General Comment on the Right to Sexual and Reproductive Health

by Katy Mayall, Center for Reproductive RightsMembers ESCR Committee on Economic, Social and Cultural Rights (CESCR) recently adopted a General Comment on the Right to Sexual and Reproductive Health, the first to focus exclusively on sexual and reproductive health and indicative of the great strides our movement has made in building out the international human rights framework to fully recognize reproductive rights as fundamental human rights. In particular, the general comment:

  • Largely frames individual autonomy and decision-making as being central to sexual and reproductive health.
  • Speaks broadly about the need for safe abortion care and the elimination of restrictive abortion laws, without narrowly limiting this to specific circumstances, such as where pregnancy poses a risk to the woman’s life or health or in cases of rape or incest. This follows the trend we have seen in the Committee on the Rights of the Child and, to a lesser extent, the CEDAW Committee.
  • Includes strong standards on conscientious objection, calling for states permitting conscientious objection to require referral to a provider capable and willing to provide the services, in addition to excluding the invocation of conscientious objection in urgent or emergency situations.
  • Condemns a broad range of procedural barriers, including mandatory waiting periods, biased counselling, and third-party authorization (parental, spousal and judicial).
  • Reinforces/strengthens the obligations of donor states as well as non-state actors, such as health care providers and health insurance and pharmaceutical companies.

It is worth noting that there are some areas where the general comment could have been strengthened. For example, a number of the elements of the core obligations are quite vague, which in turn will undermine the ability to hold states accountable for these specific obligations. Further, although there is some strong content on sexual orientation and gender identity and expression, overall the general comment would have been significantly strengthened through a greater emphasis on this aspect of sexual and reproductive health. Lastly, the language on criminalization of abortion is a bit contradictory; although the general comment repeatedly recognizes the need for states to reform laws criminalizing abortion, it only explicitly frames the application of the criminal law to women who undergo abortions as a violation of the right to sexual and reproductive health – falling short of calling for the full decriminalization of abortion.