“To deliver a world where every pregnancy is wanted, every birth is safe and every young person’s potential is fulfilled”.[1] The United Nations Population Fund is the leading United Nations agency that works with this principle agenda, aimed towards the improvement of reproductive health through national strategies and protocols. In this article, the author shall emphasize on the kinds of international obligations applicable to reproductive rights of women while simultaneously evaluating their implementation and conformity at ground level.
Reproduction and health are inherently connected, with their respective rights overlapping more often than not. In order to undergo a healthy and safe process of reproduction, it is vital for a person to be subjected to the most secured models of healthcare and the safest of procedures that meet the minimum standards required. While ensuring these safe mechanisms, it is also important to preserve the right to decide regarding pregnancy and the ability to exercise such rights. The international human rights model provides for the protection of reproductive rights by drawing a close relationship between human rights in their general nature, the right to health and the right of reproduction.[2] However, as the article shall describe, the recognition and implementation of these rights require much development, expansion, certainty and acceptance from across the globe.
The foundational document of the human rights system, the Universal Declaration of Human Rights integrates reproductive rights of a woman in the ‘right to an adequate standard of living’ in Article 25 of the declaration by guaranteeing the right of a mother and her child to special care and assistance. The declaration however, does not accommodate for the direct protection of the inherent reproductive rights of a woman that include the right to privacy, consent and the underlying right to health in its own model.[3] Following the division of the human rights provisions into civil and political rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) unearthed the negative and positive rights of the state parties respectively. While the negative obligations of a state restricted their ability to interfere with the exercise of certain rights, the positive obligations created a duty of affirmative action on the state. With respect to specific reproductive rights, it was the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that established protection for women on an international scale, for the first time.
In the evolution of human rights obligations regarding reproductive rights, Article 12 of CEDAW created a specific affirmative duty on states to ensure ‘appropriate’ services with regard to pregnancy in addition to free services when necessary.[4] The covenant sought to integrate reproductive rights with the right to health of women by creating a positive obligation on the states to strive towards the achievement of the same. Apart from this, the covenant also created an additional positive right to access specific information regarding health and family planning.[5] On the basis of these rights, specific reproductive rights set foot on the path of development and recognition resulting in their rapid evolution in recent years. Leading the path of this evolution are General Comments 14 and 22 of the ICESCR that have been successful in laying down detailed explanations of the content of the rights enshrined in the covenant. Interpreting Article 12 of the covenant, these Comments expand and integrate the right to sexual and reproductive health as an integral part of the right to health that include a set of freedoms and entitlements that is enjoyed by every person.
The freedoms enshrined in these provisions include the right to make free and responsible choices that are free of any coercion and discrimination with respect to one’s body and reproductive health.[6] Further, the entitlement is with regard to unrestricted access to health care, information and facilities that promote the best of reproductive health in a person. Through General Comment 14, the ICESCR created an obligation on the state parties to ensure comprehensive sexual and reproductive rights protection by enlisting four elements that were considered to be essential in the fulfilment of this duty by the state parties.
1. Availability- This obligation requires a state to make available in adequate quantity, functioning public health and health care facilities, goods and services as well as programmes that include the underlying elements of safe health such as clean drinking water, hospitals and medical professionals.[7]
2. Accessibility- This is an obligation to not discriminate while providing for adequate health facilities. This element includes four over-lapping dimensions of non-discrimination, physical accessibility, affordability and information.[8]
3. Acceptability- This is an obligation that requires compliance to respectability standards of every person in terms of their race, culture and gender, in all health facilities and while providing goods and services.[9]
4. Quality- The final obligation requires the state to strive towards achieving minimum scientific and medical standards while dealing with a person in terms of medicine, personnel and sanitation. [10]
Further, General Comment 22 listed a specific duty on states by creating an obligation to ‘Respect’- that included a negative obligation to refrain from any laws that would create barriers in the enjoyment of reproductive rights, ‘Protect’- a positive obligation to prevent any private actor from imposing restriction in the enjoyment of reproductive rights of a person and ‘Fulfil’- another positive obligation to take the required measures to ensure the full realisation of the reproductive rights guaranteed by the covenant. [11]
The obligations against a state, created by these Comments uphold the underlying idea of human rights which is to protect the people from all kinds political, legal and social abuse, while providing maximum avenues for the enjoyment of the rights possessed by them. Human Rights provisions serve as an over-arching structure in compliance with which national and international norms are created. The importance of reproductive rights is paramount, as it is usually concerned with the lives of not one but two individuals. These Comments provide for the protection of these rights by creating a duty of state action that is both positive and negative but more importantly, preventive, promotive and remedial in nature that strive constantly at achieving the desired outcome, as mentioned in the beginning of the article. The Comments also recognise the underlying elements of good health, such as food and nutrition, housing, clean drinking water and sanitation that play a vital role in the preservation and promotion of reproductive rights.[12]
These provisions, however broad, encompassing and obligatory, have not met the required levels of compliance at the ground level just yet. Several case laws serve as an example to highlight the unwillingness, or as the state’s claim ‘inability’ to meet the minimum standards of reproductive health safety. Typically, in developing nations, the positive rights are often waived off by governments citing the lack of funds and deficiency of resources to fulfil the required obligations while negative rights, being more justiciable in nature take years together before resulting in an outcome from a legal struggle.
Following are a few cases that highlight the lack of practical impact these provisions have.
In Devika Biswas v. Union of India[13], gross violations of reproductive rights came to the fore when a writ petition highlighted the conditions under which sterilization programmes were being conducted. The facts of the case demonstrate the absolute disregard for any kind of compliance to even minimum standards that more often than not result in dire consequences suffered by the women. It also shows how the governments try to evade their responsibility by delving into technicalities rather than taking an affirmative action towards the prevention of such atrocious acts.
In Lakshmi Mandal v. Deen Dayal Hospital[14], the country witnessed the lack of compliance to the four elements of reproductive health obligations, mandated by General Comment 14. The victim was denied basic amenities of health care depriving her of availability, accessibility, quality and most importantly acceptability in any medical institution that ultimately resulted in her demise. A minimum duty to inform her of her condition and the requisite preventive action would have most certainly led to her living a healthy life.
These two cases are evidence to the fact about how, in our very own country, the standard of reproductive health is witnessing its lowest points. The lack of adequate sanitation, information regarding family planning, deficiency in qualified personnel and the ignorant attitude of the state just furthers this existing problem that requires immediate attention to ensure implementation. Provisions of law and obligations in the international stage exist, but it is high time that these inherent rights of a person take front seat in terms of practical implementation rather than a back seat when political manifestoes and agendas are promised and met by governments before we can even think of a world close to the kind, sought for by the quote in the beginning of the article.
[1] Mission of the United Nations Population Fund.
[2] Lance Gable, ‘Reproductive health as a human right’, CS Western Law Review, 2009-10, Page 960.
[3] Supra at 2, Page 974.
[4] Convention on the Elimination of All Forms of Discrimination Against Women, United Nations, 1981.
[5] Supra at 4, Article 10.
[6] General Comment 22, United Nations Economic and Social Council, 2016.
[7] General Comment 14- read full provision for further reference.
[8] Supra at 7.
[9] Supra at 7.
[10] Supra at 7.
[11] Supra at 6.
[12] Supra at 2, Page 982.
[13] Devika Biswas v. Union of India, Writ Petition (Civil) No. 95 of 2012.
[14] Lakshmi Mandal v. Deen Dayal Hospital, 172(2010) DLT9.
This article is authored by Satvik Upadhya, student of B.A. LL.B (Hons.) at Jindal Global Law School
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