Dear Representatives of the State of Puebla:
Human Rights Watch is an international nongovernmental organization that monitors respect for human rights in more than 70 countries around the world.
We are writing to urge you to vote against the proposed changes to article 18 of the Puebla state constitution that claim to be for the purpose of "guaranteeing the rights of the family according to the contents of treaties, conventions and other international instruments ratified by Mexico in this matter." In fact, certain proposed revisions contravene those same international agreements. They would actually violate many of the international human rights protections for families as well as the rights of women, and leave them more vulnerable and less protected.
Our concerns center around family rights and reproductive rights, the various points revised for Article 18 as well as the proposed definition of family and human life, and the discriminatory manner that protections would be accorded to men, women and children.
Specifically, these proposed revisions would:
- Exclude almost 100,000 families and children in Puebla from the protection given to other families (the bill would eliminate single-parent or other non-nuclear families from the definition of "family," de facto including many migrants or families of migrants, and bar same-sex couples and their families from any form of legal recognition);
- Restrict girls' and women's access to contraception, emergency obstetric services and other reproductive healthcare services, including abortion care, and limit their autonomous decision-making ability with regard to their health, lives and reproduction.
Family rights
The Mexico National Population Council reported in 2008 that 102,072 families in Puebla are mono-parental and 15,158 are extended ones (composed of two or more people related by blood where there might or not be a nuclear family).[1] In addition, Puebla is one of the main states exporting labor to the United States, and among the ten states with the greatest out-migration of indigenous people. A United Nations Development Programme (UNDP) report indicated that 10.05 percent of women and 12.78 percent of men in Puebla migrated between 2000 and 2005.[2] The same report indicated that indigenous migrants use social networks inside Mexico and alternative forms of living arrangements-most of which would be implicitly excluded under the restrictive definitions of the reforms.[3] Migration patterns regularly create family structures that do not conform to the restrictive definition in this law.
These proposed reforms attack the rights and legal status not only of these diverse forms of the family, but of the children reared in them. Puebla should stand on the side of children and their families-not deprive them arbitrarily of recognition and rights.
In addition to restriction of family recognition on the basis of marriage, the act would restrict civil unions (uniones libres o civiles) to the partnership of a man and a woman with the capacity to marry, thereby eliminating any possibility for the legal recognition of same-sex relationships. The bill would also adversely affect single-parent families, divorced parents, and many unmarried heterosexual couples, as well as many indigenous family structures. It could potentially affect the legal status of children born with the assistance of reproductive technologies.
The American Convention on Human Rights, to which Mexico is a party, establishes the rights pertaining to family in Article 17(1). It states that as "the natural and fundamental group unit of society," the family "is entitled to protection by society and the state."[4] The Convention does not restrict the concept of family but leaves room to include different structures. The Inter-American Court recognized this in its judgment in Aloeboetoe and others v Surinam, explaining "that it is necessary to take into account the family structure" of a particular indigenous group in allocating compensation to survivors, regardless of whether that structure is recognized by the state in the form of marriage.[5]
Other international bodies recognize the need for respect towards different forms of families. The UN Committee on the Rights of the Child, which interprets the Convention on the Rights of the Child, has stated that with regard to the "family environment," the Convention reflects "different family structures arising from various cultural patterns and emerging family relationships" and "refers to various forms of families, such as the extended family, and is applicable in a variety of families such as the nuclear family, re-constructed family, joint family, single-parent family, common-law family and adoptive family."[6] The UN High Commissioner for Refugees has gone further and specifically recommended that the right to family unification include same-sex partners. In its view, states should adopt "a pragmatic interpretation of the family. ... Families should be understood to include spouses; those in customary marriage; long-term cohabitants, including same-sex couples; and minor children until at least age eighteen."[7]
The discriminatory aim of the proposed constitutional also contravenes international human rights protections for equality. The UN Committee on the Elimination of Discrimination against Women (charged with interpreting and monitoring compliance with the UN Convention on the Elimination of all Forms of Discrimination against Women, or CEDAW, which Mexico ratified in March 1981) has stressed that women's enjoyment of rights and access to services should not depend on their marital status.[8]
The International Covenant on Civil and Political Rights (ICCPR), which Mexico ratified in June 1981, affirms the equality of all people in its articles 2 and 26. In the 1994 case of Nicholas Toonen v Australia, the United Nations Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, found that both these provisions should be understood to include sexual orientation as a status protected against discrimination. Specifically, it held that "reference to ‘sex' in articles 2, para. 1 and article 26 is to be taken as including sexual orientation."[9] The UN Human Rights Committee has held that same-sex relationships must be recognized for the purposes of pensions and other benefits in the cases of Young v Australia[10] and, most recently, in X v Colombia.[11]
Similarly, the Inter-American Commission on Human Rights also has concluded that gender-based distinctions in rights in relation to the family cannot be justified. In Maria Eugenia Morales v Guatemala, the Commission found a violation to the rights of family life in reference to Article 16(1) of CEDAW.[12] It found Guatemala in breach of its international obligations and determined that "specific steps ... must be taken to ensure substantive equality in family law and family relations."[13]
Reproductive rights
As for reproductive rights, the proposed provisions in "Chapter IV: On the Family" are contradictory. Point III recapitulates the guarantee in the Mexican Constitution that "every person has the right to plan and decide in a free, responsible and informed manner the number and spacing of their children." ["Capitulo IV: De la familia: III.- Toda persona tiene derecho a planear y decidir de manera libre, responsable, informada sobre el número y el espaciamiento de sus hijos..."] Yet the following point IV states that "human life shall be protected from the moment of conception until natural death. The State will guarantee people the full enjoyment and exercise of their rights."[" La vida humana debe ser protegida desde el momento de la concepción hasta la muerte natural. El Estado garantizará a las personas el pleno goce y ejercicio de todos sus derechos."]
Girls' and women's rights cannot be fully protected without guaranteeing access to the full range of reproductive health information, options and services. Part of these include access to the widest possible range of contraceptive methods, access to sexuality education, freedom from sexual violence, and access to safe and legal abortion services, including post-abortion care.[14]
Although the right to life clearly protects the interests of pregnant women, opponents of abortion rights also argue that the right to life of a fetus should predominate. There is debate as to when "legal personhood" commences and when the right to life should apply, with many arguing that it should only apply as a legal concept after birth.
Most international human rights instruments are in fact silent concerning the starting point for the right to life.[15] Yet the negotiating history of many treaties and declarations, international and regional jurisprudence, and most legal analysis suggest that the right to life as spelled out in international human rights instruments is not intended to apply before the birth of a human being.[16]
The American Convention on Human Rights is the only international human rights instrument that contemplates that the right to life can apply from the moment of conception, though not in absolute terms.[17] Article 1 of the American Declaration on the Rights and Duties of Man, the predecessor instrument to the ACHR, does not mention conception, guaranteeing instead that "every human being has the right to life, liberty, and the security of his person."
In 1981 the body that monitors the implementation of the human rights provisions in the American regional system, the Inter-American Commission on Human Rights, was asked to establish whether the right to life provisions in these documents are compatible with a woman's right to access safe and legal abortions. The commission concluded that they are.
The question reached the commission through a petition brought against the United States government by individuals related to a group called Catholics for Christian Political Action when a medical doctor was acquitted of manslaughter after performing an abortion in 1973 in the "Baby Boy" case.[18] The petitioners asked the commission to declare the United States in violation of the right to life under the American Declaration on the Rights and Duties of Man, using the American Convention on Human Rights as an interpretative tool.[19] In the deliberation on the Baby Boy case, the Commission went to great pains to examine the provisions on the right to life in both the declaration and the convention, looking to the preparatory work for both documents to clarify the intended object and purpose of the wording of the provisions.[20] In the case of the declaration, the commission explained,
[[I]t is important to note that the conferees in Bogotá in 1948 rejected language which would have extended that right to the unborn [and] adopted a simple statement on the right to life, without reference to the unborn, and linked it to the liberty and security of the person. Thus it would appear incorrect to read the Declaration as incorporating the notion that the right to life exists from the moment of conception. The conferees faced this question and chose not to adopt language which would clearly have stated that principle.[21]
With regard to the convention, the commission found that the wording of the right to life in article 4 was very deliberate and that the convention's founders specifically intended the "in general" clause to allow for non-restrictive domestic abortion legislation. As the commission phrased it, "[I]t was recognized in the drafting session in San José that this phrase left open the possibility that states parties to a future Convention could include in their domestic legislation 'the most diverse cases of abortion,'"[22] allowing for legal abortion under this article. The commission went on to correct the petitioners in their selective reading of the ACHR:
[I]t is clear that the petitioners' interpretation of the definition given by the American Convention on the right of life is incorrect. The addition of the phrase "in general, from the moment of conception" does not mean that the drafters of the Convention intended to modify the concept of the right to life that prevailed in Bogotá, when they approved the American Declaration. The legal implications of the clause "in general, from the moment of conception" are substantially different from the shorter clause "from the moment of conception" as appears repeatedly in the petitioners' briefs.[23]
The commission also cited several countries, including the United States and Brazil, for having clarified during the negotiations that, notwithstanding any language contained in article 4(1) of the convention, they retained the right to "preserv[e their] discretion with respect to the content of legislation in the light of their own social development, experience and similar factors."[24]
Recognizing an absolute right to life of the unborn, moreover, disregards other fundamental rights that are also at stake. Authoritative interpretations of international law recognize that abortion is vitally important to women's exercise of their human rights, which are not limited to their right to life. They include, among others, the rights to health and health care, the right to non discrimination, and the right to decide the number and spacing of children.[25] These rights are also provided for in the Mexican Constitution.[26]
Unsafe abortions are a grave threat to women's health.[27] Where there is a lack of legal and safe abortion services and pervasive barriers to contraceptives and other reproductive health services, there will be unwanted pregnancies and unsafe abortions. Between 10 and 50 percent of women worldwide who undergo unsafe abortions require post-abortion medical attention for complications such as incomplete abortion, infection, uterine perforation, pelvic inflammatory disease, hemorrhage, or other injury to internal organs.[28]According to information from six Latin American countries, five to 10 of every 1,000 women are hospitalized annually for treatment of complications from an induced abortion.[29] These may result in permanent injury, infertility, or death.
Access to safe and legal abortion services is also essential to the protection of women's rights to nondiscrimination and substantive equality.[30] In practice, women are more likely than men to experience personal hardship as well as social disadvantage as a result of economic, career, and other life changes when they have children. Where women are compelled to continue having unwanted pregnancies, barriers to safe and legal abortion services forcibly put women at a further disadvantage.
Moreover, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), which interprets the Convention on the Elimination of All Forms of Discrimination Against Women, has held that restrictive abortion laws are contrary to the right to nondiscrimination in access to health care.[31] The CEDAW Committee has stressed states' obligation to respect women's access to reproductive health services and to "refrain from obstructing action taken by women in pursuit of their health goals."[32] According to the Committee, "barriers to women's access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures."[33] It therefore recommends that "[w]hen possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion."[34] In the case of Mexico, the CEDAW Committee recommended in 1998 "that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion."[35]
The right of women to decide on the number and spacing of their children without discrimination can only be fully implemented where women have the right to make decisions about when or if to carry a pregnancy to term without interference from the state.[36] For this right to be fulfilled, women must also have access to all safe and effective means of controlling their family size, including abortion, as part of a full range of reproductive health care services.[37]
Neither children nor adults should have to face the state's discrimination against or rejection of their families. By voting against these arbitrary and exclusive constitutional changes, the Congress of the State of Puebla will act to protect all families and their members, and uphold the fundamental human rights inherent to all its people.
Sincerely,
Juliana Cano Nieto, Researcher
Lesbian, Gay, Bisexual and Transgender Rights Program
Human Rights Watch
350 Fifth Avenue, 34th Floor
New York, NY USA 10118
Tel. +01 (212) 216-1233
Fax +01 (212) 216-1876
E-mail: canoj@hrw.org
Angela Heimburger, Researcher
Human Rights Watch
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299
Tel: +1-212-216-1276
Fax: +1-212-736-1300
Tamara Taraciuk, Researcher
Americas Division
Human Rights Watch
1630 Connecticut Ave., N.W., Suite 500
Washington, D.C. 20009
Tel: 202-612-4357
Fax: 202-612-4333
Email: taracit@hrw.org
[1] Consejo Nacional De Población, http://www.conapo.gob.mx/index.php?option=com_content&view=article&id=39&Itemid=237 (accessed on March 12, 2009). In the case of monoparental families, 52,880 are headed by women and 49,192 by men.
[2] UNDP, Human Development Report 2006/2007, "Migration and Human Development," Mexico, p. 53 at http://www.undp.org.mx/desarrollohumano/informes/index.html (accessed on March 12, 2009).
[3] Ibid.
[4] American Convention on Human Rights (ACHR) ("Pact of San Jose, Costa Rica"), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), acceded to by Mexico on March 2, 1981.
[5] Inter-American Court of Human Rights, Aloeboetoe and others Case, Judgment on Reparations and Costs of September 10, 1993, Inter-Am.Ct.H.R., (Ser. C) No. 15 (1993), para. 59.
[6] UN Committee on the Rights of the Child, "Fortieth Session: Day of General Discussion, Children without Parental Care", CRC/C/153, March 17, 2006, para. 644.
[7] UN High Commissioner for Refugees, "Refugee Protection in International Law: UNHCR's Global Consultations on International Protection," 2003, p. 584, http://www.unhcr.org/publ/PUBL/419dbf664.pdf (accessed September 27, 2007).
[8] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981., ratified by Mexico on March 23, 1981; U.N. Committee on the Elimination of Discrimination against Women, General Recommendation No. 21, Equality in marriage and family relations, (13th session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.7 (2004), p. 257. Article 16 of the Convention states: "States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations."
[9] UN Human Rights Committee, Decision: Nicholas Toonen v Australia, CCPR/C/50/D/488/1992, December 25, 1991, para. 8.7, http://www1.umn.edu/humanrts/undocs/html/vws488.htm (accessed September 27, 2007).
[10] UN Human Rights Committee, Decision: Young v Australia, CCPR/C/78/D/941/2000, September 18, 2003, http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Open... (accessed March 12, 2009).
[11] UN Human Rights Committee, Decision: X v Colombia, CCPR/C/89/D/1361/2005, May 14, 2007, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/51537efd406147c3c125730600464373?Opendocument (accessed March 12, 2009).
[12] Inter-American Commission on Human Rights, Maria Eugenia Morales Case, Report No. 4/01, Case 11.625, January 19, 2001, http://www.cidh.org/annualrep/2000eng/chapteriii/merits/guatemala11.625.htm (accessed March 12, 2009).
[13] Ibid., para. 41.
[14] Human Rights Watch has written extensively about this issue in countries such as Argentina, Nicaragua, Perú and México. We have also published a background paper outlining very specifically why "the denial of a pregnant woman's right to make an independent decision regarding abortion violates or poses a threat to a wide range of human rights. International human rights legal instruments and authoritative interpretations of those instruments by U.N. expert bodies compel the conclusion that women have a right to decide independently in all matters related to reproduction, including the issue of abortion. Where women's access to safe and legal abortion services are restricted, a number of human rights may be at risk" (For the full background document in Spanish, please see https://www.hrw.org/legacy/backgrounder/americas/argentina0605/qna0605sp.htm).
[15] The silence of certain legal instruments concerning the starting point for the right to life has been understood by bodies charged with interpreting them to imply that the right to life does not apply before the birth of a human being. In the 1980 Paton v. United Kingdom case, the European Commission ruled that for purposes of limitations on the right to life, the term "everyone" in Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (which protects "everyone's right to life") did not include the unborn. It further held that even if a fetus were entitled to some protection, Article 2 could not prevent a woman from obtaining an abortion at an early stage of pregnancy to protect her physical and mental health. Paton v. United Kingdom (1981), 3 E.H.R.R. 408 (European Commission on Human Rights), para. 17 and 23. See also European Court of Human Rights, Vo v. France, no. 53924/00, Judgment of July 8, 2004, available at http://www.echr.coe.int/ (accessed June 6, 2007).
[16] See Human Rights Watch, International Human Rights Law and Abortion in Latin America, July 2005, https://www.hrw.org/backgrounder/wrd/wrd0106/ .
[17] American Convention on Human Rights, art. 4.Â
[18] Inter-American Commission of Human Rights, White and Potter ("Baby Boy Case"), Resolution N23/81, Case 2141 (United States), Â Inter-Am. C.H.R. 25/OEA/ser. L./V./II.54, doc. 9 rev. 1 (1981), http://www.wcl.american.edu/pub/humright/digest/Inter-American/english/a... (accessed March 12, 2009).
[19] The American Convention on Human Rights was not directly applicable, since the United States had not ratified this convention. However, as a member of the Organization of American States, the United States is bound by the American Declaration on the Rights and Duties of Man.
[20] The 1969 Vienna Convention on the Law of Treaties, which guides public international treaty law, establishes as a general rule of interpretation of international treaties that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose," and notes that the preparatory works of a treaty can be used as a supplementary means of interpretation. Vienna Convention on the Law of Treaties, arts. 31 and 32.
[21] Inter-American Commission of Human Rights, Baby Boy Case,para. 14 (a).
[22] Ibid., para. 14(c).
[23] Ibid., para. 30.
[24] Ibid., para. 14(c).
[25] Other rights affected by the denial of a pregnant woman's right to make an independent decision regarding abortion are the right to security of person, the right to liberty, the right to privacy, the right to information, the right to be free from cruel, inhuman or degrading treatment, the right to enjoy the benefits of scientific progress, and the right to freedom of thought and religion. See Human Rights Watch, International Human Rights Law and Abortion in Latin America, https://www.hrw.org/backgrounder/wrd/wrd0106/.
[26] Mexican Constitution, arts. 1 and 4.
[27] The rights to health and health care are recognized in a number of international instruments. For example, the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides in Article 12(1) that states must recognize "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) also provides in Article 12(1) that "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning" and in Article 14(2)(b) that states must ensure that women in rural areas "have access to adequate health care facilities, including information, counselling and services in family planning." Article 24(d) of the Convention on the Rights of the Child (CRC) also provides that states must take measures to "ensure appropriate pre- and post-natal health care for expectant mothers" as part of the obligation to recognize children's right to the highest attainable standard of health. Finally, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) provides in Article 10: "Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being."
[28] World Health Organization, Abortion: A Tabulation of Available Information, 3rd edition (Geneva: World Health Organization, 1997).
[29] Lucia Rayas, Diane Catotti and Ana Cortes, Achieving ICPD commitments for abortion care in Latin America: The unfinished agenda (Chapel Hill, NC: Ipas, 2005), p. 6.
[30] The rights to nondiscrimination and equality are set forth in a number of international human rights instruments. In addition to the basic provisions in Articles 2(1) and 3 of the ICCPR, Articles 2(2) and 3 of the ICESCR, and Article 1 of the ACHR, CEDAW comprehensively addresses discrimination against women. CEDAW defines discrimination against women in Article 1 as: "[A]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."
[31] "The Committee notes with great concern that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act. ... The Committee believes that legal provisions on abortion constitute a violation of the rights of women to health and life and of Article 12 of the Convention [the right to health care without discrimination]." CEDAW Committee, concluding comments on Colombia, U.N. Doc. A/54/38/Rev.1, Part I (1999), para. 393.
[32] CEDAW Committee, General Recommendation 24, Women and Health (Article 12), U.N. Doc. No. A/54/38/Rev.1 (1999) (hereinafter General Recommendation 24), para. 14.
[33] Ibid., para. 14.
[34] Ibid., para. 31(c).
[35] CEDAW Committee, concluding comments on Mexico, U.N. Doc. A/53/38/Rev.1, section I (1998), para. 426.
[36] Article 16(1) of CEDAW provides, "States Parties shall ... ensure, on a basis of equality of men and women . . . (e) 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."
[37] CEDAW Committee, General Recommendation 21, Equality in Marriage and Family Relations (1992), para. 21.
