2016 General Comment No.22 on the Right to Sexual and Reproductive Health

CESCR
2 May 2016

Gen­eral com­ment no.22 SoE/C.12/GC/22

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Analysis of precedential value

The Com­mit­tee on Eco­nomic, Social and Cul­tural Rights (CESCR) pro­vides an author­i­ta­tive inter­pre­ta­tion of arti­cle 12 of the Inter­na­tional Covenant on Eco­nomic, Social and Cul­tural Rights.

CESCR is com­posed of 18 inde­pen­dent experts that mon­i­tor the imple­men­ta­tion of the Covenant. It is part of the Office of the High Com­mis­sioner for Human Rights, a Sec­re­tariat body led by the UN High Com­mis­sioner for Human Rights. CESCR actively solic­its the input of civil soci­ety organ­i­sa­tions, non­govern­men­tal organ­i­sa­tions, and national human rights insti­tu­tions.

Used as precedent

intersectionality

• “Cer­tain indi­vid­u­als and pop­u­la­tion groups that expe­ri­ence mul­ti­ple and inter­sect­ing forms of dis­crim­i­na­tion that exac­er­bate exclu­sion in both law and prac­tice, such as les­bian, gay, bisex­ual, trans­gen­der and inter­sex per­sons5 and per­sons with dis­abil­i­ties, the full enjoy­ment of the right to sex­ual and repro­duc­tive health is fur­ther restricted.” (para­graph 2)

• “Sub­stan­tive equal­ity requires that the dis­tinct sex­ual and repro­duc­tive health needs of par­tic­u­lar groups, as well as any bar­ri­ers that par­tic­u­lar groups may face, be addressed. The sex­ual and repro­duc­tive health needs of par­tic­u­lar groups should be given tai­lored atten­tion. For exam­ple, per­sons with dis­abil­i­ties should be able to enjoy not only the same range and qual­ity of sex­ual and repro­duc­tive health ser­vices but also those ser­vices which they would need specif­i­cally because of their dis­abil­i­ties.” (para­graph 24)

bodily autonomy and integrity

• “The right to sex­ual and repro­duc­tive health entails a set of free­doms and enti­tle­ments. The free­doms include the right to make free and respon­si­ble deci­sions and choices, free of vio­lence, coer­cion and dis­crim­i­na­tion, regard­ing mat­ters con­cern­ing one’s body and sex­ual and repro­duc­tive health.” (para­graph 5)

human rights

• “The right to sex­ual and repro­duc­tive health is also indi­vis­i­ble from and inter­de­pen­dent with other human rights. It is inti­mately linked to civil and polit­i­cal rights under­pin­ning the phys­i­cal and men­tal integrity of indi­vid­u­als and their auton­omy, such as the rights to life; lib­erty and secu­rity of per­son; free­dom from tor­ture and other cruel, inhu­man or degrad­ing treat­ment; pri­vacy and respect for fam­ily life; and non-dis­crim­i­na­tion and equal­ity. For exam­ple, lack of emer­gency obstet­ric care ser­vices or denial of abor­tion often leads to mater­nal mor­tal­ity and mor­bid­ity, which in turn con­sti­tutes a vio­la­tion of the right to life or secu­rity, and in cer­tain cir­cum­stances can amount to tor­ture or cruel, inhu­man or degrad­ing treat­ment.” (para­graph 10)

universal health coverage

• “Pub­licly or pri­vately pro­vided sex­ual and repro­duc­tive health ser­vices must be afford­able for all. Essen­tial goods and ser­vices, includ­ing those related to the under­ly­ing deter­mi­nants of sex­ual and repro­duc­tive health, must be pro­vided at no cost or based on the prin­ci­ple of equal­ity to ensure that indi­vid­u­als and fam­i­lies are not dis­pro­por­tion­ately bur­dened with health expenses. Peo­ple with­out suf­fi­cient means should be pro­vided with the sup­port nec­es­sary to cover the costs of health insur­ance and access to health facil­i­ties pro­vid­ing sex­ual and repro­duc­tive health infor­ma­tion, goods and ser­vices.” (para­graph 17)

• “States should aim to ensure uni­ver­sal access with­out dis­crim­i­na­tion for all indi­vid­u­als, includ­ing those from dis­ad­van­taged and mar­gin­al­ized groups, to a full range of qual­ity sex­ual and repro­duc­tive health care, includ­ing mater­nal health care; con­tra­cep­tive infor­ma­tion and ser­vices; safe abor­tion care; and pre­ven­tion, diag­no­sis and treat­ment of infer­til­ity, repro­duc­tive can­cers, sex­u­ally trans­mit­ted infec­tions and HIV/AIDS, includ­ing with generic med­i­cines.” (para­graph 45)

gender identity and expression, negative legal determinants

• “Non-dis­crim­i­na­tion, in the con­text of the right to sex­ual and repro­duc­tive health, also encom­passes the right of all per­sons, includ­ing les­bian, gay, bisex­ual, trans­gen­der and inter­sex per­sons, to be fully respected for their sex­ual ori­en­ta­tion, gen­der iden­tity and inter­sex sta­tus. Crim­i­nal­iza­tion of sex between con­sent­ing adults of the same gen­der or the expres­sion of one’s gen­der iden­tity is a clear vio­la­tion of human rights. Like­wise, reg­u­la­tions requir­ing that les­bian, gay, bisex­ual trans­gen­der and inter­sex per­sons be treated as men­tal or psy­chi­atric patients, or requir­ing that they be “cured” by so-called “treat­ment”, are a clear vio­la­tion of their right to sex­ual and repro­duc­tive health. State par­ties also have an oblig­a­tion to com­bat homo­pho­bia and trans­pho­bia, which lead to dis­crim­i­na­tion, includ­ing vio­la­tion of the right to sex­ual and repro­duc­tive health.” (para­graph 23)

gender norms and stereotypes

• “Gen­der-based stereo­types, assump­tions and expec­ta­tions related to women being the sub­or­di­nates of men and their role being solely as care­givers and moth­ers, in par­tic­u­lar, are obsta­cles to sub­stan­tive gen­der equal­ity, includ­ing the equal right to sex­ual and repro­duc­tive health, and need to be mod­i­fied or elim­i­nated, as does the role of men solely as heads of house­hold and bread­win­ners.” (para­graph 27)

negative legal determinants

• “States must not limit or deny any­one access to sex­ual and repro­duc­tive health, includ­ing through laws crim­i­nal­iz­ing sex­ual and repro­duc­tive health ser­vices and infor­ma­tion, while con­fi­den­tial­ity of health data should be main­tained. States must reform laws that impede the exer­cise of the right to sex­ual and repro­duc­tive health. Exam­ples include laws crim­i­nal­iz­ing abor­tion, non-dis­clo­sure of HIV sta­tus, expo­sure to and trans­mis­sion of HIV, con­sen­sual sex­ual activ­i­ties between adults, and trans­gen­der iden­tity or expres­sion.” (para­graph 40)

comprehensive sexuality education

• “States are obliged to ensure that ado­les­cents have full access to appro­pri­ate infor­ma­tion on sex­ual and repro­duc­tive health, includ­ing fam­ily plan­ning and con­tra­cep­tives, the dan­gers of early preg­nancy and the pre­ven­tion and treat­ment of sex­u­ally trans­mit­ted dis­eases, includ­ing HIV/AIDS, regard­less of their mar­i­tal sta­tus and whether their par­ents or guardians con­sent, with respect for their pri­vacy and con­fi­den­tial­ity.” (para­graph 44)

access to health products

• “States par­ties should ensure, in com­pli­ance with their Covenant oblig­a­tions, that their bilat­eral, regional and inter­na­tional agree­ments deal­ing with intel­lec­tual prop­erty or trade and eco­nomic exchange do not impede access to med­i­cines, diag­nos­tics or related tech­nolo­gies required for pre­ven­tion or treat­ment of HIV/AIDS or other dis­eases related to sex­ual and repro­duc­tive health. States should ensure that inter­na­tional agree­ments and domes­tic leg­is­la­tion incor­po­rate to the fullest extent any safe­guards and flex­i­bil­i­ties therein that may be used to pro­mote and ensure access to med­i­cines and health care for all. States par­ties should review their inter­na­tional agree­ments, includ­ing on trade and invest­ment, to ensure that they are con­sis­tent with the pro­tec­tion of the right to sex­ual and repro­duc­tive health, and should amend them as nec­es­sary.” (para­graph 51)