August 23, 2013

International Legal Obligations

Authoritative interpretations of international law recognize that obtaining a safe and legal abortion is crucial to women’s effective enjoyment and exercise of their human rights, in particular rights to equality, life, health, physical integrity, the right to decide on the number and spacing of children, and to be free from cruel, inhuman, and degrading treatment.[75] Human Rights Watch has previously published detailed legal analysis of the relationship between international human rights law and abortion, equally relevant for Ecuador.[76]

Since the mid-1990s, the UN treaty bodies that monitor the implementation of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the Convention of the Rights of the Child have produced a significant body of jurisprudence regarding abortion in over 122 concluding observations concerning at least 93 countries.[77] These treaty bodies have also issued general comments addressing reproductive rights and abortion.[78]

In their commentaries, these bodies have frequently expressed concern about the relationship between restrictive abortion laws, clandestine abortions, and threats to women’s lives, health, and well-being. They have repeatedly recommended the review or amendment of punitive and restrictive abortion laws and have urged states parties on multiple occasions to legalize abortion, in particular when a pregnancy is life or health-threatening or the result of rape.[79]

International human rights law and relevant jurisprudence support the conclusion that decisions about abortion belong to a pregnant woman alone, without interference by the state or third parties. Any restrictions on abortion that unreasonably interfere with a woman’s exercise of her full range of human rights should be rejected. UN bodies and conferences have recognized that firmly established human rights are jeopardized and prejudiced by restrictive and punitive abortion laws and practices. Likewise, the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has determined that criminal laws penalizing and restricting induced abortion are “impermissible barriers to the realization of women’s right to health.”[80]

UN treaty bodies have expressed particular concern with legislation that restricts access to legal and safe abortion after rape.

Moreover, international human rights law protects the right to noninterference with one's privacy and family,[81] as well as the right of women to decide on the number and spacing of their children without discrimination.[82] These rights can only be fully implemented where women have the right to make decisions about when or if to carry a pregnancy to term without interference from the state. In the case of a pregnancy resulting from rape, abortion is a way for a woman or girl to exercise this right.

The CEDAW Committee has often recommended that states parties review legislation prohibiting abortion to meet their obligation to eliminate discrimination against women,[83] as set out in detail in its General Recommendation No. 24 on women and health: “When possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.”[84]

Treaty bodies have made specific recommendations to Ecuador in relation to its restrictive abortion laws. The Human Rights Committee has expressed its concern about the relationship in Ecuador between very high numbers of suicides of young girls and women and the prohibition of abortion:

[T]he Committee regrets the State party’s failure to address the resulting problems faced by adolescent girls, in particular rape victims, who suffer the consequences of such acts for the rest of their lives. Such situations are, from both the legal and practical standpoints, incompatible with articles 3, 6 and 7 of the Covenant, and with article 24 when female minors are involved. [85]

The Human Rights Committee recommended that Ecuador “adopt all necessary legislative and other measures” so that women and girls with unwanted pregnancies can access adequate health and educational facilities.[86]

In November 2012, the Committee on Economic, Social and Cultural Rights (CESCR), noting concerns about legal restrictions on abortion in Ecuador, recommended that the government:

…amend its Criminal Code so as to establish that abortion is not an offence if the pregnancy is the result of rape, regardless of whether or not the woman in question has a disability, or if the existence of congenital anomalies has been established. [87]

[75] For a full analysis of international human rights law and abortion, see Human Rights Watch, "International Human Rights Law and Abortion in Latin America," A Human Rights Watch Briefing Paper, July 2005 , http://hrw.org/backgrounder/wrd/wrd0106/wrd0106.pdf (accessed August 5, 2013); Human Rights Watch, Decisions Denied: Women's Access to Contraceptives and Abortion in Argentina, vol. 17, no. 1(B), June 2005, http://www.hrw.org/node/11694/section/7 (accessed August 5, 2013). Human Rights Watch, A State of Isolation: Access to Abortion for Women in Ireland (New York: 2010).

[76] Ibid.

[77] These numbers are from an analysis of the jurisprudence by Human Rights Watch staff, copy on file at Human Rights Watch.

[78] See, for example, the recent general comment of the Committee on the Rights of the Child, General Comment No. 15, General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), April 2013, UN Doc CRC/C/GC/15, para. 54.

[79] See, for example, concluding observations of the Committee on Economic, Social and Cultural Rights on Chile, 26/11/2004, U.N. Doc. E/C.12/1/Add.105, paras. 26, 53; Malta, 14/12/2004, U.N. Doc. E/C.12/1/Add.101, paras. 23, 41; and Nepal, U.N. Doc. E/C.12/1/Add.66, paras. 33, 55 concluding observations of the Human Rights Committee on Poland, CCPR/CO/82/POL, December 2, 2004, para. 8; Monaco, CCPR/C/MCO/CO/2, December 12, 2008 para.10; and Nicaragua, CCPR/C/NIC/CO/3, December 12, 2008, para. 13; concluding comments of the Committee on the Elimination of Discrimination against Women on Nicaragua, CEDAW/C/NIC/CO/6, February 2, 2007, paras.. 17-18; Colombia,CEDAW/C/COL/CO/6, February 2, 2007, paras.. 22-23; and Peru, CEDAW/C/PER/CO/6, February 2, 2007, para., 25; and conclusions and recommendations of the Committee against Torture on Peru, CAT/C/PER/CO/4, July 25, 2006, para. 23; and Nicaragua, CAT/C/NIC/CO/1, June 10, 2009, para. 16.

[80] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, August 3, 20122, A/66/254.

[81] ICCPR, article 17.

[82] CEDAW, article 16(1)(e). This article reads: "States Parties shall . . . ensure, on a basis of equality of men and women . . . (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights."

[83] See, e.g., CEDAW Committee, "Report of the Committee on the Elimination of Discrimination against Women," U.N. Doc. A/54/38/Rev.1, Part II, July 9, 1999, para. 229 (noting with regard to Chile: "The Committee recommends that the Government consider review of the laws relating to abortion with a view to their amendment, in particular to provide safe abortion and to permit termination of pregnancy for therapeutic reasons or because of the health, including the mental health, of the woman"); and CEDAW Committee "Report of the Committee on the Elimination of Discrimination against Women," U.N. Doc. A/53/38/Rev.1, February, 1998, para. 349 (noting with regard to the Dominican Republic: "The Committee invites the Government to review legislation in the area of women's reproductive and sexual health, in particular with regard to abortion, in order to give full compliance to articles 10 [education] and 12 [health] of the Convention."). See also CEDAW Committee, "Report of the Committee on the Elimination of Discrimination against Women," U.N. Doc. A/54/38/Rev.1, Part I, July 9, 1999, para. 393.

[84] CEDAW Committee, "General Recommendation 24, Women and Health (Article 12)," U.N. Doc. No. A/54/38/Rev.1 (1999), para. 31(c): "31. States parties should also in particular: (c) Prioritize the prevention of unwanted pregnancy through family planning and sex education and reduce maternal mortality rates through safe motherhood services and prenatal assistance. When possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion."

[85] Human Rights Committee, Concluding Observations: Ecuador, para. 3, U.N. Doc. CCPR/C/79/Add.92 (1998).

[86] Ibid.

[87] In 2012, the Committee on Economic, Social and Cultural Rights urged Ecuador to expunge these anachronistic terms from it criminal code. UN Committee on Economic, Social and Cultural Rights, “Observaciones finales del Comité sobre el tercer informe de Ecuador, aprobada por el Comité de Derechos Económicos, Sociales y Culturales en su cuadragésimo noveno período de sesiones,” General Comment No.29, Abortion, U.N. Doc. E/C.12/ECU/CO/3 (2012), http://www2.ohchr.org/english/bodies/cescr/docs/E.C.12.ECU.CO.3_sp.pdf (accessed July 22, 2013).