Reproductive rights have been a struggle for many human rights and women’s rights advocates throughout our modern times. There have been important achievements in recognizing them and advancements in international law to promote and defend them.
Women’s rights involve not only the full access to services, employment, health, security and all other basic rights but also the achievement of independence and autonomy as individuals. Reproductive rights are one area that has been slowly introduced into the discourse of women’s rights and it is an ongoing process of struggle and subject of polarizing views.
In this paper we will briefly analyze the matter of abortion as a particular ‘reproductive right’ that is especially contested in the overall reproductive rights policies and instruments. Attacks on abortion, restrictive laws, the criminalization of women, have been part of the strategies taken by countries to make abortion (and access) more difficult for women, particularly targeting poor and disadvantaged ones (Geber 1990).
The International Conference on Population and Development (ICDP), the Beijing Platform for Action and the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) are international efforts to shed a bigger light on women’s rights, however none of them have been thorough or progressive enough to take a stand for abortion as a central matter and the denial of abortion as an overall attack on women’s freedom and self determination (Geber 1990 p. 3).
Some authors have considered this international disdain of the abortion issue not only as political unwillingness and power control from religious states but also as a way of maintaining women in “reproductive servitude”, a way of promoting patriarchal societies and return women to their “proper place” (Copelon in Geber 1990).
At the final part of the review, the case of Mexico is analyzed to exemplify how small changes on state legislation can and have had tremendous consequences for women facing abortion. Women have disappeared from the debate over reproductive freedom and rights in order to give space to the “moral” status of the embryo. Women’s rights when pregnant are now considered in conflict with the rights of the unborn and due to ideological and political efforts, they have left women at risk of either dying while seeking an illegal abortion or facing jail time if caught.
The International Conference on Population and Development (ICDP)
In 1994 the International Conference on Population and Development (ICDP) took place in Cairo, Egypt. This conference has become an essential reference as it recognized reproductive rights as human rights, and was the first time a consensus was reached internationally on topics such as family planning and access to safe and legal abortion, including others. In turn, targets were set through a program of action for States to take comprehensive steps to meet certain goals no later than 2015.
The Cairo program of action was particularly important in defining the concepts of “reproductive health”, “reproductive rights” and “women’s empowerment”. It transformed population and development into a broader definition introducing reproductive health as follows:
“[…] a state of complete physical, mental and social well-being[…], reproductive health therefore implies that people are able to have a satisfying and safe sex life and they have the capacity to reproduce and the freedom to decide if, and when and how often to do so” (par. 7.2 ICPD).
However, critics have argued that the ICDP falls short on terminology and language regarding these rights, specifically when it comes to issues such as abortion and sexual rights (Correa 1997). Reproductive health and rights were compromised as maternal and family planning concepts and ideologies and women’s bodies, reproductive choices and autonomy were negated or at least politely ignored (p. 110).
Aside from terminology and language the ICDP did highlight the paradigm on reproductive health and rights, and even though improvements and advancements on education, population and development have been attained since the ICDP, the field of reproductive rights has fallen short of what some supporters would have expected (World Bank 2007).
Induced abortion is mentioned several times in the ICDP program of action (paras. 7.6, 7.24, 8.19, 8.25) and other parts in regards to fertility regulation or as one of the causes of maternal mortality (Berer in Reichenbach & Roseman 2009). However, as mentioned above, authors coincide in the fact that the lack of vision and proper discourse, as well as political precaution from the international community left the issue of making abortion legal and safe for women untouched (Berer in Reichenbach & Roseman 2009, p. 152).
From the perspective of health, in chapter 7 of the ICDP, the tone is set to address abortion not as a fertility regulation procedure or as a reproductive right or health service, but as something that should be prevented and avoided (Berer in Reichenbach & Roseman 2009, p. 153). Implying that unwanted pregnancies should be eliminated in the first place, as if this was a realistic goal.
Women, according to the ICDP chapter 8, should be encouraged to always use family planning services to avoid abortion, however, both the access to modern contraceptives as well as the utilization of them is sometimes limited to various factors such as coercion by the partner to not use contraception, rape, incest, among other reasons in which an unwanted pregnancy may be present.
The ICDP throughout it’s chapters and pages calls for “increased use of family planning” and leaves core and basic reproductive issues, such as unsafe abortion, lacking international policy muscle (Nowicka 2011). Unlike other aspects of population and development, the abortion part in the ICDP, is not based on evidence of how much unsafe abortions contribute to maternal mortality rates, especially in those countries, which have restrictive abortion laws (IPPF 2006).
Reproductive rights are closely linked to a ‘bundle of rights’, those that relate to a woman’s political, social and economic rights. If a woman cannot decide over her reproduction and make the pertaining decisions in regard to a pregnancy, she cannot certainly fully and freely exercise any other rights (Widdows et al. 2006).
In this sense, the ICDP does not recognize that women living in poverty who are confronted with an unwanted pregnancy are also being forced into either bearing a child and possibly not be able to support it, or resort to a clandestine abortion, this is a form of economic discrimination and it is form of violence against women (Amuchastegui & Rivas 2002).
As much as the United Nations has a key role on the follow up and implementation of the ICDP program of action, its actual role is very much dependent on political and ‘country-specific’ dynamics. The conservative right wing and pro-life movement, as well as the Holy See or Vatican State being part of the participants in all follow up and reviews of the ICDP, have managed to forge alliances that maintain the abortion debate frozen and contested (Larson & Reich in Reichenbach & Roseman 2009).
This political aspect of the reproductive rights was further contested as not being placed as a Millennium Development Goal in the 2000 Summit (UN 2010) some scholars have agreed that:
“The exclusion of reproductive health goal from the MDG’s was a matter of political expediency […] opponents of the goal had characterized it as promoting abortion and undermining family values by calling for sex education for adolescents” (Campbell et al. 2006).
After all reproductive health was added at the 2005 World Summit, but only as an element for another goal – number 5 which calls on reducing maternal death (UN 2010) yet again disregarding women’s self determination and autonomy over their bodies.
The Beijing Platform for Action
In 1995, a year after the ICDP in Cairo, representatives from around 180 countries gathered in the Fourth World Conference in Beijing, China. The meeting resulted in a document that is reflective of the most important issues and concerns over women around the world. (UN Women)
Among paragraphs 91-112 in the chapter about ‘Women and Health’ reproductive rights were again presented. It affirms the right of women “to have control over and decide freely and responsibly on matters related to their sexuality – free of coercion, discrimination, and violence” (Kenny in Widdows et al. 2006).
And also calls on governments to eliminate all criminal sanctions over women who have abortions by understanding and addressing the root causes and consequences of unsafe and illegal abortions.
However, opposition and pressure from governments such as the United States, were very clear on contesting the Beijing platform during its 2005 revision arguing that they would only reaffirm and support the program if it didn’t create “any new rights” referring implicitly to the right to abortion (Kenny in Widdows et al. 2006, P. 18). But, the platform already tackles this issue by stating that any kind of shift in abortion policy is to be determined by state and local laws according to their legislatures (Beijing Platform of Action, 1995, par. 107).
Hence, once again the international agenda leaves the abortion issue to states and fails to recognize abortion as a matter that is in need of urgent international policy changes, particularly in the developing world. The abortion debate is centered at the fact that women rights are very clear and coherent in paper, but in practice, are compromised in patriarchal societies. The right to abortion is entangled with ideology and also on the control over women’s reproduction, putting them in denial of full personhood and dependent of male dominated values and rights (Copelon in Gerber 1990).
The Convention on the Elimination of All forms of Discrimination against Women (CEDAW)
The Convention on the Elimination of All forms of Discrimination against Women (CEDAW) indicates that both the effect and purpose of laws must be clear from any type of discriminatory barriers that prevent women from exercising any of their human rights. Laws that prohibit abortions have an effect on women’s right to access health care services that may save their life.
Since pregnancy and abortion are issues related only to women who experience them denying them the right to make choices about them is a discriminatory practice based on gender.
Beyond the health concerns that restrictive abortion laws imply for women’s lives, regardless of the reasons they might have, these laws have the purpose of denigrating women to people without the capacity to make decisions (just because they are able to reproduce) and are highly discriminatory of their right to make informed choices and being treated as individuals (Center for Reproductive Rights 2004).
However, CEDAW is another policy instrument that fails to deliver in practice regarding abortion. The convention is critical in the struggle for sexual and reproductive rights particularly because it obligates states to eliminate any kind of stereotypes and search for equality in all areas of life for men and women.
Miller & Roseman (2011) argue, that despite a long period of requests by organizations and advocates to include the ‘intersectional’ gender analysis to CEDAW and have made a case about reproductive rights, this is an underfunded agency in the UN. Abortion is one area that CEDAW has distanced itself from, even though there have been recommendations on sexual and reproductive health the message has been ambiguous.
In CEDAW the issue of abortion is phrased in a very vague manner since it only calls on how denying women of “certain” reproductive health services is considered discriminatory (UN 2000). CEDAW has been in line with the ICDP stance on abortion, calling on better access and talking about the harms associated with unsafe abortions, the health implications and some recommendations on family planning leaving countries to decide what to do about it (Miller & Roseman 2011 p. 8) but not recognizing abortion as a women’s right, as an autonomous decision and calling for states to uphold women’s right to make a choice under the highest standards of health.
This denial is discriminatory in its nature. Regardless of women’s lifestyle, morals, beliefs, culture or circumstances when facing an unwanted pregnancy they are denied in many cases the right to autonomous decision, and this is unlike any other issue (pregnancy and abortion) because it is inherent to women only.
Personhood and the example of Mexico’s abortion policy
Personhood and “life begins with conception” discourse encouraged by the religious right and conservative politicians have enforced policy changes around the world (Copelon in Gerber 1990). In the state of Baja California, Mexico, as well as in 18 other states around the country, conservative groups took a stand after the decriminalization of abortion that passed in Mexico City, in 2007. They began a crusade of lobbying state legislatures in order to prevent this paradigmatic event to ever happen again.
In 2008, Baja California became one of the 18 states to fall under this political maneuver, legislation changed in order to add the “personhood” status to the embryo, therefore considering a ‘person’ from the moment of conception (Baja California Legislation art. 8, 2008 in Gire 2012). With this sentence added to the penal code abortion was no longer considered only as abortion, but as murder.
The changes to the penal code were formally challenged in the Supreme Court, losing the battle for 7 votes to 11 in 2011 (SCJN 2011). The consequences have been quite visible over the last years; women who have had abortions, spontaneous or induced are criminalized and charged until further investigations are conducted.
They are subject of discrimination, stigmatization by society, the media who is usually very judgmental, and by the authorities (Tu puedes salvar tu vida 2008).
Some women affected by this new laws have presented international human rights instruments, such CEDAW, in most of their appeals, however, as we mentioned before, due to the “sovereignty” of States to enforce their own laws, there is little or no interest in following up any international recommendations.
This was the case of Lesly Zamora, a 18 year old woman who had an spontaneous abortion, when taken to the hospital authorities were unable to determine if she had induced her own abortion, after a very inadequate case, she was sentenced to 23 years of jail for the crime of murder (See Lesly’s Case in ‘Hiding under the bed is not the answer’ 2011).
This aspect of personhood and abortion, conflicts women and the unborn and it is a matter of economic discrimination. Even in cases where law authorizes abortion – such as fetus malformations, health risks to the mother or child, incest and rape – women are confronted by untrained service providers, doctors who object to the procedures, authorities with no gender perspective or human rights knowledge, and overall they are buried in bureaucracy that can delay the permitted weeks to have the abortion (GIRE 2012).
Women in Mexico have to make difficult decisions when it comes to abortion, either they come up with the resources to either travel to Mexico City or find a clandestine way of doing it. The reality is that restrictive laws do not lower abortion rates, and they only maintain women’s lives at risk (GIRE 2012).
Self determination, full an equal access to health services, non discriminatory laws and the ability to provide women with full autonomy represents a major change to the current status quo of all women around the world. This changes will not come easy or uncontested (Vekeman 2009).
Women’s groups, human rights advocates and international agencies must and should support the abortion issue beyond what is currently happening. The United Nations through its various instruments, programs of actions, conferences and follow up on implementation should incorporate a stronger role in demanding abortion to be made legal and safe for all women, regardless of the reasons behind it.
Empowering women and seeking gender equity seems like a common goal for all aspects of international policies and efforts, however, they still deny women of their right to freedom of conscience and decision, to some this may seem contradictory. At a local, state and national levels women need to organize themselves better to challenge conservative policies and religious ideologies that promote clandestine abortion. It is known that in more unequal societies this may be hard to achieve since this is a problem of “a few”, the poor and the invisible (Blofield 2007).
Reproductive rights are not only family planning services, nor contraception or maternal health; they are closely tied to social justice and development of more progressive societies (Vekeman 2009). Governments and international agencies must engage in bigger evidence based research and knowledge available to make sure that abortion is not only available where legal, but is available to all women in case it is a decision they shall encounter in their lives.
The denial of access to legal and safe abortion, considering that medical advancements have made these procedures safer, is also a denial of her rights as an equal member of society.
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International policy perspectives on reproductive rights