Drafting abortion laws generally

Human rights standards on drafting abortion laws, generally

UN Treaty Monitoring Bodies General Recommendations/Comments

UN Special Rapporteurs
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).
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).
UN Treaty Monitoring Bodies General Recommendations/Comments on drafting abortion laws, generally
Through concluding observations, 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 laws. 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.
Committee on the Elimination of All Forms of Discrimination Against Women on drafting abortion laws, generally
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)
“State 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 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)
Committee on the Rights of the Child, General Comment 4 on Adolescent Health (2003)
States parties have not given sufficient attention to the specific concerns of adolescents as rights holders and to promoting their health and development.  This has motivated the Committee to adopt this general comment in order to raise awareness and provide States parties with guidance and support in their efforts to guarantee the respect for, protection and fulfilment of the rights of adolescents, including through the formulation of specific strategies and policies.
PRIVACY AND CONFIDENTIALITY: States are encouraged to ‘strictly’ respect adolescents’ right to privacy and confidentiality, including advice and counseling on health matters. Information may only be disclosed with consent of the adolescent or in or in the same situations applying to the violation of an adult’s confidentiality.  ‘Adolescents deemed mature enough to receive counselling without the presence of a parent or other person are entitled to privacy and may request confidential services, including treatment. ‘ ( Paragraph 11)
PARTICIPATION; DEVELOPMENT OF YOUTH FRIENDLY SERVICES; CONFIDENTIALITY; PRIVACY: ‘States parties should provide a safe and supportive environment for adolescents that ensures the opportunity to participate in decisions affecting their health, to build life skills, to acquire appropriate information, to receive counseling and to negotiate the health-behaviour choices they make. The realization of the right to health of adolescents is dependent on the development of youth-sensitive health care, which respects confidentiality and privacy and includes appropriate sexual and reproductive health services.’ (Paragraph 40)
  1. EVOLVING CAPACITY/MATURITY: This standard relates to the adolescent’s acquisition of sufficient maturity and understanding to make informed decisions on matters of importance, including on sexual and reproductive health services. (paragraph 9).  Beforeparents give their consent, adolescents need to have a chance to express their views freely and their views should be given due weight...  However, if the adolescent is of sufficient maturity, informed consent shall be obtained from the adolescent her/himself, while informing the parents if that is in the “best interest of the child” (art. 3) (Paragraph32)
CONFIDENTIALITY; INFORMATION: States parties should (a) enact laws or regulations to ensure that confidential advice concerning treatment is provided to adolescents so that they can give their informed consent. Such laws or regulations should stipulate an age for this process, or refer to the evolving capacity of the child; and (b) provide training for health personnel on the rights of adolescents to privacy and confidentiality, to be informed about planned treatment and to give their informed consent to treatment. (Paragraph33)
  1. INFORMATION; PARENTAL CONSENT: States parties should provide adolescents with access to sexual and reproductive information, including on family planning and contraceptives, the dangers of early pregnancy, the prevention of HIV/AIDS and the prevention and treatment of sexually transmitted diseases (STDs).  In addition, States parties should ensure that they have access to appropriate information, regardless of their marital status and whether their parents or guardians consent. It is essential to find proper means and methods of providing information that is adequate and sensitive to the particularities and specific rights of adolescent girls and boys.  To this end, States parties are encouraged to ensure that adolescents are actively involved in the design and dissemination of information through a variety of channels beyond the school, including youth organizations, religious, community and other groups and the media. (Paragraph28)
INFORMATION; REDUCING MATERNAL MORBIDITY AND MORTALITY; RIGHT TO SAFE ABORTION SERVICES: Adolescent girls should have access to information on the harm that early marriage and early pregnancy can cause, and those who become pregnant should have access to health services that are sensitive to their rights and particular needs.  States parties should take measures to reduce maternal morbidity and mortality in adolescent girls, particularly caused by early pregnancy and unsafe abortion practices, and to support adolescent parents.  Young mothers, especially where support is lacking, may be prone to depression and anxiety, compromising their ability to care for their child. The Committee urges States parties (a) to develop and implement programmes that provide access to sexual and reproductive health services, including family planning, contraception and safe abortion services where abortion is not against the law, adequate and comprehensive obstetric care and counselling;… (Paragraph 31).
  1. UNSAFE ABORTION; VIOLENCE: Adolescents who are sexually exploited, including in prostitution and pornography, are exposed to significant health risks, including STDs, HIV/AIDS, unwanted pregnancies, unsafe abortions, violence and psychological distress.  They have the right to physical and psychological recovery and social reintegration in an environment that fosters health, self‑respect and dignity (art. 39).  It is the obligation of States parties to enact and enforce laws to prohibit all forms of sexual exploitation and related trafficking; to collaborate with other States parties to eliminate intercountry trafficking; and to provide appropriate health and counselling services to adolescents who have been sexually exploited, making sure that they are treated as victims and not as offenders. (Paragraph37)
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 the 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 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.