The Committee on ESCR and the Long-Awaited General Comment on the Right to Sexual and Reproductive Health: The Right to Abortion is a Fundamental Human Right

By Lucia Berro Pizzarossa, University of Groningen, l.berro.pizzarossa@rug.nl

Last 4th of March, the new General Comment No. 22 on the Right to sexual and reproductive health (article 12 of the ICESCR) was adopted by the Committee on Economic, Social and Cultural Rights (CESCR). Triggered by the “continuing grave violations of the right to sexual and reproductive health”, the Committee deemed appropriate to clarify the scope of these rights. “[W]e thought that given, for example, high maternal mortality rates around the world or harmful practices that women and girls especially go through [..]it was important to specifically address the issue of sexual and reproductive health” said Committee member Heisoo Shin.

 

 

 

 

Indeed, the existing data on the status of SRHR worldwide clearly demanded this Commentary. Just as a sample: According to the WHO every day, approximately 830 women die from preventable causes related to pregnancy and childbirth. Furthermore, the more than 125 million girls and women alive today have undergone female genital cutting and UNICEF reports that more than 700 million women alive today were married as children. More than 1 in 3 were married before the age of 15.

Adopted by CESCR’s eighteen independent members the commentary highlights the numerous legal, procedural, practical and social barriers accessing these rights. The Committee places special emphasis on the need to address the social determinants of health as manifested in laws, institutional arrangements and social practices that prevent individuals from effectively enjoying in practice their sexual and reproductive health.

The Committee thoroughly explores the interdependence of Sexual and Reproductive Health with other Human Rights (§ 8 and 9) and clarifies the State’s obligations to respect, protect and fulfill these rights.

Among other things the Committee concludes that States have an obligation to repeal, eliminate laws, policies and practices that criminalise, obstruct or undermine an individual’s or a particular group’s access to health facilities, services, goods and information (§ 35).  The General Comment is very clear: States have the obligation to repeal or reform laws that criminalize abortion or restrict its access. As put by Cook—25 years ago—“[l]aws frequently criminalize access to medical procedures that only women need, such as abortion, and ignore the injustices that result from the biological fact that women bear the exclusive burden of unwanted pregnancy”. This Comment is definitely a step forward as it is the first time a General Comment recognizes explicitly that access to abortion is an integral component to the Right to Health (§ 56 and 57).

Furthermore, the Committee explicates States’ obligation to ensure universal access to quality sexual and reproductive health care, including maternal health care, contraceptive information and services, safe abortion care; prevention, diagnosis and treatment of infertility, reproductive cancers, sexually transmitted infections and HIV/AIDS.  Again here, safe abortion is directly related to legal abortion. Restrictive abortion laws are proven to be associated with a high incidence of unsafe abortion and its health consequences, and abortions in these settings contribute substantially to maternal morbidity and death worldwide. Restrictive laws have much less impact on stopping women from ending an unwanted pregnancy than on forcing those who are determined to do so to seek out clandestine means.

Moreover, the General Comment elaborates on the importance of gender as a social determinant of health. Levinson & Levinson recognized long ago that “[w]omen’s health is not only influenced by genetics, biology and physiology but also by women’s role in society”. What is particularly serious as an injustice is the lack of opportunity that some may have to achieve good health because of inadequate social arrangements—including legal frameworks—, noted Sen in 2002. Social arrangements—including legal frameworks—are therefore immensely important for the enjoyment of sexual and reproductive health and rights. The General Comment targets the attitudes that perpetuate inequalities and discrimination demanding that States recognize and take measures to rectify entrenched social norms and power structures that impair the equal exercise of their right, such as the impact that gender roles have on the social determinants of health (§ 35).

Although the Comments falls short on the elaboration of sexual health and the incorporation of sexual and reproductive rights, it definitely constitutes a step forward in the clarification of the international obligations of the States and will hopefully ground better legal frameworks, policies and ensure accountability for the violations suffered worldwide.

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