Sexual and reproductive rights and the human rights agenda: controversial and

contested
Author(s): Wanda Nowicka
Source: Reproductive Health Matters , November 2011, Vol. 19, No. 38, Repoliticising
sexual and reproductive health and rights (November 2011), pp. 119-128
Published by: Taylor & Francis, Ltd.

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 © 201 1 Reproductive Health Matters.
л Ti л REPRODUCTIVE
All л nghts reserved. л HEALTH
Reproductive Health Matters 201 1 ; 19(38): 1 19- 1 28 mdt
0968-8080 1 11 $ - see front matter
DOI: 10. 101 6/S0968-8080(l 1)38574-6 www.rhmjournal.org.uk

Sexual and reproductive rights and the human rights

agenda: controversial and contested
Wanda Nowicka

President, Federation for Women and Family Planning; Coordinator, ASTRA - Central and Eastern
European Women's Network for Sexual and Reproductive Health and Rights, Warsaw, Poland.
E-mail: nwanda@federa.org.pl

Abstract: In this paper I share some of my experience and observations, as an advocate for women's
rights, of the last 20 years of struggles for sexual and reproductive health and rights, carried
out in many key places where these issues have been debated and decided. I do not aspire to be
comprehensive about the current status of human rights related to sexuality and reproduction.
Given that my expertise is of a practical (rather than theoretical) nature, the complexity of the
topic and contradictory events with regard to it, which take place almost everyday, I will highlight
some selected achievements and setbacks in this area, particularly regarding abortion rights.
I will provide examples of how human rights related to sexual and reproductive health have been
addressed in UN policy-setting bodies, such as the Commission on the Status of Women and
Commission on Population and Development, as well as in the UN human rights system such as
Treaty Monitoring Bodies and Human Rights Council. Given my work with European institutions,
I provide examples of important decisions by the Council of Europe and the European Court of
Human Rights. Lastly, I discuss growing opposition to a progressive human rights agenda and
the universality of human rights. Despite significant successes, sexual and reproductive rights
will long remain controversial and contested. Hence, it is crucial to try to find new ways to engage
and new partners to work with. ©201 1 Reproductive Health Matters. All rights reserved.

Keywords: sexual and reproductive health and rights, human rights, women s rights, abortion,
law and policy, United Nations, Europe

Women's rights - looking back rights a reality, gender equality, and equity and
women's empowerment as essential strategies of
The last decade of the 20th century markeddevelopment, have been the foundations of the
major achievements regarding the recognition
Programme of Action of the International Con-
of women's human rights in the international
ference on Population and Development (ICPD)
arena and is sometimes called the UN Decade in Cairo in 1994. The whole concept of a rights-
for Women. UN conferences made an essential
based approach to sexual and reproductive health,
breakthrough in expanding the understanding identification of 1 2 critical areas of concern where
of human rights in general and women's rightswomen's rights were being breached, including
specifically. Major achievements included thethe right to health, and adoption of strategies for
global recognition that women's rights are humangender equality and women's human rights, were
major accomplishments made in the Beijing
rights; and that violence against women is a vio-
lation of human rights (UN Conference on HumanFourth World Conference on Women (FWCW)
Rights, Vienna, 1993). Recognition of reproduc-in 1995.
tive rights and health as fundamental human In the mid-1990s the spirit was rather high
rights as well as states' obligations to make theseamong transnational women's movements.

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 W Nowicka / Reproductive Health Matters 201 1;19(38):1 19-128

Many of us hoped that new gains would soon This legal change was achieved by a coalition of
be made, such as recognizing the right to legal women activists and professionals - lawyers and
abortion and sexual rights. However, the UN health providers - who identified hundreds of
conferences also brought disappointing failures women who were prosecuted and imprisoned for
and missed opportunities to move the agenda terminating unintended pregnancies. Good col-
further in global arenas. These included lack of laboration with the Government was instrumental
political will of the international community to in the reform process.
confirm women's right to abortion and condemn Another spectacular victory in liberalizing
discrimination on the basis of sexual orientation restrictive anti-abortion legislation took place
and gender identity. in Colombia.2 The Colombian lawyer Monica
In the era of the Bush administration in the Roa, who played a key role in the process, argued
US, though, and especially since the 9/11 attacks in the Constitutional Court of Colombia that the
and the launch of the War on Terror, which have country's ban on abortion, one of the world's
had a detrimental impact on human rights stan- most restrictive, violated Colombia's own com-
dards globally, it has become clear that there ismitments to international human rights treaties
little chance for further achievements in the UN. that ensure a woman's right to life and health. In
In reality, women's movements have been pushed 2006, the Court overturned the restrictive ban on
into a corner and have had to put all our efforts abortion, allowing voluntary terminations in
into holding the line, i.e. defending the gains ofcases of rape, fetal malformation, or when the
Cairo and Beijing rather than trying to push thelife or health of the woman or fetus is in danger.
boundaries for progress on unresolved issues. It Abortion laws have also been liberalized
has also become very visible that despite govern-in South Africa (1996), 3 Ethiopia (2005)4 and
ments' agreements, the implementation of bothMexico City (2007). 5 In Europe, abortion was
the Cairo and Beijing action programmes has liberalized in Switzerland (2002), Portugal (2007)
been far from satisfactory, even though signifi-and Spain (19856 and 2010).
cant successes have taken place in a number of
countries. Additionally, increasing trends chal-
At the United Nations
lenging the universality of human rights and
initiatives undermining human rights have cre-Sexual and reproductive health and rights are
ated new frontlines. being addressed by numerous UN bodies from dif-
On the other hand, there is no doubt that ferent perspectives. Here I will focus on policy-
numerous decisions of human rights institu- setting bodies, such as the Commission on the
tions, such as UN Treaty Monitoring BodiesStatus of Women and the Commission on Popu-
and the European Court of Human Rights, havelation and Development, and on treaty monitor-
contributed to strengthening sexual and repro-ing bodies and the Human Rights Council.
ductive health and rights standards, thanks to
effective advocacy and litigation undertaken byUN policy-setting bodies
many NGOs. Generally speaking, the UN political bodies have
not made much progress in strengthening
Therefore, the answer to the question of where
we are on the path to sexual and reproductive sexual and reproductive health and rights stan-
health and rights is not simple. It depends a lotdards in the last ten years. This has become
on where we sit. increasingly clear at UN conferences since 1998,
especially sessions of the UN Commission on the
Status of Women and Commission on Population
Major successes at the national level and Development, who are responsible for moni-
There have been major successes regarding thetoring the implementation of the Cairo (Cairo+5,
right to abortion in several countries where 1998) and Beijing (Beijing+5, 1999) agreements.
abortion rights advocates used international During the Cairo+5 process some important pro-
human rights obligations extensively and effec- visions regarding post-abortion care and adoles-
tively to campaign for legal reform. The strict cent sexual empowerment were adopted, but the
anti-abortion law in Nepal was liberalized in political climate around sexual and reproductive
2004 1 and now allows abortion on broad grounds. health and rights had shifted. Annual resolutions

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 W Nowicka / Reproductive Health Matters 201 1;19(38):1 19-128
adopted at these two Commissions illustrate well
the terror of "agreed language", which paralyzes
any attempt to move a bit beyond and strengthen
existing commitments. What has been even
worse, the conservative governments negotiating
resolutions in these meetings often propose lan-
guage intended to weaken existing commit-
ments, especially any reference to rights. This
includes not only sexual rights but even repro-
ductive rights, which are increasingly being lost.
These issues, and especially the abortion issue,
continue to disappear from debates in which
they should definitely be addressed, especially
in the debates about maternal health, and mater-
nal and infant mortality.
As a result, the sexual and reproductive health
and rights agenda has become gradually depo-
liticized, especially since 2000, when no serious
efforts to push it forward have been made. Due
to an extremely unfavourable political environ-
ment some NGOs have made strategic decisions
not to propose initiatives going beyond Cairo,
Beijing and other international agreements, on
the assumption that it would be unrealistic to
expect progressive change. Rather the opposite,
many believed that the more offensive the
approach the more of a backfire effect it could
have. It is particularly disappointing when big
and influential NGOs, which should be in the
forefront of standard setting and have huge
resources to do so, choose to avoid the more
controversial aspects of sexual and reproductive
health and rights and are reframing issues to
make them more "politically acceptable".
At the same time, there have been numerous
efforts on the part of conservatives and religious
fundamentalists - primarily of Christian origin -
to challenge sexual and reproductive health and
rights and weaken the content of resolutions.
Just one example of the numerous battles often
fought at the UN when resolutions and other con-
sensus documents are negotiated is to do with
the word "services" in the context of reproduc-
tive health. It has been increasingly questioned,
removed and replaced with "care". Services have
long been contested by the opposition, as imply-
ing abortion services. Such linguistic wars, out-
side of the UN context, seem grotesque and
meaningless, but they indicate that the politi-
cal agenda around sexual and reproductive
health and rights is being manipulated by human
rights opponents.
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Treaty monitoring bodies
General Comments
Human rights treaty monitoring bodies are
committees of independent experts that moni-
tor the implementation of international human
rights treaties. They are less influenced by politi-
cal controversies over sexual and reproductive
health and rights and have been able to make
important gains in further conceptualizing the
issues involved. Of the nine human rights treaty
bodies, I will focus on the Human Rights Com-
mittee, which monitors the implementation of
the International Covenant on Civil and Political
Rights; the Committee on Economic, Social and
Cultural Rights (CESCR) which monitors imple-
mentation of the International Covenant on
Economic, Social and Cultural Rights; the Com-
mittee on the Elimination of All Forms of Dis-
crimination against Women (CEDAW), which
monitors implementation of the Convention
on the Elimination of All Forms of Discrimina-
tion against Women; the Committee against
Torture (CAT), which monitors implementation
of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment; and
the Committee on the Rights of the Child (CRC),
which monitors implementation of the Conven-
tion on the Rights of the Child.
These committees have been addressing vio-
lations of human rights, including sexual and
reproductive health and rights, and assessing
the observance of respective treaties by coun-
tries under review. Following these assessments,
which take place in all the countries who have
signed these treaties, a document called Con-
cluding Observations is issued by the Commit-
tee, which reports on the country's status. The
Concluding Observations include recommenda-
tions to governments for how to improve the
implementation of the given Convention. More-
over, the mandate of the treaty monitoring bodies
includes the development of General Comments
related to the respective Conventions, which are
reporting guidelines for governments. In these,
the Committees update and expand the reporting
obligations of governments, including in the
areas of women's rights, gender equality, and
sexual and reproductive health and rights.
The Human Rights Committee adopted a
groundbreaking General Comment on the equal
right of men and women to the enjoyment of all
civil and political rights in 2000, 7 in which
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women's reproductive health issues, including described the criminalization of abortion under
neglect leading to maternal mortality and unsafe any circumstances in Nicaragua as a violation
abortions have been recognized as human rights of human rights.12
violations. The Committee strongly confirmed that Unfortunately, despite such strong criticisms,
States have an obligation to prevent unwanted conservative governments rarely comply with
pregnancies and, therefore, life-threatening clan- the recommendations of the human rights bodies
destine abortions. regarding reproductive rights. However, the inter-
The CEDAW Committee adopted a General national obligation of governments to comply is
Comment on women's health in 1999.8 It affirmed being asserted by advocates in their struggles for
that access to health care, including for reproduc- implementation of human rights.
tive health, is a basic right under the CEDAW Con- On another note, even these strong recom-
vention and recognized the obligation of health mendations of human rights bodies do not go
systems to prevent, detect and treat illnesses spe- far enough to recognize the gender discrimina-
cific to women. The Committee also addressed the tion dimensions inherent in denying abortion.
issue of conscience clauses and said governments Abortion is not treated as a women's right issue
were obliged to organize alternative health ser- in them, nor as an issue of women's autonomy
vices in cases where conscientious objection by and decision-making, but as a public health issue.
health providers constituted a barrier to services So the concerns expressed are about the risk of
only women need. maternal mortality but not about women's self-
The Committee on the Rights of the Child determination and empowerment.
adopted a General Comment on adolescent sexual
health in 2003, 9 which recognized that children's Filing individual complaints
rights are indivisible and interrelated and adoles- The UN human rights system also provides indi-
cents should fully enjoy their right to health and viduals whose rights have been violated the
development. It recognized the right of adoles- opportunity to file a complaint to five of the
cents to confidential reproductive health services, nine Treaty Monitoring Bodies. This procedure
including family planning and abortion. has been successfully used by a 17-year-old
Peruvian woman in KL v. Peru. KL was forced
Concluding Observations to continue a pregnancy in spite of anencephaly,
As mentioned above, human rights committees a serious fetal anomaly incompatible with life,
address women's rights strongly, including SRHR even though Peruvian law allows therapeutic
in the processes of monitoring states' compliance abortion. KL was not only forced to carry the
with the conventions. They continue to issue pregnancy to term but also to feed the baby until
powerful Concluding Observations on these issues. she inevitably died. The complaint was filed with
A number of committees, including CEDAW in its the UN Human Rights Committee by Peruvian
recommendations on Ecuador10 in 2008 and NGOs together with the Center for Reproductive
CESCR on Poland11 in 2009 issued strong recom-Rights. It pointed to the State's failure to protect
mendations on abortion. In the case of Ecuador KL's right to be free from inhumane and degrad-
the Committee specifically obliged the Govern-ing treatment. In 2005, the Committee issued its
ment to address the issue of high rates of maternal
ruling, establishing that denying access to legal
mortality and unsafe abortions. In the case of abortion violates women's most basic human
Poland the Committee recommended the govern- rights. It was the first decision of any interna-
ment to improve access to legal abortions inacces-
tional human rights body that made a govern-
sible due to conscientious objection invoked by ment accountable for failing to ensure access to
health providers. legal abortion services.13
The Committee against Torture at its 42nd
session (2009) in Geneva expressed profound
The Human Rights Council
In 2006 the United Nations created a new human
concern about Nicaragua's strict ban on abortion,
urging the government to repeal the 2006 law rights body, the Human Rights Council (formerly
that banned therapeutic abortion and to make the UN Commission for Human Rights). It is
its legislation on abortion more flexible, espe-aimed at strengthening the promotion and pro-
cially in cases of rape or incest. The Committeetection of human rights in the world. Many

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 W Nowicka / Reproductive Health Matters 201 1 ;19(38):1 19-128

human rights advocates have engaged with this European Union , of the Treaties establishing the
institution in order to push for stronger realiza- European Communities and the provisions of
tion of human rights. treaties amending or supplementing those treaties
The Human Rights Council has recently proved prevents the Polish State in regulating questions of
its commitment to expanding the understanding moral significance , as well as those related to the
of women's human rights within the sphere of protection of human life."15
women's reproductive health. A number of NGOs This has led to the situation that the EU does not
active in its deliberations proposed a ground-
have any policy regarding sexual and reproduc-
breaking resolution recognizing maternal mor-
tive health and rights in Europe, even though it
tality as a human rights issue, which was passed
is continuing to make a significant investment
in June 2009. The resolution is a valuable tool to
in sexual and reproductive health and rights
encourage government accountability. The gov-
through development aid. However, if the trend
ernments recognized in this resolution that:
of ignoring these issues at the European level
"...preventable maternal mortality and morbidity is continues and if stigma regarding them con-
a healthy development and human rights challenge tinues growing, pressure might be brought to
that also requires the effective promotion and pro- bear on the EU by these countries to decrease
tection of the human rights of women and girls. "14 its funding for programmes related to sexual
and reproductive health in the developing world.
It must also be said that legislation on gender
Human rights bodies in Europe equality in Europe is veiy narrow in scope, and
The European Union and human rights primarily addresses equality in employment. Con-
Human rights policies and standards in Europe ceptually and policy-wise, EU policy on gender
matter for more than just Europeans. They also equality is separated from policies on gender dis-
have an impact on the European Union's (EU) crimination and indeed discrimination on any
global policies at international forums, as well grounds. Moreover, human rights overall are not
as on their development aid priorities. Since satisfactorily addressed beyond a strong rhetoric.
Poland and Malta joined the EU in 2004, as part Instead, there has been a fragmentation of what,
of the EU enlargement process, there has been a to further confusion, are called fundamental rights
chilling effect on the advancement of human in the EU,* which has hindered effective imple-
rights, especially sexual and reproductive health mentation of women's human rights, especially
and rights. Together with Ireland, these two in relation to sexuality and reproduction.
countries have increasingly and assertively formed
On the other hand, in 2010, the EU established
a new institution, the Commissioner for Justice,
a kind of "unholy alliance" that has been breaking
the former European consensus regarding rights Fundamental Rights and Citizenship, which
related to sexuality and reproduction, not only needs to be looked at for opportunities to pro-
in EU meetings but also UN meetings and other mote sexual and reproductive health and rights.
international forums.
This paralysis of the EU regarding sexual and European Court of Human Rights:
reproductive health and rights is a direct result of litigation cases
the fact that the EU agreed that questions of moral European NGOs, including women's groups, are
significance, as well as those related to the protec- increasingly engaging in litigation to address
tion of human life, will be regulated by EU member violations of the reproductive rights of indi-
states at the national level. This policy has been viduals in the national and international courts.
articulated strongly by the EU institutions after
the 2004 Enlargement, when Poland and Malta *In EU documents, the term "fundamental rights" is often
adopted special declarations, while ratifying the used, which includes human rights, equality and anti-
Accession Treaty, regarding moral values. discrimination issues, e.g. the 2007 Charter of Fundamental
" Declaration by the Government of the Republic Rights of the European Union (2007/C 303/01) lays out
of Poland concerning public morality: The Gov- rights that go beyond those covered by existing human
ernment of the Republic of Poland understands rights conventions. See <http://eur-lex.europa.eu/en/
that nothing in the provisions of the Treaty on treaties/dat/ 3 2007 X 1 2 1 4/htm/ C2007 303EN.0 1 000 101 .htm>.

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 W Nowicka / Reproductive Health Matters 201 1 ;1 9(3 8) :1 19-128

Strategic litigation is aimed at strengthening
the implementation of human rights by forcing
governments to improve their policies in the
area of sexual and reproductive health and
rights as well as at expanding the practical
application of human rights in the area of repro-
duction and sexuality.
The European Court of Human Rights has been
providing a regional binding mechanism when
a number of complaints regarding abortion have
been successfully filed. Two Polish women, in
cases I have personally been involved in, filed
complaints and won against the Polish govern-
ment because of the failure to provide access to
lawful abortion services. Alicja Tysiac, now
well-known, was denied a therapeutic abortion
despite health indications. In 2007 the European
Court of Human Rights decided that Poland
had violated Tysiac's right to privacy and was
directed to pay her financial compensation. More-
over, the Court recommended introducing an
appeal mechanism into the Polish legal system,
to enable women in a similar situation to file an
appeal against a doctor's decision. In September
2009, the Polish Government established the office
of Ombudsperson for Patient's Rights and an
appeal commission which, although it is not per-
fect, may improve women's ability to exercise their
reproductive rights, at least within the narrow
scope of current restrictive legislation.16
A second woman, RR, was denied access to
antenatal genetic testing and subsequently to a
lawful abortion, despite serious fetal malforma-
tion. As a result, she had a baby with Turner's
disease. In 201 1, for the first time in history, the
Court issued a landmark decision: that denial of
access to antenatal testing and lawful abortion
is a human rights violation and constitutes
inhumane and degrading treatment. The Court
also ruled that it was a violation of the woman's
private life. RR received financial compensation
of €45.000. 17

3
о

£
о
z
<
0
z

1
Alicja Tysiac (right) and her lawyer, press conference, Warsaw, 2007

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 W Nowicka / Reproductive Health Matters 201 1 ;19(38):1 19-128

In 2010, the European Court of Human Rights case has not yet been closed. Instead, its applica-
handed down another ruling regarding abor- tion is being monitored regularly.19
tion, in the ease ABC v. Ireland.18 Currently, Two other decisions in cases regarding abor-
Ireland only allows abortion when a woman's tion in Poland are expected soon from the Court.
life is in danger. Three women, who used the One was filed by the mother of a young woman
pseudonyms А, В and C, who had had to travel who died as a result of being denied access to a
abroad for an abortion, filed a case in 2005 with therapeutic abortion (Z. v. Poland). The other
the support of the Irish FPA. The IFPA described case was about a teenage girl who got pregnant
the case as follows: as a result of rape. The girl and her mother filed
the case, as numerous rights of the girl and her
" The first applicant had children in the care ofmother were violated in their efforts to access a
the state as a result of personal problems and
lawful abortion for the girl (S.& T. v. Poland).
considered a further child would jeopardise the
successful reunification of her existing family.
Council of Europe resolutions on
The second applicant was not prepared to become
reproductive rights
a single parent. The third applicant was in remis-
Until recently moderate optimism regarding further
sion from cancer when she became pregnant .
development of women's human rights standards
Unaware that she was pregnant she underwent
could be expected at the Council of Europe, the
a series of check-ups contraindicated during preg-
nancy. She claimed she could not obtain clearregional body comprising the majority of European
advice about the risks to her health and life andcountries, including former Soviet bloc countries.
The Council has issued a number of progressive
to the fetus if she continued to term. The judges
ruled unanimously that Ireland9 s failure to imple-resolutions regarding reproductive rights that
ment the existing constitutional right to a lawfulgo beyond the Cairo and Beijing commitments,
abortion in Ireland when a woman's life is at risksuch as a 2008 resolution on safe and legal abor-
violates Article 8 of the European Convention ontion in Europe, in which women's right to self-
Human Rights. The Court unanimously found thatdetermination has been so strongly recognized:
Ireland's abortion law violates women's human
"The (Parliamentary) Assembly ajfirms the right
rights and that Ireland must make life-saving of all human beings , in particular women , to
abortion services available. " (see <www.ifpa.ie/ respect for their physical integrity and to free-
eng/Hot-Topics/Abortion/ABC-v-Ireland>) dom to control their own bodies. In this context ,
In June 201 1, the Irish Government outlined plans
the ultimate decision on whether or not to have
on the implementation of the judgment, in a report an abortion should be a matter for the woman
to the Council of Europe. They said they would concerned , who should have the means of exer-
establish an expert group, with a view to making cising this right in an effective way...
recommendations to Government on how this
7. The Assembly invites the member states of
matter should be properly addressed. the Council of Europe to: 7.1. decriminalize abor-
These examples show that litigation grounded tion within reasonable gestational limits , if they
in an accurate reading of existing law has sig- have not already done so; 7.2. guarantee women's
nificant potential for strengthening the imple- effective exercise of their right of access to a safe and
mentation of sexual and reproductive health and
legal abortion ; 7.3. allow women freedom of choice
rights. There was a direct impact on the women's and offer the conditions for a free and enlightened
situation, as they at least received financial com-
choice without specifically promoting abortion. "20
pensation. What is more important, though, is
that the European Court of Human Rights has In October 2010, on the other hand, the Council of
directed the states concerned to introduce mea- Europe adopted a resolution on the right to con-
sures that may help to prevent similar humanscientious objection.21 The rationale behind the
rights violations in the future. What is even more resolution at draft stage was to regulate the use
important, the Court will not close a case before of conscientious objection by reproductive health
being certain that the legal reforms concerned care providers so that it would not limit women's
are effective. For example, although the Govern- access to lawful abortion services. However, the
ment introduced an appeal mechanism, the Tysiac resolution was not passed as proposed; it was

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 W Nowicka / Reproductive Health Matters 201 1;19(38):1 19-128

diluted by a number of anti-abortion amendments. the strong opposition and advocacy of many
As a result, instead of offering a set of comprehen- NGOs supporting human rights, the UN General
sive guidelines for governments on protecting Assembly and the Human Rights Council adopted
woman's reproductive health and autonomy, the two highly controversial resolutions. The one,
resolution enables both doctors and institutions "Combating defamation of religions",22 introduced
to refuse emergency care without being held liable. the concept that religions need special institutional
These somewhat contradictory resolutions, protection within the human rights discourse.
adopted in such a short space of time show that Previously, international human rights law had
political bodies are often not predictable or been used primarily to protect individuals to exer-
consistent because their membership and com- cise freedom of religion or beliefs, not to protect
position changes. This shift also reflects thereligions or religious institutions. This resolution,
unfavourable climate currently present in thewhile recognizing the right of everyone to freedom
Council of Europe, which had for a long timeof expression on the one hand, imposed limits on
seemed to be immune to fundamentalist trends. its exercise, on the other hand, which creates an
The resolutions of the Council are not binding; irresolvable contradiction. It stated:
however, they certainly have moral significance
" 10 . Emphasizes that , as stipulated in interna-
and they may lead to legal initiatives at the
tional human rights law , everyone has the right
national level. For example, arising from this sup-
to hold opinions without interference , and has
port for conscientious objection, Polish Catholic
the right to freedom of expression, the exercise of
pharmacists are currently proposing a law giving
which carries with it special duties and responsi-
them the right not to sell contraceptives.
bilities and may therefore be subject to limitations
as are provided for by law and are necessary for
Challenges to the universality of respect of the rights or reputations of others ,
human rights protection of national security or of public order ,
public health or morals. "20
Attempts to challenge the universality of the
human rights framework, which have been The other, "Promoting human rights and funda-
observed during the proceedings at recent sessions mental freedoms through better understanding
of the Human Rights Council and the UN General of traditional values of humankind"23 legitimized
Assembly, are broad-based and have not yet had a the assumption that all traditional values are
direct impact on sexual and reproductive health always positive by nature. Yet long-standing global
and rights. If they continue, however, they could experience shows that many traditional practices
eventually threaten sexual and reproductive are harmful to girls and women, such as female
rights, as well as human rights in general. genital mutilation, son preference, early marriage
The principle of universality of human rights - and dowiy, and virginity testing. Many UN policy
that is, that human rights pertain to all indi- agreements (e.g. the Beijing Platform for Action)
viduals and nations - was agreed by the General and Treaty Monitoring Bodies have addressed
Assembly of the United Nations on 10 December these issues, and on numerous occasions have
1948 - the day the Universal Declaration of recognized that harmful traditional practices,
Human Rights was adopted. While there has which are in fact violations of human rights,
been an overwhelming consensus in the inter- cannot be justified by culture and tradition.
national community regarding the principle of These resolutions and subsequent initiatives
universality, it has in fact been questioned by a that may arise from them, as has occurred with
number of governments and scholars ever since the Council of Europe resolution on conscientious
the adoption of the Universal Declaration, pri- objection, may have an impact on the perception
marily from a conservative standpoint. The voices and realization of human rights for all. But they
claiming that any concept of human rights might particularly affect women's rights, as asser-
needs to be sensitive to cultural and religious tions of culture and protection of religion can
specificities - rejecting the universality of human serve as vehicles to conserve a patriarchal model
rights as a Western concept and a product of the of inequality and discrimination against women
European Enlightenment - have recently become in societies where harmful traditional practices
stronger and gained significant successes. Despite continue to violate women's rights.

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 W Nowicka / Reproductive Health Matters 201 1 ;19(38):1 19-128

Conclusions find new ways to engage and new partners in

My understanding and experience of human our endeavours. The international community
rights developments related to sexual and repro- of sexual and reproductive health and rights
ductive health during the last two decades leads advocates is realising that human rights work,
me to conclude that sexual and reproductive and their own work as well, would be strength-
rights, despite significant successes internation- ened by being part of a larger movement for
ally and in some cases at the national level, will social justice and economic rights as these relate
long remain controversial and contested. A to sexual and reproductive health and rights.
backlash has clearly been visible since the turn
of the century; it has inhibited further progress
in developing international standards and para- Acknowledgements
lyzed successful implementation of recognized I would like to remember Rhonda Copelon with
agreements in many parts of the world. At the deep gratitude for all her insightful comments
same time, this backlash, which is so evident and suggestions , which moved this paper in
in so many forums, is in a way also a reaction new directions . This is a revised and updated
to progress and a sign of many successes. version of a paper presented at the conference
Human rights advocates must recognize the Repoliticizing Sexual and Reproductive Health
inherent and unavoidable difficulties of engag- and Rights , Langkawi , Malaysia , 3-6 August
ing in political processes and face the reality 2010 . This version incorporates a number of
that the struggle for full recognition of sexual comments made by Christina Zampas , then with
and reproductive rights, especially the right to the Center for Reproductive Rights, and Hossam
abortion, will never be a linear process or lead Bahgat of the Egyptian Initiative for Personal
to a final "victory". Hence, it is crucial to try to Rights , in their responses to the paper.

References
1. Shakya G, Sabitri K, Bird C,
et al. Abortion law reform in
Nepal: women's right to life and
health. Abortion Law, Policy
and Practice in Transition.
Reproductive Health Matters
2004; 12(24 Supplement) :75-84.
2. Singh S, Wulf D, Hussain R,
et al, editors. Abortion
Worldwide: a Decade of Uneven
Progress. New York:
Guttmacher Institute, 2009.
3. Choice on Termination of
Pregnancy Act 1996: Republic
of South Africa and Stevens M,
Xaba K. Commentary. 8.
Reproductive Health Matters
1997;5(9):1 16-20.
4. Summary by Polanský S. 9.
Criminal Code of Ethiopia.
At: <http://mail.mu.edu.et/
~ ethiopialaws/ criminalcode/
criminalcodepage.htm>.
Reported in: New Ethiopian
abortion law recognises
women's rights [Round-Up].
Reproductive Health Matters
2006; 14(28): 194.
1 1. Concluding Observations of the
5. Billings DL, Moreno C, Ramos C,
et al. Constructing access to legal Committee on Economic, Social
abortion services in Mexico City. and Cultural Rights: Poland, 2009.
Reproductive Health Matters 12. Concluding Observations of the
2002 ; 10( 19):86- 94. Committee against Torture:
6. Cambronero-Saínz B, Ruiz Nicaragua, 2009.
Cantero MT, Vives-Cases С, 13. Center for Reproductive Rights.
et al. Abortion in democratic KL v. Peru (United Nations
Spain: the parliamentary Human Rights Committee).
political agenda 1979-2004. At: <http://reproductiverights.
Reproductive Health Matters org/en/case/kl-v-peru-united-
2007 ; 1 5(29) :85-96. nations-human-rights-
7. Human Rights Committee. committee>. Accessed
General Comment No. 28: 10 May 2011.
Equality of rights between 14. Human Rights Council.
men and women, 2000. Resolution 11/8. Preventable
CED AW, General maternal mortality and morbidity
Recommendation No.24: and human rights, 2009.
Women and health, 1999. 15. The Treaty of Accession to the
Committee on Rights of the EU, 2003, Art. 39. Declaration
Child. General Comment No.4: by the Government of the
Adolescent health and Republic of Poland concerning
development in the context of public morality.
the Convention on the Rights 16. European Court of Human
of the Child, 2003. Rights. Judgment: Case of
10. Concluding Observations of the Tysiac v. Poland (Application
Committee on the Elimination No. 5410/03), Strasbourg,
of All Forms of Discrimination 20 March 2007.
against Women: Ecuador, 2008. 17. European Court of Human
Rights. Judgment: Case of

127

This content downloaded from

84.89.157.38 on Thu, 23 Sep 2021 09:03:02 UTC
All use subject to https://about.jstor.org/terms
 W Nowicka / Reproductive Health Matters 201 1;19(38):1 19-128

RR v. Poland (Application ViewDoc.jsp?Ref=CM/Del/ 1763: The right to conscientious

No.276 17/04), Strasbourg,
26 May 2011.
18. European Court of Human
Rights. Judgment: А В and
С v. Ireland (Application
No.25579/05), Strasbourg,
16 December 2010.
19. Council of Europe, Committee
of Ministers. Case No. 18.
1115th meeting, 8 June 2011.
Case against Poland. At:
chttps :/ /wcd.coe.int/wcd/
Dec°/o2820 1 1°/о29 1 1 15/18&
Language=lanEnglish&Ver=
original&Site=CM&
BackColorInternet=C3C3C3&
BackColorIntranet=EDB02 1 &
BackColorLogged=F5D38>.
20. Parliamentary Assembly of
Council of Europe. Resolution
1607: Access to safe and legal
abortion in Europe, 2008.
21. Parliamentary Assembly of
Council of Europe. Resolution
objection in lawful medical
care, 2010.
22. UN General Assembly.
Resolution: Combating
defamation of religions
(A/RES/63/ 171), 24 March 2009.
23. Human Rights Council.
Resolution 12/21: Promoting
human rights and fundamental
freedoms through a better
understanding of traditional
values of humankind, 2009.

Résumé Resumen
Dans cet article, je partage certaines de mes En este artículo comparto algunas de mis
expériences et observations de militante pour experiencias y observaciones como defensora
les droits des femmes recueillies au cours des de los derechos de las mujeres en los últimos
20 dernières années de combat pour la santé 20 et años de luchas a favor de la salud y los
les droits génésiques, livré dans beaucoup des derechos sexuales y reproductivos, realizadas
lieux où ces questions ont été débattues en et muchos lugares clave donde estos asuntos
décidées. Je ne prétends pas brosser un tableauhan sido debatidos y decididos. No aspiro a
complet de la situation actuelle des droits exponer una visión completa del estado actual
fondamentaux relatifs à la sexualité et la de los derechos humanos con relación a la
procréation. Puisque mon expertise sexualidad
est de y la reproducción. Debido al carácter
nature pratique (plutôt que théorique), et práctico
du fait (y no teórico) de mi especialización, la
de la complexité du thème et des événementscomplejidad del tema y los eventos contradictorios
al respecto, que ocurren casi a diario, en esta
contradictoires s'y rapportant, qui se produisent
área destacaré algunos logros y contratiempos
presque chaque jour, je mettrai en lumière certains
seleccionados subjetivamente, en particular los
progrès et reculs sélectionnés subjectivement
dans ce domaine, en particulier pour le referentes
droit à a los derechos de aborto. Daré
l'avortement. J'illustrerai comment les droits ejemplos de la manera en que los derechos
humanos relacionados con la salud sexual y
relatifs à la santé génésique ont été traités par
les institutions normatives de TONU, telles que
reproductiva han sido tratados por los organismos
la Commission de la situation des femmes et la de la ONU responsables de establecer políticas,
Commission de la population et du développement, como la Comisión de la Condición Jurídica y
ainsi que par le système des droits de l'homme des Social de la Mujer y la Comisión de Población y
Nations Unies, comme les organes de surveillance Desarrollo, así como los Comités de Monitoreo
des traités et le Conseil des droits de l'homme. Grâce de Tratados y el Consejo de Derechos Humanos,
à mon travail avec les institutions européennes, los cuales forman parte del sistema de derechos
je donne des exemples de décisions importantes humanos de la ONU. Dado mi trabajo con
du Conseil de l'Europe et de la Cour européenne instituciones europeas, doy ejemplos de decisiones
des droits de l'homme. Enfin, j'aborde l'opposition importantes tomadas por el Consejo de Europa y
croissante à un programme progressif des droits la Corte Europea de Derechos Humanos. Por
de l'homme et à l'universalité des droits de último, abordo la creciente oposición a una
l'homme. En dépit de succès importants, les progresista de derechos humanos y la
agenda
droits génésiques demeureront longtemps universalidad de los derechos humanos. Pese a
controversés et contestés. Il est donc capital de importantes logros, los derechos sexuales y
tenter de trouver de nouveaux moyens d'agir et reproductivos continuarán siendo un tema
de nouveaux partenaires. polémico y refutado durante mucho tiempo más.
Por lo tanto, es imperativo encontrar nuevas
formas de tomar acción y foijar nuevas alianzas.

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