CESCR Issues Guidance on Right to Sexual and Reproductive Health

The Committee on Economic, Social and Cultural Rights (CESCR) recently issued a General Comment explaining States’ duties to ensure the right to sexual and reproductive health, as an integral part of the right to health protected by Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). See Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/22, 4 March 2016. Although the CESCR has previously addressed the issue of sexual and reproductive health in its General Comment 14 on the right to the highest attainable standard of health, the Committee issued the new comment in light of constant, severe violations of the right to sexual and reproductive health care, and to focus on the various barriers that impede enjoyment of this right. See id. at paras. 2, 4.

General Comment 22 identifies four central characteristics of sexual and reproductive health care: availability, accessibility, acceptability (respectful of and sensitive to patients’ particular identities and needs), and quality. The Committee emphasizes that sexual and reproductive health is interrelated with other rights, including education and non-discrimination, and has been disproportionately and discriminatorily denied to certain vulnerable groups, including persons with disabilities and lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals. See id. at paras. 2, 7-10. The general comment then lays out States’ legal obligations, identifies examples of violations, and reiterates the duty to provide remedies for abuses.

Interdependence of Rights

The CESCR emphasizes that the right to sexual and reproductive health “extends to the underlying determinants” to that right, and, therefore, is interdependent on other protections of the ICESCR. See id. at para. 9. Access to safe and potable water, health-related education, safe and healthy working conditions, and adequate food are integral to sexual and reproductive health. Id. at para. 7. Accordingly, in respecting and protecting the right to sexual and reproductive health, States parties must also satisfy Article 13 (right to education), articles 6 and 7 (the right to work and favorable work conditions), and Article 2(2) (right to nondiscrimination). See id. at para. 9. This right also depends on a number of civil and political rights, including the rights to life, liberty, and privacy, that are protected by the International Covenant on Civil and Political Rights, among other treaties. See id. at para. 10.

The CESCR also notes that social factors impact enjoyment of the right to sexual and reproductive health, and certain groups of people are particularly susceptible to discrimination in the receipt of the relevant services and information. See id. at paras. 2, 8. Age, gender, ethnic origin, disability, and poverty are all social determinants of sexual and reproductive health that limit the choices of individuals and impact their ability to fully enjoy their right to sexual and reproductive health. See id. The Committee indicates that individuals belonging to certain groups, such as refugees, LGBTI persons, and women and girls living in conflict areas, may be disproportionately impacted by discrimination in the context of sexual and reproductive health. See id. at para. 30.

Further, gender equality requires that women’s specific health needs are taken into consideration and appropriately addressed by the State party. See id. at para. 25. The general comment indicates that the State must implement policies, programs, and laws to eliminate systematic discrimination and harassment to ensure that individuals have access to sexual and reproductive information, facilities, and goods. See id. at para. 31.

State parties’ Obligations

The Committee further defines the right to sexual and reproductive health by listing the four key components of the right, providing a basis from which State parties’ obligations stem. They are availability, accessibility, acceptability, and quality. See id. at para. 11.

Some of the requirements under these elements included ensuring the availability of trained medical professionals; providing access to health facilities and information concerning sexual and reproductive health; respecting the culture and sensitivities of specific groups with regard to sexual and reproductive health; and providing good quality facilities, goods, and information related to sexual and reproductive health. See id. at paras. 11-21.

The general comment detailed general, specific, and core obligations of State parties to ensure that individuals can fully enjoy their right to sexual and reproductive health. The general obligations included maximizing available resources and eliminating discrimination against certain groups and individuals, whereas the specific legal obligations placed the State party under the obligation to respect, protect and fulfill the right to sexual and reproductive health. See id. at para. 40.

The Committee also listed seven core obligations of the State party to ensure the satisfaction of the right to sexual and reproductive health. See id. at para. 49. These core obligations included: eliminating laws and policies that criminalize or undermine individual’s or specific groups access to sexual and reproductive health facilities, services, and information; adopting a national strategy on sexual and reproductive health; guaranteeing access to quality sexual and reproductive health services, goods, and facilities; enforcing and enacting legal prohibition of gender-based violence, including female genital mutilation and forced marriages; taking active measures to prevent unsafe abortion; ensuring a comprehensive education on sexual and reproductive health absent of discrimination; providing essential medicines and medical equipment needed for sexual and reproductive health; and ensuring access to effective remedies and redress for violations of the right to sexual and reproductive health. See id.

As mentioned in the last core obligation, if the State has violated the right to sexual and reproductive health, State parties must ensure that individuals have access to an effective remedy. See id. at para. 64. Some of the remedies for a violation may include adequate restitution, compensation, rehabilitation, and assurances of non-repetition. See id.

Additional Information

There are various international and regional human rights standards related to the right to sexual and reproductive health. See id. at para. 1. The 2030 Agenda for Sustainable Development, adopted by the United Nations General Assembly in September 2015, is the most recent instrument to include objectives to be achieved in the area of sexual and reproductive health. See id. at para. 2. Other international instruments that protect the right to health, which incorporates the right to sexual and reproductive health, include the Convention on the Elimination of All Forms of Discrimination against Women under Article 12; the Convention on the Rights of the Child under Article 24; and the Convention on the Rights of Persons with Disabilities under Article 25.

International organizations, such as the World Health Organization (WHO) and the Office of the High Commissioner for Human Rights (OHCHR), also play a key part in the implementation of the right to sexual and reproductive health. See id. at para. 53. The Committee recognized that the technical guidance and expertise of various international organizations could help State parties implement appropriate policies to ensure the right to sexual and reproductive health and encouraged collaboration and cooperation to contribute to “the universal realization of the right to sexual and reproductive health.” Id.

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