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.

 

 

Continue reading

The Right to Health – An Empty Promise?

Three perspectives presented at the University of Erlangen-Nuremberg EFI Conference in Berlin, 14-16 September 2016

Lucía Berro Pizzarossa presented a research conducted in collaboration with Katrina Perehudoff about the constitutionalization of sexual and reproductive health and rights. Veronika Flegar discussed the existence of a right to preventive health care for asylum-seeking and undocumented migrant children under international law. Brigit Toebes keynote lecture took a more general approach towards the relevance of progressive realization and the AAAQ and identified some of the possible solution for such practical problems as identified with regard to both reproductive rights and undocumented migrants.

Lucía Berro Pizzarossa: Despite over three decades of discussing sexual and reproductive health and rights, we have seen very little progress in reducing their health inequalities and poor health outcomes. There is the need for a framework that can translate the international rights discussions into action. Standards in international law can only be made a reality by committed governments applying and enforcing global norms domestically. To this end, domestic constitutions are an important affirmation of State duties and individual entitlements. Constitutional rights can help shape national laws, policies and programs, or they may even be enforceable before domestic courts. The findings are based on the GHLG project Constitutional Health Commitments, where we analyzed constitutional commitments to sexual and reproductive rights and health to 1) develop an understanding of existing State commitments and 2) identify the building blocks of a model constitutional text using a human rights framework. The research we presented shows that very few jurisdictions have enshrined sexual and reproductive health and rights in their constitutions and the provisions differ widely on emphasis, approach and scope. However, our results demonstrate the political will of some countries to incorporate them in their national constitutions and provides examples of constitutional commitments to willing governments, policy makers and health and human rights advocates who seek to introduce similar text into their law, thereby providing individuals with a top-down (i.e. from laws and policies to programs) and bottom-up (i.e. enforcement through courts) framework to enjoy their right to sexual and reproductive health and rights.

Veronika Flegar: There is a need for increased attention to some of the aspects that are easily neglected in the current refugee and asylum crisis. Especially preventive health care and the rights of undocumented migrant children do not yet receive sufficient attention. My doctrinal analysis of the principle of the preventive health care rights of children showed that non-discrimination under the Convention on the Rights of the Child (CRC) could largely be labelled as an empty promise for the health rights of undocumented migrant children. While asylum-seeking children are entitled to far-reaching rights under the right to health of children, the extent to which also undocumented migrant children explicitly enjoy these rights is less clear. While terms such as ‘all children’, ‘all sections of the child population’ or ‘all children within [the states’] jurisdiction’ suggest that the rights of the CRC apply equally to national, asylum-seeking and undocumented migrant children, the fact that extensive reference in the CRC framework is made to asylum-seeking but not to undocumented migrant children undermines this conclusion. This is not the only aspect that needs further clarification in order to ensure the effective implementation of the right to preventive health care of all children. Also the right itself needs to be further clarified and delimitated. While it is promising that the right to preventive health care is explicitly and separately mentioned in Article 24 CRC, the exact content is spread throughout various documents. The CRC would benefit greatly from an additional General Comment on non-discrimination that could emphasize the scope of non-discrimination as truly encompassing all children and would pay particular attention to the relevance of non-discrimination under the right to health.

Brigit Toebes: There is no reason to be skeptical about the right to health, let alone sarcastic. Yet our research into various dimensions of the right to health reveals the need for a stronger and more refined legal framework. What requires improvement, refinement and elaboration are the concepts that we work with under the right to health. Progressive realisation in the context of the right to health is an open-ended concept and as such it forms the Achilles’ heel of the right to health. One could say that progressive realization begins where the minimum core ends. Once the core has been realised, States need to gradually or progressively realise the remaining part of the right. Progressive realization recognizes the reality that the full realization of economic and social rights may not be possible immediately or in a short period of time. In this sense, progressive realization differs significantly from the obligation contained in Article 2 of the International Covenant on Civil and Political Rights which contains the immediate obligation to respect and ensure all the rights. Several sources including the Limburg principles have stressed that progressive realization is not just about making more resources available:  it is more about making effective use, optimally prioritizing available resources, and about careful planning. So it is about setting concrete priorities and targets, whilst avoiding inefficiency and corruption. To give one example: in many countries the poor are deprived of primary healthcare while specialized hospitals are built providing expensive care. Such outcomes go against the principles of progressive realization. A possible solution for making the right more concrete is working with the AAAQ in combination with the setting of indicators and benchmarks. The AAAQ is a comprehensive tool and it draws the attention to equitable access to healthcare where priorities in healthcare have to be set. The AAAQ is universally applicable and allows for comparison across countries. As such, for instance, the physical or geographic accessibility of primary healthcare is a problem in many nations, varying from Ethiopia, to Brazil, to Iceland. It has been suggested that the AAAQ is particularly useful in a policy setting; yet there are also interesting examples from domestic law and international and domestic case law showing an increasing use of the AAAQ in a legal context. In order to ensure that the right to health is not an empty promise, the primary concepts, such as the minimum core, the AAAQ, progressive realization and the definition of legal obligations must be refined. To come to a better understanding of these concepts, the insights from experts in public health, medicine, health economics as well as from civil society are most needed.

WP_20150915_006 WP_20150915_005-1

Some of the GHLG members at the Right to Health conference in Berlin. From left to right: Milan Markovic, Veronika Flegar, Lucía Berro Pizzarossa and María Dalli.

Conscientious Objection or Conscious Oppression?: The Uphill Battle to Access Abortion Services in Uruguay

By Lucia Berro Pizzarossa, University of Groningen

In October 2012, Uruguay passed Law 18,987 that waives criminal penalties for abortion in the first 12 weeks of gestation. Where the pregnancy results from rape, with certain procedural requirements, abortion is permitted in the first 14 weeks of gestation. No time constraints apply if the health of the mother is endangered or the embryo is unviable. Uruguay has also passed Law 18,426 on Sexual and Reproductive Health that recognized the duty of the state to guarantee the effective enjoyment of sexual and reproductive rights. However, access to safe and accessible abortion services remains an uphill battle for Uruguayan women.

On June 23, 2014 anti-abortion advocates attempted to overturn the country’s abortion laws by calling for a referendum. They were supported by only 9 percent of the population, falling significantly short of the 25 percent that was needed for them to succeed. However, the strength of the campaign exposed the influence of the Catholic Church in Uruguay in spite of the fact that it is officially secular. Similar trends have been observed across Latin America. Research conducted by MYSU at the National Observatory on Sexual and Reproductive Health indicates that an alarming number of doctors refuse to perform abortion invoking conscientious objection (CO).  This means that healthcare professionals exempt themselves from providing abortion care on religious and/or moral or philosophical grounds. The MYSU research indicates that the percentages of refusal reach 87% in some areas of the country.

In November 2012 decree n° 375/12 was enacted regulating the procedure of abortion and determining limitations to the CO. Several doctors challenged the decree arguing its that it unduly restricts their right to freedom of thought. On 21 August 2015, in Alonso Justo y otros contra Poder Ejecutivo, the highest administrative court annulled several provisions limiting the exercise of CO. Among others, the court rendered null the requirement that physicians refrain from any form of value judgment regarding the patient’s decision (article 12)—a clause that enables doctors to refuse participation in any steps relating to the termination of pregnancy (not only the abortion procedure).

International human rights standards state that, although the right to freedom of thought, conscience and religion is protected, freedom to manifest one’s religion or beliefs may be subject to limitations to protect the human rights of others. Specifically, human rights and health standards stipulate that health services should be organized to ensure that an effective exercise of the freedom of conscience of healthcare professionals does not prevent women from obtaining access to services to which they are entitled (FIGO; Johnson et al, 2013; Zampas et al, 2012; ICH IACHR, Artavia Murillo v. Costa Rica).

Reproductive healthcare is the only field in medicine where freedom of conscience is accepted as an argument to limit a patient‘s right to a legal medical treatment. It is the only example where the otherwise accepted standard of evidence-based medicine is overruled by faith-based actions. It has been argued that the exercise of CO is a violation of medical ethics because it allows healthcare professionals to abuse their position of trust and authority by imposing their personal beliefs on patients. (Fiala & Arthur, 2014)

The formulation of the CO upheld by the court in its August 21 ruling prevents patients from receiving accurate, scientific and unbiased information about their options, and thus inhibits their ability to access such care (Weitz and Berke Fogel, 2010). This also results in inequities in access, creating disproportionate risks for poor women, young women, ethnic minorities, and other women living in particularly vulnerable conditions, who have fewer alternatives for obtaining the services. It is no wonder that organizations across the world have criticised the ruling as “restrictive and conservative”.

Research shows that the legal option of raising a CO is routinely abused by anti-choice healthcare personnel in denying women their right to health (Cook and Dickens, 2006; Dickens, 2006). In Alegre’s words “[c]onscientious objection can sometimes constitute conscious oppression” (Alegre, 2009). Coppola describes this claim as an illustration of such oppression (Coppola, 2014). It is hoped that the Uruguayan parliament will revise the existing legal framework to eliminate barriers to accessing abortion—including a 5-day waiting period, multiple consultations and the requirement of filing a criminal complaint in rape cases—and strike a fair balance between the right to freedom of conscience and the reproductive rights of Uruguayan women.

Posted originally as Lucia Berro Pizzarossa, “Conscientious Objection or Conscious Oppression?: The Uphill Battle to Access Abortion Services in Uruguay” (OxHRH, 11 September 2015) <http://ohrh.law.ox.ac.uk/conscientious-objection-or-conscious-oppression-the-uphill-battle-to-access-abortion-services-in-uruguay&gt;