Advik Rijul Jha, Jindal Global Law School, OP Jindal Global University. ___________________________________________________________________________ Reproduction is a basic necessity for the sustenance and continuance of life on earth. Reproductive health, therefore, has a significant role to play owing to the devastating consequences and impacts of ignoring this aspect of health for the entire human civilization. Human Rights deals with this subject through two diverse models. The two lenses used to study this subject are namely right to health and reproductive rights. At times, it may also not be incorrect to combine these two lenses to reach the reproductive health rights.
Right to Health Model
The objective of this model is to provide health care facilities to all the individuals which include in its ambit the necessity to uphold the underlying determinants of health. “These underlying determinants of health include the right to protection from violence, the guarantee of access to health services, health-related education, potable water, sanitation, housing, safe food and adequate nutrition.”1 It can be safely inferred that basic values of human rights are sought to be upheld by the right to health. A corollary of this is that the right to reproductive health also finds protection under this head which was earlier not the case.
Reproductive Rights Model
Rights and the power to voice their opinions have come after years of struggle for women. The struggle has seen the development and bestowing of the right to vote and other essential rights on women amongst which reproductive rights also have an eminent place. As expected, the impact and implications of these struggles have been diverse all across the world. However, “Reproductive rights, especially in the developed countries have revolved around the protection of the rights of an individual to make autonomous reproductive choices and the dignity to respect their choices. Subsequently, reproductive rights were viewed as upholding the decisional aspects of reproduction that is, the right to make an autonomous reproductive choice, which is free from coercion.” It can be seen that the right which has thus been bestowed to women is with respect to their ability to decide whether they wish to reproduce. It is not negated that this right has taken a very narrow view but looking at the bright side, women now have some autonomy with regard to their reproductive health. There is a long way still to go but something is better than nothing.
International Treaties and Obligations
The international law framework has as such not developed any specific treaties which specifically deal with reproductive health. These rights have to be inferred and read in from the various treaties which have come into existence from the 1950’s since prior to that, reproductive health did not appear in anyone’s agenda. One of the earliest treaties on human rights is the Universal Declaration of Human Rights, 1948 (hereafter UDHR). Reproductive health rights have to be inferred from Articles 1, 2, 5 and 25 of the treaty. If that oversight wasn’t enough, it is astonishing that other essential rights which should work hand in hand for reproductive rights such as right to privacy and protection from gender-based discrimination have also been left out.
The International Convention on Civil and Political Rights (hereafter ICCPR) was the next treaty which came into existence which had a very broad area of application. This treaty, through Articles 2, 6 and 17 guarantees every individual the right to privacy, liberty in making decisions and also guarantees the freedom from all sorts of discrimination. The power to make decisions can be inferred to have been bestowed upon women with respect to their reproductive choice. The rights conferred under this treaty cast a negative obligation on the state because a state cannot impose any laws, which violate the above rights and needs to also ensure that no third party violates them.
The International Convention on Economic Social and Cultural Rights (hereafter ICESCR) has a pertinent role to lay in the discussion regarding reproductive rights. Article 12 of the ICESCR outlines the right to health encompassing rights such as the right to reproductive health and reduction of infant mortality. The rights conferred under this treaty cast a positive obligation on the state i.e. the state should take affirmative action to ensure that all the individuals are guaranteed these rights.
As will be discussed later as well, there is a gap between the policies being in force and their implementation. The CESCR takes a feather in its cap to rectify the same since it set up a committee to ensure implementation of these rights. The committee issued General Comment 14 to interpret the obligations cast on the states and the necessary measures that states need to undertake to provide these rights to their people. However, owing to implementation hurdles and lack of action by the states, the committee issued General Comment 22. General Comment 22 bestows an obligation on state parties to it to ensure the right to reproductive health is made available to every individual. Certain elements have been put forth by the committee to ensure that reproductive health is accessible to all. The first of them being Accessibility which refers to all the health care facilities, goods, information and other services related to reproductive health care should be made physically and economically accessible to all the individuals without subjecting them to any sort of discrimination whatsoever. The next in line is Availability which pertains to the state must ensure that there are adequate functioning health care facilities (furnished with medicines and contraceptives and such like), and fully trained and skilled medical professionals. Acceptability has a significant role which is the fact that all goods, information and services related to reproductive health must be respectful of medical ethics and culturally appropriate to all individuals. Last but not the least is Quality wherein all services, procedures, medical personnel’s and facilities related to reproductive health must be in accordance with the highest established medical standards.
Apart from guaranteeing these rights and an obligation on states to take affirmative action for their protection, states are also the catalysts who need to protect the enjoyment of these rights by their citizens as and when non-state actors threaten to disrupt the same.
Mere recognition and adherence is not sufficient. The international law framework also demonstrates the need to include these obligations in the states domestic set up. In India, the Supreme Court has taken on the burden to ensure the same which can be witnesses through the case of Devika Biswas v Union of India where the Supreme Court held the right to Life under Article 21 of the Indian Constitution ought to be inclusive of the right to health and the right to reproductive health. In addition, the court held that the right to reproductive health includes right to access to reproductive health information, goods, facilities and services so as to enable a woman to make an informed decision about her reproductive health. Also, the court held that only when the states fulfill their obligations would it be possible for the right to reproductive health, which is so inherent to life, gets enforced.
Need for implementation of Reproductive Health Rights and Conclusions
Reproductive health rights should be construed as human rights mainly because of its intrinsic relationship with other human rights and because of its impact on the overall human functioning and well-being. This statement, in essence, summarizes the inherent importance of the recognition of reproductive health rights which has been mentioned earlier as well for the sustenance of life and also from the human rights lens.
However, it is pertinent to point out that recognition and their subsequent protection and implementation by states may not necessarily go hand in hand which is a derogation of the obligations of the state. In the case of Laxmi Mandal v Deen Dayal Hospital the court observed that the state is obligated to ensure maternal health care under the Indian Constitution, along with international human rights treaties obligations, which India is a signatory to, such as the ICESCR, Convention on Elimination of all forms of Discrimination Against Woman (CEDAW) and the UDHR. The court also held that “no woman, more so a pregnant woman should not be denied treatment irrespective of her social and economic background.” The ruling, in essence, portrays the need for judicial intervention to ensure these rights are made accessible to people which a state is nonetheless obligated to fulfil.
The discussion based on the cases leads me to the conclusion that there is a need to remedy the gap which exists between the rights which are enshrined and bestowed by various treaties and their implementation which is the real test of their efficacy. It is but obvious that steps need to be taken to ensure that state parties conform and perform their treaty obligations and implement these rights. However, implementation of merely these set of rights is not enough even if this is brought about through penalties, reviews and sanctions and such like. In order for effective implementation of treaties dealing with reproductive health, it is necessary that other treaties which guarantee non-discrimination, privacy and other such concomitant rights are also implemented. Only then would the most effective result of this struggle for reproductive health will be achieved.
 The right to sexual and reproductive health: CESCR General Comment 22 (2016) ¶ 7; Gable, L., ‘Reproductive Health as a Human Right’ 60 CaseWResLRev 957 (2010) pg. 969.  Gable, L., ‘Reproductive Health as a Human Right’, 60 CaseWResLRev 957 (2010) pg. 969  Ibid, pg. 974.  Ibid, ¶ 15.  The right to sexual and reproductive health: CESCR General Comment 22 (2016) ¶12  Supra note 3; ¶20.  Supra note 3; ¶21.  Supra note 3; ¶40 – 45.  Supra note 2; pg. 985.  Laxmi Mandal v Deen Dayal Hospital, (2010) SCC Online Del 2234.
We thank you for your support and encouragement to Internationalism. We believe in providing open access to our articles, reports and papers without any paywall for our readers and those who pray well for the think-tank. In order to keep our content open accessed and free, we need your support. Please donate any amount up to 500 INR if possible.
Link to donate: https://pages.razorpay.com/pl_EnnLuU7tqq6lv7/view