Family, sex, and reproduction: emerging issues in international law.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 12:45 p.m., Friday, March 26, by its moderator, Nancy Northrup of the Center for Reproductive Rights, who introduced the panelists: Joanna N. Erdman of the University of Toronto; Kathleen Lahey of Queen's University; Aura Katzive of Wellspring Advisors; and Katherine Franke of Columbia Law School, Center for Gender and Sexuality Law.

INTRODUCTORY REMARKS BY NANCY NORTHRUP *

"Family, Sex, and Reproduction"--these are issues that by their very nature are close to home. Family is synonymous with home; beating children is associated with home; and nothing in our lives is more intimate than our sexuality and sexual relationships. We are not talking here about the International Monetary Fund or the law of the sea. Family, sex, and reproduction were traditionally the domain of law "close to home." Here in the United States they are largely the domain of state regulation. In some African countries they are the domain of customary law. Today on this panel we're talking about emerging developments in international law related to these issues once viewed as quite far from the international stage.

International human rights law is an increasingly powerful tool for those working to advocate for sexual and reproductive health and rights. Human rights advocates draw on binding international treaties that guarantee the right to life, health, bodily integrity, dignity, self-determination, and equality, as well as freedom from discrimination and creel, inhumane, and degrading treatment. National-level courts and regional and international human rights bodies are increasingly applying these standards in the area of sexual and reproductive rights.

These are developments of which the Center for Reproductive Rights has been actively a part. The Center is an international nonprofit organization that uses constitutional and international human rights law to promote women's equality by establishing access to reproductive health care and control over reproductive decisions as fundamental rights that all governments around the world must respect, protect, and fulfill. We have brought groundbreaking cases before national courts, United Nations treaty monitoring bodies, and regional human rights bodies as part of our goal to expand women's ability to participate as equal members of society, and to expand the limiting conceptions of gender roles.

Let me spend just a few minutes highlighting some of these developments. UN treaty-monitoring bodies have expressed concern about women's lack of access to contraception and safe abortion. We have won or settled cases in the Human Rights Committee, the European Court of Human Rights, and the Inter-American Commission on Human Rights on the right to access abortion in certain circumstances. In one of the Center's cases this year, the Supreme Court of Nepal established the right to public funding for poor women's abortions. In K.L. v. Peru the Human Rights Committee established under the International Covenant on Civil and Political Rights (ICCPR) issued its first abortion ruling, finding denial of a therapeutic abortion to be cruel and degrading treatment. (1) There have also been critical developments on sexual rights issues, including cases in UN treaty monitoring bodies, the European Court of Human Rights, and national-level courts removing criminal sodomy laws and requiring non-discrimination on the basis of sexual orientation in employment, child custody, and marriage.

In addition, important progress has been made in seeking to elucidate international human rights to sexual orientation and gender identity. In 2006 a group of international human rights experts met in Yogyakarta, Indonesia, to outline a set of principles relating to sexual orientation and gender identity. (2) In July 2009 the New Delhi High Court decriminalized homosexual sex in a ruling that heavily cited international law and the Yogyakarta Principles as part of its reasoning.

As you will hear on this panel today, international human rights law is a powerful tool in addressing not just the government's violation of sexual and reproductive determination, but its neglect in the area of maternal mortality. Every year 500,000 women unnecessarily die in connection with pregnancy. The lifetime risk of dying in connection with pregnancy is one in seven in Afghanistan, as compared to one in 3,000 in the developed world. As the U.S. Supreme Court has said, pregnancy is sui generis to the human condition, and thus to the law. Pregnancy is a normal life function that can kill you. Pregnancy is necessary for the continuation of human species, but without access to healthcare, women die. The uniqueness of pregnancy requires that the government actively prevent these maternal deaths.

But, of course, issues of reproductive and sexual rights remain highly contested in the United Nations system in international and regional courts, national-level courts and legislatures, and around the kitchen table in many homes because these issues confront deeply held views on women's sexuality, gender roles, religion, and traditional hierarchies of men and women. Accordingly, courts still often defer this "close to home" issue to legislative control. This is seen in the European Court of Human Rights jurisprudence when it confronts abortion issues, repeatedly dodging a substantive decision on the right to abortion. Rather, states claim a "margin of appreciation," which allows for variations in national laws that range in Europe from Irish prohibition to more liberal access in many European counties. Reproductive decision-making and sex outside of marriage continue to be criminalized in many parts of the world, and, not surprisingly, sexual and reproductive rights continue to be marginalized and stigmatized even in countries and courts where they are recognized.

This panel, "Family, Sex, and Reproduction: Emerging Issues in International Law," will explore emerging issues related to the application of human rights law to sexual and reproductive rights. Joining us on our panel today are Professor Joanna Erdman, Faculty of Law at the University of Toronto, Co-Director of the International Reproductive and Sexual Health Law Programme, and Director of the Health Equity and Law Clinic. She will speak on the procedural turn that transnational courts have taken when addressing abortion rights, with a focus on abortion rights cases that have recently been brought in Latin America and Europe (Ireland), as well as provide a critical perspective on litigation strategy the Center and others have taken to access abortion services where legal. Professor Kathleen Lahey, on the Faculty of Law at Queen's University, will speak about the development of asymmetries between the Global North and South in the area of sexual rights and the inadequacy of international law to address ongoing class, gender, and racial biases. Laura Katzive, Program Officer for Wellspring Advisors, will discuss maternal mortality as a global human rights problem and legal strategies to promote increased awareness of government accountability. And Professor Katherine Franke, Professor and Vice Dean at Columbia Law School and Director of the Center for Gender and Sexuality Law, will discuss comparative analysis of the ramifications of partnerships between sexual rights movements and the state.

* President, Center for Reproductive Rights.

(1) K.L. v. Peru (UN Hum. Rts. Comm.), Comm. No. 1153/2003, paras. 2.1, 6.3-6.4 (Oct. 24, 2005), UN DOC. CCPR/C/85/D/1153/2003 (finding violations of Article 7 and 17 of the ICCPR). The Committee also found violations of Article 24 of the ICCPR, which affords special protections to minors (id. at para. 6.5), and Article 2 of the ICCPR, which requires state parties to ensure that effective remedies exist for violations of protected rights (id. at para. 6.6). The Committee held that Peru should furnish K.L. with an effective remedy, including compensation, and should establish procedures so the similar violations do not occur in the future. Id. at para. 6.8.

(2) International Panel of Experts in International Human Rights Law and on Sexual Orientation and Gender Identity, Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Nov. 6-9, 2006), available at http://www.yogyakartaprinciples.org/principles_en.pdf (hereinafter Yogyakarta Principles).

PROCEDURAL TURN IN TRANSNATIONAL ABORTION LAW

These comments concern the procedural turn in transnational abortion law, a favoring of procedural over substantive human rights limitations on the criminalization of abortion. The laws of most jurisdictions prohibit pregnancy termination as the crime of abortion but provide for circumstances when termination is justified. These are the legal grounds. Common grounds are maternal life or health risk, pregnancy by non-consensual act, and fetal malformation. These comments examine legal grounds across a procedure-substance divide. Substance refers to rights and interests in pregnancy termination regulated by criminal law; procedure refers to the administration of this substantive law. What are the legal grounds for abortion: substance or procedure? Transnational case law suggests the question is not easily answered. The legal grounds evade categorization by strict logic or reason. They are continually redefined with purpose and effect. Through review of recent case law, my intention is to reveal the play of legal grounds in transnational law across a procedure-substance divide.

A starting set of cases concerns a quintessentially procedural matter: women denied abortions to which they are formally entitled by law. These cases involve administration of legal grounds, usually the ground of maternal health risk. In Tysiac v. Poland, decided by the European Court of Human Rights, Ms. Tysiac was refused an abortion despite a pregnancy-related risk. (1) Polish law permits abortion on this...

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