UN Human Rights Committees:
Reports and Recommendations on Abortion ************************ 13 June 2016
WORKING GROUP ON THE ISSUE OF DISCRIMINATION AGAINST WOMEN IN LAW AND PRACTICE: Report to the Human Rights Council
16 April 2016
The Secretariat has the honour to transmit to the Human Rights Council the report of the Working Group on the issue of discrimination against women in law and in practice pursuant to Council resolutions 15/23 and 26/5. In its report, the Working Group addresses the issue of discrimination against women with regard to health and safety. The instrumentalization of women’s bodies lies at the heart of discrimination against women, obstructing the achievement of their highest attainable standard of health. The Working Group highlights in particular the health and safety situation of women who experience discrimination on multiple and intersectional grounds. Women’s non-discriminatory enjoyment of the right to health must be autonomous, effective and affordable and the State has the primary responsibility to respect, protect and fulfil women’s right to health in law and in practice, including where health services are provided by private actors…
C. Instrumentalization of women’s bodies 106. The Working Group recommends that States:
(a) Take measures to combat and eliminate, in legislation and policies, cultural practices and social stereotypes, all forms of instrumentalization of women’s bodies and biological functions;
(b) Eliminate harmful gender stereotypes, which could lead to anorexia and bulimia and invasive cosmetic procedures;
(c) Prevent exclusion from the public space during menstruation or breastfeeding and prevent discrimination in relation to menopause in the workplace;
(d) Take and implement strong and efficient measures to prevent female genital mutilation and other harmful practices;
(e) Decriminalize sexual and reproductive behaviours that are attributed exclusively or mainly to women, including adultery and prostitution, and termination of pregnancy;
(f) Combat stereotyping and empower girls to take care of their own health and safety from a young age, both at school and at home, and inform and empower women regarding their own bodies at all stages of their lives;
(g) Regulate birthing facilities to ensure respect for women’s autonomy and privacy and human dignity, including respect for women’s choice regarding home deliveries provided there are no specific medical contraindications;
(h) Prevent instrumentalization of women in the birthing process and ensure that penalties are incurred for gynaecological or obstetrical violence, including performing abusive caesarean sections, refusing to give women pain relief during birth or surgical termination of pregnancy and performing unnecessary episiotomies;
(i) Use educational and social work alternatives instead of custodial or punitive measures to prevent injury to the fetus as a result of drug or alcohol consumption by addicted pregnant women;
(j) Monitor and prevent the use of mental health to institutionalize women unnecessarily as a social control mechanism.
107. In relation to reproductive and sexual health care, the Working Group recommends that States:
(a) Abolish bans on contraception, including emergency contraceptives, and provide access to affordable modern contraceptives;
(b) Repeal restrictive laws and policies in relation to termination of pregnancy, especially in cases of risk to the life or health, including the mental health, of the pregnant woman, rape, incest and fatal impairment of the fetus, recognizing that such laws and policies in any case primarily affect women living in poverty in a highly discriminatory way;
(c) Recognize women's right to be free from unwanted pregnancies and ensure access to affordable and effective family planning measures. Noting that many countries where women have the right to abortion on request supported by affordable and effective family planning measures have the lowest abortion rates in the world, States should allow women to terminate a pregnancy on request during the first trimester or later in the specific cases listed above;
(d) Discontinue the use of criminal law to punish woman for ending a pregnancy and provide women and girls with medical treatment for miscarriage and complications of unsafe termination of pregnancy;
(e) Eliminate discriminatory barriers to access to legal termination of pregnancy that not based on medical needs, such as waiting periods for implementation of the decision to terminate a pregnancy, authorization requirements for reproductive health clinics and staff, and unduly restrictive interpretations of legal grounds for termination of pregnancy. Report to the Human Rights Council, Thirty-second session, Agenda item 3 – A/HRC/3/44, 16 April 2016
Following a review in April 2016, the UN Committee against Torture (CAT) called on the Philippines government to repeal the absolute ban on abortion in the Philippines, provide access to sexual and reproductive health services, including universal access to modern contraception, and address misinformation on contraception, particularly in Manila.
The CAT also expressed deep concerns over the widespread mistreatment of women seeking post-abortion care in the Philippines and urged the Philippine government to consider legalising abortion in a number of circumstances, and develop a confidential complaints mechanism for women subjected to discrimination, harassment or ill-treatment while seeking post-abortion or post-pregnancy treatment, and to investigate, prevent and punish all incidences of abuse towards these women.
The committee specifically noted that the ban on contraceptives imposed under Executive Orders 003 and 030 in Manila City “caused damage to women’s mental and physical health.” They also recognized that the lack of access to emergency contraceptives for survivors of sexual assault can amount to torture or ill-treatment, and called for immediate steps to reinstate its availability.
The Responsible Parenthood and Reproductive Health Act 2012, passed after years of advocacy and negotiation of its terms nationally, guaranteed universal and free access to nearly all modern contraceptives and women's right to humane, compassionate and non-judgmental post-abortion care, yet it is far from being fully implemented.
The Center for Reproductive Rights (CRR) and the International Women’s Human Rights Clinic at the City University of New York School of Law submitted a letter to the Committee's review. A second letter, submitted by the Philippine Safe Abortion Advocacy Network (PINSAN) and CRR, reported the following:
"Regressive amendments to the country’s penal code submitted to Congress by the Department of Justice in August 2014 (a) maintain the complete criminal ban on abortion and (b) increase the term of imprisonment and add the imposition of a fine for those involved in the performance of abortion, such that: (i) for a person who performs an abortion with the consent of the woman, the term of imprisonment is increased from six years to up to twelve years and fined up to an equivalent of fifty times his or her average daily income; and (ii) for a woman who obtains or herself performs an abortion, the term of imprisonment is up to six years and fined up to an equivalent of twenty times her average daily income. Since the submission of the pre-session letter, local media continue to report arrests of women seeking abortions and those assisting them.
"Eight out of 10 women who induce an abortion suffer complications. As noted in the pre-session letter, the state party guarantees women’s right to post-abortion care under the Department of Health (DOH) policy on “Prevention and Management of Abortion and Its Complications” (PMAC); this was further strengthened by the Magna Carta of Women (MCW) and RPRHA, which promote women’s right to humane, non-judgmental and compassionate post-abortion care. However, for decades, these laws and policy have not been effectively implemented by the state party resulting in serious human rights violations for women seeking treatment for abortion complications in both public and private health care facilities. In 2015, after being formally notified of the rampant violations and provided with evidence of the same, the Philippine Commission on Women raised the issue with the Department of Health, which is now developing a new policy on post-abortion care. The current status of post-abortion care underscores the need for the state party to urgently take effective steps to prevent and address violations of rights and ensure the adoption and implementation of a policy which ensures access to timely, humane, non-judgmental, and compassionate post-abortion care without fear of criminal penalties or reprisals.
"As highlighted in the pre-session letter and in testimonies gathered after its submission, women are routinely abused, harassed, threatened, and either receive delayed treatment or out rightly denied of health services when seeking post-abortion care. It is estimated that 1 in 3 women with complications do not receive post abortion care; stigma surrounding abortion and "shame" (i.e. some women have reported feeling shamed and intimidated by health care workers) are cited as common barriers to accessing appropriate medical treatment. The state party has continued to fail to prevent coercive interrogations of women seeking post-abortion care. Testimonies gathered in 2014 demonstrate that the practice among health care professionals of coercing information from women as a condition for receiving medical care is still prevalent.
"In a 2014 focus group discussion organized by CRR and a local partner, a woman shared that she was verbally abused and reported to law enforcement authorities by a doctor after admitting inducing an abortion. As she underwent an internal examination, police officers entered the room, took photos, and questioned her. To make matters worse, she was only able to receive the dilation and curettage procedure essential for her treatment almost 24 hours after admission and then was turned over to the custody of law enforcement authorities when ready for discharge. The entire experience in the hospital and in detention left her deeply traumatized."
This letter also noted that the manufacture, importation, sale or distribution of misoprostol has been prohibited since 2002 because it can be used as an abortifacient.
Concluding observations of the Committee against Torture:
Officially revoke without delay Executive Orders 003 and 030,which effectively banned women’s access to modern contraceptives in Manila and banned funding for contraception by the state;
Review its legislation on abortion to allow for legal exceptions to the prohibition of abortions in specific circumstances, such as when the pregnancy endangers the life or health of the woman, when it is the result of rape or incest, and in cases of fetal impairment;
Provide universal access to a full range of the safest and most technologically advanced methods of contraception and ensure rights-based counselling and information on reproductive health services to all women and adolescents; restore access to emergency contraception for victims of sexual violence.
Develop a confidential complaints mechanism for women subjected to discrimination, harassment or ill-treatment while seeking post-abortion care or post-pregnancy treatment or other reproductive health services;
Investigate, prevent and punish of all incidences of ill-treatment of women seeking post-pregnancy care in Government hospitals and provide effective legal remedies to victims."
The Universal Periodic Review (UPR) was established in 2006 to assess how individual member states of the United Nations respect their human rights commitments. This peer-to-peer review process sees each of the 193 UN member States voluntarily submit for a review of their domestic human rights record every four and a half years. The review takes places before the UN Human Rights Council.
Ireland has been reviewed under the UPR in 2011 and 2016. For the 2016 review, the Irish Family Planning Association (IFPA) made a submission to the UPR Working Group, highlighting the impact of Ireland's restrictive abortion laws on women's health, and contributed to the second Civil Society UPR Stakeholder Report, launched in December 2015. In March 2016, they delivered a statement on Ireland’s abortion laws to Permanent Representatives to the UN in Geneva.
Your Rights Right Now, a coalition of 17 Irish civil society organisations, coordinated by the Irish Council for Civil Liberties, organised an event with UN delegates as well.
During the UPR, Ireland's restrictive abortion laws were the main issue of concern for UN member States. Fifteen countries issued recommendations on Ireland’s abortion laws: Czech Republic, Denmark, Germany, Iceland, India, Republic of Korea, Lithuania, Macedonia, Netherlands, Norway, Slovakia, Slovenia, Sweden, Switzerland and Uruguay. The United States, France and Canada also issued recommendations asking Ireland to protect sexual and reproductive health and rights.
An additional five recommendations were made in relation to sexual and reproductive rights more generally.
The following UN Treaty Monitoring Bodies have criticised Ireland’s restrictive abortion laws in the past: Committee on the Rights of the Child (2016); Committee on Economic, Social and Cultural Rights (2015); Human Rights Committee (2014, 2008, 2000); Committee Against Torture (2011); and Committee on the Elimination of Discrimination against Women (2005, 1999).
Ireland’s abortion laws have also been criticised by the UN Special Rapporteur on human rights defenders (2012), European Court of Human Rights (2010) and Council of Europe Human Rights Commissioner (2008).
The IFPA report of the UPR summarises the recommendations of the responding States parties. They include, for example:
Slovakia: Ensure the full right for women to abortion…
Switzerland: Conduct consultations involving all stakeholders, including civil society organisations, in order to examine whether Article 40.3.3 of the Constitution could be revised and the legal framework related to abortion broadened. This recommendation has been accepted by Ireland.
Iceland: Repeal legislation that criminalizes abortion and eliminate all punitive measures, in particular Article 40.3.3 of the Irish Constitution.
Macedonia: Take the necessary steps aimed at revising the relevant legislation with a view to decriminalize abortion within reasonable gestational limits.
Slovenia: Decriminalize abortion in all circumstances and, as a minimum, ensure access to safe abortion also in cases of rape, incest, serious risks to the health of the mother and fatal fetal abnormality.
A. The Committee notes with appreciation a steady decrease in teenage pregnancies in the State party during the period of review. However, the Committee is concerned that:
The rate of teenage pregnancies is still higher than European Union average and higher in more deprived areas;
Relationships and sexuality education is not mandatory in all schools, its contents and quality varies depending on the school, and LGBT children do not have access to accurate information on their sexuality;
In Northern Ireland, abortion is illegal in all cases except where continuance of the pregnancy threatens the life of the mother, and is sanctioned with life imprisonment…
B. With reference to its general comments No.4 (2003) on adolescent health and No. 15 (2013), the Committee recommends that the State party:
Develop and adopt a comprehensive sexual and reproductive health policy for adolescents, with particular attention to reducing inequalities and with participation of adolescents;
Ensure that meaningful sexual and reproductive health education is part of the mandatory school curriculum for all schools, including academies, special schools and youth detention centres, in all areas of the State party. Such education should provide age-appropriate information on: confidential sexual and reproductive health-care services; contraceptives; prevention of sexual abuse or exploitation, including sexual bullying; available support in cases of such abuse and exploitation; and sexuality, including that of LGBT children;
Decriminalize abortion in Northern Ireland in all circumstances and review its legislation with a view to ensuring girls’ access to safe abortion and post-abortion care services. The views of the child should always be heard and respected in abortion decisions.
A woman in Ireland who was forced to choose between carrying her fetus to term, knowing it would not survive, or seeking an abortion abroad was subjected to discrimination and cruel, inhuman or degrading treatment as a result of Ireland’s legal prohibition of abortion, UN experts have found.
The independent experts, from the Geneva-based Human Rights Committee, issued their findings after considering a complaint by the woman, AM, who was told in November 2011 when she was in the 21st week of pregnancy that her fetus had congenital defects, which meant it would die in the womb or shortly after birth. This meant she had to choose “between continuing her non-viable pregnancy or travelling to another country while carrying a dying fetus, at personal expense and separated from the support of her family, and to return while not fully recovered,” the Committee said.
AM decided to travel to the UK for a termination and returned 12 hours after the procedure as she could not afford to stay longer. The UK hospital did not provide any options regarding the fetal remains. The ashes were unexpectedly delivered to her three weeks later by courier.
In Ireland, she was denied the bereavement counselling and medical care available to women who miscarry. Such differential treatment, the Committee noted, failed to take into account her medical needs and socio-economic circumstances and constituted discrimination.
“Many of the negative experiences she went through could have been avoided if (she) had not been prohibited from terminating her pregnancy in the familiar environment of her own country and under the care of health professionals whom she knew and trusted,” the Committee wrote in its findings.
The Committee said that, in addition to the shame and stigma associated with the criminalization of abortion of a fatally ill fetus, AM’s suffering was aggravated by the obstacles she faced in getting information about the appropriate medical options.
Ireland’s Abortion Information Act allows health care providers to give patients information about abortion, including the circumstances under which abortion services can be available in Ireland or overseas. But under the law they are prohibited from, and could be sanctioned for, behaviour that could be interpreted as advocating or promoting the termination of pregnancy. This, according to the Committee, has a chilling effect on health care providers, who struggle to distinguish “supporting” a woman who has decided to terminate a pregnancy from “advocating” or “promoting” abortion.
Ireland, which is a State party to the International Covenant on Civil and Political Rights (ICCPR), is obliged to provide AM with an effective remedy, including adequate compensation and psychological treatment she may need, the Committee said. Ireland is also obliged to prevent similar violations from occurring.
“To this end, the State party should amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant, including effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing being subjected to criminal sanctions,” the Committee’s findings said.
In its observations to the Committee on AM’s claims, Ireland said that the country’s constitutional and legislative framework reflected “the nuanced and proportionate approach to the considered views of the Irish Electorate on the profound moral question of the extent to which the right to life of the fetus should be protected and balanced against the rights of the woman.”