Reproductive Freedom, Torture and International Human Rights

Challenging the Masculinisation of Torture

Ronli Sifris

• Éditeur: Routledge
• Année: 2013
• ISBN:
  9781135115210
• Édition: 1
• Sujet: Droit
• Sous-sujet: Le genre et la loi

This book contributes to a feminist understanding of international human rights by examining restrictions on reproductive freedom through the lens of the right to be free from torture and other cruel, inhuman or degrading treatment. Ronli Sifris challenges the view that torture only takes place within the traditional paradigm of interrogation, punishment or intimidation of a detainee, arguing that this traditional construction of the concept of torture prioritises the experiences of men over the experiences of women given that the pain and suffering from which women disproportionately suffer frequently occurs outside of this context. She does this by conceptualising restrictions on women's reproductive freedom within the framework of the right to be free from torture.

The book considers the gendered nature of international law and the gender dimensions of the right to be free from torture. It examines the extension of the prohibition of torture to encompass situations beyond the traditional detainee context in recent years to encompass situations such as rape and female genital mutilation. It goes on to explore in detail whether denying access to abortion and involuntary sterilization constitutes torture or other cruel, inhuman or degrading treatment under international law. The book looks at whether limitations on reproductive freedom meet the determining criteria of torture which are: severe pain or suffering; being intentionally inflicted; being based on discrimination; linked in some way to a State official; whether they constitute lawful sanctions; and the importance of the concept of powerlessness. In doing so the book also highlights how this right may be applicable to other gender-based abuses including female genital mutilation, and how this right may be universally applied to allow women worldwide the right to reproductive freedom.

1 Introduction

This is an important book, the critic assumes, because it deals with war. This is an insignificant book because it deals with the feelings of women in a drawing-room.¹

Virginia Woolf

1 Background

In an October 1989 interview, Faye Wattleton, then President of the Planned Parenthood Federation of America, observed that ‘[r]eproductive freedom is critical to a whole range of issues. If we can’t take charge of this most personal aspect of our lives, we can’t take care of anything. It should not be seen as a privilege or as a benefit, but a fundamental human right.’² She concluded her interview with the point that ‘[a]ll women, rich and poor, brown, yellow, and white, must be free to take charge of their lives and make their own personal decisions. We have to fight for fundamental human rights so that no woman can be denied this dignity, regardless of her station in life.’³ Indeed, reproductive rights are human rights, as the following examples demonstrate:

Six months pregnant and feeling unwell, a poor woman goes to a state-run clinic in Rio de Janeiro for help—and is turned away. A week later, she is dead. Halfway around the world, in Hungary, a Roma woman is about to undergo emergency surgery because of a miscarriage. She is asked to sign a consent form for a C-section, but never told that she is also agreeing to be sterilized. In Poland, a young pregnant woman is told that she will lose her sight if she continues with the pregnancy. She seeks an abortion on health grounds, which is allowed under Polish law, but doctors override her judgment and refuse to give her one. She is now almost completely blind.⁴

The conceptualisation of reproductive rights as human rights is a relatively recent phenomenon; restrictions on reproductive freedom, as a subset of reproductive rights, may be conceptualised as violating a number of established international human rights. For example, it is arguable that both restrictions on abortion and involuntary sterilisation procedures may in certain circumstances violate the:

• right to life⁵

• right to health⁶

• right to privacy/autonomy⁷

• right to equality/freedom from discrimination.⁸

Restrictions on abortion and involuntary sterilisation procedures may also violate the right to be free from torture and other cruel, inhuman or degrading treatment (CIDT).⁹ Further, involuntary sterilisation may be conceptualised as a violation of the right to marry and found a family.¹⁰

The relationship between unsafe abortions and high rates of maternal mortality underpins the argument that restrictions on abortion violate the right to life.¹¹ In circumstances in which women who are subjected to involuntary sterilisation procedures die as a result, such procedures may also violate the right to life. More commonly, restrictions on reproductive freedom injure the physical and/or mental health of the women in question thereby violating the right to health. Further, according to Rosalind Pollack Petchesky, ‘the very nature of reproduction – is social and individual at the same time.’¹² Thus, on the one hand, it is arguable that a woman’s right to decide matters relating to her own body (such as the right to choose to terminate a pregnancy or the right to choose to bear children) forms a part of the right to privacy, right to autonomy, right to liberty, right to physical integrity, and right to decide the number and spacing of one’s children. On the other hand, the view that laws restricting access to abortion are frequently discriminatory, both in purpose and effect, forms the basis for the argument that laws restricting abortion violate a woman’s right to be free from gender-based discrimination.¹³ Similarly, the reality that the practice of involuntary sterilisation disproportionately affects women lends a discriminatory element to this procedure.¹⁴ In addition, as already mentioned, restrictions on reproductive freedom may constitute torture or CIDT. The argument that restrictions on reproductive freedom may constitute torture or CIDT is elaborated on during the course of this book.¹⁵ Many of these arguments are interrelated. For example, the arguments that restrictions on reproductive freedom violate the right to life, right to health, or right to be free from torture are all based on the notion that a woman who is denied reproductive freedom may suffer in a way that is damaging to her physical or mental health (or both) as a result of such denial.

As the discussion thus far demonstrates, the existing human rights framework is broad enough to encompass reproductive rights. In fact, within the international human rights regime there is growing recognition that reproductive rights may fall within the existing international human rights paradigm. Nevertheless, despite the reality that women’s reproductive freedom continues to be restricted in numerous countries, international human rights law has failed to recognise explicitly and unambiguously a right to reproductive freedom. For example, in approximately 70 countries, abortion is either prohibited altogether or allowed only to save a woman’s life.¹⁶ Further, in the past decade human rights treaty bodies have expressed concern regarding involuntary sterilisation procedures taking place in countries as diverse as Slovakia, Peru, Brazil and China.¹⁷ Consequently, the rhetorical commitment of international human rights law to the ideal notwithstanding, expressed in article 1 of the Universal Declaration of Human Rights, that ‘[a]ll human beings are born free and equal in dignity and rights’,¹⁸ the international human rights regime has failed to safeguard adequately women’s dignity and rights. This book considers the issue of restricting women’s reproductive freedom through the lens of the right to be free from torture and CIDT (although the discussions in Chapters 3 and 5 are also relevant to an analysis of restrictions on reproductive freedom as violations of the right to health and the right to be free from discrimination respectively).

2 Scope

This book analyses the meaning of torture and CIDT under international human rights law with a view to conceptualising these terms so as to include issues of disproportionate concern to women, particularly restrictions on reproductive freedom. The focus of this book is on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment¹⁹ (CAT) and, to a lesser extent, article 7 of the International Covenant on Civil and Political Rights²⁰ (ICCPR). The reason for the emphasis on CAT is that, whereas there are numerous international law instruments that demonstrate the extent of the international legal system’s efforts to combat torture and CIDT, CAT (a multilateral treaty with almost 150 ratifications that deals specifically and soley with the issue of torture and CIDT) is clearly the most globally significant and influential instrument.²¹ Thus while this book refers to the various interpretations of the right to be free from torture and CIDT that have developed through the regional human rights systems and through the international criminal law process, the focus is on the interpretation of torture and CIDT in the international human rights realm. Accordingly, while drawing on other sources, this book concentrates on the interpretation of article 7 of the ICCPR prohibiting torture and CIDT and, more particularly, centres around CAT.²² Further, it should be noted that while this book draws on the violence against women discourse at various points, the focus is on torture discourse as opposed to the discourse surrounding violence against women. Accordingly, this book examines restrictions on women’s reproductive freedom within the framework of torture discourse.

(a) Reproductive rights

The question may arise: what is meant by ‘restrictions on reproductive freedom’? Or, more broadly, what is meant by ‘reproductive rights’? When discussing reproductive rights, the focus is generally on women as physiology dictates that only women experience pregnancy and childbirth. Therefore, the discussion necessarily has a gendered dimension. The Report of the United Nations International Conference on Population and Development describes the concept of reproductive rights as follows:

[R]eproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant United Nations consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest attainable standard of sexual and reproductive health. It also includes the right of all to make decisions concerning reproduction free of discrimination, coercion and violence as expressed in human rights documents.²³

Examples of reproductive rights include:

• the right to birth control

• the right to terminate a pregnancy

• the right to access assisted reproductive technology

• the right to choose the method of childbirth (eg vaginal or caesarean)

• the right to accurate sex education

• the right to adequate reproductive health care

• the right to be free from all forms of coercion (such as coerced abortion or coerced sterilisation)

• the right to decide the number and spacing of one’s children

• the right to refuse any medical procedure or form of medical intervention.

Accordingly, reproductive rights include the freedom to decide whether, when and how to have children. They include the right to access adequate reproductive health care and all relevant information as well as treatment that is respectful of the individual. They also include the right to be free from sexual violence and other forms of violence that encroach on the reproductive sphere. Discussions relating to reproductive rights encompass issues relating to abortion, sterilisation, surrogacy, assisted reproductive technology, court-ordered caesareans and so on. Further, it must be acknowledged that ‘women’ are not a homogenous group. Individual women may face different challenges in the reproductive rights realm and specific groups of women may be disproportionately affected by violations of particular reproductive rights. For example, adolescent girls may face different challenges from disabled women who may, in turn, have differing concerns to indigenous women or asylum seekers. This is one of the reasons why this book considers both restrictions on abortion and involuntary sterilisation.

(b) Restrictions on reproductive freedom

As previously mentioned, this book does not examine reproductive rights in general but focuses on restrictions on reproductive freedom. Although it is possible to identify a number of different types of restriction on reproductive freedom, the specific restrictions on reproductive freedom considered are legal restrictions on access to abortion and involuntary sterilisation procedures. Therefore, references to ‘restrictions on reproductive freedom’ should be interpreted as references to legal restrictions on access to abortion and involuntary sterilisation procedures and not to other forms of restriction on reproductive freedom. When this book discusses legal restrictions on access to abortion, it is referring to laws that restrict women from accessing abortion services. For example, laws prohibiting abortion in all circumstances, laws prohibiting abortion in all circumstances other than to save the life of the woman and laws prohibiting abortion except where the woman’s health is endangered. However, it should be noted that the focus of this discussion is on legal restrictions on access to abortion and not whether States have a positive obligation to provide access to abortion services. A consideration of issues such as whether States are obligated to provide funding for abortion services and whether States are obligated to establish abortion clinics in geographically remote areas, while significant, is simply beyond the scope of this book.²⁴

Another issue that lies beyond the scope of this book concerns the moral and/or legal rights of the foetus. Discussion of the issue of abortion invariably gives rise to questions relating to the rights of...