Right to reproductive health

Published July 4, 2024
The writer is a lawyer.
The writer is a lawyer.

AS women, many of us have traversed through the uncomfortable changes brought on by puberty with an incomplete understanding of their meaning and consequences; we often braved, sometimes challenging, pregnancies without access to requisite information or satisfactory healthcare. Our exact experiences may have differed depending on our geographical location, income strata and ethnicity. But the absence of a rights-based discourse around our access to sexual and reproductive healthcare has been a common factor.

Women’s right to sexual and reproductive health has been recognised as a fundamental human right under the international human rights framework, and is seen as intrinsically linked to the right to life, dignity, education, information, and equality before the law.

The right to sexual and reproductive health is defined as the right to attain a state of complete physical, mental and social well-being in all matters related to the reproductive system (Plan of Action, International Conference on Population and Development). It guarantees women (and men) the freedom and autonomy to take decisions regarding her body, in particular her sexual and reproductive health, and to determine the number and spacing of children, without coercion or discrimination (General Comment No. 22, International Covenant on Economic, Social and Cultural Rights; Article 16, Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW]). It also entitles women affordable and non-discriminatory access to healthcare facilities, services, and information on family planning and reproductive health, so as to enable full enjoyment of the right (General Comment No. 22, ICESCR).

A recent report by the UNFPA titled Interwoven Lives, Threads of Hope: Ending Inequalities in Sexual and Reproductive Health and Rights (2024), paints a dismal picture of the state of sexual and reproductive health rights in Pakistan: less than 33 per cent of women have the autonomy to makes decisions regarding their sexual and reproductive health; only 52pc women are able to take decisions about their general health; and 55pc exercise decision-making powers regarding engagement in sexual intercourse. Although a significant proportion of women report the exercise of decision-making power with respect to the use of contraceptives, the contraceptive prevalence rate for married women aged 15 to 49 years stands at 40pc (with the usage of modern contraceptive methods being even lower). The maternal mortality rate in Pakistan is 154 per 100,000 births, with one woman dying every 50 minutes on account of pregnancy-related complications. It would reportedly take Pakistan 122 years to achieve zero maternal deaths and 93 years to fulfill the needs for family planning.

Most women in Pakistan lack the autonomy to take decisions that impact their sexual and reproductive health.

Most women in Pakistan then lack the autonomy to take decisions that impact their sexual and reproductive health; several do not have access to necessary information and services regarding family planning and contraceptive use; and too large a number die during childbirth.

It is worth noting that in this backdrop, a rights-based discourse around reproductive health and maternal health has gradually taken root in our jurisprudence. In Human Rights Case No. 17599/2018, the Supreme Court of Pakistan recognised that a woman’s right to well-informed and controlled pregnancies is rooted in the constitutionally recognised rights to life, equality, education, information, and due process of law, and emphasised the state’s obligation to impart sufficient information about family planning.

In a more recent case (Sabeen Asghar vs Punjab) concerning the provision of maternity leave, the Lahore High Court drew upon the international law obligations of Pakistan, including those under ICESCR and CEDAW, to conclude that “a woman’s right to safe motherhood is not only a right to health but also a right to life”, which entitles her to “necessary care to ensure … [her] safety and health during pregnancy and childbirth”. A violation of the right to safe motherhood infringes on the guarantee of equal treatment and protection of dignity of person under the Constitution of Pakistan.

This judicial articulation of a woman’s reproductive rights is centred around her experience of reproduction and child birth. The scope of sexual and reproductive rights in the international human rights framework is, however, much broader. Efforts were made in the past to imbed the entitlement to reproductive rights (as defined in CEDAW) in national-level legislation, albeit in vain.

In 2019, a draft bill on reproductive rights, was prepared with consultation of legislators, human rights activists, policy workers, lawyers and relevant government departments for promulgation in Punjab.

The proposed law — applicable to both public and private healthcare establishments — defined reproductive rights in line with international human rights law.

It obligated the state to ensure comprehensive reproductive healthcare through the provision of: accurate information and counselling on reproductive health, including age appropriate sexuality education in schools; safe and effective contraceptive methods and family planning services; safe and effective antenatal, childbirth, and postnatal care; and safe abortion, services, as permitted under the law; prevention, management, and treatment of infertility and sexually transmitted infections; development and enforcement of reproductive health manuals and protocols; and training and gender sensitisation of personnel at reproductive healthcare establishments. The proposed law set lofty objectives for the state to fulfil. It appears, however, that the proposed law was not eventually presented for promulgation.

One may ask, does the framing of women’s sexual and reproductive health as a human rights issue in judicial pronouncements or legislation have any real significance? After all, maternal morbidity, insufficient and unequal access to adequate and quality sexual and reproductive healthcare, and women’s inability to take decisions regarding their bodies are complex problems, rooted in the insufficiency of resources, lack of education, patriarchy, social taboos, political conflict(s), and skewed state priorities, which require more than judicial pronouncement or legislative recognition to be addressed.

However, conceptualising sexual and reproductive health as a fundamental human right in the law, grants it a particular sanctity and force, that commands firmer commitment from and more effective action by the state. It also allows us women the ability to hold the state accountable for its continued failure to protect and provide for our sexual and reproductive health.

The writer is a lawyer.

Published in Dawn, July 4th, 2024

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