CHAPTER 1: REPRODUCTIVE RIGHTS AND THEIR RELEVANCE TO THE WORK OF NATIONAL HUMAN RIGHTS INSTITUTIONS UN human rights treaty bodies have affirmed a right to abortion under certain circumstances. In the matter of KL v Peru8 before the Human Rights Committee, a seventeen-year-old woman’s foetus was diagnosed with a fatal neural condition with no prospect of survival beyond a few days after birth. The refusal of an abortion in accordance with Peruvian law was found to breach the prohibition against torture and cruel, inhuman and degrading treatment, as well as the author’s right to health and to special protection as a minor. Additionally, the Human Rights Committee,9 the Committee on Economic, Social and Cultural Rights,10 the Committee on the Elimination of Discrimination against Women,11 the Committee against Torture12 and the Committee on the Rights of the Child13 have all expressed concern in their Concluding Observations over absolute prohibitions on abortion, and recommended that abortion be enabled where medical grounds exist and in cases of rape or incest.14 At the time of the ICPD Program of Action, approximately ninety per cent of all countries, representing ninety-six per cent of the world’s population allowed abortion under some circumstances.15 Outside cases of threat to life or health and situations of rape, incest or foetal impairment, the parameters of any right to abortion law are unclear. There is no established international human right to abortion under these circumstances. Reproductive rights intersect with many other areas of human rights. The United Nations human rights system has linked reproductive rights to other rights – for example, the right to health. In 2003, the former Commission on Human Rights16 noted that: “sexual and reproductive health are integral elements of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.17 UN Human Rights Committee, KL v. Peru, Communication No. 1153/2003, UN Doc. CCPR/C/85/D/1153/2003, 22 November 2005. 8 Colombia, 26 May 2004, UN Doc. CCPR/CO/80/COL, at para. 13; Argentina, 3 November 2000, UN Doc. CCPR/CO/70/ARG, at para. 14; Ireland, 21 July 2000, UN Doc. A/55/40[VOL.1](SUPP), paras. 422-451, at paras. 444-445. 9 Philippines, 1 December 2008, UN Doc. E/C.12/PHL/CO/4, at para. 31; Nicaragua, 28 November 2008, UN Doc. E/C.12/NIC/CO/4, at para. 26; Costa Rica, 4 January 2008, UN Doc. E/C.12/CRI/CO/4, at para. 46; Mexico, 9 June 2006, UN Doc. E/C.12/MEX/CO/4, at para. 44; Chile, 1 December 2004, UN Doc. E/C.12/1/Add.105 at para. 53; Malta, 14 December 2004, UN Doc. E/C.12/1/Add.101 at para. 41; Monaco, 13 June 2006, UN Doc. E/C.12/MCO/1 at para. 23; Nepal, 24 September 2001, UN Doc. E/C.12/1/Add.66 at para. 55. 10 Dominican Republic, 15 July 2004, UN Doc. A/59/38(SUPP), paras. 268-315, at para. 309; Jordan, 26 January 2000, UN Doc. A/55/38(SUPP), paras. 139-193, at para. 181. 11 Nicaragua, 10 June 2009, UN Doc. CAT/C/NIC/CO/1, at para. 16 (where pregnancy results from rape, incest or other gender violence, denial of abortion ‘entails constant exposure to the violation committed against her and causes serious traumatic stress and a risk of long-lasting psychological problems such as anxiety or depression’); Peru, 25 July 2006, UN Doc. CAT/C/PER/CO/4, at para. 23. 12 13 Palau, 21 February 2001, UN Doc. CRC/C/15/Add.149, at paras. 46-47. Art. 14(2)(c). Note that the right to abortion under these same limited circumstances is also recognised in the African Women’s Protocol. The Protocol is the only binding human rights instrument to explicitly affirm a right to abortion, requiring States parties to: ‘protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.’ 14 Report of the International Conference on Population and Development, Cairo, 5-13 September 1994, UN Doc. A/CONF.171/13/ Rev.1 (1994), at para. 8.19. 15 The UN Commission on Human Rights was replaced by the UN Human Rights Council in 2006; refer to www.ohchr.org/english/ bodies/chr/index.htm. 16 UN Commission on Human Rights, ‘The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’, UN Doc. E/CN.4/RES/2003/28 (22 April 2003), at Preamble. 17 3