Decriminalization of abortion - A human rights imperative.

This chapter reviews the evolving consensus in international human rights law, first supporting the liberalization of criminal abortion laws to improve access to care and now supporting their repeal or decriminalization as a human rights imperative to protect the health, equality, and dignity of people. This consensus is based on human rights standards or the authoritative interpretations of U.N. and regional human rights treaties in general comments and recommendations, individual communications and inquiry reports of treaty monitoring bodies, and in the thematic reports of special rapporteurs and working groups of the U.N. and regional human rights systems. This chapter explores the reach and influence of human rights standards, especially how high courts in many countries reference these standards to hold governments accountable for the reform and repeal of criminal abortion laws.

Multiple pregnancy: legal and ethical issues.

Multiple pregnancy is increasingly considered a complication of in vitro fertilization (IVF) and ovarian stimulation for natural fertilization. Harms to fetuses, newborn and older children, mothers, families, and healthcare systems are encouraging single embryo transfer. When patients knowingly accept multiple pregnancy risks from IVF or ovarian stimulation, they are unlikely to succeed in litigation against healthcare providers for wrongful pregnancy or wrongful birth. More challenging are impaired children's claims for "wrongful life." These are unlikely to succeed against parents, but courts are ambivalent to claims against healthcare providers. Historically, courts rejected these claims, under the principle that live birth is not a legal injury. European and other courts, however, have been more sympathetic to these claims. Multiple pregnancy treated by fetal reduction is not usually found to offend abortion laws. This poses ethical concerns, however, of "lifeboat ethics," involving how fetal reduction choices are made.

Prenatal management of anencephaly.

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve these cases, but responses of Brazilian courts are less clear. Ethical concerns relate to late-term abortion, meaning after the point of fetal viability, but since anencephalic fetuses are nonviable, many ethical concerns are overcome. Professional guidance is provided by several professional and institutional codes on management of anencephalic pregnancies.

Zika virus infection in Brazil and human rights obligations.

The February 2016 WHO declaration that congenital Zika virus syndrome constitutes a Public Health Emergency of International Concern reacted to the outbreak of the syndrome in Brazil. Public health emergencies can justify a spectrum of human rights responses, but in Brazil, the emergency exposed prevailing inequities in the national healthcare system. The government's urging to contain the syndrome, which is associated with microcephaly among newborns, is confounded by lack of reproductive health services. Women with low incomes in particular have little access to such health services. The emergency also illuminates the harm of restrictive abortion legislation, and the potential violation of human rights regarding women's health and under the UN Conventions on the Rights of the Child and on the Rights of Persons with Disabilities. Suggestions have been proposed by which the government can remedy the widespread healthcare inequities among the national population that are instructive for other countries where congenital Zika virus syndrome is prevalent.

Women's rights to reproductive and sexual health in a global context.

The worldwide burden of reproductive and sexual ill-health falls disproportionately on women belonging to vulnerable and disadvantaged groups. Women's rights to reproductive and sexual health, as protected under national constitutions as well as regional and international human rights treaties, require that health systems account for the distinctive needs and circumstances both of and among women. The purpose of this article is to investigate what we can do as advocates to ensure that the reproductive and sexual health rights of all women are respected, protected, and enforced, both internationally and in Canada.

Patients' refusal of recommended treatment.

When patients require information to decide whether to accept recommended treatments, a question in both law and ethics is whether the same information is adequate whether they consent or refuse, or whether refusal requires more or repeated information. Refusals of recommended treatment can carry increased risks for patients' well-being and so require more emphatic disclosure without imposing pressure. A related question is whether guardians of dependents who would decline recommended treatment for themselves--for instance on religious grounds--can similarly decline it for their dependents. When pregnant women, children, and adolescents are able to give consent for recommended treatment, the question arises whether they are equally competent to refuse it and prevent their decisions being overridden by guardians or courts. Consenting to and refusing medical treatments recommended in one's own or dependents' best interests might not be the same sorts of decisions and could require different levels of disclosure and capacity.

Types of consent in reproductive health care.

Healthcare providers require prior consent to treat patients. Consent can be different for legal purposes, and be expressed in different ways. Simple consent affords providers protection from liability for assault, but negligence can arise if the consent is inadequately informed. Providers cannot coerce or improperly induce consent; patients' agreement that a provider wrongly influences is compliance, not true consent. Attempts to rescue patients in peril may be lawful on the presumption of their implied consent, unless patients negate the presumption. In special cases, laws may require that consent be written, but generally consent can be given by speech or conduct. Informed consent depends on patients' comprehension, but consent for treatment of uncomprehending patients may come from third parties, including legally recognized substitutes or judges. There may be legal limits to reproductive procedures to which patients may consent, under laws that can be respectfully tested, but have to be obeyed.

Access to emergency contraception.

The merits of non-prescription distribution of levonorgestrel as emergency contraception (EC), which is effective within 72 hours of unprotected intercourse, are contentious. The advantage of promptness and convenience of access may be offset by the absence of medical counselling. Opposition to EC based on the possibility of the drug acting after fertilization but before implantation departs from standard medical criteria of pregnancy. Physicians who propose to apply non-medical criteria, and use religious objections to abortion to deny prescription of EC, must publicize their opposition in advance, so that women may seek assistance elsewhere. When objecting practitioners, or facilities, become responsible for women for whom EC is indicated, such as rape victims, they are bound ethically and legally to refer them to reasonably accessible non-objecting sources of care.

Developments in judicial approaches to sexual and reproductive health.

This article reviews the jurisprudence on reproductive and sexual health of national and international tribunals. This review reveals a shift from controlling reproduction and sexuality through the use of criminal law to impose a moral order, to the use of administrative law to ensure availability of safe and effective services, and, finally, to the use of human rights to promote respect for human dignity. The conventional use of criminal law to prohibit provision of reproductive and sexual health services, underage sex, and relations between same-sex partners is waning. Due in part to research showing how criminal law harms reproductive health, an emerging judicial trend is toward the more pragmatic use of law to reduce the harm to health associated with sexuality and reproduction. Most recently, courts are recognizing that respect for individuals' needs to protect their reproductive and sexual health is a matter of social justice.

Reducing stigma in reproductive health.

Stigmatization marks individuals for disgrace, shame, and even disgust-spoiling or tarnishing their social identities. It can be imposed accidentally by thoughtlessness or insensitivity; incidentally to another purpose; or deliberately to deter or punish conduct considered harmful to actors themselves, others, society, or moral values. Stigma has permeated attitudes toward recipients of sexual and reproductive health services, and at times to service providers. Resort to contraceptive products, to voluntary sterilization and abortion, and now to medically assisted reproductive care to overcome infertility has attracted stigma. Unmarried motherhood has a long history of shame, projected onto the "illegitimate" (bastard) child. The stigma of contracting sexually transmitted infections has been reinvigorated with HIV infection. Gynecologists and their professional associations, ethically committed to uphold human dignity and equality, especially for vulnerable women for whom they care, should be active to guard against, counteract, and relieve stigmatization of their patients and of related service providers.

Human rights and maternal health: exploring the effectiveness of the Alyne decision.

This article explores the effectiveness of the decision of the Committee on the Elimination of Discrimination against Women in the case of Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, concerning a poor, Afro-Brazilian woman. This is the first decision of an international human rights treaty body to hold a state accountable for its failure to prevent an avoidable death in childbirth. Assessing the future effectiveness of this decision might be undertaken concretely by determining the degree of Brazil's actual compliance with the Committee's recommendations, and how this decision influences pending domestic litigation arising from the maternal death. Alternative approaches include: determining whether, over time, the decision leads to the elimination of discrimination against women of poor, minority racial status in the health sector, and if it narrows the wide gap between rates of maternal mortality of poor, Afro-Brazilian women and the country's general female population. Determining the effectiveness of this decision will guide whether to pursue a more general strategy of judicializing maternal mortality.

Applying human rights to improve access to reproductive health services.

Universal access to reproductive health is a target of Millennium Development Goal (MDG) 5B, and along with MDG 5A to reduce maternal mortality by three-quarters, progress is currently too slow for most countries to achieve these targets by 2015. Critical to success are increased and sustainable numbers of skilled healthcare workers and financing of essential medicines by governments, who have made political commitments in United Nations forums to renew their efforts to reduce maternal mortality. National essential medicine lists are not reflective of medicines available free or at cost in facilities or in the community. The WHO Essential Medicines List indicates medicines required for maternal and newborn health including the full range of contraceptives and emergency contraception, but there is no consistent monitoring of implementation of national lists through procurement and supply even for basic essential drugs. Health advocates are using human rights mechanisms to ensure governments honor their legal commitments to ensure access to services essential for reproductive health. Maternal mortality is recognized as a human rights violation by the United Nations and constitutional and human rights are being used, and could be used more effectively, to improve maternity services and to ensure access to drugs essential for reproductive health.

Upholding pregnant women's right to life.

Recent decisions of the Committee on the Elimination of Discrimination against Women (CEDAW), the Inter-American Court of Human Rights, and the High Court of Delhi have shown how the pregnancy-related deaths of individual women have been bases on which these authoritative tribunals have held Brazil, Paraguay, and India respectively accountable for avoidable maternal mortality not only in these cases, but also among their populations more generally. The right to life is the most fundamental of women's human rights, recognized in international human rights treaties and national laws. Failure of governments to apply their resources adequately to address, respect, and protect this right violates the law of human rights. These cases show, however, that governments may fail to allocate adequate resources to women's survival of pregnancy. Tribunals can build on the failures in individual cases to set standards of performance to which governments will legally be held to achieve safe motherhood.

Conscientious commitment to women's health.

Conscientious commitment, the reverse of conscientious objection, inspires healthcare providers to overcome barriers to delivery of reproductive services to protect and advance women's health. History shows social reformers experiencing religious condemnation and imprisonment for promoting means of birth control, until access became popularly accepted. Voluntary sterilization generally followed this pattern to acceptance, but overcoming resistance to voluntary abortion calls for courage and remains challenging. The challenge is aggravated by religious doctrines that view treatment of ectopic pregnancy, spontaneous abortion, and emergency contraception not by reference to women's healthcare needs, but through the lens of abortion. However, modern legal systems increasingly reject this myopic approach. Providers' conscientious commitment is to deliver treatments directed to women's healthcare needs, giving priority to patient care over adherence to conservative religious doctrines or religious self-interest. The development of in vitro fertilization to address childlessness further illustrates the inspiration of conscientious commitment over conservative objections.

Legal and ethical issues in fetal surgery.

Recent research in the USA has shown the advantages for children's welfare of open fetal surgery over postnatal treatment for myelomeningocele. However, a balance must be struck between complications of premature birth risked by prenatal surgery and the long-term advantages for affected children's health, including mobility and neurologic capacity. Risks for women are repeated surgery for intervention and delivery. The research raises legal and ethical questions about how fetal interests should influence women's choices, and whether women may decline interventions in their pregnancies that offer their children lifelong advantages. Beyond fetal interests and women's preferences are state interests in fetal life, which in the USA and elsewhere have been expressed in judicially authorized cesarean deliveries. Underlying issues are the nature of fetal interests; contrasting entitlements to care from their mothers of fetuses and born children; healthcare providers' responsibilities toward fetuses; and duties of care, information, and advice to pregnant women.