Global Survey of National Constitutions

General Comment No. 22, issued in 2016 by the Committee on Economic, Social and Cultural Rights (CESCR), clarifies states’ legal duties to respect, protect, and fulfill the right to sexual and reproductive health (SRH). Our study analyzes domestic constitutions around the world to investigate whether and to what extent the right to sexual and reproductive health is respected, protected, and fulfilled; to what extent these provisions are inclusive and non-discriminatory; and to what degree the interlinkages between this and other human rights are acknowledged. Of the 195 constitutions accessed, 27 enshrine sexual and/or reproductive health, and seven adopt restrictive approaches to this right. In the 27 constitutions, provisions most frequently enshrine respect of one’s sexual health and family planning decisions, the protection of sexual health, and the provision of reproductive health care and family planning services (fulfillment). Most of the 27 constitutions fail to adequately respect reproductive health rights; to protect reproductive health, family planning, and abortion services from third-party interference; and to fulfill all dimensions of sexual health and access to abortion. Three of the 27 constitutions enshrine a universal right to SRH, and additional constitutions protect specific vulnerable groups (such as women, children) and/or restrict the scope of rights holders to couples. Among the 27 constitutions, nine explicitly link the right to sexual and reproductive health to the rights to education, science, and/or to make autonomous decisions about sexuality and reproduction. Our results can serve as a baseline measure to track constitutional reforms in pursuit of the realization of sexual and reproductive health and rights, and as building blocks for future lawmakers committed to realizing these rights through domestic legal reform. Lucía Berro Pizzarossa, MJur, is a doctoral candidate at the International Law Department and Global Health Law Groningen Research Centre at the University of Groningen, Groningen, the Netherlands and a legal advisor for MYSU (Women & Health) in Uruguay. She co-founded the Health & Gender Policy Hub. S. Katrina Perehudoff, MSc, LLM, is a doctoral candidate in the Global Health Unit, Department of Health Sciences in the University Medical Centre, University of Groningen, the Netherlands, and research fellow at the Global Health Law Groningen Research Centre. She co-founded the Health & Gender Policy Hub. Please address correspondence to Lucía Berro Pizzarossa. Email: [email protected]. Competing interests: None declared. Copyright © 2017 Berro Pizzarossa and Perehudoff. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited. Health and Human Rights Journal HHr HHR_final_logo_alone.indd 1 10/19/15 10:53 AM l. b. pizzarossa and k. perehudoff / papers, 279-293 280 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal Introduction The right to sexual and reproductive health has been increasingly developed in international human rights law. The United Nations (UN) human rights system has repeatedly confirmed that this is a human right, first enshrined under the right to health in the International Covenant on Social, Economic and Cultural Rights (ICESCR).1 The scope and content of the right to health was interpreted by the CESCR in General Comment No. 14 and specifically stated that women and men have the freedom to decide if and when to reproduce and the right to be informed and to have access to safe, effective, affordable and acceptable methods of family planning as well as the right of access to appropriate health care services. The International Conference on Population and Development (ICPD) (Cairo, 1994) transformed the discourse from reproductive control to meet demographic targets to a more comprehensive and positive approach to sexuality and reproduction, free from coercion, discrimination, and violence. ICPD forged the link between sexuality and health as human rights, where women’s agency over their own bodies and sexuality are intrinsically linked to their sexual and reproductive health.2 The Beijing Platform for Action (1995) was the first declaration to embody the concept of sexual rights, and expanded the ICPD definition to cover both sexuality and reproduction by upholding the right to exercise control over and make decisions about one’s sexuality.3 Among their many achievements, these documents recognized the duty of governments to legislate on the matter translating international commitments into national laws and policies.4 In 2016, the CESCR extensively addressed states’ obligations to realize the right to sexual and reproductive health in its General Comment No. 22. This comment adopts a clear human rightsbased approach and affirms that this right is an integral part of the right to health that has enjoyed long-standing recognition based on already existing international human rights instruments. General Comment No. 22 contains five innovative components; it: 1. adopts a life-cycle approach, reinforcing that the concept of sexual and reproductive health extends beyond the limits of “maternal health”; 2. recognizes that the right to sexual and reproductive health is indivisible from and interdependent with other human rights; 3. rejects all forms of coercive practices related to this right; 4. promotes a gender-sensitive approach and recognizes that due to women’s reproductive capacities, the realization of women’s right to sexual and reproductive health is essential to the realization of the full range of their human rights; and 5. adopts an intersectional approach to the cross-cutting issues of equality and multiple discrimination in the design and execution of policies and programs.5 Despite these legal developments, much progress is needed to realize the right to sexual and reproductive health in practice. The Lancet Commission on Women and Health asserts that an estimated 225 million women globally have an unmet need for family planning, and every year, an estimated 75 million unintended pregnancies put women at risk of unsafe abortion.6 Furthermore, unsafe abortion is estimated to cause 47,000 maternal deaths and 5 million maternal disabilities annually.7 Maternal mortality claims the lives of 289,000 women annually while complications during childbirth result in 5.8 million serious injuries every year.8 Showcasing the importance of the legal arrangements, the Lancet Commission emphasizes the need for “an enabling social, legal, and regulatory environment” to respond to women and girls’ health needs and rights, and the Commission on the Status of Women continues to demand that states strengthen their normative, legal, and policy frameworks.9 Adopting domestic laws consistent with international standards is a demonstration of the government’s commitment to realizing sexual and reproductive health and rights.10 As a recognized indicator of these rights, legal codification may be l. b. pizzarossa and k. perehudoff / papers, 279-293 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal 281 the first step in improving the respect, protection and fulfillment of these rights in practice. Domestic constitutions are the most vital expressions of government responsibility and individual entitlements, and therefore one of the channels best suited to endorsing states’ commitments to human rights. Constitutional law offers a frame for subsequent policies, programs, and services to be executed. In many jurisdictions, constitutional law supports enforcement and redress in case of violations, and is a key success factor in strategic litigation for reproductive health.11 Pivotal cases such as the Treatment Action Campaign v. the South African Ministry of Health seeking access to essential medicines to prevent the transmission of HIV from mother to child during childbirth, illustrate how forceful a constitutional protection of certain rights, and specifically reproductive health, can be.12 Legal recognition in constitutions can endure changes in government administrations and survive economic or social strife, therefore ensuring a certain degree of consistency over time. An estimated 20 nations replace or amend their constitution annually, presenting the opportunity to strengthen state commitments to sexual and reproductive health and right. In this process, constitutional framers often seek inspiration from other jurisdictions or from international law.13 Our objective is to survey the language and concepts used to describe the right to sexual and reproductive health in domestic constitutions from around the globe. These constitutional texts may serve as building blocks for future lawmakers committed to realizing these rights through domestic legal reform.