2.1. Background Statistics On Women’s Health Problems
United Nations reports disclose that illnesses and deaths from complications of pregnancy, childbirth, unsafe abortion, diseases of the reproductive tract, and the improper use of contraceptive methods top the list of health threats to women worldwide.5 ‘Of the 150–200 million pregnancies that occur worldwide each year, about 23 million lead to serious complications such as post-partum haemorrhage, hypertensive disorders, eclampsia, puerperal sepsis, and abortion.’6 As a result of these complications, about half a million women die every year, the vast majority of whom are from the developing world.7 As the Executive Director of the United Nations Fund for Population Assistance (UNFPA) recently stated in a lecture, this number roughly translates into one woman dying during pregnancy or in childbirth every single minute.8
The lifetime risk of dying from complications related to pregnancy and childbirth is in some countries as high as one in nine, and in others, as low as one in 8,700.9 Almost eight million still births and neonatal deaths occur each year, most of them as a result of poorly managed pregnancies, and many more women and babies suffer debilitating and life-long consequences of poor healthcare during pregnancy and childbirth.10 Women in Africa in particular suffer high maternal mortality rates.11 How do these health problems relate to human rights, however?
2.2. Human Rights and Women
Pillai and Wang define human rights as a ‘loosely organised set of formal and informal rules, codes, and norms which protect individuals against groups and organisations that threaten the survival and dignity of persons.’12 Human rights stem from the notion that all human beings are equal and therefore have an equal right to enjoy dignity and security. These ideas arose in the 17th and 18th centuries during the enlightenment and influenced philosophers such as Locke, Montesquieu, and Rousseau.13 Initially, the concept of human rights applied domestically and did not have a place in the international sphere. It was only toward the end of the eighteenth century and beginning of the 19th century that concern for individual human rights filtered into the international system.14 An example of this occurred in the 19th century when slavery and the slave trade were abolished in Europe and the United States.15 Later, following both world wars, international human rights were formally entrenched within the United Nations Treaty System.16
The United Nations Charter17 was the first international document to formally give voice to the human rights movement after the Second World War.18 The Charter laid out the United Nation’s basic purpose of securing and maintaining peace. In 1948, the General Assembly adopted the Universal Declaration of Human Rights (UDHR).19 The scope and meaning of the fundamental human rights listed in the UDHR were further elaborated upon and articulated in the International Covenant on Economic, Social, and Cultural Rights (ICESCR)20 and the International Covenant on Civil and Political Rights (ICCPR).21 Since the birth of the ICESCR and the ICCPR many other human rights treaties have been created in response to the egregious human rights violations that continue to occur around the world.22
From the very beginning of the human rights treaty system, the various rights protected under the treaties were commonly separated into different ‘generations’ of human rights. Three generations were established: The first deals with civil and political rights; the second addresses economic, social, and cultural rights; and the third focuses on group rights.23 Nevertheless, despite this diverse range of existing treaties, Pillai and Wang maintain that ‘[p]erhaps one of the most conspicuous social categories which has been historically and universally discriminated against is women.’24 Women do not yet enjoy their human rights equally with men.
Numerous studies have shown that despite the articulation of all three generations of human rights, women as a group are still not a priority for state parties.25 In many cases, women are prevented from playing a significant role in the political process and are treated as second-class citizens.26 Human rights have been historically defined, targeted and implemented for those who participate in the public spheres of the society and the economy.27 Accordingly, much of the discrimination that women suffer is not considered appropriate for intervention by human rights groups and activists because it takes place in the private sphere, meaning at the family level.28
Catharine MacKinnon echoes this concept in her argument that human rights grew out of men’s experiences and not women’s:
Human rights were born in a cauldron, but it was not this one. Rape, forced motherhood, prostitution, pornography, and sexual murder, on the basis of sex and ethnicity together, have not been the horrors which so ‘outraged the conscience’ of the relevant legal world as to imprint themselves on the international legal order.29
Human rights as a legal concept, therefore, did not traditionally encompass issues of women’s rights — such as safe motherhood and reproductive rights — because these issues did not come within the compass of men’s practice. Men’s experiences of the violation of the right to life have not centred on death through pregnancy and childbirth. For many expectant mothers around the world, however, the violation of the right to life centres entirely on death through pregnancy and childbirth.30 Human rights law must take this reality into account.
The marginalisation of women from the sphere of human rights is being challenged; forcing the issue to an international level is an important achievement. In 1981, the Convention on the Elimination of All Forms of Discrimination against Women (‘Women’s Convention’) finally came into force.31 Articles 10(h), 11.1(f), 12, 14.2(b), and 16.1(e) of the Women’s Convention deal specifically with women’s health and reproductive rights.32 However, this is not the first articulation of women’s reproductive rights, as explained below.
2.3. Women’s Reproductive Rights as Human Rights
The right of a woman to choose when to have children or how many to have was initially articulated in the late 1960s.33 The First International Conference on Human Rights, held in Tehran in 1968, identified the basic right of parents to ‘determine freely and responsibly the number and spacing of their children.’34 This right of women to choose the spacing of their children was confirmed in other international conferences during the 1970s and 1980s and, over time, was developed and expanded upon to include a broader understanding of reproductive rights as consisting of a basic right to ‘reproductive self-determination and autonomy.’35 Grounding reproductive rights within the concept of reproductive self-determination made it clear that systemic discrimination against women had to be tackled first in order to allow women to exercise their rights. This understanding of the links between reproductive liberty and women’s individual autonomy led to the conclusion that reproductive and sexual rights were essentially embedded in the most fundamental human rights principles based on human dignity and guaranteed by international law.36
A major turning point in the development of reproductive and sexual rights occurred in 1994 at the International Conference on Population and Development (ICPD) in Cairo. The ICPD Programme of Action noted for the first time that ‘reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents.’37 The ICPD in Cairo also emphasized that these human rights ensure reproductive and sexual health, bodily integrity and the security of the person.38 It defined reproductive health as ‘a state of complete physical, mental, and social well-being, and not merely the absence of diseases or infirmity, in all matters relating to the reproductive system and to its functions and processes.’39 One year later, the Beijing Platform defined ‘women’s reproductive health’ to include a satisfying and safe sex life, capacity to reproduce, and the freedom to decide if, when, and how to do so.40 Therefore, at the heart of the reproductive rights movement are the convictions that the right to reproductive health, reproductive choice, and reproductive freedom are essential to the control of one’s life and that this can only be achieved by guaranteeing fundamental human rights to women.
From the definition of reproductive health set out by the ICPD in Cairo above, it is clear that women’s reproductive health does not exist in a vacuum. In order for good reproductive health to be a realistic possibility, important economic, social and political conditions must be met:
Health advocates and human rights scholars have argued that health is a socially produced good that needs a combination of civil and political rights (the right to decide the number and spacing of children) and economic and social rights (the availability of contraceptives and safe and affordable health services) to attain the highest standard of sexual and reproductive health.41
Such a conceptualisation of women’s health not only reveals the role of government in the realisation of women’s reproductive rights, but also brings to light how discrimination against women and denial of women’s human rights can impede the achievement of reproductive health and overall health.
The 1998 report by the World Health Organisation on safe motherhood explains that empowering women and guaranteeing them their human rights will improve their reproductive health.42 Women’s reproductive health depends on the enforcement of their human rights because the concept of health is not simply a biological process of individual responsibility. As mentioned above, the attainment of the highest standard of sexual and reproductive health depends greatly on social, economic, and political factors.
Generally speaking, therefore, at the heart of the concept of reproductive and sexual health and rights lies a truth that was widely deemed unacceptable as recently as the mid 1980s: that women’s human right to self-determination and equality must prevail even within the traditionally private procreative and sexual spheres.43 Having determined this, we can now turn to the question of how human rights can be applied to the protection of women’s reproductive health by focusing on the treaty provisions that exist to protect women’s health.