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Right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission 2010, para. 8
- Paragraph text
- Various criminal laws exist worldwide that make it an offence for individuals to engage in same-sex conduct, or penalize individuals for their sexual orientation or gender identity. For example, consensual same-sex conduct is a criminal offence in about 80 countries. Other laws also indirectly prohibit or suppress same-sex conduct, such as anti-debauchery statutes and prohibitions on sex work. Many States also regulate extra-marital sexual conduct through criminal or financial sanctions, which affects individuals who identify as heterosexual but intermittently engage in same-sex conduct. These laws also have a significant impact on individuals engaging in sexual conduct with members of the opposite sex outside of marriage, particularly women, although this is outside the scope of this report.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Gender
- Person(s) affected
- LGBTQI+
- Women
- Year
- 2010
- Date added
- Aug 19, 2019
Paragraph
Right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission 2010, para. 13
- Paragraph text
- In the matter of Naz Foundation v. Government of NCT of Delhi and Others, the High Court of Delhi cited the case of Toonen and considered the reasoning of the South African Constitutional Court in finding section 377 of the Indian Penal Code unconstitutional. This section of the code criminalized, "carnal intercourse against the order of nature with any man, woman or animal" - wording from colonial rule that is still in use in more than half of the jurisdictions criminalizing sodomy worldwide. The Naz Foundation submitted that by criminalizing private, consensual same-sex conduct, section 377 perpetuated negative and discriminatory beliefs towards same-sex conduct, driving activities underground and crippling HIV/AIDS prevention efforts.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- LGBTQI+
- Women
- Year
- 2010
- Date added
- Aug 19, 2019
Paragraph
Right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission 2010, para. 30
- Paragraph text
- Alongside the right to health, the International Covenant on Economic, Social and Cultural Rights protects the right to freely chosen, gainful work (art. 6), which the State must take steps to safeguard. Article 6 of the Convention on the Elimination of All Forms of Discrimination against Women does not require States to suppress consensual, adult sex work. Rather, it calls for the suppression of "all forms of traffic in women and exploitation of prostitution of women". The term "exploitation of prostitution" has not been defined within the Convention, but is interpreted to refer to exploitation in the context of prostitution. Additionally, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families applies to a significant number of sex workers who travel between States to engage in sex work.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Persons on the move
- Women
- Year
- 2010
- Date added
- Aug 19, 2019
Paragraph
Right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission 2010, para. 64
- Paragraph text
- In jurisdictions where HIV transmissions have been prosecuted, of the very few cases that are prosecuted out of the many infections that occur each year, the majority have been noted to involve defendants in vulnerable social and economic positions. Although laws criminalizing HIV transmission and exposure were, on occasion, enacted to provide women with greater protection, applying these laws broadly has also resulted in women being disproportionately affected. For instance, a woman was prosecuted under section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 for having unprotected sex while HIV-positive, despite HIV not even being transmitted to the "victim" in question.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2010
- Date added
- Aug 19, 2019
Paragraph
Right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission 2010, para. 65
- Paragraph text
- Women often learn they are HIV-positive before their male partners because they are more likely to seek access to health services and are consequently blamed for introducing the infection into communities. For many women, it is also difficult or impossible to negotiate safer sex or to disclose their status to a partner for fear of violence, abandonment or other negative consequences. Women may therefore face prosecution as a result of their failure to disclose, despite having valid reasons for non-disclosure. These laws do not provide women with any additional protection against violence or assurance of their rights to sexual decision-making and safety, and do not address the underlying socio-economic factors that increase women's vulnerability.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Women
- Year
- 2010
- Date added
- Aug 19, 2019
Paragraph
Right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission 2010, para. 66
- Paragraph text
- Some countries have enacted laws that criminalize mother-to-child transmission explicitly (see paragraph 54 above) or implicitly due to overly broad drafting of the law. Where the right to access to appropriate health services (such as comprehensive prevention of mother-to-child transmission services and safe breastfeeding alternatives) is not ensured, women are simply unable to take necessary precautions to prevent transmission, which could place them at risk of criminal liability. In 2008, only 45 per cent of pregnant women living with HIV in sub-Saharan Africa and only 25 per cent in South and East Asia had access to prevention of mother-to-child transmission services.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Infants
- Women
- Year
- 2010
- Date added
- Aug 19, 2019
Paragraph
Right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission 2010, para. 67
- Paragraph text
- In Sierra Leone, a person infected with HIV (and aware of the fact) must "take all reasonable measures and precautions to prevent the transmission of HIV to others and in the case of pregnant women, the foetus", with criminal sanctions imposed for failure to do so. It is unclear what "all reasonable measures and precautions" in the case of prevention of mother-to-child transmission would include, and whether such standards are clearly articulated and understood by health-care providers and pregnant women themselves to ensure that an informed decision can be made. Given the complexity of guidance on the suitability of breastfeeding, decisions on infant feeding options involve a complex balancing of risks and benefits, and require that the mother be provided with accurate, comprehensible information. In this instance, the criminal law has the potential to punish women for the inadequacy of the government in providing appropriate services and education.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Infants
- Women
- Year
- 2010
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 56
- Paragraph text
- The provision of comprehensive education and information on sexual and reproductive health is an essential component of the right to health and to the realization of other rights, such as the right to education and access to information. Criminal and other laws restricting access to comprehensive education and information on sexual and reproductive health are thus incompatible with the full realization of the right to health and should be removed by States (see E/C.12/2000/4, para. 11). Both women and men are adversely affected by these barriers. Women, however, are disproportionately impacted.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Education
- Equality & Inclusion
- Health
- Person(s) affected
- Men
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 64
- Paragraph text
- States that implement and enforce criminal or other laws to restrict access to sexual and reproductive health information actively reduce access to information and therefore do not meet their obligation to respect the right to health. As a consequence of such laws and the stigma they generate, third parties, such as teachers, publishers, or booksellers may also deny women and girls access to necessary sexual and reproductive health materials. The obligation of States to fulfil the right to health requires that they develop strategies to ensure that comprehensive sexual and reproductive health education and information is provided to everyone, especially women and young girls.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Girls
- Women
- Youth
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 65i
- Paragraph text
- [In applying a right-to-health approach, States should undertake reforms toward the development and implementation of policies and programmes relating to sexual and reproductive health as required by international human rights law. In that context, the Special Rapporteur calls upon States to:] Consider, as an interim measure, the formulation of policies and protocols by responsible authorities imposing a moratorium on the application of criminal laws concerning abortion, including legal duties on medical professionals to report women to law enforcement authorities;
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 65n
- Paragraph text
- [In applying a right-to-health approach, States should undertake reforms toward the development and implementation of policies and programmes relating to sexual and reproductive health as required by international human rights law. In that context, the Special Rapporteur calls upon States to:] Suspend/abolish the application of existing criminal laws to various forms of conduct during pregnancy, such as conduct related to treatment of the foetus, most notably miscarriage, alcohol and drug consumption and HIV transmission.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 6
- Paragraph text
- The right to sexual and reproductive health is an integral component of the right to health. The International Covenant on Economic, Social and Cultural Rights emphasizes aspects of the right to sexual and reproductive health in article 12.2 (a). General Comment No. 14 of the Committee on Economic, Social and Cultural Rights states that the right to health includes measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, prenatal and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information (E/C.2/2000/4, para. 14). Moreover, it notes that women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health (ibid., para. 21). The recommendations of the Committee have consistently supported that approach.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 7
- Paragraph text
- The Convention on the Elimination of All Forms of Discrimination against Women requires States to take action to ensure that women are afforded broad equality in, inter alia, education, employment and access to health care. The Convention specifically provides for a proper understanding of maternity as a social function, access to family planning information, and the elimination of discrimination against women in marriage and family relations. Furthermore, article 16.1 (e) mandates that women be provided 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 those rights.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Children
- Families
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 8
- Paragraph text
- The Convention on the Rights of the Child provides for the protection of the right to health of young persons under the age of 18. Article 24 of the Convention affirms the right to health as established in the International Covenant on Economic, Social and Cultural Rights, which is especially relevant given the importance of sexual and reproductive health to the lives of young women and men. The Convention urges States to ensure prenatal and post-natal care for mothers, develop family planning education and services and ensure the elimination of traditional practices that are "prejudicial to the health of children".
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Men
- Women
- Youth
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 9
- Paragraph text
- Reproductive health rights also feature prominently in the Programme of Action of the 1994 International Conference on Population and Development, the 1995 Beijing Platform for Action and the Millennium Development Goals, which affirm the rights of women to control all aspects of their health, to respect bodily autonomy and integrity and to decide freely in matters relating to their sexuality and reproduction, free of discrimination, coercion and violence. The Beijing Platform for Action states that States should consider removing punitive measures related to sexual and reproductive health. The relationship between improved sexual and reproductive health for women and poverty reduction is particularly emphasized. Unfortunately, the Millennium Development Goals Report 2010 declared that progress in parts of the world in some indicative areas, such as adolescent pregnancy and contraceptive use, had slowed and that aid for family planning as a proportion of total aid to health had declined sharply between 2000 and 2008.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Adolescents
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 14
- Paragraph text
- In their application, criminal laws and other legal restrictions may prevent access to certain sexual and reproductive health-care goods, such as contraceptive methods, directly outlaw a particular service, such as abortion, or ban the provision of sexual and reproductive information through school-based education programmes or otherwise. In practice, these laws affect a wide range of individuals, including women who attempt to undergo abortions or seek contraception; friends or family members who assist women to access abortions; practitioners providing abortions; teachers providing sexual education; pharmacists supplying contraceptives; employees of institutions that are established to provide family planning services; human rights defenders advocating for sexual and reproductive health rights; and adolescents seeking access to contraception for consensual sexual activity.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- Adolescents
- Families
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 19
- Paragraph text
- Securing the rights of women is crucial to improving health outcomes for both sexes. However, substantial underreporting of reproductive and sexual health problems is a serious challenge and probably arises for a variety of political, social, and cultural reasons. By generating a chilling effect on the open exchange of information and data collection, criminalization further exacerbates the underreporting of important health indicators. As a result, effectively addressing poor health outcomes is rendered impossible, and difficulties faced by the international community in meeting core development goals are compounded. Moreover, development indicators do not capture the full impact of criminalization because they only address specific quantifiable public health data and exclude deprivations of dignity and autonomy.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 21
- Paragraph text
- Criminal laws penalizing and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realization of women's right to health and must be eliminated. These laws infringe women's dignity and autonomy by severely restricting decision-making by women in respect of their sexual and reproductive health. Moreover, such laws consistently generate poor physical health outcomes, resulting in deaths that could have been prevented, morbidity and ill-health, as well as negative mental health outcomes, not least because affected women risk being thrust into the criminal justice system. Creation or maintenance of criminal laws with respect to abortion may amount to violations of the obligations of States to respect, protect and fulfil the right to health.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 23
- Paragraph text
- In States where abortion is criminalized, particular grounds for seeking an abortion may be exempt from criminalization. In the most severe cases, however, abortion is completely criminalized without exception - a situation that exists in only a handful of States - or allowed only to save the life of the woman. Approximately 25 per cent of the world's population lives under legal regimes that prohibit all abortions except for those following rape or incest, as well as those necessary to save a woman's life. Slightly less restrictive legal regimes permit abortion on a number of physical health, mental health and socio-economic grounds, such as poverty and number of children. Finally, abortion is unrestricted on any grounds in 56 States, though limits still exist with respect to how late in pregnancy an abortion will be permitted.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 25
- Paragraph text
- The World Health Organization (WHO) has confirmed that legal grounds largely shape the course for women with an unplanned pregnancy towards a safe or an unsafe abortion. As legal restrictions primarily influence whether abortion is safe or not, more unsafe abortions are likely to occur in legal regimes that are more restrictive of abortion. The rate of unsafe abortions and the ratio of unsafe to safe abortions both directly correlate to the degree to which abortion laws are restrictive and/or punitive. Unsafe abortions are estimated to account for nearly 13 per cent of all maternal deaths globally. A further 5 million women and girls suffer short- and long-term injuries due to unsafe abortions, including haemorrhage; sepsis; trauma to the vagina, uterus and abdominal organs; cervical tearing; peritonitis; reproductive tract infections; pelvic inflammatory disease and chronic pelvic pain; shock and infertility.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Health
- Person(s) affected
- Girls
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 26
- Paragraph text
- The conditions under which unsafe abortions occur include: limited access to information, particularly concerning when and how legal abortions may be obtained; abortion induced by an unskilled provider in unhygienic conditions or by a health-care worker outside of appropriate facilities; abortion induced by the woman herself or a traditional medical practitioner through insertion of an object into the uterus, drinking of a hazardous substance or violent massage; and incorrectly prescribed medicine with no follow-up or further information provided. Criminalization of abortion creates and perpetuates these unsafe conditions. In more liberal regimes, women are able to legally seek service and treatment through professional health-care providers under safe and medically appropriate circumstances, including the use of medical abortion pills, which allow for safe, self-induced early abortions.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 30
- Paragraph text
- Women are entitled to equal health protection afforded by the State as part of the right to health. Regardless of the legal status of abortion, women are entitled to receive access to goods, services and information related to sexual and reproductive health. In particular, they are entitled to have access to quality health services for the management of complications, including those arising from unsafe abortions and miscarriages. Such care must be unconditional even where the threat of criminal punishment is present, and it should not be contingent on a woman's cooperation in any subsequent criminal prosecution, or used as evidence in any proceeding against her or the abortion providers. Laws must not require health-care personnel to report women for abortion-related care to law enforcement or judicial authorities.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 31
- Paragraph text
- Absolute prohibition under criminal law deprives women of access to what, in some cases, is a life-saving procedure. Even where a clandestine abortion can be performed in a relatively safe, hygienic setting, it may be financially inaccessible for the most vulnerable women. Poor and marginalized women may instead turn to unsafe, self-induced abortions. Where narrow exceptions to the criminalization of abortion exist, such as to save the life of a woman, criminalization may effectively block access to information about legal abortion services. Women often remain unaware of these exceptions because the stigma surrounding the issue of abortion prevents dissemination and discussion of such necessary information. Legal restrictions on the availability of information relating to abortions also exist because criminal laws often include explicit provisions prohibiting the production and distribution of the information.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 34
- Paragraph text
- The marginalization and vulnerability of women as a result of abortion-related stigma and discrimination perpetuate and intensify violations of the right to health. Abortion-related stigma prevents women from seeking abortions and prevents those who undergo abortions from requesting treatment for resulting medical complications. The gross underreporting of abortion - only 35 to 60 per cent are reported - is one indicator of the magnitude of the stigma attached to abortion. Although many social and cultural factors generate and exacerbate the stigma attached to abortion, criminalization of abortion perpetuates discrimination and generates new forms of stigmatization. For example, a woman's infertility may be misunderstood to be the result of a previous abortion, placing "culpability" on the woman as a result of the stigma associated with abortion rather than acknowledging that her infertility may be due to various unrelated health conditions.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 37
- Paragraph text
- Maternal health, prenatal and post-natal care, and access to information, are all elements of the right to health elaborated under General Comment No. 14. Additionally, article 10.2 of the International Covenant on Economic, Social and Cultural Rights provides that special protection should be accorded to mothers. The Convention on the Elimination of All Forms of Discrimination against Women also recognizes that women should be provided with appropriate services in connection with pregnancy. In chapter VII.A., the Programme of Action of the International Conference on Population and Development observes that reproductive health includes access to services that enable women to go through pregnancy and childbirth safely. Despite these positive obligations to support women during pregnancy and post-birth, certain States have proposed or enacted criminal laws or other legal restrictions prohibiting certain forms of conduct, which infringe the right to health of affected women.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Infants
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 38
- Paragraph text
- In certain jurisdictions, pregnant women have been prosecuted for various types of conduct during pregnancy. A number of prosecutions have occurred in relation to the use of illicit drugs by pregnant woman, including under pre-existing laws relating to child abuse, attempted murder, manslaughter and criminally negligent homicide. Criminal laws have also been used to prosecute women for other conduct, including alcohol use during pregnancy, the birth of stillborn babies or the miscarriage of a foetus (see A/HRC/17/26/Add.2, para. 68), failing to follow a doctor's orders, failing to refrain from sexual intercourse, and concealment of the birth.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Violence
- Person(s) affected
- Children
- Infants
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 39
- Paragraph text
- In some instances, civil legislation related to child welfare has been expanded to include punitive sanctions for prenatal drug exposure, where such exposure may provide a ground for the termination of parental rights and the removal of the child upon birth. A pregnant woman's positive toxicology report or clinical signs of drug exposure in newborns, may be regarded as proof of child abuse or neglect under these legislative schemes. In some jurisdictions, health professionals are required to test pregnant women or newborns for drug exposure or may do so provided the woman is given notice. Others have enacted legislation authorizing the institutionalization of women who have used drugs during pregnancy. Health professionals may also be obliged to report positive drug-screening results to the Government.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Infants
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 40
- Paragraph text
- Some States have also criminalized perinatal HIV transmission. For example, in one jurisdiction, a person infected with HIV (and aware of the fact) must "'take all reasonable measures and precautions to prevent the transmission of HIV to others and in the case of pregnant women, the foetus', with criminal sanctions imposed for failure to do so" (see A/HRC/14/20, para. 67). In this case, no exception or defence is allowed in relation to unavailability or lack of access to preventive health-care goods, services and information. Statutes from other jurisdictions, which criminalize HIV transmission generally, may also be applied to perinatal transmission.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 41
- Paragraph text
- Criminalization of conduct during pregnancy impedes access to health-care goods and services, infringing the right to health of pregnant women. Where women fear criminal prosecution, they may be deterred from accessing health services and care, as well as pregnancy-related information. For example, women may not seek antenatal services if they are faced with the risk of prosecution from transmitting HIV, which poses a risk to their health and the health of the foetus. This undermines public health objectives related to HIV, because women may refuse testing entirely if they face criminal penalties for transmission.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph
Criminalisation of sexual and reproductive health 2011, para. 42
- Paragraph text
- While public health goals can justify some degree of interference with personal freedoms, it has been well documented that the public health goals are not realized through criminalization; rather, they are often undermined by it (see A/HRC/14/20, para. 51). The application of criminal law to regulate conduct such as alcohol consumption during pregnancy is a disproportionate response and an ineffective deterrent. A number of professional medical associations oppose use of the criminal law as a means to address substance abuse by pregnant women, on the grounds of ineffectiveness and disproportionality. In order to realize public health outcomes effectively and simultaneously promote the right to health of women, States should not criminalize such conducts during pregnancy, but rather ensure the provision of health-care goods, services and information that promote health throughout pregnancy and childbirth.
- Body
- Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Person(s) affected
- Women
- Year
- 2011
- Date added
- Aug 19, 2019
Paragraph