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VI. International Law Standards and Response of International Human Rights Officials and Experts

Although this report addresses the issue of therapeutic abortion specifically, authoritative interpretations of international human rights law support the right of all women to decide independently on matters related to sexuality and reproduction, including the issue of abortion. International human rights law is consistent with a woman’s right to choose if and when to have children and if and when to interrupt her pregnancy, and supports the provision of timely and accessible healthcare services within evidence-based guidelines and safe and sanitary conditions. The criminalization of abortion, on the other hand, is a clear violation, inter alia, of a woman’s right to privacy and non-discrimination.

Peru’s highly restrictive abortion law and its poor record on making legal abortions accessible has resulted in repeated, forceful critiques by national and international human rights bodies and experts. Some of the strongest critiques have come from the Human Rights Committee (HRC), the body which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee), and the UN special rapporteur on the right to the highest attainable standard of health (special rapporteur).

In October 2005 the HRC decided in favor of K.L. as an individual complainant under the Optional Protocol to the ICCPR. The Committee found the government of Peru in breach of its international obligations and in violation of its domestic laws for denying access to therapeutic abortion for a pregnant adolescent. The Committee ordered the state to “furnish the author [K.L.] with an effective remedy, including compensation” and to “take steps to ensure that similar violations do not occur in the future.”⁸⁷ This decision is the HRC’s first on the theme of abortion for an individual complaint.⁸⁸ The Committee found violations of the following rights guaranteed by the ICCPR: respect for and guarantee of rights (article 2); freedom from torture and cruel, inhuman or degrading treatment (article 7); privacy (article 17); and special measures of protection for minors (article 24).⁸⁹

The CEDAW Committee, in evaluating Peru’s compliance with the Convention on the Elimination of All Forms of Discrimination against Women, has noted that “illegal abortion remains one of the leading causes of the high maternal mortality rate and that the State party’s restrictive interpretation of therapeutic abortion… may further lead women to seek unsafe and illegal abortions.” The Committee urged “the State party to review its restrictive interpretation of therapeutic abortion, which is legal, … and to consider reviewing the law relating to abortion for unwanted pregnancies with a view to removing punitive provisions imposed on women who undergo abortion.”⁹⁰

Over the past several years the special rapporteur has made multiple visits and appeals to the government of Peru on the issue of access to therapeutic abortion. In an urgent appeal in July 2006, the special rapporteur admonished Peru for failing to comply with the HRC ruling in K.L. v. Peru, and expressed concern for the “continuing uncertainty surrounding the precise circumstances in which women are legally entitled to access therapeutic abortion … exposing some to potentially serious physical and mental health risks, if their pregnancy was carried to term.”⁹¹ The special rapporteur also signaled that such legal and procedural uncertainty was “contributing to a rise in unsafe and clandestine abortions, and consequently an increased likelihood of maternal mortality” in a country still plagued with relatively high rates. In a subsequent report in February 2007, the special rapporteur regretted that, to date, he had received no reply from the Peruvian government.⁹²

International standards on the link between access to abortion and women’s exercise of their human rights have undergone significant development over the past 15 years. This development has manifested itself in over 130 concluding comments from UN treaty monitoring bodies, in which these international human rights experts have expressed their opinion on abortion restrictions in over 90 countries.⁹³ This jurisprudence furthers an understanding that firmly established human rights are jeopardized by restrictive or punitive abortion laws and practices.

There have also been significant developments in regional human rights systems relevant to women’s right to decide on matters relating to abortion.⁹⁴  For example, the African regional human rights system now has a binding protocol that stipulates a state’s obligation to take all appropriate measures to “protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”⁹⁵ The Protocol on the Rights of Women in Africa “affirms reproductive choice and autonomy as a key human right and … represents the first time that an international human rights instrument has explicitly articulated a woman’s right to abortion when pregnancy results from sexual assault, rape or incest; when continuation of the pregnancy endangers the life or health of the woman; and in cases of grave fetal defects that are incompatible with life.”⁹⁶ The significance and potential impact of this protocol go well beyond Africa, including Latin America.

Right to life

The right to life, a fundamental right in many human rights treaties,⁹⁷ is in jeopardy when women and girls are denied access to safe, legal abortions. In Latin America and the Caribbean, over four million abortions are performed each year, and the regional maternal mortality rate is 190 out of 100,000 live births.⁹⁸ Of those deaths, 5,000 women are estimated to die from unsafe abortions every year.⁹⁹ In Peru, where maternal death rates are among the highest in the region, unsafe abortions cause approximately 16 percent of all maternal deaths.¹⁰⁰ Criminalizing abortion does not reduce its incidence. In fact, abortion rates are often highest where the laws are most restricted,¹⁰¹ and women can be obliged to seek clandestine abortions from unlicensed, unregulated practitioners, often under conditions that are medically unsafe and therefore life-threatening.¹⁰²

UN treaty bodies have often expressed concern that restrictive abortion laws may violate the right to life. For example, the HRC has often noted with concern the relationship between restrictive abortion laws, clandestine abortions, and threats to women’s lives.¹⁰³ In 2000, in its general comment on equality of rights between men and women, the HRC called upon states to inform the committee of “any measures taken by the state to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions.”¹⁰⁴

Right to health

International law also guarantees women the right to the highest attainable standard of physical and mental health.¹⁰⁵ Unsafe abortions are a grave threat to women’s health: between 10 and 50 percent of women who undergo unsafe abortions require post-abortion medical attention for complications such as incomplete abortion, infection, uterine perforation, pelvic inflammatory disease, hemorrhage, or other injury to internal organs. These may result in death, permanent injury, or infertility. Denial of access to safe, legal abortion can also result in mental health harm, including depression.

The right to health requires four interrelated features: availability of services in sufficient quantity; accessibility of services and information, within physical and economic reach of everyone without discrimination; acceptability of services with respect to culture, gender, and life-cycle; and scientifically appropriate services of adequate quality.¹⁰⁶ Prof. Rebecca J. Cook points out that in addition to constituting poor public health policy, “laws and policies that unreasonably restrict safe abortion services would not comply with this performance standard…. [It] may be a human rights violation to jeopardize health care.”¹⁰⁷

UN treaty bodies have commented on the impact of unsafe abortions and restrictive abortion laws on health. For example, citing concerns about possible violations of the right to health, the UN Committee on Economic, Social and Cultural Rights, has recommended that states legalize abortion in some circumstances, such as when the pregnancy is the result of rape or incest, and when the life of the pregnant women is endangered.¹⁰⁸

International law also has specific standards for the right to health as applied to adolescents. In its 2003 General Comment on adolescent health and development, the Committee on the Rights of the Child noted the physical and mental health risks related to early pregnancy, and urged governments to provide adequate services, including abortion services where they are not against the law. It also urged states to take measures to reduce maternal morbidity and mortality in adolescent girls, including those caused by unsafe abortion practices.¹⁰⁹ In K.L. v. Peru the HRC found that Peru had violated the right to special measures of protection for minors (article 24 of ICCPR) and should have provided K.L. with the “medical and psychological support necessary in the specific circumstances of her case” given her special vulnerability “as a minor girl.”¹¹⁰ The HRC recognized the need for special access and services to protect the vulnerable rights and well-being of adolescents, especially with respect to reproductive health. In previous recommendations the HRC has called upon states to guarantee safe, timely, and affordable access to abortion for adolescents with unwanted pregnancies when the law allows.¹¹¹

Right to non-discrimination

The right to non-discrimination is also a fundamental right in every major human rights treaty. Denying women access to therapeutic abortion in order to terminate dangerous pregnancies amounts to a discriminatory denial of health care that only women need. Women are consequently exposed to health risks not experienced by men.

In its General Recommendation on women and health, the UN Committee on the Elimination of Discrimination against Women suggests that the denial of medical procedures only women need is a form of discrimination against women. It explains that “barriers to women’s access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo these procedures.”¹¹² Moreover, in several concluding observations on country reports from the Latin American region, the HRC has established a clear link between women’s equality and the availability of reproductive health services, including abortion.¹¹³ In the case of Argentina, the HRC noted, “The Committee is concerned that the criminalization of abortion deters medical professionals from providing this procedure without judicial order, even when they are permitted to do so by law, inter alia when there are clear health risks for the mother or when pregnancy results from rape of mentally disabled women. The Committee also expresses concern over discriminatory aspects of the laws and policies in force, which result in disproportionate resort to illegal, unsafe abortions by poor and rural women.¹¹⁴ 

Right to privacy; the right to decide on the number and spacing of children

Moreover, international human rights law protects the right to noninterference with one’s privacy and family,¹¹⁵ as well as the right of women to decide on the number and spacing of their children.¹¹⁶ 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. The HRC noted in the case of K.L. v. Peruthat by denying K.L. access to a therapeutic abortion, Peru “interfered arbitrarily in her private life” and violated article 17 of the ICCPR.¹¹⁷

Right to information

The right to information, certainly as it relates to the right to health, includes both the negative obligation for a state to refrain from interference with the provision of information by private parties and a positive responsibility to provide complete and accurate information necessary for the protection and promotion of reproductive health and rights, including information about abortion.¹¹⁸ Human rights law further recognizes the right to non-discrimination in access to information and health services, as in all other services.¹¹⁹ Women stand to suffer disproportionately when information concerning safe and legal abortion is withheld.

Freedom from cruel, inhuman, or degrading treatment

The right to be free from cruel, inhuman, or degrading treatment is protected by international customary law as well as by several international and regional human rights treaties.¹²⁰The HRC, in concluding observations on Peru, expressed concern that under Peru’s laws, abortion gave rise to penalty even if the woman was pregnant as a result of rape. It found that the penal code restrictions on abortion subjected women to inhuman treatment incompatible with article 7 of the ICCPR.¹²¹ In its 2005 decision on the K.L. v. Peru case, the HRC noted that “the right set out in article 7 of the Covenant relates not only to physical pain but also to mental suffering.” The Committee found that K.L.’s depression and emotional distress “could have been foreseen” and “not enabling her to benefit from a therapeutic abortion was … the cause of the suffering she experienced.”¹²² In this case, the HRC considered “the facts before it reveal a violation of article 7 of the Covenant.”¹²³

Purported conflict of rights

Although the right to life clearly protects the interests of pregnant women, opponents of abortion rights also argue that the “right to life” of a fetus should predominate. There is debate as to when “legal personhood” commences and when the right to life should apply, with many arguing that it should only apply as a legal concept after birth.

The American Convention on Human Rights is the only international human rights instrument that contemplates that the right to life can apply from the moment of conception, though not in absolute terms.¹²⁴ The American Declaration on the Rights and Duties of Man, the predecessor instrument to the ACHR, does not mention conception, guaranteeing instead that “every human being has the right to life, liberty, and the security of his person.”¹²⁵ 

In 1981 the body that monitors the implementation of the human rights provisions in the American regional system, the Inter-American Commission on Human Rights, was asked to establish whether the right to life provisions in these documents are compatible with a woman’s right to access safe and legal abortions. The commission concluded that they are.

The question reached the commission through a petition brought against the United States government by individuals related to a group called Catholics for Christian Political Action when a medical doctor was acquitted of manslaughter after performing an abortion in 1973 in the “Baby Boy” case.¹²⁶ The petitioners asked the commission to declare the United States in violation of the right to life under the American Declaration on the Rights and Duties of Man, using the American Convention on Human Rights as an interpretative tool.¹²⁷ In the deliberation on the Baby Boy case, the Commission went to great pains to examine the provisions on the right to life in both the declaration and the convention, looking to the preparatory work for both documents to clarify the intended object and purpose of the wording of the provisions.¹²⁸ In the case of the declaration, the commission explained,

[I]t is important to note that the conferees in Bogotá in 1948 rejected language which would have extended that right to the unborn … [and] … adopted a simple statement on the right to life, without reference to the unborn, and linked it to the liberty and security of the person. Thus it would appear incorrect to read the Declaration as incorporating the notion that the right to life exists from the moment of conception. The conferees faced this question and chose not to adopt language which would clearly have stated that principle.¹²⁹

With regard to the convention, the commission found that the wording of the right to life in article 4 was very deliberate and that the convention’s founders specifically intended the “in general” clause to allow for non-restrictive domestic abortion legislation. As the commission phrased it, “[I]t was recognized in the drafting session in San José that this phrase left open the possibility that states parties to a future Convention could include in their domestic legislation ‘the most diverse cases of abortion,’”¹³⁰ allowing for legal abortion under this article. The commission went on to correct the petitioners in their selective reading of the ACHR:

[I]t is clear that the petitioners’ interpretation of the definition given by the American Convention on the right of life is incorrect. The addition of the phrase “in general, from the moment of conception” does not mean that the drafters of the Convention intended to modify the concept of the right to life that prevailed in Bogotá, when they approved the American Declaration. The legal implications of the clause “in general, from the moment of conception” are substantially different from the shorter clause “from the moment of conception” as appears repeatedly in the petitioners’ briefs.¹³¹

The commission also cited several countries, including the United States and Brazil, for having clarified during the negotiations that, notwithstanding any language contained in article 4(1) of the convention, they retained the right to “preserv[e their] discretion with respect to the content of legislation in the light of their own social development, experience and similar factors.”¹³²