Chapter 1. Introduction
Human rights including a supportive framework of law and policy (1.3.1)
An enabling environment is one in which the human rights of individuals are respected, protected and fulfilled. This entails regular review and, where necessary, revision of regulatory, law and policy frameworks, and the adoption of measures to ensure compliance with evolving international human rights standards (see Annex 2).
Throughout this guideline we refer to human rights standards in international law, the applicability of which in a specific setting will depend on factors such as the State’s ratification of relevant human rights instruments. The sources of these human rights standards are detailed in Web annex A: Key international human rights standards on abortion.
(i) Sexual and reproductive health and rights
Sexual and reproductive health and rights are grounded in a range of human rights recognized and guaranteed in national and international law, and are inextricably linked to the achievement of public health policy goals, including the SDGs (32, 33). People have a range of sexual and reproductive rights, which are relevant to information and services across the continuum of care for abortion (see Box 1.2). Overarching all of them are principles of non-discrimination and equality, and the right to the highest attainable standard of physical and mental health, including in the provision of SRH services (3, para. 7). These are all underpinned by States’ obligations to ensure that laws and policies, institutional arrangements and social practices do not prevent people from the effective enjoyment of their right to SRH (3, para. 8). Box 1.2 provides a general description of certain human rights as established by international law instruments and their associated obligations and principles relevant to SRH.
Box 1.2: Selected human rights, as specified in relevant international law instruments, and their associated obligations and principles relevant to sexual and reproductive health and rights and abortion in particular
|Human right||Selected human rights principles and obligations relevant to abortion|
|The right to the highest attainable standard of physical and mental health, including sexual and reproductive health and rights|| |
|The right to non-discrimination and equality|| |
|The right to life||
|The right to privacy||
|The right to be free from torture, cruel, inhuman and degrading treatment and punishment, including the right to physical and mental integrity||
|The right to decide freely and responsibly on the number, spacing and timing of children and to have the information and means to do so|| |
|The right to information and education including on sexual and reproductive health|| |
|The right to benefit from scientific progress and its realization|| |
Note: For further information, see Web annex A: Key international human rights standards on abortion. Wording used in this box reflects original language used in the source documents (human rights treaties).
(ii) Prevention of unsafe abortion and reduction of maternal mortality and morbidity
Taking measures to prevent unsafe abortion is a core obligation of the right to SRH (3, para. 49). International human rights law requires States to take steps to reduce maternal mortality and also to effectively protect women from the physical and mental risks (morbidity) associated with unsafe abortion (43, paras 6, 9, 24, 30-33). Treaty monitoring bodies (see Annex 2) have confirmed that States must revise their laws to ensure this protection (36, para. 8). Thus, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has confirmed that States must liberalize restrictive abortion laws, guarantee access to quality abortion and post-abortion care, and respect the right of women to make autonomous decisions about their SRH (3, para. 28). In all situations, States have a duty under international human rights law to ensure that the regulation of abortion (see Chapter 2) does not cause women and girls to resort to unsafe abortions (36, para. 8). As a matter of international human rights law, States must provide essential medicines listed under WHO’s Action Programme on Essential Drugs (46, para. 12a). States must also take steps to prevent the stigmatization of people seeking abortion (36, para. 8). In addition, policies must seek to minimize the rate of unintended pregnancy by ensuring provision of quality contraceptive information and services, including a full range of contraceptive methods (emergency, short-acting and long-acting methods).
(iii) Rights-based regulation of abortion
The right to SRH requires States to ensure that health-care facilities, goods and services are available, accessible, acceptable and of good quality (46, paras 8, 12). This should inform all parts of the regulation of abortion.
Treaty monitoring bodies have called for the decriminalization of abortion in all circumstances. They have further clarified States’ human rights obligations in relation to abortion. These include that:
- States may not regulate pregnancy or abortion in a manner that runs contrary to their core obligation to ensure that women and girls do not have to resort to unsafe abortions. If they do, their restrictions on access to abortion must be revised (36, para. 8).
- The regulation of abortion must not jeopardize the lives of pregnant women, subject them to physical or mental pain or suffering (including where this constitutes torture or cruel, inhuman or degrading treatment or punishment), discriminate against them, or interfere arbitrarily with their privacy (36, para. 8).
- The regulation of abortion must be evidence based and proportionate to ensure respect for human rights (37, para. 18).
- Access to abortion must be available when carrying a pregnancy to term would cause the woman substantial pain or suffering. This includes but is not limited to situations where her life and health are at risk, where the pregnancy is the result of rape or incest, or where the pregnancy is not viable (36, para. 8). Treaty monitoring bodies have also recommended making abortion available in cases of fetal impairment, while putting in place measures to protect against discrimination on the basis of disability in society (60).
- States should not criminalize having an abortion, those who have an abortion, or those who support someone having an abortion (3 [paras 20, 34], 36 [para. 8], 55 [para. 18], 61 [para. 51(l)], 62 [para. 60], 63 [paras 82, 107]).
- States should not require health workers to report women who have had or who are suspected to have had an abortion (40, para. 20).
- States must provide essential primary health care (64, para. 10) (see also section 1.4.1: Universal health coverage and primary health care; section 1.4.4: Commodities; Annex 2: Selected human rights treaties and their treaty monitoring bodies; and also Web annex A: Key international human rights standards on abortion).
(iv) Accessibility of abortion care
Where it is lawful, abortion must be accessible in practice. This requires both ensuring that health-care facilities, commodities and services are accessible (including sufficient providers; see section 3.3.8 on provider restrictions), and that law and policy on abortion is formulated, interpreted and applied in a way that is compatible with human rights. Thus, where abortion is currently available on the basis of grounds, meaning under specified circumstances, and in anticipation of moving to a system of abortion on request as recommended (see Recommendation 2: Grounds-based approaches, section 2.2.2), those grounds must be defined and interpreted in a way that gives full effect to women’s human rights and that aligns with the following WHO definitions:
Health: a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity (2).
Mental health: a state of well-being in which every individual realizes their own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to their community (65).
States must take effective steps to prevent third parties (e.g. parent, spouse, health authority) undermining a person’s enjoyment of their right to SRH (see section 3.3.2: Third-party authorization for abortion) (3, para. 59), and must also ensure that provider refusal is not a barrier to accessing abortion care (see section 3.3.9: Conscientious objection or refusal by health workers to provide abortion care) (3 [paras 14, 43], 39 [Ch.1, paras 11, 13])).
(v) Free and informed consent
International human rights law requires that the provision of abortion be based on the free and informed consent of the person having the abortion with no further authorization required.
International human rights law obliges States to ensure that accurate, evidence-based abortion information (3 [para. 9], 36 [para. 8]) is available to individuals on a confidential basis (36 [para. 8], 43), and also that their choice to refuse such information when offered is respected (58, para. 15). Receipt of such information is vital as this underpins the right and the ability to make informed decisions and choices about matters regarding one’s body and SRH, and to give informed consent (see also section 1.3.2).
As a matter of international human rights law, States are obligated to ensure that “informed consent” is:
- documented in advance of a health-care intervention, and provided without coercion, undue influence or misrepresentation (58, para. 13);
- safeguarded through legislative, political and administrative means (58, para. 7), as a fundamental aspect of a range of human rights (i.e. the rights to health, information, freedom from discrimination, and security and dignity of the person);
- based on provision of complete information about the associated benefits, risks and alternatives;
- based on information that is of high quality, accurate and accessible (including ensuring it is available in a range of formats and languages, and in forms that make it accessible to people with reduced capacity), and presented in a manner acceptable to the person consenting.
Further relevant information is provided in section 3.2 on information provision and counselling related to abortion for individual abortion seekers, and in section 3.5.1 on follow-up care and section 3.5.4 on post-abortion contraception. States are obliged to protect women from arbitrary interference when they seek SRH services, and to ensure respect for autonomous decision-making by women, including women with disabilities, regarding their SRH and well-being (60).
Even though women have a right to accurate information, some health workers who object to abortion on the basis of conscience either provide deliberately misleading information or refuse to provide any information about abortion (66-68). States where health workers are allowed to invoke conscientious objection (3, para. 43) must regulate and monitor such refusals of abortion care to ensure that women can access accurate information and appropriate services (refer to section 3.3.9: Conscientious objection or refusal by health workers to provide abortion care).
As a matter of international human rights law, States may not restrict women’s access to health services on the ground that they do not have the authorization of husbands, partners, parents/guardians or health authorities, because they are unmarried, or because they are women (39 [Ch.1, paras 14, 21], 3 [paras 41, 43]). For adolescents, the authorization or consent of parents should not be required before the provision of abortion care (see also section 3.3.2: Third-party authorization for abortion). As a general matter, States must recognize children’s and adolescents’ evolving capacity and their associated ability to take decisions that affect their lives (69, Article 5). In order to ensure protection of adolescents’ sexual and reproductive health and rights, the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has suggested that States should consider introducing “a legal presumption of competence that an adolescent seeking preventive or time-sensitive health goods or services, including for sexual and reproductive health, has the requisite capacity to access such goods and services” (35, para. 60). The United Nations Committee on the Rights of the Child (CRC) has also urged States to “review and consider allowing children to consent to certain medical treatments and interventions without the permission of a parent, caregiver or guardian, such as … sexual and reproductive health services, including … safe abortion”(45, para. 31).
People with disabilities have a right to autonomy (59, Article 3a), but face continuing and systemic discrimination in access to SRH services. States are obliged to prohibit and prevent discriminatory denial of SRH services to people with disabilities (70, para. 66). States may not undertake, and must take steps to prevent forced or coerced abortion (40, para. 11), which constitutes torture, cruel, inhuman or degrading treatment (40 [para. 11], 52 [para. 62]).
(vi) Post-abortion care
Provision of post-abortion care is a core obligation of States under the right to SRH (3, para. 49e). Regardless of whether abortion is legal or restricted, States are required to ensure access to post-abortion care (45, para. 70). Such care must be available on a confidential basis, without discrimination, and without the threat of criminal prosecution or other punitive measures (36, para. 8). States must also ensure access to a wide range of modern, safe and affordable contraceptive methods (36 [para. 8], 49 [para. 33]).
(vii) Accountability for human rights violations
Accountability mechanisms are essential to the protection, respect and fulfilment of sexual and reproductive health and rights. Monitoring and accountability for human rights compliance takes place at national, regional and international levels, as appropriate to the law in question. Monitoring and accountability involve a variety of actors, such as the State itself, civil society organizations, national human rights institutions or international or regional human rights mechanisms. Some such accountability mechanisms include administrative mechanisms for recording and monitoring relevant health outcomes relating to abortion law and policy, and including them in reports to human rights institutions (39, Ch.1, paras 9, 10, 12, 17) (see also section 1.4.5 on monitoring and evaluation of abortion care). States must ensure that all persons have access to justice and to a meaningful and effective remedy where their human rights are violated (39, Ch.1, para. 13). These remedies can include adequate, effective and prompt reparation in the form of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (3, para. 64), including by reform of law and policy. Mindful of the above, an enabling environment for abortion care would ensure that there are appropriate accountability mechanisms for failures to facilitate quality abortion care, including accessible, transparent and effective accountability mechanisms for women to challenge denial of abortion in a timely manner. In addition, an enabling environment would include appropriate remedies for failure to facilitate quality abortion care, including regular review and reform of law and policy to recognize and remove barriers to quality abortion care. As confirmed by the Committee on the Elimination of Discrimination against Women (CEDAW), such reform should include “[a]bolish[ing] discriminatory criminalization and review[ing] and monitor[ing] all criminal procedures… [and] decriminaliz[ing] forms of behaviour that can be performed only by women, such as abortion” (61, para. 51[l]).