The International Covenant on Civil and Political Rights (ICCPR) directly address the realm of reproduction in one provision. Article 23.2 of the ICCPR declares, "The right of men and women of marriageable age to marry and to found a family shall be recognized."
Over the past three decades, the right of couples and individuals to found a family—and therefore to decide on the number and spacing of children—has been further elaborated in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and various international declarations and plans of action.16 Article 16(1) of CEDAW provides that:
States parties shall take all appropriate measures to . . . ensure on a basis of equality of men and women . . . 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 these rights.
This article introduces three important points. First, women are entitled to make, and not simply to acquiesce to, decisions regarding reproduction on an equal basis with men. Second, this decision is to be made freely and responsibly.17 The state's authority to ensure that individuals make "responsible" decisions is subject to the caveat that it must not do so in any way that is violative of internationally recognized human rights. Of the range of potential abuses, discrimination may be the most elusive to human rights monitoring. The requirement that women (and men) should make reproductive decisions responsibly is, at first glance, beyond reproach; but it is, in fact, fraught with the potential for discrimination because female responsibility is almost always defined and evaluated in a context of unequal power relations between men and women. On the other hand, the phrase "freely and responsibly" implies that in order for women (and men) to act responsibly, the state should provide, or ensure the provision of, "information, education and means" to women to formulate their decisions.
Third, although Article 16 does not mention specifically family planning, it can be understood to include family planning information, particularly when it is read in conjunction with other provisions of CEDAW. Articles 10(h), 12(1) and 14.2(c) of the Women's Convention explicitly refer to the state's obligation to ensure access to family planning information.18
16 This right has been affirmed in various United Nations-sponsored conferences. It initially appeared in the 1968 Teheran Declaration, and subsequently in the Declaration on Social Progress and Development (1974), the World Population Plans of Action of Bucharest (1974) and Mexico City (1984), and the Women's Conference of Mexico City (1975) and Nairobi (1985).
17 Interpreting this article, the Committee on the Elimination of Discrimination Against Women has stated: "Decisions to have children or not, while preferably made in consultation with spouse or partner, must not nevertheless be limited by spouse, parent, partner or Government." General recommendation 21, "Report of the Committee on the Elimination of Discrimination Against Women," Thirteenth session, April 12, 1994, Supplement No. 38 (A/49/38).
18 Article 10(h) of CEDAW calls on state parties to ensure equality between men and women in "[a]ccess to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning; Article 12(1) calls on state parties to ensure, "on a basis of equality of men and women, accessto health care services, including those related to family planning"; and Article 14.2(c) requires state parties to ensure to women the right "to have access to adequate health care facilities, including information, counseling and services in family planning."
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