To Bear or Not to Bear: Reproductive Freedom as an International Human Right

Abstract

The right to reproductive freedom is recognized and protected in virtually every corner of this world. Domestic and international tribunals have increasingly found that the right to privacy includes such a right. For example, in the United States a woman's fundamental right to reproductive freedom is grounded upon the constitutional right to privacy. As Justice Brennan explained in Eisenstadt v. Baird:" "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Very recently the Canadian Supreme Court, essentially agreeing with the United States view, invalidated Criminal Code provisions limiting access to abortion as infringing on a woman's right to security of the person in derogation of principles of fundamental justice contained in the Canadian Charter of Rights and Freedoms.

In addition, in the international sphere, since 1966 myriad international resolutions, declarations and statements by international groups have acknowledged that matters of family planning and reproductive freedom are issues of individual rights. Similarly domestic legislation worldwide reflects the recognition of the right to reproductive freedom. Thus, reproductive freedom as a matter of concern to the international community is part of a personal right of privacy as well as part of a fabric of social rights which include rights to health care and equality for women. Using the various "sources" of international law as an analytical framework, this Article posits, based on an internationalist's perspective, that reproductive freedom -- as part of the penumbral zone of enumerated and existing human rights or as a particular right in se -- is now included in the body of protected international human rights. Consequently, any government interference with the individual's exercise of such freedom constitutes an impermissible intrusion into the individual's human rights.

Specifically, part II posits that the substantive individual rights of privacy, health and equality -- either as treaty rights or as customary international law derived from general acceptance of the treaty rights -- protects peripheral rights that include the human right to reproductive freedom. In reaching this result, the Article reviews decisions of international and domestic tribunals as well as pronouncements of international bodies that expressly recognize (a) reproductive freedom as a privacy right; (b) the nexus between health and reproductive freedom; and (c) the relationship between reproductive freedom and women's ability to participate equally in society. The Article also explains why the usual rationale for condemning abortion -- protection of fetal life -- cannot justify any interference with reproductive freedom. International and domestic tribunals interpreting international law uniformly have concluded that the unborn are not "persons" and thus do not enjoy rights, in particular the right to life, under international law.

Part III reviews domestic abortion laws worldwide and concludes that these laws -- either as "general principles of law recognized by civilized nations" or as international customary law derived from the practice of nations as evidenced, in part, by legislation -- establish reproductive freedom as an internationally protected human right in se. The analysis plainly shows that the vast majority of states have positive laws recognizing the right to reproductive choice thus establishing the right as a general principle of law. Significantly, the small minority of states with restrictive regulations honor such regulations in the breach. The actual practice in those states, as in states that have expressed the right, reveals that reproductive choice, specifically abortion, exists without state interference or prosecution. Thus, the general practice of states establishes that reproductive freedom is protected as international customary law.

The following sections first briefly explain the "sources" of international human rights law and then describe the emergence of the modern view of such law -- providing the historical background predicate to establishing reproductive freedom as an international human right.

Keywords: reproductive freedom, privacy rights, abortion, health, international human rights