REPROHEALTHLAW Updates – 2023-24

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DEVELOPMENTS

[Argentina, preventable maternal death,”obstetric violence”] Britez Arce et. al. v. Argentina. (Inter-American Court of Human Rights, November 16, 2022). Decision in English. Decision in Spanish. Press Release Jan 18, 2023. Comment by CRR. [Earlier: Merits report by the Inter-American Commission on Human Rights (Report 236/19, Case 13.002. Report in English-download.)

[Bolivia, rape of a minor, revictimization] Losado v Bolivia (Inter-American Court of Human Rights, November 18, 2022) English press release Jan 19, 2023 Summary in Spanish. Decision in Spanish. The Court held Bolivia responsible for gender and child discrimination, and revictimization of an adolescent victim of sexual violence during the judicial process.

[Colombia, abortion decriminalized] Sentencia C-055-22.  Expediente D-13.956. Demanda de inconstitucionalidad contra el artículo 122 de la Ley 599 del 2000. (Constitutional Court of Colombia, February 21, 2022). Decision in Spanish (414 pages).  Backup decision in Spanish.  Unofficial English translation. 27-page Spanish press release.  English summary of Press Release.  1-page Spanish press release. [Abortion is decriminalized within 24 weeks of gestation, and thereafter permitted on specified grounds.] 

[El Salvador, abortion, anencephaly] Beatriz v. El Salvador, Case 13-378, Report No. 09/20, Inter-Am. C.H.R. (2020) (Inter-American Commission of Human Rights, January 5, 2022): Report in Spanish. Case Summary in Spanish.  Press release in English. [Woman with lupus and kidney failure denied abortion for fetus with anencephaly.] Inter-American Court of Human Rights held hearings in March 2023.

France made abortion a fundamental constitutional right. March 4, 2024. Parliamentarians voted to revise the country’s 1958 constitution to enshrine women’s “guaranteed freedom” to abort. News report in English.

[Mexico, Abortion decriminalized], Suprema Corte de Justicia de la Nación [Supreme Court], 2023..Review of Constitutional Protection. Amparo en revisión 267/2023. Sept. 6, 2023. Speaker: Justice Ana Margarita Ríos Farjat. Decided September 6, 2023. Official Press release in Spanish.   [Abortion is decriminalized throughout Mexico.]

[Northern Ireland, UN CEDAW] Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, (2018) U.N. Doc. CEDAW/C/OP.8/GBR/1  Original CEDAW 2018 report.  Comments by Clare Pierson. [abortion, a crime in Northern Ireland following sections 58 and 59 of the Offences Against Persons Act 1861, was legalized in 2020.]
—Follow-up report submitted by the United Kingdom of Great Britain and Northern Ireland, 16 January 2023, published March 14, 2023 as CEDAW/C/OP.*/GBR/3/Add.1.  Followup report in different formats, English, French and Spanish.  [Among other reforms, Northern Ireland established a Gender Equality Strategy Expert Advisory Panel whose Report of December 2020 is online here]. 

[Peru, UN Committee on the Rights of the Child] Camila v. Peru, Communication No. 136/2021.U.N. Doc CRC/C/93/D/136/2021 (June 13, 2023) Decision online in Spanish, Arabic and Russian.  Decision in English (May 25, 2023, *unofficial draft). Case note by Godfrey Kangaude.  [Child raped by her father. Ruling: Peru violated child rape victim’s rights by failing to guarantee access to abortion and criminally prosecuting her for self-abortion.]

[Peru, child marriage] Ley N.º 31945 to prohibit and eliminate any possibility of marriage with minors under the age of 18 was promulgated on 25 November 2023. Prior to the new legislation, Article 42 of Peru’s Civil Code permitted adolescents to marry from the age of 14 under certain conditions, with consent from at least one parent, despite the minimum legal age of marriage being 18 years for girls and boys. Context in English.

[Poland, ECtHR ruled against fetal abnormality abortion ban] M.L. v. POLAND (Application no. 40119/21) (European Court of Human Rights, December 14, 2023) [Woman forced to travel for abortion of malformed fetus. Court found violation of ECHR Article 8 (right to respect for private and family life) of the ECHR, following a 2020 Constitutional Court ban on legal abortion in case of foetal abnormalities. Press release. Decision of 14 Dec 2023.

[Poland, fetal abnormality risk, inadmissible] A.M. and others v. Poland (application no. 4188/21, 4957/21, 5014/21,5523/21, 5876/21, 6114/21, 6217/21, 8857/21) (European Court of Human Rights, May 16, 2023) ruled these 8 cases inadmissible because each applicant could not claim to be a victim of a violation of the ECHR owing to risk of a future violation. Press Release. Decision of 16 May 2023.

[Spain, access to abortion information] Tribunal Supremo de España, Sala Tercera, de lo Contencioso-administrativo, Sección 4ª, S 1231/2022, 3 Oct. 2022 (Rec. 6147/2021)  Decision in Spanish.  Spanish backup copy.  Decision in English.  English backup copy. [The Government cannot block public access to a website containing information or opinions without judicial authorization.  This includes the site of Women on Web, which discusses access to abortion.

[Turkey, abortion for rape victim], [Case of] R.G. [GK], B. No: 2017/31619, 23/7/2020,.July 23, 2020. (Grand Chamber of the Turkish Constitutional Court)   27-page decision in Turkish. Backup copy. Official press release in English. Backup copy.  Comment  in English on IACL/AIDC Blog. Article in English from a Turkish Journal of Constitutional Law  [procrastination after rape victim applied for abortion violated the right to protect one’s corporeal and spiritual existence (provided under Article 17 of Turkish Constitution.

[UK – challenge to fetal abnormality ground for abortion] R (on the Application of Crowter and Ors) v Secretary of State for Health and Social Care EWCA Civ 1559 Case No: CA-2021-000314 (UK Court of Appeal (Civil Division) London, 25 Nov., 2022, Judgment summary. Decision online.  [UK legislation allowing abortion for substantial risk of a born child’s serious handicap (such as Down syndrome) is not incompatible with disabled persons’ human rights to respect for their private and family life and to nondiscrimination.] This was an appeal of [2021] EWHC 2536 (Admin) Case No. CO/2066/2020 (High Court of Justice, Queen’s Bench Division, London) Sept 23, 2021.  Judgment and summary.    [fetus has no established rights under the European Convention on Human Rights (ECHR), so UK abortion law allowing legal abortions in cases of severe fetal abnormalities is compatible with ECHR.]

[Venezuela, obstetric violence] Inter-American Court of Human Rights – Case of Rodríguez Pacheco et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 1, 2023. Series C No. 504. Press release in English. Official Summary in Spanish. 82-page judgment in Spanish. Download partial dissent by Judge Sierra Porto. Download: partial dissent by Judge Pérez Goldberg. The Court ruled that Venezuela is responsible for deficiencies in Judicial Proceedings on a Complaint of acts of obstetric violence and medical malpractice that took place in a private hospital.

SCHOLARSHIP

[comparative abortion law] Rebecca J. Cook and Bernard M. Dickens, “Abortion,” in Jan M. Smits, Jaakko Husa, Catherine Valcke and Madalena Narciso, eds., Elgar Encyclopedia of Comparative Law, 3rd ed., (Cheltenham, UK: Elgar Publishing, 2023), 3-11. Abstract online here. Full text and PDF online

[abortion law, Colombia] “The new Colombian law on abortion,” by Isabel C Jaramillo Sierra, International Journal of Gynecology and Obstetrics 160.1 (January 2023): 345-350.  Abstract and Article. 

[abortion law and policy] “Self managed abortion: aligning law and policy with medical evidence,” by Patty Skuster, Heidi Moseson and Jamila Perritt, in International Journal of Gynecology and Obstetrics 160.2 (February 2023): 720-725. Abstract and Article.  

[abortion law and policy, guideline] “The WHO Abortion Care Guideline: Law and Policy–Past, Present and Future,” by Joanna N. Erdman, in International Journal of Gynecology and Obstetrics, 162.3 (Sept 2023): 1119–1124. Abstract and Article.  WHO Abortion Care guideline, 2022.

[adolescents, Africa] “Integrating child rights standards in contraceptive and abortion care for minors in Africa,” by Godfrey Dalitso Kangaude, Catriona Macleod, Ernestina Coast and Tamara Fetters, International Journal of Gynecology & Obstetrics 159.3 (December 2022): 998-1004.   Abstract and Article.

[Africa, Zimbabwe, rewrite abortion decision, gender equality] Charles Ngwena and Rebecca J. Cook, “Restoring Mai Mapingure’s Equal Citizenship,” In: Rebecca J. Cook, ed., Frontiers of Gender Equality: Transnational Legal Perspectives (University of Pennsylvania Press, 2023). Abstract online.  Book available here. Introduction to the book (by Rebecca Cook).

[gender equality, health, CEDAW GR 24] “Gender Equality in Health Care: Reenvisioning CEDAW General Recommendation 24,” by Joanna N. Erdman and Mariana Prandini Assis, in Frontiers of Gender Equality: Transnational Legal Perspectives, ed. Rebecca J. Cook (University of Pennsylvania Press, 2023). Abstract online in English. Portuguese translation of this chapter. Book available here. Introduction to the book (by Rebecca Cook).

[gender equality] Rebecca J. Cook, “Many Paths to Gender Equality,” Introduction to: Frontiers of Gender Equality: Transnational Legal Perspectives (University of Pennsylvania Press, 2023). Introduction online.

[infertility] “”Human Rights Approaches to Reducing Infertility,” by Payal K. Shah and Jaime M. Gher, in International Journal of Gynecology and Obstetrics.162.1 (July 2023): 368–374.  Abstract and Article. 

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.

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Contributed by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Kenya: “JMM” decision: Abortion legal after rape; Restore training guidelines

Many thanks to Benson Chakaya, a D.Phil Candidate and M.Phil Graduate in the LL.M./M.Phil (Sexual & Reproductive Rights in Africa) degree program at the Centre for Human Rights, Faculty of Law, University of Pretoria.  He also serves as National Coordinator for Right Here Right Now Kenya ​hosted by the ​Family Health Options Kenya and formerly worked with the Network of African National Human Rights Institutions.  His full case summary and comment has been added to the online update of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.

We also thank Bernard Dickens, Professor Emeritus of Health Law and Policy at the University of Toronto, co-editor and author of Abortion Law in Transnational Perspective: Cases and Controversies (2014), who provided a concise overview of this important decision:

Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others [2019] eKLR, Petition No. 266 of 2015, Decision of June 12, 2019. (High Court of Kenya at Nairobi, Constitutional and Human Rights Division)
Decision online. Case Comment by Benson Chakaya (Download PDF).

This decision followed the death from consequences of unsafe abortion of a 14-year-old rape victim. The Federation of Women Lawyers and other petitioners challenged the constitutionality of decisions of the Director of Medical Services (DMS) of the Ministry of Health, who was also Registrar of the Kenya Medical Practitioners and Dentists Board regulating medical practice and institutions, to withdraw the Ministry’s 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya, and National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancy.

The DMS had justified these withdrawals on the claim that “the only law in force with respect to abortion is the Penal Code” (para. 366), which provides in section 158 that anyone who “with intent to procure the miscarriage of a woman…unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony…”. The DMS claimed that it was unlawful to set standards and training for unlawful procedures, and warned that offenders faced legal and professional disciplinary sanctions. The DMS cited in support Article 26(4) of the Kenyan Constitution, that “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law”.

However, the Court rejected DMS and other respondents’ restrictive arguments that “trained health professional” meant only a registered physician, that “health” meant only physical health, and their disregard of other written law. The Article 26(4) exception was interpreted liberally to accommodate midwives, nurses and other trained health service providers, and psychological and mental health indications for abortion. The Court widely reviewed U.S., U.K. and Canadian jurisprudence and international human rights treaties adopted by Kenya, including the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol), to nullify the DMS withdrawals as arbitrary, illegal and unconstitutional, and declare abortion of pregnancy resulting from rape or defilement that “poses a danger to the life or the health (physical, mental and social well-being)” of the victim to fall within the exception provided by Article 26(4) of the Constitution. The respondents were ordered to pay Ksh.3,000,000 (about US $27,445) “for the physical, psychological, emotional and mental anguish, stress, pain, suffering and death of [the rape victim] occasioned by respondents violation “of her constitutional rights to the required standard of indicated trained medical care.” (para. 415).

The full decision (69 pages) is online here.
Case summary (9 pages) by Benson Chakaya can be downloaded here (PDF)

RELEVANT RESOURCE:
Legal Grounds III: Reproductive and Sexual Health in Sub-Saharan African Courts contains summaries and comments on 60+ court decisions, 2008-present
Online edition with updates and links to decisions.
Published books – free PDF download: Legal Grounds I (2005), Legal Grounds II (2008), Legal Grounds III (2017).
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Ugandan CC judgment: Maternal health is a constitutional right

Congratulations to the Center for Health, Human Rights and Development (CEHURD) and three co-petitioners who, after nine years of dedication and perseverance, have received a favourable interpretation from the Constitutional Court of Uganda at Kampala.

The Center for Health Human Rights and Development (CEHURD) and 3 Others v Attorney General, Constitutional Petition No. 16 of 2011 (Constitutional Court of Uganda at Kampala). Decision of August 19, 2020.

This is the first decision of an African constitutional court finding a violation of the rights to health, life, gender equality and freedom from inhuman and degrading treatment, for the preventable deaths in childbirth of two women, Sylvia Nalubowa and Jennifer Anguko, who died in hospital due to unavailability of basic maternal commodities.

As lawyer Moses Mulumba of CEHURD gratefully informed supporters: “The Constitutional Court agreed with our submissions and all judges accepted all the grounds of the petition. Through this judgement, the right to maternal health care (and the right to health broadly) has been granted a place in Uganda’s Constitution. The judgment recognises basic maternal health care services and emergency obstetric care. [ . . . ]

“Moving forward, we can work together to ensure that this judgement brings lasting change to [the] health system in Uganda, within the African region and globally.”

RELEVANT RESOURCES:

• Twelve key Declarations by the Constitutional Court of Uganda, circulated by CEHURD, are listed in the expanded version of this Reprohealthlaw Commentary, online here.
• Constitutional Court decisions:
  The Center for Health Human Rights and Development (CEHURD) and 3 Others v Attorney General, Constitutional Petition No. 16 of 2011 (Constitutional Court of Uganda at Kampala). [Maternal health] Decision 2012 online. Decision 2012 attached in PDF. Case summary of 2012 decision. NEW DECISION of AUGUST 19, 2020.
• Supreme Court decision:
  The Center for Health, Human Rights and Development and 3 Others v Attorney General [2015], Constitutional Appeal No. 01 of 2013 (Supreme Court of Uganda at Kampala), Judgments by Kisaakye, JSC and Katureebe, CJ. [Uganda Supreme Court orders Constitutional Court to hear petition on maternal health rights violations.]  Decision PDF. Case summary in Legal Grounds III .

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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

“Abortion and Public Health Ethics” by Dr. Mahmoud Fathalla

Congratulations and thanks to Dr. Mahmoud F. Fathalla of the Department of Obstetrics and Gynaecology at Assiut University in Egypt, whose article in the forthcoming Oxford Handbook of  Public Health Ethics can now be previewed online.

Mahmoud F. Fathalla, “Abortion and Public Health Ethics,” The Oxford Handbook of Public Health Ethics, ed. Anna C. Mastroianni, Jeffrey P. Kahn, and Nancy E. Kass, Oxford Handbooks Online,  February 2019,  Article online.

Abstract:
There is an ethical imperative to take public health action to eliminate the global problem of unsafe abortion. The moral obligation is dictated by the magnitude of the problem, the health inequities and social injustices that result from lack of access to safe abortion, the voices of women calling for action, and an international consensus recognizing unsafe abortion as a global health problem. The availability of public health interventions and the cost savings associated with fewer abortion complications reinforce the obligation to address unsafe abortion. Public health actions include reducing the need for abortion through family planning, providing safe abortion to the full extent of the law, managing abortion complications, and providing post-abortion care. These actions intersect with morality, religion, law, justice, and human rights. The public health community has a collective social and ethical responsibility to stand beside and behind women as they claim their human right to health.

Keywords:
public health ethics, abortion, unsafe abortion, public health, global health, justice, family planning, human rights

The full text of this article is online here.

RELATED RESOURCE:
“Reproductive health and public health ethics” by B.M. Dickens and R.J. Cook (2007) 99 International Journal of Gynecology and Obstetrics 75-79.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

Kenyan High Court upholds human and constitutional rights to maternal dignity and reproductive healthcare

Many thanks to Naitore Nyamu, an LL.M. student in the graduate program in Sexual and Reproductive Rights in Africa at the University of Pretoria’s Centre for Human Rights, for contributing a detailed abstract of this progressive Kenyan ruling for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, online edition.

J O O (also known as J M) v Attorney General & 6 others [2018] Petition No 5 of 2014, (High Court of Kenya at Bungoma), March 22, 2018.  Case summary by Naitore Nyamu.   Court decision.

The case summary by Naitore Nyamu explains how, on 5 August, 2013, a low-income pregnant woman sought healthcare for delayed labour and suffered neglect, privations and expenses from an ill-funded county hospital, and humiliating personal abuse from its nurses.  She later filed a constitutional petition alleging various violations of her rights as stipulated in the Constitution of Kenya 2010 and she also made reference to rights recognized in international human rights treaties to which Kenya is a party.

The Court held that the Petitioner’s right to maternal health care had been infringed and that the abusive actions of the nurses and the Hospital denied, derogated and demeaned the Petitioner’s worth.  Hence, the Court found a violation of her right to dignity contrary to the provisions of Article 28 and a violation of her freedom and security, including the right not to be treated in a cruel, inhuman and degrading manner, contrary to Article 29 (j) of the Constitution of Kenya 2010. Additionally, the Court held that the national and county governments had failed to devote adequate resources to healthcare services and had not established effective measures to implement, monitor and provide minimum acceptable standards of health care. This is a violation of the Constitution and the international instruments that Kenya has ratified.

As Naitore Nyamu comments in her case summary, the Kenyan Constitution of 2010 has an expansive Bill of Rights, including the right to sexual and reproductive health, but women in Kenya cannot access maternal care in a dignified manner. One of the tenets of devolving the health services was to increase accessibility of better health care services to all citizenry. The treatment the Petitioner received at the Hospital leaves a lot of questions on whether the County Governments want to make the right to health and sexual and reproductive health rights a reality.  This case highlights how deep-rooted and systemic the violations of the rights to maternal health care are in Kenya. It also illustrates the many obstacles and humiliations that women seeking maternal health care can face in public health institutions.

This High Court judgment in J.O.O. reinforces the decision in Millicent Awuor Omuya alias Maimuna Awuor & Another v. The Attorney General & 4 Others (2015), (Petition No. 562 of 2012), where it was held that the National and County Governments do not require resources to accord respect to women seeking services in public institutions such as hospitals.  The Court’s reliance on provisions of international legal instruments ensured that the Court interpreted this issue from a wide spectrum of human rights provisions, hence this is a very progressive ruling that sets high standards. The Court found that the actions and omissions of the respondents were in violation of numerous rights as provided in the international treaties that Kenya has ratified. This signifies that it is not enough to just ratify conventions; states must equally ensure realization of the rights in these conventions. It was also an indication that Kenya cannot ratify conventions and fail to effect what these provisions stipulate.

For details, see Naitore Nyamu’s full case summary, online here, or  the High Court’s decision of March 22, 2018 online here.

An earlier Kenyan case of maternal abuse is abstracted in Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts:

• Millicent Awuor Omuya alias Maimuna Awuor & Another v The Attorney General & 4 Others [2015], Petition No. 562 of 2012, (High Court of Kenya at Nairobi (Constitutional and Human Rights Division)). [Detaining women for failing to pay for maternal health services is a violation of their constitutional rights]  Decision online

Other decisions from this chapter are summarized in Legal Grounds III.

• The Center for Health Human Rights and Development (CEHURD) and 3 Others v Attorney General [2012], Constitutional Petition No. 16 of 2011 (Constitutional Court of Uganda at Kampala). Preventable maternal deaths dismissed as a “political question”.  However, see subsequent Supreme Court decision of 2015] Decision online.

• The Center for Health, Human Rights and Development and 3 Others v Attorney General [2015], Constitutional Appeal No. 01 of 2013 (Supreme Court of Uganda at Kampala), Judgments by Kisaakye, JSC and Katureebe, CJ. [Ugandan Supreme Court orders Constitutional Court to hear a petition on maternal health rights violations.]  Decision online.

• The Center for Health, Human Rights and Development & 4 Others  v Nakaseke District Local Administration [2015], Civil Suit No. 111 of 2012 (High Court of Uganda at Kampala). [Ugandan High Court finds human rights violations where a pregnant woman died of a ruptured uterus and blood loss while in labour.] Decision online.

• Ntsele v Mec for Health, Gauteng Provincial Government [2012] ZAGPJHC 208 (South Gauteng High Court, South Africa) [medical negligence during labour]  Decision online.

Maternal Health Care and Services  – thematic highlight by Tinyade Kachika

Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria: Pretoria University Law Press, 2017)   54 court decisions from 2008-2016   Online edition with updates.   Entire book, 228-pages 

Legal Grounds I and II  are online at the Center for Reproductive Rights.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – October 2018

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DEVELOPMENTS

Bulgaria:  Constitutional Court declares the Istanbul Convention against violence against women  unconstitutional.  July 27, 2018.  Oxford Human Rights Hub article.

Constitutional Court of Croatia.  Decision of March 2, 2017.  Rješenje Ustavnog Suda Republike Hrvatske, broj: U-I-60/1991 i dr. od 21.veljace 2017.  Decision online in Croatian. Backup copy.  Summary in English from CRR   Croatian Court’s Press release – 11 pages in English.

CALL FOR ABSTRACTS:

Fourth International Congress on Women’s Health and Unsafe abortion (IWAC 2019), February 19-22, 2019, Asia Hotel, Bangkok Thailand  Theme:  “We Trust Women: Universal Access to Safe Abortion.”  Submit abstracts by Nov 15, 2018  Call for Abstracts

SCHOLARSHIP:

Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca Cook, Joanna Erdman and Bernard Dickens (Philadelphia: Univ. Pennsylvania Press, 2014) Now in Paperback.  20% discount code: PH70.  English abstracts.   Spanish edition – abstracts.  Table of Cases in English or Spanish.

[Africa]  “(De)Criminalizing Adolescent Sex: A Rights-Based Assessment of Age of Consent Laws in Eastern and Southern Africa,” by Godfrey Dalitso Kangaude and Ann Skelton,  (peer-reviewed) Sage Open 2018 (Oct-Dec): 1-12.   Article online.

[Brazil – anencephaly – Supreme Court]   “The STF decision on abortion of anencephalic fetus: A Feminist Discourse Analysis” by Lucia Goncalves de Freitas, Alfa, Sao Paulo, 62.1 (2018): 11-33.   Article in English.

[Brazil – obstetric care, maternal mortality /morbidity, Alyne case]  “Implementing international human rights recommendations to improve obstetric care in Brazil,” by Alicia E Yamin, Beatriz Galli and Sandra Valongueiro.   International Journal of Gynecology and Obstetrics 143.1 (October 2018): 114-120.    Download full text PDF now, because Free Access expires in 6 months.    Abstract online in English   For Portuguese abstract, click on :Supporting Information”.  

[Brazil – zika, microcephaly]  BOOK:  Zika: from the Brazilian backlands to a Global Threat (Zed Books, 2017)  in English  and  Portuguese .

[conscience]  “Balancing Freedom of Conscience and Equitable Access,” by Wendy Chavkin, Desiree Abu-Odeh, Catherine Clune-Taylor, Sara Dubow PhD, Michael Ferber and Ilan H. Meyer, American Journal of Public Health 108.11 (Nov 2018): 1487-88.  Article online.

[conscientious objection, Ireland] “Conscientious Objection, Harm Reduction and Abortion Care,”  by Ruth Fletcher, in Mary Donnelly and Claire Murray eds., Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester: Manchester University Press, 2016) pp. 24-40.  Pre-publication version.     Book information. 

[conscientious objection – South Africa “Let’s call ‘conscientious objection’ by its name: Obstruction of access to care and abortion in South Africa,” by Satang Nabaneh, Marion Stevens & Lucía Berro Pizzarossa,  24 October 2018, Oxford Human Rights Hub.

[Forced sterilization] “Gendered Power Relations and Informed Consent: The I.V. v. Bolivia Case,” by Martín Hevia and Andrés Constantin, Health and Human Rights Journal.  Early view of full text.

[Intersex] “Management of intersex newborns: Legal and ethical developments,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics  143.2 (Nov. 2018): 255–259.  PDF at Wiley online.   Submitted text at SSRN.

[Ireland] “Reproductive Justice in Ireland: A Feminist Analysis of the Neary and Halappanavar Cases,” by Joan McCarthy,  in: Mary Donnelly and Claire Murray, eds., Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester, UK: Manchester University Press, 2016).   Submitted Text online.   Book information. 

[Ireland and Britain] “Reproductive rebellions in Britain and the Republic of Ireland: contemporary and past abortion activism and alternative sites of care,” by Ben Kasstan and Sarah Crook, in Feminist Encounters: A Journal of Critical Studies in Culture and Politics, 2.2 (2018):  1-16.  Article online.

Annotated Bibliographies – now available:  Right to Conscience
Fetal anomaly indication for abortion .  Rape or Incest abortion – English.  or Spanish)  Latin America:  Causal violación y/o incesto   (Toronto: International Reproductive and Sexual Health Law Program, 2018).

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog.   View or subscribe.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here
______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 

 

 

 

“Reproductive justice in Ireland: A feminist analysis of the Neary and Halappanavar cases,” by Joan McCarthy

Congratulations to Professor Joan McCarthy, whose chapter on two significant Irish controversies was published in 2016.  The submitted text is now online in the author’s institutional repository.  We are pleased to circulate her abstract:

Joan McCarthy,  “Reproductive Justice in Ireland: A Feminist Analysis of the Neary and Halappanavar Cases,” in Mary Donnelly and Claire Murray, eds.,  Ethical and Legal Debates in Irish Healthcare: Confronting Complexities (Manchester, UK: Manchester University Press, 2016), 9-23.
Submitted Text online.

This chapter offers a feminist reading of two Irish cases that raise important ethical and legal concerns:  the unnecessary peripartum hysterectomies at Our Lady of Lourdes Hospital Drogheda and the tragic death of Savita Halappanavar in October 2012. Key to this feminist analysis is a desire to understand the mechanisms by which the voices and concerns of the women at the centre of these cases were ignored, marginalised and trivialised. The chapter addresses the cultural dis-ease with women’s bodies and reproductive autonomy and the excess of epistemic and moral authority vested in doctors and religious leaders and the correlated lack of authority invested in women patients and midwives.

My feminist reading of these different situations draws attention to the power and
power differentials inherent in moral relationships at individual, organisational and societal levels and adopts Margaret Urban Walker’s feminist ethics perspective which she summarises in the following way:  We welcome all relevant scientific data but believe that the social situations of both science and morals must be kept in view, paying attention to differences of social and institutional position, perspective, and power that determine which voices and whose interests and experiences are audible and authoritative in ethics as elsewhere (Walker 2009: 5).

Key to my analysis is a desire to understand the mechanisms by which the voices and concerns of the women at the centre of these two cases were ignored, marginalised and trivialised. I address each case in turn, paying particular attention to the way in which an excess of moral authority was vested in religious leaders, religious doctrine and doctors and a correlated lack of authority was invested in women patients and midwives.

The submitted text of this chapter is now online here.

More information about the book Ethical and Legal Debates in Irish Healthcare: Confronting Complexities is available from Manchester University Press.

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

Brazil: Implementing international human rights to improve obstetric care

Congratulations to Alicia E. Yamin, Beatriz Galli and Sandra Valongueiro, whose article is now available in the Latin American-themed October 2018 issue of the International Journal of Gynecology and Obstetrics, in conjunction with the FIGO World Congress, held October 14-19 in Rio de Janeiro, Brazil.  We are pleased to circulate the abstract in English, and (further below) Brazilian Portuguese:

Alicia E Yamin, Beatriz Galli and Sandra Valongueiro. “Implementing international human rights recommendations to improve obstetric care in Brazil,” by  International Journal of Gynecology and Obstetrics 143.1 (October 2018): 114-120    DOI: 10.1002/ijgo.12579.  Download full next now, Free access online for 6 months.

Abstract:  In 2011, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) issued a groundbreaking decision in the case of Alyne da Silva Pimentel Teixeira versus Brazil involving the maternal death of a young Afro‐Brazilian woman. The CEDAW addressed systemic failures in the Brazilian health system that combined to violate Alyne’s rights to life, health, and access to maternal health services. Almost 5 years later, after significant back and forth between the concerned parties, a technical follow‐up commission was created with the support of the Center for Reproductive Rights, and was welcomed by the government of Brazil. The technical follow‐up commission was precedent‐setting, seeking to move beyond identifying gaps in “compliance” and concentrate instead on issues that might catalyze re‐engagement by national level stakeholders, both governmental and non‐governmental, with the aim of advancing CEDAW’s recommendations through not only the creation, but also the effective implementation, of policies and programs that promote women’s sexual and reproductive rights in practice, including their rights to safe motherhood. Here, the human‐rights‐based framework of the technical follow‐up commission is described, in addition to their findings related to legal and policy frameworks, evidence‐based programing, and monitoring and oversight of providers.

Resumo do artigo:  Em 2011, o Comitê das Nações Unidas para a Eliminação de Todas as Formas de Discriminação contra as Mulheres emitiu uma decisão inovadora contra a morte materna de uma jovem afro-brasileira, Alyne da Silva Pimentel Teixeira. O Comitê CEDAW apontou falhas sistêmicas no sistema de saúde brasileiro que violaram os direitos de Alyne à vida, à saúde e ao acesso a serviços de saúde materna. Quase cinco anos depois, uma Comissão de Acompanhamento Técnico foi criada, com o apoio do Centro de Direitos Reprodutivos, sendo recebida pelo Governo do Brasil. Essa Comissão de Acompanhamento Técnico estabeleceu os precedentes e procurou ir além da identificação de lacunas na “conformidade”, concentrando-se em questões que poderiam catalisar o reengajamento de atores em nível nacional, tanto governamentais como não-governamentais, com o objetivo de avançar as recomendações do Comitê CEDAW, por meio não só da criação, mas também da implementação efetiva, de políticas e programas que promovam os direitos sexuais e reprodutivos das mulheres, incluindo direito à maternidade segura. Este artigo descreve o arcabouço baseado em direitos humanos usado pela Comissão de Acompanhamento Técnico e os achados relevantes para provedores vinculados a estruturas legais e de políticas, programação baseada em evidências e monitoramento e supervisão.

Download full next now, Free access to PDF online for 6 months.

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

Chile: Constitutional Tribunal upholds constitutionality of new abortion law

Many thanks to Carlos Herrera Vacaflor, LL.M., for providing the following overview of this historic decision in Chile.

Tribunal Constitucional Chile, STC Rol N° 3729(3751)-17 CPT,  Requerimientos de inconstitucionalidad presentados por un grupo de Senadores y Diputados, respecto de normas del proyecto de ley que regula la despenalización de la interrupción voluntaria del embarazo en tres causales, correspondiente al boletín N° 9895-11.  Decision in Spanish: 295 pages.  Accompanying documents.  Other Submissions
New: English Decision: 149 pages includes a Table of Contents for both English and Spanish editions.

On August 21, 2017, the Constitutional Tribunal of Chile, in a 6 to 4 ruling, upheld the constitutionality of a Bill (now enacted into law) that decriminalizes abortion in three cases: rape, fatal fetal impairment and when a woman’s life is in danger.

The Tribunal based its ruling on the following guiding principles, among others. On the basis of international human rights treaties ratified by Chile and national legal developments on maternity, the Tribunal recognized that pregnancy affects the physical and psychological integrity of a woman, since a fetus occupying a woman’s body causes physical and physiological transformations.  Furthermore, the Tribunal stated that criminal law on abortion imposes severe restrictions on rights, and leads to social and legal condemnation of individuals. The Tribunal, given such punitive power, recognized that criminal law should only be considered as an instrument of last resort, in order to limit the restrictive effect the law has on rights.

The Tribunal interpreted “threat to the life of the woman” as a risk to her life (riesgo vital). Only the physician who provides the abortion is needed to diagnose the risk to the woman’s life; no further examinations are required, lest the provision of care be delayed. Abortion is also decriminalized when the fetus carries a fatal congenital or genetic impairment impeding its survival outside the womb. The Tribunal maintained that since the Bill requires that two specialist physicians diagnose the disease of the fetus, these professionals must avoid decisional paralysis that could put a woman in greater danger. In cases of rape, the Tribunal considered constitutional the limits on access to abortion: for girls under the age of 14, abortion must be performed before 14 weeks of gestation; if the victim is older than 14, before 12 weeks of gestation.

The Tribunal also recognized, by an 8 to 2 vote, the constitutionality of institutional conscientious objection. The Tribunal found institutional conscientious objection also constitutional. Given the lack of uniformity on whether artificial legal “persons” (such as hospitals or clinics) have a right to conscience and religion in the Inter-American System of Human Rights, the Tribunal decided to elaborate its own position. The Tribunal considered it arbitrary to limit the scope of conscientious objection only to professionals intervening in abortion care. It argued that freedom of conscience and religion is protected for all persons in the Constitution and that, under comparative case law, educational institutions and private associations have been recognized as conscientious objectors in the context of education.

Full texts of Decision and Submissions:  Decision in Spanish -295 pages.  Accompanying documents.  Other Submissions     New: English Decision: 149 pages includes a Table of Contents for both English and Spanish editions. 

Chilean law professors who addressed the Court included:
Prof. Veronica Undurraga  presentation  in Spanish.
Prof. Lidia Casas Becerra   presentation in Spanish, at minute 42.

Amicus curiae brief re: International consensus on abortion law with respect to decriminalization, by Joanna Erdman and Rebecca Cook:
Spanish and English briefs in one PDF.

Amicus curiae brief re conscience and conscientious objection by Prof. Bernard M. Dickens:  English PDF    Spanish PDF.

“Chile Celebrates its First Steps Towards Fulfilling Abortion Rights,” by Lidia Casas and Lieta Vivaldi, on Health and Human Rights Journal website.   Blogpost in English

Symposium — 5 scholars comment on Constitutional Court abortion ruling:   Symposium   The Introduction to the symposium is Introduction,   Part I,   Part II,  Part III, Part IV, and   Part V.

Press Release from Center for Reproductive Rights.  Online in English.

Newspaper report in English.

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“‘Protection of Life during Pregnancy Act 2013’: Suicide, Dignity and the Irish Discourse on Abortion” by Claire Murray

Congratulations and thanks to Dr. Claire Murray of the School of Law, University College Cork in Ireland, for her useful article, published in a special issue of Social & Legal Studies,  guest-edited by Siobhan Mullally, on “Regulating Abortion: Dissensus and the Politics of Rights.”  We are pleased to circulate this abstract and links to the full text:

Claire Murray, “The Protection of Life During Pregnancy Act 2013: Suicide, Dignity and the Irish Discourse on Abortion”, Social and Legal Studies 25.6 (Dec 2016): 667-698   PDF online.  Accepted version.

Abortion is an issue that exposes deep divisions in Irish society and this was apparent during the debates on the Protection of Life During Pregnancy Act 2013.  This introduced a framework regulating abortion into Irish law for the first time, but maintained the existing position where abortion is only available where the life of the woman is at risk. This article focuses on the centrality of suicide within the Irish discourse on abortion and the impact this had on the shape of the legislation ultimately introduced, in particular the inclusion of a more onerous process with which a woman must engage before she can obtain an abortion where the risk to her life is from suicide.  It highlights the practical consequences of this for the small number of very vulnerable women in Ireland who will be required to engage with the new statutory process which is deeply damaging.  The 2013 Act reinforces the two-tier approach to healthcare that exists in Ireland in the specific context of reproductive healthcare, as those with sufficient resources will be able to bypass the difficult and undignified statutory procedure and those who lack the socioeconomic capital will be compelled to remain.
PDF online.  Accepted version.

Keywords:  Abortion, dignity, Ireland, regulation, risk to life, suicide.

See also:
Attorney General v. X, [1992] I.E.S.C. 1, (Supreme Court of Ireland) had decided that an attempt to prevent a 14-year old girl who was pregnant as a result of being raped, from traveling from Ireland to England in order to access abortion care was not justified.  She was at real risk of committing suicide. Decision online.

Re-imagined judgment of Attorney General v. X  by Ruth Fletcher, with Commentary by Sheelagh McGuiness, in: Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity, edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017)  This book re-imagines, re-writes and comments on 26 court decisions from feminist perspectives.  Table of Contents and details
Reprohealthlaw blog comments, and links to full text

A referendum on Irish abortion law has been promised before June 2018. Irish Times.