REPRODUCTIVE RIGHTS

In the early 1990s, there was mounting international recognition that individuals' rights to reproductive integrity and choice required a coherent, unifying context of reproductive and sexual health. Two United Nations (UN) conferences in the mid-1990s propelled an expansive concept of reproductive health as an element of social justice that includes rights both to have children and to enjoy human sexuality without unwanted reproduction. These conferences placed reproduction in its wider setting, as an important aspect but not the sole purpose of human sexuality, equating rights not to reproduce with rights to plan for parenthood.

The International Conference on Population and Development, held in Cairo, Egypt, in 1994, and the Fourth World Conference on Women, held in Beijing, China, in 1995, advanced a common vision of reproductive health that everyone has the same human right to enjoy. Reproductive health, the conferences declared, "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." Reproductive rights are understood to be rights that depend on duties to respect, protect, and fulfill human rights to reproductive health.

Sources of Reproductive Rights

The Cairo and Beijing concept of reproductive health, to which everyone is entitled, was built on a foundation of internationally recognized human rights. When the United Nations was established in 1946, its urgent task was to redeem confidence in respect for human rights after the inhumane excesses of the Nazi period and World War II. The UN initiated the Universal Declaration of Human Rights of 1948 to condemn, among other wrongs, the gross denials of reproductive rights during this period, such as forced sterilizations of vulnerable populations and severe punishment of abortion. (In Nazi-dominated Vichy France, a woman had been sentenced to death and executed for terminating her pregnancy.)

The Universal Declaration of Human Rights was described only as a declaration because it did not create any new rights but only declared those that already existed. To reinforce recognition of rights, however, UN member states created a series of legally enforceable international human rights treaties by which states could confirm their commitment. These include the International Covenant on Civil and Political Rights (the Political Covenant), the International Covenant on Economic, Social, and Cultural Rights (the Economic Covenant) and, more specifically, the Convention on the Elimination of All Forms of Discrimination Against Women (the Women's Convention). These international instruments reflect laws that already exist in the legal systems by which many countries conduct their national life, and elevate them to national commitments that states make not only to their own populations but also to each other in international law. That is, states accept international scrutiny of and accountability for their observance of these designated human rights.

Rights to Have and Not to Have Children

The Political Covenant expresses the most traditional of reproductive rights. Article 23 (echoing Article 16 of the Universal Declaration) recognizes "the right of men and women of marriageable age to marry and to found a family" and that "no marriage shall be entered into without the free and full consent" of the intended spouses. The Political Covenant implies that marriage is a precondition to reproduction, because Article 23 opens with the widespread understanding (also included in the Universal Declaration) that "the family is the natural and fundamental group unit of society." This approach reflects the conservative disapproval of reproduction outside marriage.

The UN Charter observes the purpose "to reaffirm faith in fundamental human rights … [and] in the equal rights of men and women." The Universal Declaration of Human Rights and the implementing Political and Economic Covenants echo the entitlement to equality of both sexes. Because of human biology, however, reproduction affects the sexes differently. Women's unmarried parenthood is apparent in pregnancy and childbirth, whereas men have traditionally been able to conceal and deny their paternity. Similarly, women can have pregnancy involuntarily imposed by rape and may be subject to laws that deny abortion even on this ground, whereas men can only very rarely be forced to experience sexual intercourse. The biological difference has been translated into discriminatory social sanctions. Men shown to have fathered children outside marriage usually face, at most, financial sanctions of support payments. Women have been and often still are stigmatized, condemned, and severely punished, by family and society, for unwed motherhood and face communal ostracism and judicial penalties–even reaching stoning to death, a sanction still threatened in some communities. The expectation of virginity at marriage applies discriminatorily to brides but not to grooms. Loss of virginity may reduce women's marriage prospects and options.

The Women's Convention requires, in Article 1, that women be entitled to exercise their rights, which include rights to reproductive health, "irrespective of their marital status." Article 12 of the Economic Covenant requires states to recognize "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." Article 16 of the Women's Convention requires that states ensure that women enjoy with men "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." This convention's Article 12 more explicitly requires states "to eliminate discrimination against women in the field of health care in order to ensure … access to health care services, including those related to family planning." Family planning includes planning when and whether to have children. This is the foundation on which the Cairo and Beijing conferences built the concept of the right to reproductive health.

Duties to Respect Reproductive Choice

Rights depend on duties, in that a right is enforceable only against those individuals and governmental and other agencies duty bound to comply with its exercise. States that have ratified one or more of the Political and Economic Covenants and the Women's Convention accept duties not only of compliance but also of periodic reporting to and monitoring by the different bodies these treaties have created to review parties' compliance. Different rights require different responses for compliance, but a general distinction may be drawn between socalled negative and positive rights. Negative rights require state tolerance and passivity when individuals act to enjoy their rights. Negative rights are sometimes expressed as "the right to be let alone," to act as one wishes and is able, without interference by police or other government officers. Positive rights are rights for which a person may need to be provided with the means to exercise them–at least those unable, for whatever reason, to provide such means for themselves.

Reproductive rights have historically been negative rights. Laws may intervene to set minimum ages for marriage and prohibit incestuous unions, but marriage is otherwise a private arrangement, and natural procreation by fertile couples within marriage is even more intimately a matter for the participants alone. Laws prohibiting artificial contraception have now been almost universally discarded, so that in nearly all countries fertile couples can decide whether and when to conceive children without accountability to government officers or agencies.

Negative rights, however, may in practice be rights for those who can provide themselves with contraceptive means or means to promote their fertility when it is impaired, but not for others. In order for all individuals to be able to avail themselves of reproductive rights, states would have to observe them as positive rights and ensure access to necessary services for citizens whether they are rich or poor; fertile, subfertile, or infertile; privileged or disadvantaged.

Some international treaties express the right to family planning services as a positive right, in recognition of the burden on poor women of repeated pregnancy and their vulnerability, particularly in low-income countries, to maternal ill-health and pregnancy-related death. Even in affluent countries, however, medically assisted reproductive services to overcome infertility may be available only as "luxury medicine" and be unavailable to many without unbearable personal expenditure and sacrifice. Article 15 of the Economic Covenant requires states to recognize the right of everyone to enjoy "the benefits of scientific progress and its applications," but it imposes no positive duty on states to fund access to reproductive technologies. Accordingly, reproductive rights remain an ideal, but they are subject in practice to personal and governmental resources and the sense of priority with which they are allocated.

REPRODUCTIVE RIGHTS

Sources of Reproductive Rights

Rights to Have and Not to Have Children

Duties to Respect Reproductive Choice

BIBLIOGRAPHY