Reproductive health as a human right.

• Author: Gable, Lance

INTRODUCTION I. THE GLOBAL STATE OF REPRODUCTIVE HEALTH A. Maternal Mortality B. Access to Reproductive Health Services C. Family Planning Services D. Abortion Services E. Prevalence of Female Genital Mutilation F. Sexually Transmitted Infections G. Reproductive Health Indicators: Implications for Human Rights II. CONCEPTUALIZING REPRODUCTIVE HEALTH RIGHTS: THE REPRODUCTIVE RIGHTS MODEL AND THE RIGHT TO HEALTH MODEL A. The Reproductive Rights Model 1. The Development of the Reproductive Rights Model Through the Women's Rights Movement 2. The Development of the Reproductive Rights Model Through the Human Rights Movement 3. Reproductive Health Rights Under the Reproductive Rights Model B. The Right to Health Model 1. Evolution of the Right to Health Through International Treaty Law 2. Development of Right to Health Norms 3. Reproductive Health Rights Under the Right to Health Model III. CONCEIVING REPRODUCTIVE HEALTH AS A HUMAN RIGHT A. Bridging the Discourses: A Combined Model for Reproductive Health Rights B. Expanding the Global Salience and Enforceability of Reproductive Health Rights 1. Recognition of Reproductive Health Rights in Law and Policy Decisions 2. Developing the Normative Content of Reproductive Health Rights 3. Legal Recognition and Justiciability of Reproductive Health Rights 4. Developing Systemic Redundancy to Uphold Reproductive Health Rights CONCLUSION INTRODUCTION

The concepts of reproduction and health have an intimate and deeply rooted connection. Reproductive decisions and the process of reproduction have direct impacts on health, particularly the health of women) Reproductive health broadly encompasses health conditions and social conditions that affect reproductive functioning, whether a woman seeks to reproduce or to avoid reproduction. (2) Successful reproduction requires a basic level of health in the sense that healthy reproductive and developmental functions are necessary in order to bring a pregnancy to term. Factors determining if and when a woman will decide to reproduce raise fundamental issues of autonomy, privacy, and agency related to that woman's health choices, as well as that woman's ability to exercise those choices. (3)

The human rights paradigm provides an important perspective on the relationship between reproduction and health, as well as an essential tool for ensuring that reproductive health is achieved and reproductive rights are protected. (4) Viewing this relationship through the lens of human rights reveals a close and multifaceted connection between reproductive health and human rights. Yet the recognition of reproductive health as a human fight under international human rights law has been sporadic, piecemeal, and indirect. International human rights conventions do not explicitly establish a discrete human right to reproductive health, but they often recognize specific aspects of this right. (5) Indeed, different components of a human right to reproductive health may be assembled through applying numerous human rights provisions to reproductive health. (6) International reproductive health meetings and initiatives have bolstered this idea, increasingly invoking the human fights paradigm and embracing the linkage between upholding human rights and improved reproductive health. (7) Nevertheless, the recognition of reproductive health as a human right remains in flux, its development unfinished, its contours uncertain, and its widespread international acceptance tenuous.

This Article seeks to contribute to the conceptual understanding and practical interpretation of the human fight to reproductive health, and in the process present a more cohesive definition of this right grounded in international human rights law. This Article argues that reproductive health can serve as an organizing principle for human rights protections. In this context, the Article will define a set of reproductive health rights that comprise the human right to reproductive health. Reproductive health rights are human rights that uphold reproductive health and well-being, including rights that protect the ability to decide whether and when to reproduce, guarantee reasonable access to adequate reproductive health services, minimize social conditions that may undermine reproductive health and related decisions, and strengthen health and social systems to support good reproductive health. In short, realizing these reproductive health rights and the underlying conditions necessary to sustain them will provide the foundation for a robust right to reproductive health.

The human fight to reproductive health exists at the intersection of discourses about reproductive rights and the right to health. (8) However, the human right to reproductive health is not merely a subcomponent of the fight to health or one of several rights included under the rubric of reproductive rights. Rather, the human fight to reproductive health presents a unique conceptualization of human rights protection focused on considerations of reproductive health and the fulfillment of factors necessary to support good reproductive health.

The focus on a human right to reproductive health in this Article diverges to some extent from a common approach taken by many reproductive rights scholars and courts in the United States and elsewhere, which I will refer to as the reproductive rights model. This model--and the jurisprudential precedents it often follows--centers its analysis on rights protecting the decisional autonomy of women in matters of reproduction. (9) By presenting a contrasting model that primarily focuses on reproductive health--categorized here as the right to health model--this Article highlights specific human rights aspects of reproductive health that are often overlooked or undervalued in reproductive rights and human rights discourses. Both of these models ultimately provide useful, albeit different, conceptions of reproductive health rights that can be combined to more fully develop a dynamic understanding of reproductive health as a human right.

Part I of the Article examines the global state of reproductive health and outlines some of the prodigious challenges that exist worldwide due to the persistence of circumstances and policies that undermine positive reproductive health outcomes and the protection of human rights. Next, Part II describes and compares the reproductive rights model and the right to health model. These two models share many common features in the ways they contextualize reproductive health rights, yet they exhibit substantive differences in scope and emphasis. Specifically, the reproductive rights model primarily considers the decisional aspects of human rights, while the right to health model focuses on the foundational aspects of human rights. Examining and contrasting these two models reveals that each have their strengths and limitations. Furthermore, the prevailing models for linking reproduction and human rights have not sufficiently or consistently accounted for reproductive health.

In the next section of the Article, Part III, the discussion turns to reconciling the two models to define reproductive health rights. Building on this definition, the Article explores some of the implications of this broader conception of reproductive health as a human right and calls for the continued development of a robust understanding of the human right to reproductive health grounded in the realization of the underlying determinants of health. (10) This discussion considers the advantages of, and potential problems with, applying a more broadly framed notion of reproductive health to support reproductive rights claims. Part III also addresses some of the challenges facing efforts to enhance the salience and legal enforceability of reproductive health rights. Four areas receive consideration: efforts to increase the prominence of reproductive health fights in legal and policy discourses at the global and national levels; efforts to advance the development of substantive norms related to reproductive health rights; efforts to support and expand the legal recognition and justiciability of reproductive health rights; and efforts to develop and utilize redundant human fights and public health infrastructures that may be available to support and enforce reproductive health rights. (11) In order to advance reproductive health rights in each of these four areas, constraints on political will and social counter-pressures may need to be surmounted.

1. THE GLOBAL STATE OF REPRODUCTIVE HEALTH

   In order to truly understand the global context of reproductive health rights, it is first necessary to consider public health statistics measuring reproductive health indicators. (12) As the facts and figures that follow demonstrate, the lack of an adequate level of reproductive health is a widespread problem globally, particularly in the developing world. Moreover, deficiencies in reproductive health indicators are largely conditions that can be alleviated with a combination of better access to health services, improvement in economic and social conditions, and increased protection of human rights related to reproductive health. The following sections summarize data on six key areas of reproductive health: maternal mortality; access to reproductive health services, family planning services, and abortion services; and the prevalence of female genital cutting and sexually transmitted infections. (13) Taken together, the persistence of unsatisfactory reproductive health indicators across these key areas underscores the need for continued efforts to focus on reproductive health within international human rights and development initiatives.

   1. Maternal Mortality

      Maternal mortality remains staggeringly high. According to the World Health Organization, 1,500 women die from complications of pregnancy or childbirth every day, totaling 536,000 maternal deaths in 2005 alone. (14) Most of these deaths are...