This paper was presented at the International Conference on Reproductive Health, Mumbai (India), 15-19 March 1998, jointly organised by the Indian Society for the Study of Reproduction and Fertility and the UNDP/UNFPA/WHO/World Bank Special Programme of Research, Development and Research Training in Human Reproduction.

March 18, 1998

by Dr. Carmel Shalev, expert member, CEDAW^*

Key words: human rights; gender discrimination; equality; autonomy; choice; informed consent; confidentiality; CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)

Abstract

The ICPD recognised women’s rights to reproductive and sexual health as being key to women’s health. The basis for these rights can be found in various articles of the Convention on the Elimination of All Forms of Discrimination Against Women. This paper examines the textual framework of women’s rights to sexual and reproductive health as expressed in this and other international human rights documents. Rights to reproductive and sexual health include the right to life, liberty and the security of the person; the right to health care and information; and the right to non-discrimination in the allocation of resources to health services and in their availability and accessibility. Of central importance are the rights to autonomy and privacy in making sexual and reproductive decisions, as well as the rights to informed consent and confidentiality in relation to health services. The paper is illustrated by issues that reflect systemic violation of the above rights in varied forms, including maternal mortality, lack of procedures for legal abortion, inadequate allocation of resources for family planning, coercive population programs, spousal consent to sterilization, and occupational discrimination of pregnant women. Country examples are taken from States Parties’ periodic reports under the Women’s Convention.

 

Outline

 

Introduction

Materials and Methods

The ICPD Programme of Action

The Women’s Convention

Health-Related Rights Under The Women’s Convention

Autonomy

Equality, Discrimination and Difference

Social Construction of Difference

Biological Difference

Illustrations - From the General to the Particular

Non-Discrimination in Allocation of Resources

The Right to Life

Reproductive Choice - Abortion

Reproductive Choice - Family Planning

Informed Consent

Equality Before the Law

Women in Vulnerable Situations

Conclusion

Introduction

The International Conference on Population and Development (ICPD) held in Cairo in 1994 marked the acceptance of a new paradigm in addressing human reproduction and health. For the first time, there was a clear focus on the needs of individuals and on the empowerment of women, and the emergence of an evolving discourse about the connection between human rights and health, linking new conceptions of health to the struggle for social justice and respect for human dignity.

The new attention to human rights in the ICPD marked a departure from the previous approach that treated women instrumentally, as tools through which to implement population programmes and policies. The reproductive health and rights approach adopted at ICPD is premised on a view that values women intrinsically and is genuinely concerned about their health and well-being. Women’s reproductive capacity was transformed from an object of population control to a matter of women’s empowerment to exercise personal autonomy in relation to their sexual and reproductive health within their social, economic and political contexts. Women’s health in general, and their sexual and reproductive health in particular, are determined not only by their access to health services but by their status in society and pervasive gender discrimination. The ICPD thus posits the human rights of women - their right to personal reproductive autonomy and to collective gender equality - as a primary principle in the development of reproductive health and population programs.

The purpose of this paper is to elaborate the nature and scope of rights related to women’s sexual and reproductive health, by examining the legal texts from which they emanate, in particular the Convention on the Elimination of All Forms of Discrimination Against Women. The meaning of these texts is illustrated through concrete examples of violations of the rights guaranteed thereunder, finding expression in country reports submitted within the monitoring mechanism of the Convention. The analysis is brought under two broad headings: personal autonomy, as derived from the right to liberty and including the right to life and to reproductive choice and informed consent; and gender equality as a component of social distributive justice in the allocation of resources.

Materials and Methods

The rights recognised in the ICPD are based in various international human rights treaties. This paper examines the textual framework of women’s rights in relation to sexual and reproductive health as expressed in these texts. Of major importance is the Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter - the Women’s Convention), which contains many provisions formulating rights that have direct and indirect bearing upon women’s sexual and reproductive health.

After a brief analysis of the concepts of "autonomy" and "equality" in the context of seuxal and reproductive health, the paper illustrates some concrete instances of systemic violations of women’s sexual and reproductive health rights that are indicative of contemporary patterns in different parts of the world. The examples are taken from the reports of States Parties submitted in fulfilment of their obligations under the Convention, and considered by the Committee on the Elimination of Discrimination Against Women (hereinafter - the CEDAW Committee) at its 18th session in January 1998. At this session the Committee considered official reports submitted by governments of eight States Parties: Azerbaijan, Bulgaria, the Czech Republic, Croatia, the Dominican Republic, Indonesia, Mexico and Zimbabwe. It also took note of unofficial information provided independently by international and national non-governmental organizations - known as "shadow reports" - in accordance with the practice of the Committee, as of other human rights treaty bodies.

The issues presented in these materials include equality in the allocation of resources, the right to life, reproductive choice in relation to abortion and family planning, the right to informed consent, and equality before the law. Finally, the situation of women in vulnerable situations is given separate consideration.

I must stress that this paper is not intended in any way to single out the countries under discussion. In every society there exist multiple forms of violations of human rights. The presentation of the examples in this paper illustrates merely some of this diversity, and does not even exhaust the situation in the countries under consideration. The use of reports submitted to the CEDAW Committee shows how the reporting mechanism of the human rights treaties can serve to develop standards of human rights jurisprudence in international law and to sensitize us to the meaning of the rights guaranteed under the international instruments.

I must emphasise further that the views expressed in this paper are my own, and are in no way to be taken as an official statement of the CEDAW Committee as such.

The ICPD Programme of Action

The Programme of Action adopted at the ICPD is a consensus document, the end product of a process of negotiation and compromise involving over 180 States. A separate chapter addresses gender equality and empowerment of women, placing the eradication of sex discrimination as a priority objective of the international community in relation to policies and programs of population and development. Chapter VII, entitled "Reproductive Rights and Reproductive Health", articulates the principle of autonomy and is also central.

Reproductive health is defined in paragraph 7.2 of the Programme of Action as "a state of complete physical, mental and social well-being ... in all matters related to the reproductive system", which "implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so."

The ICPD referred to the term "reproductive rights" as embracing "certain human rights that are already recognized in ... international human rights documents and other consensus documents". The most mentionable "consensus documents" are the Universal Declaration of Human Rights, and the Declaration and Programme of Action of the World Conference on Human Rights, Vienna, June 1993.

The human rights already recognized in "international human rights documents" include "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" as guaranteed by Article 12 of the International Covenant on Economic, Social and Cultural Rights (1964) (ICESCR). Other health-related human rights fall within the scope of certain fundamental freedoms protected under the International Covenant on Civil and Political Rights (1964) (ICCPR). These include the right to life, the right to liberty and security of the person, and the right to privacy, to mention just a few. In addition, the Convention on the Elimination of All Forms of Discrimination Against Women (1978) (known as CEDAW and hereinafter referred to as the Women’s Convention) is particularly pertinent to the enjoyment of sexual and reproductive rights.

Reproductive rights, according to the ICPD, "rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health." The language is taken from Article 16(1)(e) of the Women’s Convention, which states that States Parties shall ensure on a basis of equality of men and women:

"the same rights to decide freely and responsibly on the number and spacing of their children, and to have access to the information, education and means to enable them to exercise these rights."

Reproductive rights, according to the ICPD, also include the right "to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents." This aspect of reproductive rights can also be derived from the Women’s Convention.

Before proceeding to examine the Convention more closely, it is worth noting that a subsequent consensus document of the international community, that is, the Platform for Action of the Fourth World Conference on Women (FWCW), held in Beijing in 1995, reiterated the paradigm shift of the ICPD. One of the critical areas of concern identified at the Beijing Conference referred to inequalities and inadequacies in access to health care and related services, adopting a life cycle approach to women’s health from infancy to old age. The Beijing Declaration stated that "the explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment". The Platform for Action adopted at Beijing included one notable addition to the ICPD in further explicating women’s human rights in respect of their sexuality.

The Women’s Convention

Both the ICPD and the FWCW acknowledged the intrinsic relation of gender equality to women’s health, including sexual and reproductive health. Both of these are consensus documents, expressing political will. As opposed to this, international human rights documents - treaties or conventions - are sources of international law, and as such are considered to be legally binding. The Women’s Convention is the core human rights treaty to address discrimination against women, and is sometimes referred to as the international bill of women’s rights. In general, States Parties to the Convention undertake to pursue a policy of eliminating discrimination in all its forms, and to guarantee women the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Its covers all areas of women’s lives in both the public and private spheres, including discrimination in relation to the right to health and health services.

The Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) is established under article 17. It is composed of 23 expert members elected by States Parties from among their nationals and serving in their personal capacity. The Committee’s main function is to monitor implementation of the Convention by considering periodic reports submitted by States Parties on the measures they have adopted to give effect to the provisions of the Convention and on the progress made in this respect. The Committee may also make general recommendations based on the examination of reports and information received from the States Parties. Some of these general recommendations address formal matters, such as the reporting obligations of States Parties, while others are explications of substantive matters and constitute authoritative interpretations of the rights guaranteed under the Convention.

Health-Related Rights Under The Women’s Convention

As already mentioned, article 16(1)(e) of the Convention guarantees the right to decide on the number and spacing of children, but that is only one of the articles that address

women’s rights in relation to health. Article 12 is central. It formulates (in paragraph 1) States Parties’ obligation "to 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." It further stipulates (in paragraph 2) their undertaking to "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."

It should be noted that the Women’s Convention is the only one of the six human rights treaties in the United Nations system to mention family planning. In addition to the aforementioned articles, the right of access to specific educational information and advice on family planning is guaranteed under article 10(h). And article 14(b) specifies, in particular, the right of women in rural areas to have access to adequate health care facilities, including information, counselling and services in family planning. The Convention also refers to women’s right to protection of health and to safety in working conditions, including "the safeguarding of the function of reproduction", in article 11(1)(f).

Many other provisions of the Convention have an implicit or indirect bearing on women’s rights in relation to health, some of which have been explicated in the General Recommendations of the CEDAW Committee in relation to female genital mutilation; sexual violence; HIV/AIDS; and reproduction.

Before examining concrete instances of violations of health-related rights, I would like to clarify the meaning of two key concepts: autonomy and discrimination.

Autonomy

Autonomy means the right of a woman to make decisions concerning her fertility and sexuality free of coercion and violence. Much turns on our understanding of coercion and violence. Key to this is the notion of choice. In health care contexts, the rights to informed consent and confidentiality are instrumental to ensuring free decision making by the client. These rights impose certain correlative duties upon health care providers and deliverers of services. They are bound to disclose information of proposed treatments and their alternatives so as to obtain the informed consent of the client, and they must respect her right to refuse treatment. Likewise, they are bound to maintain secrecy so as to allow her to make private decisions without the interference of others whom she has not chosen to consult, and who might not have her best interests at heart. "Autonomy" also means that a woman seeking health care in relation to her fertility and sexuality is entitled to be treated as an individual in her own right - the sole client of the health care provider, and fully competent to make decisions concerning her own health. This is a matter, among other things, of the woman’s right to equality before the law as to her legal capacity.

As mentioned earlier, the human right of women to control their fertility and sexuality free of coercion is guaranteed implicitly by the Women’s Convention. The right to autonomy in making health decisions in general, and sexual and reproductive decisions in particular, derives from the fundamental human right to liberty. The word "autonomy" itself is not mentioned expressly in the Convention, but the value of autonomy is certainly implicit in the fundamental freedoms it guarantees to women, on a basis of equality with men. Autonomy is intimately and intrinsically connected with many fundamental human rights, such as liberty, dignity, privacy, security of the person, and bodily integrity. These form the basis for asserting rights to informed consent and confidentiality in relation to health services and health care. Moreover, article 15 guarantees women’s right to equality before the law and to full legal capacity. This includes women’s right to make free and informed decisions about health care, medical treatment and research. Women have the right to be fully informed of their options in health care, including likely benefits and potential adverse effects of proposed methods of treatment and available alternatives, including the option of refusing treatment.

One of the most eloquent explications of the meaning of "autonomy" is that of Isaiah Berlin in his essay, Two Concepts of Liberty. For Berlin "liberty" in the ordinary sense is a "negative" right to freedom, in that one is entitled to be free in certain areas from the interference of others. "I am normally said to be free to the degree to which no man or body of men interferes with my activity." But "liberty" also has a "positive" sense. It is not merely freedom "from" but freedom "to". This positive right to freedom is "autonomy", in the sense that one is entitled to recognition of one’s capacity, as a human being, to exercise choice in the shaping of one’s life.

"This ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not causes which affect me, as it were, from outside. I wish to be somebody, not nobody; a doer - deciding, not being decided for, self-directed and not acted upon by external nature or by other men as if I were a thing, or an animal, or a slave incapable of playing a human role, that is, of conceiving goals and policies of my own and realizing them. This is at least part of what I mean when I say that I am rational, and that it is my reason that distinguishes me as a human being from the rest of the world. I wish, above all, to be conscious of myself as a thinking, willing, active being, bearing responsibility for my choices and able to explain them by references to my own ideas and purposes. I feel free to the degree that I believe this to be true, and enslaved to the degree that I am made to realize that it is not."

Equality, Discrimination and Difference

The second concept that deserves some explication is that of discrimination. Equality implies non-discrimination, and discrimination is violation of the right to equality. Article 1 of the Convention defines the term ‘discrimination against women’ as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field" (emphasis added - CS).

Two comments are in place. First, the Convention adopts an "effect" approach, whereby discrimination is condemned even if it is not purposeful. This is of particular significance in the area of health, where much of the discrimination is evident in differences in the health status of women and men, but is the result of certain patterns of behavior, sometimes described as "natural". These patterns persist by the mere inertia of habit if no intervention is undertaken for the removal of discriminatory barriers, or if we fail to pay attention to the factors that comprise the "real" differences - some biological or physiological, and some social - between women and men in relation to their health. It should be mentioned in this context that the Committee has noted that discrimination under the Convention is not restricted to action by or on behalf of governments. This means that states may also be responsible for acts of discrimination perpetrated in the private sphere by non-governmental actors, including health care providers.

The second comment is that the definition of discrimination under the Convention applies to all women, irrespective of their marital status. This is of significance in two respects. First, it expresses the underlying recognition of the institution of marriage as constructing women’s social status, which is relevant in the health area, where women are sometimes denied care and services because they are not married. Second, it also gives expression to an underlying theme of feminist theory on gender equality - that equality is not a matter of a woman’s personal relations with men, but rather a matter of women’s discrimination, as a group, in a society that is structured collectively by gendered patterns of power (one of which is the traditional marital relation).

The area of health is particularly interesting in terms of equality theory because of what has already been noted: "real" differences between women and men - some biological (or physiological), and some social. Women’s health needs are different from men’s due to both biological differences and societal factors. This is particularly true as regards women’s reproductive and sexual health, not only because biological differences are of the essence, but also because discrimination against women is closely associated with prejudices and stereotypes based on patriarchal notions of women’s sexual and reproductive roles and functions.

 

Social Construction of Difference

While the Convention acknowledges the maternal function of women, social and cultural patterns of conduct often glorify motherhood in a manner that circumscribes women’s right to autonomy in exercising life choices. Cultural and religious attitudes may value women according to their ability to produce children. Their health may consequently be jeopardized by repeated pregnancies spaced too closely together, often as the result of efforts to produce male children. Women who have not borne children may be cast out of marriages on the assumption that they, rather than their male partners, are infertile. Women may be denied access to health care that is unrelated to their reproductive functions, and their health needs may be considered secondary to those of their children or, in the case of pregnant women - to the health of their fetuses.

Stereotypes of women’s sexuality underlie codes of chastity that circumscribe women’s freedom of movement and their participation in public life. Certain practices harmful to women’s health are related to discriminatory attitudes about women’s sexuality that deny them the right to a satisfying sex life. These entail unnecessary interventions, such as female genital mutilation, forced virginity examinations and hymen repair. Women’s sexuality is frequently subordinated to the satisfaction of male needs, exposing them to risks of sexual abuse and violence. As a consequence of unequal power relations based on gender, women and girls are often unable to refuse sex or negotiate safe sex; they therefore face risks of contracting sexually transmitted diseases, including HIV/AIDS.

Biological Difference

While such social phenomen are clearly mediated by gender discrimination, health-related discrimination might be attributed in part to biological differences between women and men. Contemporary feminist legal theory propounds that the principle of gender equality takes into account such difference, rather than requiring women to meet standards set by a male model. Equality requires that we treat the same interests without discrimination, and also that we treat different interests in ways that respect those differences. Failure to take into account the special health needs of women, so as to ensure their access to appropriate health information and services, constitutes discrimination. Equality is not a formal matter of guaranteeing to women the same rights as men and combatting purposeful discrimination, but rather a substantive matter of ensuring the effective enjoyment of equal outcome in health status and well being. Women’s rights to health and health care on a basis of equality with men encompass both comparable health needs as well as sex-specific health needs. Failure to allocate resources or to ensure the provision of services for women’s special health needs, in addition to those common to women and men, is discriminatory.

 

Illustrations - From the General to the Particular

This then is the legal context within which we are to address women’s rights in relation to reproductive and sexual health. The text of the Convention is abstract, and expresses principles that are to serve as guides for conduct. What meaning do they have in actual practice? The Convention imposes a duty under international law to respect, protect and fulfil the human rights articulated thereunder. In an ideal world the aspirations of the legal norms would be observed, but the reality is such that they are not observed. Violations of these standards take different forms at different times and in different places. As mentioned, the following examples of some contemporary patterns of rights violations are taken from reports considered by the CEDAW Committee at its 18th session.

Non-Discrimination in Allocation of Resources

The issue of distributive justice in the allocation of resources for health is of major concern throughout the world, given the rising costs of medical technology and budget cuts often associated with programs of structural adjustment. Too often women’s health needs are the first to be affected. The bias against the allocation of resources necessary to provide health services to meet women’s special needs, is a form of gender discrimination. This is illustrated well in those countries characterised as "economies in transition".

In Croatia, for example, contraception was the first medication to be removed from state funding in a comprehensive public health system within budget cuts resulting from economic constraints, as was abortion the first medical procedure to be removed from otherwise free health services. Similarly, in Bulgaria - where the government reported that the number of abortions was considerably higher than that of births - it was noted that family planning education was inefficient due to the economic situation in the country, with its free-of-charge health care system suffering from the economic crisis of the transition period.

Cuts in budgets in Azerbaijan resulted in a decrease in the number of maternity health centers. In addition, despite the fact that maternity care was officially provided free-of-charge by a state-funded health system, there had developed an informal fee-for-service practice which made hospital delivery unaffordable to many women and resulted in a rise in the number of home births. At the same time Azerbaijan reported that maternal mortality rates had increased five-fold between 1990 and 1995.

The Right to Life

Indeed, discrimination against women is a significant factor in the high numbers of deaths and complications related to pregnancy and childbirth. Failure to provide maternal health services often reflects the low priority attached to women’s special needs in the allocation of resources. Maternal mortality and morbidity can largely be avoided through the provision of reproductive health services, including contraception, safe abortion, and essential and emergency obstetric care. The most obvious human right violated by avoidable death in pregnancy or childbirth is women’s fundamental right to life itself. It is arguable that the core minimum content of governments’ obligations under international human rights instruments is to provide access to affordable quality health services that would prevent maternal mortality.

In Indonesia, the government appeared to be in violation of its core responsibility to provide safe maternal health services: it attributed the high maternal mortality rate to deliveries by traditional birth attendants, which amount to almost 64% of the total. The report explained that many women prefer home births "due to convenience, low cost and flexible payment arrangements, the aftercare offered and the comfortable atmosphere prevailing in home deliveries". But it is arguable that "customer preference" should not relieve government of its obligation to respect, protect and fulfil women’s right to life.

While the case of Azerbaijan illustrates violation of the right to affordable services, in the Dominican Republic there appeared to be a violation of the right to quality of care. The actual rate of maternal mortality was not known until recently, due to the unreliability of health statistics in general and the lack of sex-disaggregated data in particular, but in latter years there had been an increase in maternal deaths, despite the prevalence of prenatal care and hospital births. According to non-governmental sources, the high level of maternal mortality was due to the low priority accorded to women’s reproductive health.

Reproductive Choice - Abortion

Unsafe abortion is also a major cause of maternal mortality and morbidity. States Parties’ reports to the Committee often fail to contain official data on this due to the illegal nature of abortion in many countries, but they consistently demonstrate a correlation between unsafe abortion and high rates of maternal mortality and morbidity, presented as haemorrhaging and complications of pregnancy.

Thus, Zimbabwe reported that haemorrhage and infection after abortion are major causes of death, though actual figures are not ascertainable given the illegality of abortion. The Dominican Republic, similarly, reported that "clandestine abortions" are the third leading cause of maternal death (following toxemia, and haemorrhages during childbirth), but noted "heavy underreporting".

There are grounds for the view that laws which criminalize health services that only women need - whether aimed at the persons who provide such services, or the women who receive them - are discriminatory as such. The criminalization of abortion is particularly heinous, because it not only impairs women’s right to reproductive choice - to make free and responsible decisions concerning matters that are key to control of their lives - but also exposes them to the serious health risks of unsafe abortion, violating their rights to bodily integrity and, in the most extreme cases, to life itself.

In many countries there are exceptions to the criminal norm, allowing for legal abortion in limited circumstances, such as in cases of danger to the life of the mother (or the fetus), or where pregnancy has resulted from rape. In Indonesia, however, rape does not constitute grounds for legal abortion, which means that the state is effectively compounding the sexual violence targeted at the woman by forcing her to carry the resultant pregnancy.

Reproductive Choice - Family Planning

The right to reproductive choice means that women have a right to choose whether or not to reproduce, including the right to decide whether to carry or terminate an unwanted pregnancy and the right to choose their preferred method of family planning and contraception. A violation of this right was revealed by a nongovernmental report on widespread pregnancy based discrimination against women employed in Mexico’s export-processing (maquiladore) sector. A fact-finding mission investigating allegations of the practice, found that all women applying for work in this sector were routinely required to undergo pregnancy testing for screening, and that employed women were forced to resign when they became pregnant. In some factories women were obliged to show sanitary napkins to company nurses as a condition of ongoing employment. The report concluded that such practices penalize women for exercising reproductive choice, and inherently compromise their ability to decide freely on the number and spacing of their children, and that the government of Mexico was responsible to ensure that such employment practices cease.

The right to family planning education, information and services is key to reproductive choice, and central to women’s sexual and reproductive health, especially given the risk of maternal mortality and the illegality of abortion in many countries.

Family planning services are particularly important where abortion is illegal. In the Dominican Republic, abortion is illegal, but birth control education is provided only by non-governmental organisations. Arguably, where the state does not allow for safe legal abortion, its core obligation is to at least provide itself those family planning services that guarantee women their right to exercise reproductive choice.

Even in countries where abortion is legal, prevention of pregnancy is preferable to termination in terms of women’s health. However, in many instances the legal option of abortion is not supported by adequate family planning measures. In the Czech Republic, for example, the government noted the high incidence of induced abortions as a major public health problem, mirroring the inadequate use of contraception. However, the costs of contraception are only partly covered by the general health insurance scheme (reflecting, perhaps, discrimination in the allocation of resources, considering that these are services only women need). The Government also pointed out that health care personnel sometimes lack sufficient knowledge of contraception.

In other instances, there is a gap between the de iure (legal) protection of reproductive choice and the de facto (actual) situation, and governments might be held accountable for unauthorised violations of legal rights by health care personnel. In Zimbabwe, for example, where abortion is legal in only limited circumstances, the government subsidizes the costs of contraceptives and there are no legal restrictions on the provision of family planning services to minors. Yet the governmental report stated candidly that "it is not unusual for health personnel to turn away sexually active school girls requesting contraception on the grounds that the girls are still to young to indulge in sexual intercourse or that they are not married and therefore have no need for contraceptives." Teenage pregnancy appears to be, nonetheless, a major problem. It is worth noting further in this context, that the cumulative data on the incidence of HIV/AIDS in Zimbabwe show that in the 15-19 age group, infection among females accounts for 84% of the cases. Clearly, sexual and reproductive health education, information and services is essential for adolescent girls. Mexico, in its report, expanded upon the negative health and social effects of a high rate of teenage pregnancy. It noted inadequate sex education and information as one of the causes, despite an official policy to provide information and high quality services for pregnant adolescent girls.

Informed Consent

The report from Mexico demonstrated another instance of the gap between the legal situation and actual practice, that is, between the de iure and the de facto implementation of the Convention. While the Federal Constitution recognises the right to reproductive choice, and while the law provides for family planning services as basic health services provided by the government, one study has shown that only two contraceptive methods are offered: IUD and surgical sterilization. Furthermore, while the law provides that consent to sterilization must be given freely and voluntarily in writing, according to one study, one fourth of sterilized women claimed not to have been informed of its irreversible nature or of alternative contraceptive methods, and two fifths claimed not to have signed a consent form. In addition, there was at least one case in which the ovaries of a woman suffering from an undiagnosed urinary tract infection were removed without her knowledge. Interestingly enough, the representative of the Government of Mexico stated in her oral presentation to the CEDAW Committee, that most of the complaints submitted to a newly established Medical Arbitration Board during the first year of its operation concerned gynecological care.

In extreme cases, violations of women’s right to autonomy and informed consent in relation to reproductive health care amount to outright coercion. Indonesia provides an unfortunate example. There the government adopted a rigorous and effective family planning program resulting in a significant decline in fertility rates, which was presented in the State Party’s report as one of the most successful in the world. According to nongovernmental sources, however, women have not been allowed choice as to contraceptive method, nor have they been given information as to side effects of methods provided by the government. Moreover, there have been recurring reports of coercive practices employed by local officials attempting to meet target quotas set by government, often involving military and police officials in rounding up women in villages and forcing them to accept contraception. According to one study, IUDs were inserted at gunpoint for those who refused.

Equality Before the Law

Indonesia also requires spousal authorisation for certain reproductive health procedures, in violation of women’s right to full legal capacity in relation to informed consent and to confidentiality in health care. There a woman cannot choose to be sterilised without her spouse’s consent. In addition, though abortion is illegal, it may be undergone where the mother’s life is in danger, except that the agreement of "the husband or the members of the family" is required in addition to that of the pregnant woman. Failure to acknowledge women’s competence to consent to health care is a violation of their right to equality before the law.

Another example of violation of women’s right to equality before the law relates to procedures for legal abortion. Even where there do exist grounds for lawful abortion in limited circumstances, there may not be adequate legal procedures to ensure women’s enjoyment of their legal rights. In Zimbabwe, for example, there was one case of a pregnancy resulting from rape, in which the request for permission to undergo abortion dragged on in court to such an extent that the permission was eventually granted one month after the woman had given birth. In Mexico, abortion is in the jurisdiction of the several states, with varying exceptions to the criminal rule, but there are no legal procedures whatsoever for establishing the circumstances that fall within the exceptions and would allow for a legal abortion. Moreover, even though the woman herself may be liable for punishment, it appears that prosecution may be avoided by the payment of a bribe.

Women in Vulnerable Situations

In recent years there has been a growing focus in human rights work on vulnerable groups. This has been a result of a new interest in economic and social rights and the concomitant concept of social justice. Whereas the previous emphasis on civil and political rights drew mainly from the concept of liberty and focussed on individuals as such, attention is now given to violations of rights of individuals as members of vulnerable groups within a given society. Thus, health practices and policies should be examined in light of the needs of the most disadvantaged groups in society. These include, among others, rural and marginal urban groups, women in situations of armed conflict, and women in prostitution.

Mexico indicated in its report the unmet need for contraception among rural women and the urban poor, while in Zimbabwe, according to a non-governmental source, twenty percent of the population in rural areas does not have access to family planning or maternal health services despite the government’s political will to provide such.

Women in situations of armed conflict are particularly vulnerable to sexual violence and torture, with the health consequences of mental harm, susceptibility to sexually transmitted disease and related reproductive health problems, including unwanted pregnancy. As a result of such abuse, women may be isolated, stigmatized and rejected by their families and communities. Women are often reluctant to report these violations because they are felt to be shameful, as indicated by a non-governmental report on women in East Timor.

Women who are internally displaced as a result of armed conflict may have limited access to reproductive health services. Thus, a study of women in five internally displaced person settlements in Azerbaijan, conducted by a United Nations High Commissioner of Refugees reproductive health field worker, found that women overwhelmingly consider family planning as a primary health concern, but that there had been bureaucratic hurdles to supplying condoms. Similarly, in Croatia, it appeared that refugee women were not legally entitled to all the services provided under the comprehensive publicly funded health care scheme.

Women in prostitution are significantly marginalised in all societies and are at an extremely high risk of suffering rape and other forms of violence. This is of increasing concern, given the alarming growth in the international trafficking in women and girls. At the same time, they are often singled out for discriminatory treatment by public health programs that fail to address the broader concerns and underlying determinants of the issue under concern. In Indonesia, for example, the Department of Social Affairs disseminates information on the danger of HIV/AIDS "in the vicinity of the location of prostitutes", while there have been reports that under sporadic urban "cleansing" programs, women detained as suspected prostitutes are at risk of being forced to undergo vaginal examinations during interrogation.

It should be noted that health professionals are often in a position to identify the health consequences of sexual violence, and should be able to respond effectively to the health needs of survivors. Bulgaria, for example, failed to include in its report any information on gender-based violence, but a non-governmental source received first hand evidence from health care professionals who considered it to be a serious problem, describing some cases as brutal.

Conclusion

All the above examples can be summarised as violations of one of three major human rights concepts - liberty, social justice and equality. The principle of liberty is key to notions of civil and political rights, while the principle of justice is key to notions of economic and social rights. The principle of equality is an overriding one. Questions of distributive justice arise in relation to the tragic economic choices that go to the fair allocation of scarce resources and the setting of priorities, and here we often find discrimination against women in the low priority given to their special sexual and reproductive health needs. But many of the issues raised by this paper go to the attitudes of policy makers and of health care providers in relation to their clients, and to the fundamental notion of respect for human dignity and the right to reproductive autonomy, which are not essentially a matter of economic cost.

Struggles over women’s rights to sexual and reproductive health have been central in advancing women’s human rights in general. Advocates of women’s human rights have drawn attention to the ways in which women’s status is fundamentally linked with the reduction of women, through social and political processes, to aspects of their physical selves. When reproductive health is understood to involve more than just the biological workings of a woman’s womb, we arrive at "women centered" approaches to sexual and reproductive health. This means trusting women as autonomous beings, able to take control over their sexual and reproductive lives and to make decisions on these matters on the basis of access to adequate information. A woman’s right to reproductive autonomy is often impaired because of her status in society. Enjoyment of this right depends on her right to act as an independent adult of full legal capacity to participate in civil society and to be free from discrimination in its various forms. Conversely, without the right of reproductive choice, all other human rights - civil and political, economic and social - have only limited power to advance the well-being of women.

Human rights are aspirations to full participation, equal membership and active involvement in society. Rights structure relationships of power, responsibility, trust and obligation. Rights empower people. They make us aware of our own power and of our responsibility to others less fortunate than us, especially to persons in the most vulnerable and disadvantaged groups and situations. When we look around us and listen to the stories people tell, we learn ways in which we can exercise our own power and position to improve the lot of others. Thus a human rights to sexual and reproductive health is pertinent in diverse ways to policy makers, program designers, and providers.

The discourse of human rights does not provide any ready made answers to the problems and dilemmas that arise in any given context. Human rights are not absolute values in the sense that they trump all other considerations. Indeed, in some instances the rights of one person may be in conflict with the rights of another. But rights are absolute in the sense that they must be taken into consideration and balanced against other interests. In making and implementing law and policy, and in the delivery of services, the rule should be that violations of human rights may be justified only as measures of last resort, after all other possible means to achieve desired goals have been exhausted. Where several measures present themselves as comparably effective, there should be preference for that which is the least detrimental alternative in terms of its effect on the enjoyment of human rights. The process of deliberating among possible alternatives in terms of their effect on human rights, increases our sensitivity to the compromises we make in reality while aspiring to an ideal world in which human dignity is the paramount value.

The views presented in this paper are those of the author's and do not necessarily reflect the views and position of the United Nations.