IACHR calls for progress in the recognition and protection of reproductive rights in the region

January 31, 2023

Washington D.C. – The Inter-American Commission on Human Rights (IACHR) presents an assessment of the progress and setbacks observed in the region during the year 2022 in the exercise of the reproductive rights of women, girls, adolescents, and all pregnant persons. While welcoming the progress achieved, it calls on States to refrain from going backward in recognizing and protecting these rights. It urges them to guarantee the exercise of these rights free of all forms of violence and gender discrimination in accordance with their international obligations.

Reproductive rights, which encompass certain human rights, have historically been limited, restricted, or otherwise denied based on harmful gender norms prioritizing the reproductive function of women, girls, adolescents, and pregnant persons over their human rights. This historical and structural discrimination is reflected in the violence fostered by laws that absolutely criminalize the voluntary interruption of pregnancy, limiting the legal, safe, and opportune options to do so.

The inter-American system has recognized that the decision to have biological children constitutes an area of ​​private life related to other rights, such as the right to form a family, physical and mental integrity, and specifically reproductive rights. Such rights entail a series of obligations on the part of the State, such as due regulation and supervision of health services, access to information and technologies, the obligation for medical personnel to obtain informed consent for any treatment to be practiced, and the prohibition of disproportionate restrictions to exercise reproductive decisions.

As has already been specified by the Inter-American Court, the Commission recalls that the protection of life from conception is not absolute but gradual and incremental, according to its development, in such a way that it allows an adequate balance with other rights that may conflict. In this way, the IACHR has reiterated that the absolute criminalization of abortion exposes women to dangerous and even deadly practices that put their health and lives at risk, especially those in poverty and greater vulnerability, who have a disproportionate impact on their rights. Furthermore, this negative impact is exacerbated in girls and adolescents, who, due to their gender and age condition, are more exposed to sexual violence, and for whom pregnancy represents a high health risk, as identified by PAHO. In addition, forcing them to carry the pregnancy to term causes them physical and mental suffering, which constitutes gender-based violence and potentially amounts to torture or cruel, inhumane, and degrading treatment, as indicated by the CEDAW Committee.

The Commission considers that adopting measures aimed at guaranteeing that women's rights are not disproportionately affected through the absolute criminalization of the voluntary interruption of pregnancy constitutes positive advances in the region. Thus, the legislative and judicial advances observed that decriminalize the voluntary interruption of pregnancy within specific periods are highlighted in the Mexican states of Guerrero, Baja California Sur, and Quintana Roo and at the national level in Colombia. These advances are in line with the inter-American standards on access to abortion in cases of danger to the life or health of the pregnant person, of non-viability of the fetus, or when the pregnancy is the result of rape or incest. In particular, the Constitutional Court of Colombia recognized that protecting the right to life from conception is not absolute but gradual and incremental, therefore, it cannot be the exclusive attribution of criminal law. However, less harmful and more effective alternatives must be explored, such as adopting comprehensive public policies that guarantee reproductive rights. Finally, the states of California, Michigan, and Vermont in the United States enshrined some level of protection for access to termination of pregnancy in their constitutions.

On the other hand, material and formal measures were observed that go backward in guaranteeing reproductive rights free of violence and discrimination. Among them are impediments to access health services for the termination of pregnancy despite being allowed by law, especially in cases of pregnant girls and adolescents as a result of rape or incest, as well as threats of legal action against medical and legal professionals, and other people who aid or accompany those who seek legal abortions such as in countries like Argentina, Brazil, Colombia, Panama, and others. Along the same lines, the sentences imposed on women who suffered obstetric emergencies in El Salvador stand out in the context of the absolute criminalization of abortion. Similarly, the annulment of the Roe v Wade precedent by the United States Supreme Court, which protected access to abortion, is highlighted, as well as different legal initiatives in progress that seek to limit or prohibit access to voluntary termination of pregnancy.

In this scenario, and in accordance with previous calls by this Commission, as well as by the Human Rights Committee and the Working Group on the issue of discrimination against women and girls of the United Nations, the Commission urges the States of the region to adopt all necessary measures to ensure that the rights of women, girls, adolescents, and all pregnant persons are not disproportionately affected through the absolute criminalization of the voluntary interruption of pregnancy, and to guarantee access to information, commodities, and comprehensive health services, with a gender and age approach, that allows them to decide in an informed manner and free from all violence about their reproductive lives. At the same time, it urges them to prioritize the implementation of comprehensive public policies for family planning and the prevention of pregnancy, including comprehensive sexuality education programs, free of stereotypes and gender roles that provide accompaniment, without distinction, both to people who want to undergo a pregnancy as well as those who do not want it.

A principal and autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. In addition, the Inter-American Commission has a mandate to promote respect for and defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission comprises seven independent members elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

* Commissioner Carlos Bernal Pulido issued a reasoned opinion, which was supported by Commissioner Edgar Stuardo Ralón Orellana. This reasoned opinion is available at the Executive Secretariat of the IACHR.

No. 011/23

2:30 PM