LITERATURE REVIEW
2.5 REGIONAL TRENDS IN THE REPRODUCTIVE HEALTH RIGHTS OF WOMEN
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rights: the integration of sexual and reproductive services, reproductive rights and abortion access, and adequate resources for sexual and reproductive health rights; gender-based violence and marital rape; the rights of lesbian, gay, bisexual, and transgender individuals; and comprehensive sexuality education for the youth.117 However, only three of these issues were explicated by the author: integration, reproductive rights and abortion access, and allocation of resources. On the issue of integration of sexual and reproductive services and allocation of resources, the author noted the inter-relationships between population dynamics, economic growth, gender equality, and sustainable development – which are the theme of ICPD to ensure that government, multilateral agencies and donors weave sexual and reproductive health rights into a holistic approach to reduce inequality and poverty eradication.
Sippel continues on the issue of integration by adding that besides the link between population policies and economic development, sexual and reproductive health and human rights – including reproductive health and rights, women‟s empowerment, maternal health, sexual health, and family planning – are interconnected, and hence the need for integration of these services to achieve the required result. Sippel‟s stance is that segmentation of funds, structures and services divides the key components of sexual and reproductive health rights. There should be a common approach to meet the sexual and reproductive rights of a woman throughout the life-cycle. The author accuses the ICPD of compromising reproductive rights by not regarding abortion as a human right - but rather as a public-health matter. 118 She challenges the view on criminalisation of abortion. On the issue of resources, Sippel advocates for resources to be allocated towards organisations advocating sexual and reproductive health. She canvassed for greater political will, financial commitment, and accountability – to achieve the desired result.
2.5 REGIONAL TRENDS IN THE REPRODUCTIVE HEALTH RIGHTS OF
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the globe such as Middle East, Latin America, Africa, East and South Asia among others. Pillai and Zhen Wang‟s study of cross-regional variations in women‟s reproductive rights in 101 developing countries, chronicles the various dimensions of reproductive rights.119 For example, it revealed obvious regional variations in the right to legal abortion. Furthermore, it showed that the major impediments to the integration of modern perspectives on reproductive rights into national laws are cultural, social and political forces.120 However, the two variables – legal abortion and personal rights – are insufficient to determine the variations in reproductive rights in developing countries. Although the authors cite culture as one of the impediments responsible for the inability to integrate international human rights provisions into national laws, the study does not identify the various cultural practices that were responsible for this failure.
Do all countries that sign the various documents and instruments on reproductive health rights show sufficient commitment to their implementation? Landman focuses on this question in a study on the significance of human rights measurements in classifying different types of violations.121 The focal point was the measurement of civil and political rights. The study nevertheless discusses how social and economic rights can also be measured. Measuring the level of commitment of a nation to the implementation of human rights, requires coding the country‟s participation in the regional and international human rights regime, and an assessment of national constitutional provisions on human rights and the level of violation of the rights. The measurement of rights is important for the continuous observation of human rights abuses. This study highlights the measurement of rights in order to assess the level of commitment to the principles of human rights by various countries. However, it fails to discuss some of the factors that might be responsible for a lack of commitment to human rights – in that it focused on civil and political rights.
Ebenezer Durojaiye examines the importance of using human rights indicators to observe a state‟s commitment to the right to health – including sexual and reproductive rights – in
119 V.K. Pillai & G. Wang “Reproductive rights in developing countries: An assessment of regional variations”
(1999) 13 Michigan Sociological Review 10, 10-27.
120 Idem 12.
121 T. Landman “Measuring human rights: Principles, practice and policy” (2004) 26 Human Rights Quarterly 906, 906-934.
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Africa.122 The study highlights tools that can be used to measure the compliance of a particular state with its obligations in relation to the right to health, together with sexual and reproductive rights. These tools are indicators, benchmarks and indices. Durojaiye differentiates between human rights‟ indicators and other indicators such as those used for health and development purposes. The author emphasises that the steps taken by a government to respect, protect and fulfil its commitments in relation to the right to health, need to be measured, and an appropriate methodology should be used to determine the level of compliance of a particular state in relation to their commitments. This study is explicit on what can be done to ensure the compliance of African states to their commitments in respect of the right to health. However, it does not consider factors such as cultural practices that can hinder states from fulfilling their commitments. Furthermore, the scope of the study is confined to Africa.
A study on “Regional trends in reproductive rights”123 reviews reproductive rights and women empowerment in seven Anglophone African countries - in order to establish whether the laws of a particular country can set a precedent for others. The report highlights certain issues such as the legal and political frameworks of each country in relation to their structures of government, sources of law, and reproductive health and rights. It concludes that there is a gap between formal policy statements and their execution. The report identifies certain flaws in the selected seven countries - such as weakness in enforcement of laws, contradictions in the laws and policies affecting women‟s reproductive lives, and disparities between constitutional provisions and international human rights on the one hand and certain customary laws on the other. The scope of this review is too wide – making it impossible to provide an in-depth analysis of the various themes discussed.
Marie Ralstin Lewis, in her study on reproductive health rights of women in North America,124 discovers that women are seen as the backbone and keepers of life in indigenous North American
122 E. Durojaye “Monitoring the right to health and sexual and reproductive health at the national level: Some considerations for the African governments” (2009) 42 The Comparative and International Law Journal of South Africa 217, 277-283.
123 “Regional trends in reproductive rights” (2003) Centre for Reproductive Rights 153-154. Available at:
www.reproductiverights.org. These countries are: South Africa, Nigeria, Ethiopia, Zimbabwe, Kenya, Ghana, and Tanzania.
124 D. Marie Ralstin-Lewis “The continuing struggle against genocide: Indigenous women‟s reproductive rights”
(2005) 20 Wicazo Sa Review 71, 71-95.
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societies. This matriarchal practice notwithstanding, was influenced mostly by the European colonisers. This had a consequence on the reproductive autonomy of the women. The colonists had different views of the Native American and the Euro American culture towards women and child-birth. In a bid to reduce the role of native women in the continuation of the culture, their reproductive freedom was abused through coercive sterilisation. Surprisingly, the white American women were clamouring for access to voluntary sterilisation. They did all this to control the population of the indigenous black people – thereby infiltrating into their private lives. According to the author, this style of reproductive abuse amounts to racism and genocide.
The author sees this as paternalism and elitism. In spite of all this, women still continue to flourish in the midst of racism, genocide and poverty.
In his work on the prospects and challenges of the protection of socio-economic rights, Mubangizi emphasises the uniqueness of South Africa‟s experience.125 He notes that this is due to the country‟s political antecedents. His study examines the various socio-economic rights contained in South Africa‟s Constitution, the role played by such rights – and the various means by which such rights can be enforced. This comprises the institutions established under Chapter 9 of the Constitution to support constitutional democracy, non-state actors, civil society organisations, and the judiciary.
Mubangizi evaluates the levels of commitment of some African countries (Ghana, Namibia and Uganda) to the protection and enforcement of socio-economic rights. He notes that democratic transition has resulted in provisions for socio-economic rights; however, most of these rights are non-justiciable. He adds that poverty is a major constraint to the realisation of such rights. The study concludes with the various lessons that other countries could learn from the South African experience. This includes making socio-economic rights justiciable and putting the necessary machinery in place for their enforcement. The study‟s main focus is socio-economic rights – which includes women‟s reproductive health rights. Although it discusses these rights, Nigeria is
125 J.C. Mubangizi “Constitutionalisation and justiciability of social rights: Prospects and challenges in the protection and enforcement of socio-economic rights: Lessons from the South African eexperience” (2007), paper presented at VIIth World Congress of the International Association of Constitutional Law, Athens 11-15 June 2007, 1-14.
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not one of the countries evaluated in the study. Furthermore, culture is not seen as one of the factors that can impede the realisation of these rights.
Coliver explores the crucial role played by access to information in enabling people to make informed decisions in respect of their families and private lives.126 He identifies factors such as the country‟s dominant religion, culture, tradition and state of development, and the influence of foreign donors who can manipulate reproductive health decisions. He notes that the barriers associated with these factors could be overcome by effective information-dissemination systems.
The study reveals that compliance with the commitment to human rights would go a long way to improving reproductive health and choice in practice. The study suggests different ways in which international bodies could exert pressure on nations that fail to comply with their human rights obligations.
Coliver observes that, aside from governments, non-state actors have an enormous duty to ensure the realisation of these rights. The study concludes by arguing that the right to know bestows an obligation on the state to ensure that the information needed in respect of reproductive health and choice, is made available to all. The central theme of this study is the primacy of information in respect of reproductive health in 10 countries – excluding South Africa and Nigeria. The scope of the study is very wide and not sufficiently comprehensive. Although culture is identified as one of the obstacles to the realisation of reproductive health, the various cultures are not highlighted.
Cornwall and Molyneux‟s study highlights the strategies, tensions and challenges associated with the advocacy of women‟s rights.127 Focusing on the Middle East, Latin America, Africa, and East and South Asia, the authors examine the contributions of rights activists to the struggle for gender justice. They examine the intersection of formal rights, international human rights conventions and the national human rights contained in various constitutions – with the actual realities women face daily due to gender inequality and cultural practices, poverty, and plural
126 S. Coliver (Ed.) The right to know, human rights and access to reproductive health information (1995), Article 19, University of Pennsylvania Press 1-391.
127 A. Cornwall & M. Molyneux “The politics of rights: Dilemmas for feminist praxis: An introduction” (2006) 27 Third World Quarterly 1175, 1175-1191.
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legal systems that impede the realisation of these rights.128 The authors review some of the efforts of women‟s rights activists. It concludes that women should not abandon their efforts to advocate women‟s rights, as these can create new possibilities and meanings when they are directed towards social and gender justice. However, the scope of the study is very broad, and it does not devote sufficient attention to the various impediments to the realisation of women‟s rights. Furthermore, although the focus is on women‟s rights, it only briefly mentions women‟s reproductive health rights.
Knudsen‟s study on reproductive health rights in the global context, sought to unravel the challenges faced by women in securing their reproductive rights.129 It focuses on the social, economic and political frameworks of seven countries: South Africa, Uganda, Peru, Denmark, the United States, Vietnam, and Jordan – in relation to the politics of population, contraception, abortion, HIV/AIDS and sex education. It identifies the following factors that impede the realisation of reproductive rights in these countries: patriarchal family structures, the privatisation of health services, and governments‟ misplaced priorities. The study outlines recent legislation on reproductive health rights in some of the countries, as well as the various cultural practices that impinge on the rights of women – especially in South Africa. It concludes that the extent to which women in each of these countries can realise their reproductive freedom, depends largely on the degree of success achieved by reproductive rights activists and health professionals.130
Correa highlights the feminist perspective on reproductive rights.131 The study reviews fertility management policies and sexual and reproductive health rights, and highlights the various challenges to the implementation of such rights. This is one the major studies of women‟s reproductive health rights to emerge immediately after the ICPD summit.
128 Cornwall & Molyneux, note 127 (above) 1178-1179.
129 L.M. Knudsen Reproductive rights in a global context (2006) 1-204.
130 Ibid.
131 S. Correa Population and reproductive rights: Feminist perspectives from the South (1994) 1-112.
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Osakue and Martin-Hilber chronicle the plight of Nigerian women under the military regime.132 Aside from the authoritarian and male gender bias associated with the Nigerian military, the authors note the prevalent patriarchal traditions which are responsible for the low status ascribed to women in this society. The study explores the country‟s political, economic and cultural conditions, in order to establish how women made reproductive decisions in a patriarchal system.
It reveals that women in Nigeria made efforts to accommodate their traditional belief systems and at the same time exercise a certain control over their reproductive issues and articulate the desire for change. The authors highlight the impact of cultural practices on the realisation of women‟s rights.