Human Rights Analysis
The right to reproductive choice
Shafiqur Rahman Khan
The reason for choosing reproductive rights is quite obvious. These rights are inherent to the dignity, autonomy and personhood of all women around the world. Yet they are the first to be sacrificed, whether in the name of religion, culture, nationalism, fundamentalism, tradition, population policies or family values." (Manisha Gupte, 'Reproductive Rights in East Central Europe: A Public Health Concern' in Alicia Ely Yamin (ed.)
Fixed gender roles are embedded in the interpretation of the Bangladeshi national philosophy. The man is the head of the household and the woman is wife, mother and upholder of social values. Traditionally, sexuality is not spoken openly about and sexual relations are matters reserved for married life. In reality however, the society is rapidly changing. The imbalance between the official position on sexuality and the reality on the ground has various unfortunate consequences. Educational information in schools on reproductive health is focused on biology, anatomy and the establishment of happy and prosperous families, not on sexuality and reproductive health.
Bangladesh is the world's most populated country with an estimated population growth rate of 1.566 per cent per year. The fertility rate has declined during the last 25 years, primarily due to massive family planning campaigns and programs. In 1970-1975 the fertility rate was 6.3, while the current rate of 3.3 is a decline of 48% in couple of decades. The Bangladeshi family planning program has gained international recognition, but its impact on human rights, particularly human rights of women, has been criticized. The program has mainly been focusing on women for both methods and responsibility for family planning. According to the United Nations Population Fund (UNPFA), contraceptives prevalence rate seems to have stagnated at 57 per cent and the maternal mortality ratio is consistently high.
Women's reproductive rights were not spelled out in the international human rights documents until 1990s. The development of those human rights, by and large, fell into two relatively successive phases: (1) development brought by the international human rights instruments from 1940s to 1980s; and (2) development brought by the international conferences in 1990s.
Development Brought by the International Humans Rights Instruments
In response to World War II and the Nazi regime, the international community devoted to the international protection of human rights and enacted various human rights instruments. The signing of the Charter of the United Nations was a significant step in bringing human rights more firmly with the sphere of international law. The Universal Declaration of Human Rights (UDHR) and other three international human rights treaties protecting women's reproductive rights have been adopted under the auspices of the UN.
The UDHR establishes the foundation for the international protection of reproductive rights through the enumeration of specific rights, which include: (1) the right to a standard of living adequate for the health and well-being, including the right to special protection for a woman in her role as a mother; (2) the right to privacy; (3) the right to seek, receive and impart information; (4) the right to marry and found a family on the basis of equality; and (5) the right to freedom from discrimination on the basis of sex and gender.
Along with civil and political rights, the ICCPR (International Covenant on Civil and Political Rights) also deals with women's rights with respect to family and reproductive self-determination. The article 23 (1) and (2) of the ICCPR states that the “family is the natural and fundamental group unit of society and is entitled to protection by society and the State” and that the “right of men and women of marriageable age to marry and to found a family shall be recognized.”
The ICESCR, in its article 10, demands states that “special protection should be accorded to mothers during a reasonable period before and after childbirth…”. It also recognizes that every person has the right to the “enjoyment of the highest attainable standard of physical and mental health.” In order to achieve the full realization of this right, the ICESCR states that steps to reduce the “stillbirth-rate and infant mortality and for the healthy development of the child” should be taken by the State. These provisions implicitly encompass the right of a woman to health services and information to prevent unwanted pregnancies that may endanger the woman's physical and mental health.
In those early human rights treaties, women's reproductive role, resulting in “a host of discriminatory practices which originate from the treatment of women as instruments for childbearing and childrearing”, “it was as child bearers and childrearers through the protection of motherhood.” It is the Women's Convention that has firmly established that the human rights of women included all rights--civil, political, economic, social and cultural, undoubtedly including reproductive rights.
The reproductive rights are composed of a clustering of specific human rights around individual's reproductive interests, which have already recognized in the national law and the international human rights instruments and other relevant UN consensus documents. Moreover, it goes on to enumerate these specific human rights are:
(1) the right to decide freely and responsibly the number, spacing and timing of their children and the right to have the information and means to do so;
(2) the right to sexual and reproductive health; and
(3) the right to make decision concerning reproduction free of discrimination, coercion and violence.
Women's reproductive rights, at least to some extent, have been recognized in many international human rights treaties, including the ICCPR. By way of dynamic interpretation through its General Comments, concluding observations on states parties' reports and its jurisprudence, the HRC has broadened many specific rights under the ICCPR, which have been used, or can be used, to advance women's reproductive rights. In evaluating the states parties' compliance with those rights, the HRC generally recognizes that attributing a purely negative or passive role to the states parties appears inadequate. The provisions that safeguard those rights may require the states parties to play an active role to take, not only negative, but also positive, and immediate obligations to respect, protect and promote those rights. Those rights are interactive so that each depends to a greater or lesser degree on the observance of others, and may not be exhaustive, for protecting women' interests on reproductive health and choice, though, they hit, at least part of the vital components of women's reproductive rights.
Apart from protecting prisoners from being treated inhumanely, the right to be free from inhuman and degrading treatment also ensure the inherent dignity of women in the reproductive health and choice context. Denial of abortion services even when pregnancy is a result of rape or the prospective child is unviable, denial of adequate medical treatment to a pregnant woman whose health is threatened, forced abortion or sterilization, FGM (Female Genital Mutilation) and other practices, which may inflict physical or mental pain or suffering upon women. The states parties should take positive measures to eliminate such practices and provide adequate remedies to victims.
Women's reproductive autonomy over their own body, particularly including freedom to decide the number and spacing and timing of their children, is guaranteed by article 17 (ICCPR), which protects the right to privacy. Article 17 safeguards women's privacy, which relates to reproductive functions, from unlawful or arbitrary interference of governments, and from invasion of private sectors. Positive obligations should be taken by the states parties to prohibit interference of women's privacy in matters relating to reproductive health and choice and to ensure confidentiality of women's reproductive health status.
In order to reduce the amount of early marriages, which may be a cause of high maternal mortality rate, the HRC (Human Rights Committee) recommends the states parties to effectively implement national family laws, which set a minimum age for women to marry.
The right to information necessary for women's reproductive health and choice is guaranteed by article 19(ICCPR). Women's access to information on abortion should not be unduly restricted even in the countries where abortion is generally prohibited.
Although there is not much experience of the application of human rights in women's reproductive health and choice context at the international level, the amount of such experience is growing. Other international human rights treaty bodies and tribunals, for example, in the global level, the Committee on ICESCR, the CEDAW, and in the regional level the ECtHR and the IACHR, have provided many useful suggestions for the HRC when it applies the provisions to formulate concluding observations or comments concerning reproductive issues and make decisions on individual complaints about their violation of women's reproductive rights.
The writer is teaching law at Jagannath University, Dhaka.