AGENDA EUROPE is a strong supporter of promoting sexual and reproductive health.
We are convinced that the right to health is a human right in the sense that each State should consider the protection of public health as a policy objective of highest priority, and adopt policies that are conducive to the highest attainable level of public health.
We believe that public health comprises sexual and reproductive health, which we understand to be the health of the sexual organs and their functions. This includes in particular the health of women during pregnancy, and during and after childbirth.
By contrast, the notion of “reproductive health” does not include or imply the access to abortion. The terms “sexual and reproductive health” and “sexual and reproductive rights” were much fought over at the UN Conference on Population and Development (ICPD) held in Cairo in 1994, when pro abortion groups pressed for the inclusion of those terms in conference documents, hoping that subsequently these terms could be interpreted as including an internationally recognized (!) “right to abortion”. The terms were finally included into the Conference’s “Programme of Action” (PoA) – but only after it had been clarified that they could not be interpreting as referring to abortion. This position was thereafter also confirmed by representatives of the EU and the United States. The 1994 Cairo Conference thus ended with a resounding defeat of the abortion industry.
While it is thus very clear that “sexual and reproductive health and rights” (SRHR) does not include abortion, it is much less clear what it actually does include.
The situation around SRHR remains uncertain and paradoxical. There is something similar to a definition of these terms in the ICPD Programme for Action, but that definition is rather cloudy, and the Programme for Action has no legally binding status. On the other hand, the UN Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, is the first (and so far the only) international treaty with a reference to “sexual and reproductive health” – but it does not contain a definition for it. The question is therefore: can, and should, the CRPD be interpreted in the light of the ICPD Programme for action?
The Definition of “Reproductive Health” in the ICPD Programme of Action
Despite not being a legally binding text, the definition of “reproductive health” in the ICPD PoA nevertheless must be considered the only existing international documents to provide a definition for “reproductive health”. It is clad in the following terms:
“7.2. Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law, and the right of access to appropriate health-care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant. In line with the above definition of reproductive health, reproductive health care is defined as the constellation of methods, techniques and services that contribute to reproductive health and well-being by preventing and solving reproductive health problems. It also includes sexual health, the purpose of which is the enhancement of life and personal relations, and not merely counselling and care related to reproduction and sexually transmitted diseases.”
7.3. Bearing in mind the above definition, reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents. In the exercise of this right, they should take into account the needs of their living and future children and their responsibilities towards the community. The promotion of the responsible exercise of these rights for all people should be the fundamental basis for government- and community-supported policies and programmes in the area of reproductive health, including family planning. As part of their commitment, full attention should be given to the promotion of mutually respectful and equitable gender relations and particularly to meeting the educational and service needs of adolescents to enable them to deal in a positive and responsible way with their sexuality. Reproductive health eludes many of the world’s people because of such factors as: inadequate levels of knowledge about human sexuality and inappropriate or poor-quality reproductive health information and services; the prevalence of high-risk sexual behaviour; discriminatory social practices; negative attitudes towards women and girls; and the limited power many women and girls have over their sexual and reproductive lives. Adolescents are particularly vulnerable because of their lack of information and access to relevant services in most countries. Older women and men have distinct reproductive and sexual health issues which are often inadequately addressed.
7.4. The implementation of the present PoA is to be guided by the above comprehensive definition of reproductive health, which includes sexual health.”
It appears from the outset questionable whether all of the language reproduced above can be described as a “definition”. A definition explains what its object is, not what it includes or embraces. Derived from the Latin word finis, which means “end” or “limit”, the purpose of a definition is to set clear limits to the meaning of a term, not to extend it without bounds. Besides that, it should be noted that points 7.3 and 7.4, as they make reference to the “above definition” of “reproductive health”, cannot themselves be part of that definition.
Thus our search for a definition leads us to set the focus on the first sentence of point 7.2, which explains what “reproductive health” actually is. The rest are implications, or implications of implications. But the first sentence of point 7.2 undoubtedly sounds like a definition: “Reproductive health”, it says, is “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes”.
There are certainly some core elements in this definition that are uncontroversial: namely, that “reproductive health” has to do with the reproductive system of the human body and its functions and processes. This, we must assume, is the understanding of “reproductive health” that is shared by all and everyone as a common ground, and which requires no further discussion.
Other elements of the definition, however, raise some questions. While surely everybody can agree to the definition of health as a state of well-being, the affirmation that it is “not merely the absence of disease or infirmity” is a definition ex negativo: it tells us what “reproductive health” is not, but not what it is. It would appear from this affirmation that, whilst not being attained by any disease and infirmity, one can nevertheless suffer from ill (reproductive) health – a seeming paradox that can only be explained by assuming that “reproductive health” includes elements that are actually far outside the domain of health.
This, apparently, is what the second sentence of point 7.2 intends to say. That sentence speaks of three “implications” of “reproductive health”, namely:
- the ability to have a satisfying and safe sex life;
- the capability to reproduce; and
- the freedom to decide if, when and how often to do so.
In view of these so-called “implications” one has reason to wonder whether “reproductive health” is not rather a social than a health status. Nevertheless, given that we speak of “implications”, it follows that those freedoms and capabilities are not themselves part of “reproductive health”, but can only be viewed as indicators whether or not somebody enjoys “reproductive health”. Moreover, those implications must be considered not as stand-alone entitlements, but in the context of “the reproductive system and its functions and processes”.
In other words, the absence of “reproductive health” means that a person will most likely not enjoy those implied capabilities and freedoms – but inversely it is certainly possible that a person is unable to have “a satisfying sex life”, or to reproduce, for reasons completely unrelated to “reproductive health”. For example, if somebody is emotionally unable to build a relationship of personal love to a person of the opposite sex, or if he is physically unattractive and a social misfit, these factors may certainly have implications for his sex-life and his chances to reproduce – but it is unrelated to his reproductive system and functions. Thus the commitment to “reproductive health” does not oblige governments to guarantee that anyone actually has “a satisfying sex life”. “Reproductive health” is one, but not the only, pre-condition for a “satisfying and safe sex life”, for the capability to reproduce, or for the freedom to make reproductive choices.
Those “implications” thus do not, as such, form part of any commitment. Instead, “reproductive health” stands under the same systemic caveat as any policy commitment on public health. Such commitments simply acknowledge that governments are not an end of their own, but that they have to serve the public good, and that policies conducing to the highest attainable level of health are part of that public good.
“Reproductive Health Care” and “Sexual Health”
Point 7.2 appears to make a distinction between “reproductive health”, “reproductive health care”, and “sexual health”.
As the line of reasoning goes, “reproductive health care” (which is “defined in line with the … definition of reproductive health”), is “the constellation of methods, techniques and services that contribute to reproductive health and well-being by preventing and solving reproductive health problems” and “includes sexual health”.
While the definition of “reproductive health care” sounds trivial, the affirmation that “reproductive health care” includes “sexual health” is somewhat enigmatic: how can “health care” include “health”? Does that mean that whoever receives such health care is automatically deemed to enjoy health? That would seem to pre-empt the outcome of the care efforts, turning a (desirable) possibility into certitude.
Rather bizarrely, the PoA contains no definition of “sexual health” itself, but only of its purpose: “the enhancement of life and personal relations, and not merely counselling and care related to reproduction and sexually transmitted diseases.”
Unfortunately, this statement on the one hand seems to be completely out of line with any normal understanding of “health”, while on the other hand it seems nearly impossible to discern what the drafters of these words may have had in mind. The common understanding is that “health” (which, concluding a maiori ad minus, certainly includes “sexual health”) is simply a desirable status, but does not have any specific purpose. It is a triviality that people enjoying (sexual) health will have a better chance to live happy lives than those who are affected by illness – but what sense does it make to affirm that health has the purpose of enhancing life and personal relations? And what are we to make of the affirmation that the purpose of “sexual health” is “not merely counselling and care”? In normal language, “counselling” and “care” may be conducive to “health”, but how can they be a purpose of “health”? It seems that for some unclear reasons ends and means have been confounded in this statement, which only makes sense if it is read as saying that “counselling and care” may be necessary, but not sufficient to ensure “sexual health”.
The confusion is further exacerbated by the fact that, besides “reproductive health”, “reproductive health care” and “sexual health”, the PoA introduces yet another novel concept: “reproductive rights”. Yet again, no definition is provided to explain what these rights are, or in what they consist. Instead, point 7.3 of the Programme for Action only affirms that they “embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents”.
The reference to rights that are “already recognized” appears to indicate that the PoA reflects no intention of proclaiming any new rights. We might therefore interpret the term “reproductive rights” as meaning the ensemble of all human rights, insofar as they correspond to the following criteria:
- they are part of a “consensus” (at national or international level) that existed prior to the PoA, and
- they have to do, in some way or the other, with “reproductive health”.
The first of these rights that springs to mind obviously is the right to health. Other generally recognized rights that come into question include the right to life, the right to marry and found a family, or (if correctly understood) the right to respect for one’s private life.
These rights are indeed generally recognized. However, the assertion that they are “embraced” by “reproductive rights” raises some questions. In particular, one might say that the right to found a family (as set out in Art. 16 of the UDHR, Art 23 of the ICCPR, Art. 12 of the ECHR, and Art. 17.2 of the American Human Rights Convention) is not “embraced”, but that it is itself a “reproductive right” for men and women in marriageable age. It is indeed the “reproductive right” par excellence, but even as such it does not include any of the controversial rights claims set out in the following paragraphs.
By contrast, given that there is no consensus on these matters, the following are not part of “reproductive rights”:
- access to abortion: it has many times explicitly been clarified that the term “reproductive rights” does not include a right to abortion. Besides this, the Inter-American human Rights Convention protects human life from the moment of conception and thus appears to exclude the possibility of a “right to abortion”. With regard to Europe, the European Court of Human Rights has clearly stated that the European Human Rights Convention contains no implicit “right to abortion”. Hence there is no “consensus”. Moreover, given the serious risk that abortion poses for the pregnant woman, it cannot be deemed conducive to health. Abortion is not a therapy, and pregnancy is not a disease; the decision to have abortion is not usually driven by considerations related to health.
- access to contraception: the Programme for Action clearly places all family planning practices under the caveat that they must be “acceptable” and legal under the law of the country. Hence there is no consensus with regard to any specific contraceptive method.
- access to medically assisted procreation: there clearly is no international consensus regarding a right to have access to such techniques. In Europe, the ECtHR has explicitly stated that the European Human Rights Convention contains no such right.
- homosexual intercourse, or similar practices: even if sodomy is nowadays no more prohibited in many counties (especially in Europe and the Americas), it remains a punishable crime in more than 80 countries. This excludes any hypothesis that there be an international consensus on those matters.
- same-sex marriage: if there is no consensus on homosexual intercourse, there can be even less of a consensus regarding same-sex “marriages”. Both the UN Human Rights Committee and the ECtHR have stated that the ICCPR and the European Human Rights Convention contain no such right, given that those documents provide for a right to marriage only for “men and women of marriageable age”.
- homosexual adoption: it is generally accepted that in matters related to adoption, the interests of the child, not those of the adoptive parents, are primordial. The purpose of adoption is to find a family for a child, not a child for a family. It follows that no one has a subjective right to adoption. In addition, the adoption of a child is as such not a ‘therapy’ against the adoptive parents’ infertility (or, in the case of homosexuality, the natural inability of two persons of the same sex to beget children); the whole issue is therefore outside the scope of any considerations related to “health”.
“Reproductive Health” in the UN Convention on the Rights of Persons with Disabilities
The UN Convention on the Rights of Persons with Disabilities (CRPD) is the first, and so far the only, legally binding international agreement containing a reference to “sexual and reproductive health”.
That reference is found in Article 25 of the CRPD:
“States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall:
1. Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes …”
As the negotiation history of this provision shows, the reference to “sexual and reproductive health” raised objections from a great number of governments, whereas other governments (mostly from the EU) strongly insisted on it. To overcome this impasse, the chairperson of the ad hoc drafting committee (the Ambassador of New Zealand to the UN, Donald McKay) not only had to resort to rather unusual negotiating strategies, but ultimately had to alleviate the concerns of the objectors by inserting a footnote into the working paper which clarified that he controversial terminology did not imply the recognition of any new rights.
That footnote is found in a document called “Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on its 7th session”, and has the following wording:
“The Ad Hoc Committee notes that the use of the phrase “sexual and reproductive health services” would not constitute recognition of any new international law obligations or human rights. The Ad Hoc Committee understands draft paragraph (a) to be a non-discrimination provision that does not add to, or alter, the right to health as contained in article 12 of the International Covenant on Economic, Social and Cultural Rights or article 24 of the Convention on the Rights of the Child. Rather, the effect of paragraph (a) would be to require States Parties to ensure that where health services are provided, they are provided without discrimination on the basis of disability.”
Without doubt, this is in line with what is said with regard to “reproductive rights” in Point 7.3 of the ICPD Programme of Action.
While it is not part of the final version of the CRPD, the footnote, as part of the preparatory work of the CRPD and the circumstances of its conclusion, must be considered a supplementary means of interpretation according to Article 32 of the Vienna Convention on the Law of Treaties (VCLT).
There is no definition of “sexual and reproductive health” in the CRPD itself. Moreover, there also is no reference in the CRPD to the ICPD Programme of Action.
Thus, two different interpretative approaches seem possible. One is to interpret Article 25 of the Convention in the light of Point 7.2 of the ICPD Programme of Action, given that this is the only available definition of “sexual and reproductive rights” that enjoys some (albeit limited and unclear) international status. That approach would lead to the result sketched out above. The alternative approach, which in view of the rules of interpretation set out in the VCLT seems to be the more correct one, would be to interpret the CRPD without making recourse to the ICPA Programme of Action, which would mean that “sexual and reproductive rights” have their own significance in the context of the CRPD. But given that there is no specific definition of that term within the CRPD, the only two elements that could come under consideration as basis for interpretation would be the “ordinary meaning” of the words (cf. Art 31 of the VCLT), and, as a merely subsidiary means of interpretation, the footnote which states that no new rights are created. If the drafters of the CRPD had intended to attribute a special meaning to “sexual and reproductive rights”, they could have included a definition, or a reference to the ICPD. This is not what they have done.
But what is the “ordinary meaning” of “sexual and reproductive health”?
The answer to that question is quite straightforward: the term relates to the health of the sexual organs of the human body, and its reproductive functions.
Indeed, there is no possibility to avoid the conclusion that the definitions set out in the ICPD PoA widely depart from the ordinary meaning of the terms “reproductive health” and “sexual health”. As everyone knows, this is often the case with legal definitions: if the meaning of a term is clear and straightforward, there is no need for a definition. Where a definition is needed, it is either to ensure precision in the case of possible ambiguities, or to ascribe to a term a specific meaning it normally does not have. This is the case for “sexual health” and “reproductive health” in the context of the ICPD Programme of Action: while in ordinary language “health” means the health (in the sense of: absence of disease or infirmity) of the human body or mind, and the adjectives “sexual” and “reproductive” are linked to the body’s reproductive function, the ICPD definition obviously had the purpose of extending this meaning. This becomes particularly apparent where that definition affirms that “reproductive health is … not merely the absence of disease or infirmity”, and that “the purpose of sexual health” is “not merely counselling and care related to reproduction and sexually transmitted diseases”. The words “not merely” in a definition are a clear indicator of the intention to extend the meaning of a term beyond the common and usual understanding.
 European Parliament, 4 December 2003: Oral Question (H-0794/03) for Question Time at the part-session in December 2003 pursuant to Rule 43 of the Rules of Procedure by Dana Scallon to the Council. In the written record of that session, one reads: Posselt (PPE-DE): “Does the term ‘reproductive health’ include the promotion of abortion, yes or no?” – Antonione, Council: “No.” Likewise, the European Commission, in response to a question from a Member of the European Parliament, clarified: “The term ‘reproductive health’ was defined by the United Nations (UN) in 1994 at the Cairo International Conference on Population and Development. All Member States of the Union endorsed the PoA adopted at Cairo. The Union has never adopted an alternative definition of ‘reproductive health’ to that given in the Programme of Action, which makes no reference to abortion”. (European Parliament, 24 October 2002: Question no 86 by Dana Scallon (H-0670/02))
 It suffices to quote the statements of then U.S. Vice President Al Gore a few days prior to the ICPD (quoted in: Jyoti Shankar Singh, Creating a New Consensus on Population (London: Earthscan, 1998), 60) that “the US do not seek to establish a new international right to abortion, and we do not believe that abortion should be encouraged as a method of family planning”, and of then US Ambassador to the UN, Ellen Sauerbrey, at the UN “Beijing plus Ten” Conference (2005) that “there is no right to abortion”.
 Cf. Article 4, § 1 of the American Convention on Human Rights
 Cf. ECtHR, A., B., and C., v. Ireland (Appl. no. 25579/05), at § 214
 ECtHR, S.H. and Others v. Austria (Appl. No. 57813/00), Decision of the Grand Chamber delivered on 3 November 2011, at § 97
 UN Human Rights Commission, Juliet Joslin et al. v New Zealand, Communication No. 902/1999, U.N. Doc. A/57/40 at 214 (2002)
 ECtHR, Schalk and Kopf v. Austria (Appl. no. 30141/04)
 Cf. Art. 21 of the UN Convention on the Rights of the Child.
 Cf. ECtHR, Fretté v. France (Appl. no. 36515/97), § 42
 S. Yoshihara, Lost in Translation: The Failure of the International Reproductive Rights Norm, Ave Maria Law Review, Vol. 11, No. 2. Spring 2013, p. 367-409
 E.g.: “For the purposes of this Agreement, ‘days’ mean calendar days.”