Health and life indications

Human rights standards

Treaty Provisions

UN Treaties are available in all or some of the official UN languages: Arabic, Chinese, English, French, Russian and Spanish.

Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) Article 1: …‘"discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’
Article 12.1: ‘States Parties shall take all appropriate measures to elimination discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.’ including…appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.’
Article 16.1: ‘States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women...(e) 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…’
International Covenant on Economic, Social and Cultural Rights Health
Article 12.1: protects the right to physical and mental health: states parties are required to recognize "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." Note: This is in line with WHO definition of health.
International Covenant on Civil and Political Rights
Article 6: ‘Every human being has the inherent right to life…’
Article 7:  ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…’
Article 17: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy…’

 

Convention on the Rights of Persons with Disabilities (CRPD)
Article 10: ‘States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.’
Article 23 (b) ‘The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;…’
Article 25 (a) ‘Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes;…’
Convention on the Elimination of All Forms of Racial Discrimination
Article 5(e). States parties undertake to prohibit and eliminate racial discrimination in all its forms.. and guarantee to everyone the ‘right to public health, medical care . social security and social services.’
Convention Against Torture and other Cruel, Inhuman, or degrading Treatment or Punishment
 

UN Treaty Monitoring Bodies General Recommendations/Comments

Available in some or all of the official UN languages:  Arabic, Chinese, English, French, Spanish, Russian

Through concluding observations and general recommendations and case law, UN Treaty Monitoring Bodies have recognized that unsafe abortion is one of the leading causes of maternal mortality and morbidity and that such abortions generally occur in countries with restrictive abortion law.

 They have consistently interpreted the human rights to life, health, privacy and non-discrimination, and the freedom from cruel, inhuman and degrading treatment or punishment, as requiring state parties to lawfully permit abortion where necessary to protect the woman’s health and life. They have consistently advised state parties to amend national laws on abortion, which prohibit abortion without exception, or permit abortion only where necessary to protect the woman’s life.  Finally, they have called on States to ensure a broad interpretation of health to include both physical and mental health, including mental health impact of carrying a pregnancy with a severe fetal anomaly or in cases of rape.

Below are relevant General Recommendations/Comments from Treaty Monitoring Bodies on this issue and summaries of relevant case law from these bodies.  (See also the  complication of Concluding Observations and General Comments/Recommendations produced by Ipas, presented below in section covering Ipas publications).

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), General Recommendation 24 on Women’s Health (1999)
The refusal of a state party “to provide legally for the performance of certain reproductive health services for women” is discrimination (paragraph 11).
States should reduce maternal mortality rates, including through safe motherhood services and prenatal assistance. “When possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion.” (Paragraph 31(c))
CEDAW Committee General Recommendation 19 on Violence Against Women (1992)
“States parties should ensure that measures are taken to prevent coercion in regard to fertility and reproduction, and to ensure that women are not forced to seek unsafe medical procedures such as illegal abortion because of lack of appropriate services in regard to fertility control.” (Paragraph 24(m)).
CEDAW Committee General Recommendation 21 on Equality in Marriage and Family Relations(1994)
“Some reports disclose coercive practices which have serious consequences for women, such as forced pregnancies, abortions or sterilization. Decisions to have children or not, while preferably made in consultation with spouse or partner, must not nevertheless be limited by spouse, parent, partner or Government.” (Paragraph 22).
Committee on the Rights of the Child, General Comment 4 on Adolescent Health (2003)
see section on Adolescent rights)
Committee on Economic, Social and Cultural Rights, General Comment 14 on the Right to the Highest Attainable Standard of Health (2000)
“…The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture... By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.”  (Paragraph 8).
“…States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, ….to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy; and abstaining from imposing discriminatory practices relating to women’s health status and needs. Furthermore, obligations to respect include a State’s obligation to refrain from....limiting access to contraceptives and other means of maintaining sexual and reproductive health, from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, as well as from preventing people’s participation in health-related matters.” (Paragraph 34).
Human Rights Committee (ICCPR) General Comment 28:  The equality of rights between men and women (2000)
“When reporting on the right to life protected by article 6, States parties should provide data on birth rates and on pregnancy- and childbirth-related deaths of women. …States parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions.” (Paragraph 10).
“To assess compliance with article 7 (right to be free from torture, or to cruel, inhuman or degrading treatment) of the Covenant, as well as with article 24, which mandates special protection for children, the Committee needs to be provided information on national laws and practice with regard to domestic and other types of violence against women, including rape. It also needs to know whether the State party gives access to safe abortion to women who have become pregnant as a result of rape….” (Paragraph 11)
“States parties must provide information to enable the Committee to assess the effect of any laws and practices that may interfere with women’s right to enjoy privacy” (Article 17), including legal rights and protections regarding sexual life and reproductive functions, including protection against rape or where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion….” (Paragraph 20)
Committee Against Torture
While this document does not usually present concluding observations, recent concluding observations by the Committee Against Torture, which monitors state compliance with the UN Convention Against Torture are groundbreaking. They affirm that denying abortion impacts women’s physical and mental health and can rise to a violation of the right to be free from torture, cruel, inhuman or degrading treatment. (see Ipas publications below on Treaty Monitoring Committee Concluding Observations)
In 2006, CAT Committee recognized that Peru’s restrictive abortion law, which only allows abortion in cases where pregnancy poses a risk to a woman’s health or life, leads to “grave consequences, including the unnecessary deaths of women.” The Committee also called upon the Peru to “take whatever legal and other measures are necessary to effectively prevent acts that put women’s health at grave risk, by providing the required medical treatment….” The Committee made similar findings in its 2012 adding that that interpretation of guidelines on when abortion was legal for purposes of medical necessity were “too restrictive and lack clarity, leading women to seek unsafe illegal abortions.”
It its 2011 review of Paraguay, the Committee against Torture also expressed concern about the long standing psychological consequences of banning abortion in cases of sexual violence, incest, or when the fetus is not viable. The Committee made similar findings in its review of Nicaragua in 2009, stating that laws that deny access to abortion in cases of sexual violence leads to “constant exposure to the violation … and causes serious traumatic stress and a risk of long-lasting psychological problems such as anxiety and depression,” recommending that the country liberalize its laws to allow for abortion in cases of sexual violence as a means of relieving such trauma.
Treaty Monitoring Body case law
KL v Peru (Human Rights Committee, 2005)
"LC v Peru (CEDAW Committee, 2011)
LMR v Argentina (Human Rights Committee, 2011)
CEDAW and the Human Rights Committee have also recommended that states read the health grounds in abortion regulation broadly, in accordance with the WHO definition of health, to include mental health.  This includes, but is not limited to, mental health implications of carrying a pregnancy as a result of rape and mental and physical health indications in cases of severe fetal impairment. They have also explicitly asked countries that do not have explicit abortion grounds for rape, to revise laws to allow on rape grounds. (See Committee onthe Elimination of Discrimination against Women. L.C. v. Peru, CEDAW/C/50/D/22/2009, 2011; Human Rights Committee. K.L. v. Peru, Communication no. 1153/2003, UN Doc. CCPR/C/85/D/1153/2003, 2005;  see also LMR v Argentina, Human Rights Committee, UN Doc. CCPR/C/101/D/1608/2007, 2011;  Ipas and Center for Reproductive Rights publications listed below.)
The UN Human Rights Committee in the case of K.L. v Peru articulated the important intersections between fetal impairment and women’s mental and physical health when determining whether K.L., 17 years old, was entitled to a therapeutic abortion under the law. The Peruvian abortion law only permits abortion in cases when a woman’s health or life is in danger, without specifying if health includes mental health. K.L. was denied the abortion by physicians, in part, because the law did not have an explicit fetal impairment exception.  The Committee, however, applied WHO’s holistic definition of health in determining that she was entitled to an abortion under the law. In doing so, the Committee recognized the ‘preventable and foreseeable’ mental distress to which she suffered when she was forced to carry the pregnancy to term. The Committee found that the denial of a lawful abortion violated her right to privacy and the right to be free from cruel, inhumane or degrading treatment, as well as the right to special protection as a minor.
In a case before the CEDAW Committee, L.C. v Peru, Peru’s law only allows abortion when a pregnancy poses a risk to the life or health of a woman, there is no explicit rape indication.   However, the CEDAW Committee found that the 13 year-old rape victim was entitled to an abortion under the health exception for both the physical and mental health she suffered.  In addition to finding violations of the Convention for failing to provide her with a lawful, therapeutic abortion, the Committee also urged the Peru to  “review its legislation with a view to decriminalizing abortion when the pregnancy results from rape or sexual abuse.”
The abortion law before the Human Rights Committee in the case of LMR v Argentina, allowed for abortion on grounds of rape of a disabled women, but due to stigmatization of the procedure, lack of knowledge of the law, and the chilling effect of criminal sanctions, medical providers refused to perform the procedure, forcing the mentally disabled young woman to seek a clandestine abortion.  The Human Rights Committee recommended that the state issue clear standards and guidelines on the legal indications for abortion and to remove barriers the inhibit women’s access to services.
UN Special Rapporteurs
Gabriel Knaul, Report of the Special Rapporteur on the independence of judges and lawyers on women’s access to justice. A/66/289 (2011) http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/130/15/PDF/G1113015.pdf?OpenElement. The Special Rapporteur raises concern over criminal law provisions discriminatory to women and by discriminatory application of criminal law.  SR characterizes the criminalization of abortion as a discriminatory law, including in cases of miscarriages or threat to the life and health of the pregnant woman.  He notes that by upholding discriminatory laws, judges and prosecutors become parties to the violation of the State’s international obligations. (Paragraph 74).
Anand Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Interim report, A/66/254 (2011).  The UN Special Rapporteur on the Right to the Highest Attainable Standard of Health, issued a groundbreaking report in 2011 on the negative impact the criminalization of abortion has on women’s health and lives and specifically articulated state obligations to remove barriers to abortion legal and other barriers to abortion, including restrictions in law or in practice on access to services caused by the criminalization of abortion, including when a woman’s life or health is in danger.  He also called for decriminalization of abortion and also ensuring that existing laws are not applied restrictively.

Other UN Bodies

Office of the High Commissioner for Human Rights, Technical guidance on the application of a human rights- based approach to the implementation of policies and programmes to reduce preventable maternal morbidity and mortality (2012) recognizes safe abortion services as essential for improving maternal health, calls on states to improve maternal health.

The guidance arises out of The UN Human Rights Council’s resolutions on maternal mortality as a human right.