive health services without the permission of a parent/caregiver/guardian. This GC goes beyond the previous ones in dealing with consent and informed decision makingas well as states that obligations of duty bearers (including non-state actors specifically private health service providers) is to ensure services are able to meet the specific sexual and reproductive health needs of adolescents, including family planning and safe abortion services.

In consonance with the General Commentsthe Committee on the Rights of the Child has frequently discussed the need for access to education and has asked states parties to adopt measures to provide family planning and reproductive health education and services for young people. It has criticized barriers such as allowing parents to exempt their children from such education and requiring adolescents to contribute financially to their health care costs. Further, the Committee has requested that appropriate child sensitive counseling services be provided to adolescent refugees.  With respect to children of migrant workers, the Committee has called for access to health and social services, and education in accordance with the principle of non-discrimination.

As has been stated above there is plenty of international discourse in terms of the Convention as well as the GCs and concluding observations of the Committee and it is beneficial to the global agenda of health to empower adolescents. All of this combined bolsters the argument that sex education should be included in the curricula of school, adolescents at an appropriate age should be informed regarding dangers of early pregnancy, safe sex, use and access to contraceptives and should also have access to safe abortion procedures in the case of unwanted pregnancies. An educated and informed population is the first step towards progress. Candid and readily available information would go a long way in removing the taboo related to sex in some cultures as well as relieve some of the peer pressure to engage in sexual relations at an early age. Sex education should be provided to boys and girls alike as both have roles and responsibilities in ensuring the effective exercise of reproductive health and rights. Hence what is lacking is political will. The changes have to be made from within the States.

• The criminalization of sexual and reproductive health:

This is a challenge that has solely been created by the State. The reasons for these criminal and other legal restrictions is claimed to be for reasons pertaining to public morality and public health. However reasons of public morality will not stand in the way of actual rights that are essential in order to realize the right to health and human rights.

For example, some countries have laws, policies and regulations that hinder access to services (e.g. excluding unmarried people from contraceptive services), or unnecessarily limit the roles of health personnel (e.g. preventing midwives from performing life-saving procedures such as removal of the placenta), or bar the provision of some services (e.g. over-the-counter provision of emergency contraception), or restrict the importation of some essential drugs and technologies. Such restrictions do not seem justified on grounds of public morality when concerns of right to life, health, privacy and several other human rights are at stake.

Further, the UN Special Rapporteur on the Right to Health, Anand Grover’s annual report which focuses onthe criminalization of sexual and reproductive health also strengthens the argument that these criminal and other legal restrictions are disproportionate to the aims sought to be achieved and hence should be done away with. The report deals with the interaction between criminal laws and other legal restrictions relating to sexual and reproductive health and the right to health. The report specifically considersthe impact of criminal and other legal restrictions on abortion; conduct during pregnancy; contraception and family planning; and the provision of sexual and reproductive education and information. It stated, “criminal and other legal restrictions in each of those areas, which are often discriminatory in nature, violate the right to health by restricting access to quality goods, services and information.”These restrictions are seen as infringing the right to human dignity and freedom of choice and bodily-integrity.

If reproductive rights are considered as a human right then in order to limit the enjoyment of these rights, it can only be done as a last resort, and the government has to address the criteria spelled out in the Siracusa Principles adopted by the UN Economic and Social Council.

Siracusa Principles

• First, the proposed restriction [on human rights] has to be provided for and implemented in accordance with the law.
• Second, the restriction has to be directed towards a legitimate objective of general interest, such as preventing further transmission of the HIV virus.
• Third, it must be strictly necessary to achieve the objective in question.
• Fourth, no less intrusive and restrictive means should be available to reach this objective.
• Fifth, it cannot be unreasonable or discriminatory in its application

Further even under the umbrella of the right to health, Art. 4 of the ICESCR serve as general limitations. However, the core content of the right must not be touched and the limitation has to be within strict confines. A limitation which completely negates the right is not sustainable and the justification of the limitation should be to bring out the rights protection is a better way (to strengthen the right even in times of difficulties). Practically it is necessary to limit the scope of ‘limitations’. It is also a concept borrowed from treaty law where it makes more sense but is not specifically modified for Human Rights Treaties which are not synallagmatic like other treaties.

Also the ICESCR deals with progressive realization of rights making limitations even less relevant.

1. Progressive realization:

Progressive realization is a flexible device to take into account the problems a country might face while trying to achieve certain human rights. It is not an excuse for inaction or retrogressive measures. Infact retrogressive measures have to be justified in terms of lack of resources and should be deliberate, concrete and targeted. States tend to use progressive realization as a reason for lack of progress in achieving their goals blaming the dearth of resources. However it is to be duly noted that this argument will not hold good in light of the fact that human rights even reproductive rights have a minimum core obligation that needs to be fulfilled.

Article 2 (1) of the ICESCR deals with the nature of State parties obligations. InCESCR General Comment 3, the Committee takes the view that minimum core obligations to ensure the satisfaction of the minimum essential levels of each of the rights is incumbent upon every State party (while giving due regard to resource constraints in the State). If the State fails in accomplishing these minimum core obligations then the State is prima facie failing to discharge its obligations under the Covenant. The excuse of lack of resources does not reduce the obligation to ensure ‘widest possible enjoyment’ of the relevant rights.  States have to devise strategies and programmes for the promotion of these rights and to meet the challenges of lack of resources. Moreover in times of severe resources constraints (eg. economic recession) the vulnerable members of society must be protected by the adoption of relatively low-cost targeted programmes.

As aforementioned, the core content of reproductive rights refers to providing high-quality services for family planning to women, men, adolescentswithout discrimination and eliminating unsafe abortion (amongst others, however these are highlighted, herein. as they are the main focus of this paper). Though the full realization of these rights may be achieved progressively, steps towards achieving these goals must be taken within a reasonably short time after the Covenant's entry into force for the States concerned (obligation to move as effectively and expeditiously as possible). As abovementioned the right to reproductive health does not exist as a stand-alone right but it is brought under the ambit of right to health under the ICESCR and hence the recommendations of the Committee on the right to health are equally applicable to the right of reproductive health. Further, there have been added recommendations to this right in terms of the Committees on CRC and CEDAW highlighting issues pertaining to the child and equality of women.

Hence:

• First, the State must take immediate action to begin to fulfillthe right to reproductive health.
• Second, if faced with a lack of resources, the core obligations should be realized with immediate effect.
• Third, the State must prioritize its fiscal operations for optimum utilization for poverty reduction. (As indicated above poverty is one of the major barriers to reproductive health)
• Fourth, in keeping with progressive realization, the State must develop a participatory plan of action without appropriate monitoring procedures, involving all relevant stakeholders,for the full realization of the right to reproductive health.
• Last but not the least, the State must set up a mechanism that the victim can have recourse to incase of violation of his/her rights. The state will be held accountable due to inaction on its part to prevent these violations.

The measures to be taken in order to achieve these goals are not limited to merely legislation infact States parties' reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most "appropriate" under the circumstances. Appropriate measures are not limited to but also include administrative, financial, educational and social measures.

For example, a State may decide to adopt a domestic policy to provide comprehensive sexual and reproductive health services to all individuals in need with specific focus on the marginalized and vulnerable (in accordance with its obligation to fulfill under Article 12 of the ICESCR). However due to resource constraints, the State is only able to provide for half the percentage of the population. At this point the State needs to take progressive stepsby seeking viable donors to fund the project or to re-allocate parts of the budget accordingly. It has to extend coverage by building new facilities, training health workers etc.

In terms of monitoring the realization of the rights under the ICESCR, the Committee should be informed of 1) specific policies adopted in legislative form 2) whether such laws create remedies for individuals or groups. If the provisions of the ICESCR have been indirectly incorporated via the Constitution, the State has to inform the Committee the extent to which these rights are justiciable and if any subsequent changes are made to it.

Further, the phrase ‘to the maximum of its available resources’in the ICESCR refers not only to existing resources but to resources that are foreseeable and can be achieved through means of international cooperation and assistance. Additionally states that are capable to provide assistance to other states have a duty to provide such aid.

Further the following obligations are of immediate effect:

• The obligation not to discriminate;
• The obligation to take steps targeted deliberately towards the full realization of the rights in question; and
• The obligation to monitor progress in the realization of human rights. Accessible mechanisms of redress should be available where rights are violated.

To illustrate the obligations of immediate effect the right to health is taken as an example. The right to health cannot be guaranteed only to those living in urban areas. There should not be discrimination in the level of services provided to those from the higher strata and urban part of the society and to those who are poor and from the rural part.This obligation not to discriminate is to be facilitated immediately and resources that are available should be used to attain a reasonable standard of health of the entire population.Improvements can be made progressively in terms of a plan as described above.

Another example, though not from the ICESCR, from the CEDAW is of Article 5 which has to be achieved immediately. It uses the word ‘ensure’ which corresponds to the obligation to protect and can be achieved fully. It is only the obligation to fulfill which is usually concerned with progressive realization while the obligation to respect and protect require immediate action.

Another example is of the barrier created by a criminal law or other legal restriction to the right of reproductive health. The State has the obligations to remove these barriers. The removal of such laws and legal restrictions is not subject to resource constraints and can thus not be seen as requiring only progressive realization. Barriers arising from criminal laws and other laws and policies affecting sexual and reproductive health must therefore be immediately removed in order to ensure full enjoyment of the right to health.

To sum up, the first step in taking the a strategy forward on reproductive health at the national level will require the involvement of the Health Ministry along with active participation of all relevant stakeholders (including women and adolescents) to undertake a study of the existing levels of reproductive health and rights and services provided for the realization of these rights. Thereafter the provisions of these services and rights must be brought up to par with the International Obligations (already discussed) by means of a well thought out plan that reflect the principles, core elements and key actions presented in the aforementioned framework (first article). Improvements will indeed have to be made progressively.

The first part of the article can be read here

Read the full paper here