Ecuador: Memorandum on Abortion and International Human Rights Law

Washington, D.C., April 25, 2019

Elizabeth Cabezas Guerrero
President of the National Assembly
Quito – ECUADOR

Subject: Memorandum on Abortion and International Human Rights Law

1. Introduction

Human Rights Watch has the honor of submitting this memorandum to the National Assembly of the Republic of Ecuador (Assembly) in connection with a proposal to decriminalize abortion in certain circumstances, including cases of rape, as part of a set of reforms to the country’s criminal code (Proyecto de Ley Orgánica Reformatoria del Código Orgánico Integral Penal).

As the Assembly considers the bill, Human Rights Watch urges it to take international human rights law, and authoritative interpretations of how it applies to access to abortion, into account. Specifically, Human Rights Watch urges the Assembly to enact proposed reforms to the penal code that would decriminalize abortion for pregnancies that are unviable or the result of sexual violence, as an essential step toward bringing Ecuador’s legal framework into alignment with international standards.

Under the criminal code, abortion is legal in Ecuador only when a pregnant woman’s life or health is in danger, or when a woman with a mental disability is pregnant from rape.[1] The criminal code imposes penalties including prison terms ranging from six months to two years for women and girls who have abortions in any other circumstances.^[2] In 2013, Human Rights Watch published a report documenting the impact of the lack of access to abortion for rape survivors in Ecuador. The report found that criminal penalties for abortion drive some women and girls to have illegal and unsafe abortions, undermining Ecuador’s efforts to reduce preventable maternal death.^[3]

With this memorandum, Human Rights Watch wishes to demonstrate that the criminalization of abortion is incompatible with Ecuador’s international human rights obligations, and underscore the kinds of legal reform that should be undertaken to meet those obligations.

2. International human rights jurisprudence related to abortion

Access to safe abortion is a human rights imperative. Authoritative interpretations of international human rights law establish that denying women and girls access to abortion jeopardizes a range of human rights. UN human rights treaty bodies regularly call for governments to decriminalize abortion, and to legalize abortion in certain circumstances at a minimum, and to ensure access to safe, legal abortion.

Drawing on jurisprudence of UN human rights treaty bodies, this memorandum provides an overview of key international human rights that are at risk when abortion is illegal or inaccessible.^[4] It focuses on the rights to life, health, freedom from cruel, inhuman and degrading treatment, nondiscrimination and equality, privacy, information, and the right to decide the number and spacing of children.

Ecuador is obligated to respect, protect, and fulfil the rights guaranteed under the international and regional human rights treaties to which it is a party, including but not limited to the International Covenant on Civil and Political Rights (ICCPR),^[5] the International Covenant on Economic, Social and Cultural Rights (ICESCR),^[6] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),^[7] the Convention on the Elimination of Discrimination Against Women (CEDAW),^[8] the Convention on the Rights of the Child (CRC),^[9] and the American Convention on Human Rights.^[10] Fulfilment of Ecuador’s obligations under these and other relevant treaties includes ensuring that abortion is safe, legal, and accessible. In recent years, UN bodies have expressed specific concerns with Ecuador’s existing legal framework, including lack of access to safe and legal abortion when the pregnancy is the result of rape or the fetus will not survive outside the womb, as well as the harms of unsafe abortion, and ongoing obstacles in accessing therapeutic abortion.^[11]

Right to life

Denial of access to safe, legal abortion puts the lives of women and girls at risk. A 2017 global report on abortion found that 25 million unsafe abortions were performed every year between 2010 – 2014, and that many women and girls die of complications. It found that between 8 to 11 percent of maternal deaths around the world relate to abortion, resulting in 22,800 – 31,000 preventable deaths each year.^[12] The World Health Organization has noted that the removal of restrictions on abortion results in reduction of maternal mortality.^[13]

The right to life is guaranteed by international human rights treaties and customary international law. For example, article 6(1) of the ICCPR provides that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”^[14] Similarly, article 6 of the CRC states that “every child has the inherent right to life.”^[15]

International human rights bodies and experts have repeatedly stated that restrictive abortion laws contribute to maternal deaths from unsafe abortions and jeopardize the right to life. For instance, the UN Human Rights Committee (HRC), which monitors states’ compliance with the ICCPR, has explained that the right to life should not be understood in a restrictive manner.^[16] It has instructed states that when they report to the Committee, they should provide information on measures to ensure that women do not have to undergo life-threatening, clandestine abortions.^[17] The HRC in 2018 published a new General Comment on the right to life that emphasizes that any regulation of abortion must not violate the right to life, or any human right under the ICCPR, of a pregnant woman or girl.[18] It calls on states to “provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable.”[19]

In country-specific concluding observations related to states’ compliance with the ICCPR, the HRC has noted the relationship between restrictive abortion laws and threats to women’s and girls’ lives. It has frequently expressed concern about criminalization of abortion, and has called for expanded exceptions.^[20] The Committee’s standard language in many recent concluding observations is as follows: “The State party should amend its legislation with a view to ensuring effective access to safe, legal abortion when the life or health of a pregnant woman or girl is endangered and when carrying a pregnancy to term would cause the woman or girl substantial pain or suffering, most notably when the pregnancy is the result of rape or incest or when it is not viable.”^[21]

The HRC has also called on states to guarantee unimpeded and timely access to legal abortion services, saying that states should “ensure the availability of medical facilities and guaranteed access to those facilities for legal abortion.”^[22] It has called for measures such as establishing referral systems for women seeking abortion services, publishing public health guidelines on abortion, facilitating access to information on legal abortions, lifting requirements for prior court authorization for abortions, removing requirements for multiple medical authorizations, combatting the stigma related to abortion, and considering incorporation of abortion into national health insurance schemes.^[23] In its 2018 General Comment on the right to life, the HRC stated that states “should not introduce new barriers and should remove existing barriers that deny effective access by women and girls to safe and legal abortion, including barriers caused as a result of the exercise of conscientious objection by individual medical providers.”[24]

In the case of Ecuador, the HRC in 2016 expressed concern that the penal code “criminalizes the voluntary termination of pregnancy, except where it is carried out in order to ‘avoid danger to the life or health of the mother and if such danger cannot be averted by other means’ and where the pregnancy was the consequence of the rape ‘of a woman suffering from mental disability,’” leading “many pregnant women [to] continue to use unsafe abortion services that may put their lives and health at risk.”^[25]The Committee urged Ecuador to “review the Comprehensive Organic Criminal Code with a view to introducing additional exceptions to the prohibition of voluntary termination of pregnancy, including situations in which the pregnancy was the result of incest or rape, even where the woman does not have a mental disability, or in cases of fatal foetal impairment, and ensure that legal obstacles do not force women to resort to unsafe abortions that may put their lives and health at risk” and “increase its efforts to ensure that women and teenage girls have access to appropriate sexual and reproductive health services throughout the country and to provide more education and awareness-raising programmes on the importance of using contraceptives and the right to sexual and reproductive health.”^[26]

The UN CEDAW Committee, which monitors state compliance with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), has also repeatedly expressed concern about the links between maternal mortality and unsafe abortion, and has called for decriminalization of abortion in all cases, and legalization of abortion, at a minimum, in specific circumstances. In a 2014 statement, the CEDAW Committee said:

Unsafe abortion is a leading cause of maternal mortality and morbidity. As such, States parties should legalize abortion at least in cases of rape, incest, threats to the life and/or health of the mother, or severe fetal impairment, as well as provide women with access to quality post-abortion care, especially in cases of complications resulting from unsafe abortions. States parties should also remove punitive measures for women who undergo abortion.^[27]

Echoing this statement, many of the CEDAW Committee’s concluding observations call for states to “legalize abortion not only in cases in which the life of the pregnant woman is threatened, but also in cases of threats to her health, pregnancies resulting from rape or incest, and cases of severe fetal impairment, and to decriminalize abortion in all cases.”^[28]

The CEDAW Committee also regularly calls for measures to ensure access to safe abortion. For example, it calls for training of medical personnel; ensuring that conscientious objection by health-care personnel does not pose an obstacle for terminating a pregnancy; eliminating procedural obstacles that hinder access to legal abortion, including requirements for committee approval or judicial recognition of criminal acts in rape cases; adopting protocols on provision of legal abortion; raising awareness among women and providers about access to legal abortion; protecting medical confidentiality; and conducting campaigns to prevent abortion stigma.^[29]

Similarly, the UN Committee on the Rights of the Child, which monitors the implementation of the CRC, has noted that “the risk of death and disease during the adolescent years is real, including from preventable causes such as … unsafe abortions” and urged states to “decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.”^[30] The Committee has expressed concern about the elevated risks of maternal mortality among adolescent mothers,^[31] and has explicitly called for decriminalization of abortion “in all circumstances” in many concluding observations.^[32]

Moreover, the UN Committee on Economic, Social and Cultural Rights, which monitors compliance with the ICESCR, has called on states, including Ecuador, to amend restrictive abortion laws and to increase access to legal abortion in order to decrease maternal deaths.^[33] The Committee has observed that denial of abortion often leads to maternal mortality or morbidity, which in turn constitutes a violation of the right to life or security.^[34] It has urged states to remove penalties for women who seek abortion, and to make it legal in certain circumstances.^[35] It has expressed deep concern about prohibitions on abortion with no exceptions.^[36]

The Committee has also said that states should ensure that abortion services can be accessed in practice, for example by adopting protocols on legal abortion, guaranteeing that conscientious objection laws are not an obstacle to abortion, and ensuring that health insurance covers abortion.^[37]

Regional human rights experts have also raised concerns about restrictive abortion laws. The Inter-American Commission on Human Rights (IACHR) in a 2018 statement urged states, “to adopt legislation designed to ensure that women can effectively exercise their sexual and reproductive rights, with the understanding that denying the voluntary interruption of pregnancy in certain circumstances constitutes a violation of the fundamental rights of women, girls, and female adolescents.”^[38] In 2017, IACHR stated, “Denying access by women and girls to legal and safe abortion services or post-abortion care can cause prolonged and excessive physical and psychological suffering to many women, especially in cases involving risks to their health, unviability of the fetus, or pregnancies resulting from incest or rape. Without being able to effectively exercise their sexual and reproductive rights, women cannot realize their right to live free from violence and discrimination.”^[39]

In a 2015 statement on sexual and reproductive rights, the Rapporteur on the Rights of Women of the Inter-American Commission on Human Rights criticized the fact that women in the region face “very significant obstacles in exercising their sexual and reproductive rights” and are forced to “continue pregnancies that put their lives at risk” due to restrictive abortion legislation.^[40] She and other UN and regional rapporteurs reiterated this concern in a joint statement that called on states to “remove punitive measures for women who undergo abortion, and at the very minimum, legalize abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the woman or the life of the woman.”^[41]

While most international human rights instruments are silent concerning the starting point for the right to life, the American Convention on Human Rights is the only international human rights instrument that contemplates the right to life from the moment of conception. Under article 4, “[e]very person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”^[42]

However, this provision is not unqualified and has been interpreted by the bodies that monitor the human rights provisions in the American regional system as not providing an absolute right to life before birth. In 1981, the Inter-American Commission on Human Rights was asked to establish whether or not the right-to-life provisions provided by the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man were compatible with a woman’s right to access safe and legal abortions. The commission concluded that they are.

In the case of the Declaration, the commission noted that the conferees in Bogotá in 1948 rejected language that would have extended the right to the unborn and “thus it would appear incorrect to read the Declaration as incorporating the notion that the right of life exists from the moment of conception.”^[43]

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 intended the “in general” clause to allow for non-restrictive domestic abortion legislation. As the commission phrased it: “it 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,’” allowing for legal abortion under this article.^[44]

Furthermore, the Inter-American Court of Human Rights, which issues binding decisions on state parties to the American Convention, has concluded that embryos cannot be understood to be a person for the purposes of article 4(1) of the Convention.^[45] The Court noted that “it can be concluded from the words ‘in general’ that the protection of the right to life under this provision is not absolute, but rather gradual and incremental according to its development, since it is not an absolute and unconditional obligation, but entails understanding that exceptions to the general rule are admissible.”^[46]

Right to health

The right to health—including both physical and mental—is protected in numerous human rights treaties. For example, the ICESCR guarantees everyone the right to the highest attainable standard of physical and mental health, and the CRC guarantees this right for children.^[47] CEDAW provides, “[S]tates 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.”^[48]

Unsafe abortions are a grave threat to the health of women and girls. According to the 2017 report by the World Health Organization and the Guttmacher Institute, 25 million unsafe abortions occurred every year between 2010 and 2014.^[49] Complications from unsafe abortions can include incomplete abortion, hemorrhage, vaginal, cervical and uterine injury, and infections. Unavailability of safe abortion also poses risks to mental health, including severe anguish and risk of suicide.^[50]

International bodies have repeatedly stated that criminalization of or unreasonable restrictions on access to abortion violate the right to health. The Committee on Economic, Social and Cultural Rights has stated that “States must reform laws that impede the exercise of the right to sexual and reproductive health. Examples include laws criminalizing abortion….”^[51] In country-specific concluding observations, the Committee has recommended that states advance women’s health by providing for exceptions to criminalization of abortion and removing barriers to access.^[52]

The CEDAW Committee has affirmed states’ obligation to “take appropriate legislative, judicial, administrative, budgetary, economic and other measures to the maximum extent of their available resources to ensure that women realize their rights to health care.”^[53] It explained that “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.”^[54] As noted above, the CEDAW Committee consistently recommends that states amend their laws to decriminalize abortion in all cases, and legalize abortion at least in cases of rape, incest, risk to the life or health of the women, and severe fetal impairment.^[55]

In its 2015 review of Ecuador, the CEDAW Committee expressed concern that debates around the adoption of a new penal code “did not address the issue of decriminalizing abortion, even in cases of pregnancy arising from rape or incest or where there is severe foetal impairment.”[56] The CEDAW Committee recommended that Ecuador “[d]ecriminalize abortion in cases of rape, incest and severe foetal impairment, in line with the Committee’s general recommendation No. 24 on women and health.”[57]

The Committee on the Rights of the Child has warned of the danger of unsafe abortion to adolescent girls’ health. It has often urged states to decriminalize abortion in all circumstances, and to ensure that adolescent girls have access to safe abortions.^[58]

This was the case in the Committee’s review of Ecuador in 2017. It expressed concern regarding “[t]he high rate of teenage pregnancy, frequently as a consequence of sexual violence,” and “[b]arriers to access abortion services and the practice of unsafe abortions.”^[59] The Committee urged Ecuador to “[e]nsure that girls have access to sexual and reproductive health services, including therapeutic abortion and consider decriminalizing abortion, with particular attention to the age of the pregnant girl and cases of incest and sexual violence.”^[60]

The Special Rapporteur on the right to health has also recommended that states decriminalize abortion.^[61] He has stated that “criminal laws penalizing and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realization of women’s right to health and must be eliminated,” and that the criminalization of abortion has a “severe impact on mental health.”^[62]

Right to be free from torture and other cruel, inhuman or degrading treatment or punishment

The right to be free from cruel, inhuman or degrading treatment or punishment is protected by human rights treaties, including the ICCPR and CAT, the American Convention on Human Rights, and by customary international law.^[63]

Criminalization and inaccessibility of abortion is incompatible with the right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment. The UN Committee against Torture has said that criminalization of abortion with few exceptions may result in women experiencing severe pain and suffering if they are compelled to continue pregnancy. It has expressed concern at the severe physical and mental anguish and distress experienced by women and girls due to abortion restrictions.

The Committee has called on governments to “allow for legal exception to the prohibition of abortion in specific circumstances in which the continuation of pregnancy is likely to result in severe pain and suffering, such as when the pregnancy is the result of rape or incest or in cases of fatal fetal impairment.”^[64] It has also criticized restrictions on access to legal abortions in cases in which laws are unclear, abortions require third party authorizations, or physicians or clinics refuse to perform abortions on the basis of conscientious objection.^[65]

In its 2017 review of Ecuador, the Committee expressed concern “about the restrictions on abortion that are laid down in the criminal legislation … which permits the voluntary interruption of pregnancy only when it endangers the life or health of the woman and the danger cannot be prevented by other means or when the pregnancy results from the rape of a woman with a mental disability.” The Committee noted “the grave risk that such restrictions present for the health of women victims of rape who decide to have an abortion and the criminal consequences that may ensue, including the possibility of a prison sentence for women who undergo an abortion and for the medical practitioners who perform such operations.”^[66] The Committee recommended that Ecuador “ensure that women victims of rape who voluntarily decide to terminate their pregnancy have access to safe, legal abortions.”^[67]

Similarly, the Human Rights Committee has ruled in individual cases against Ireland, Peru, and Argentina that the governments violated the right to freedom from torture or other cruel, inhuman or degrading treatment by failing to ensure access to abortion services in these cases.^[68] It pointed out that this right relates not only to physical pain, but also to mental suffering.^[69]

The CEDAW Committee has also described criminalization of abortion and denial or delay of access to legal abortion as “forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.”^[70] Similarly, the Committee on Economic, Social and Cultural Rights has also said that denial of abortion “in certain circumstances can amount to torture or cruel, inhuman or degrading treatment.”^[71]

The UN special rapporteur on torture has said that “[h]ighly restrictive abortion laws that prohibit abortions even in cases of incest, rape or fetal impairment or to safeguard the life or health of the woman violate women’s right to be free from torture and ill-treatment.”^[72] He continued:

The denial of safe abortions and subjecting women and girls to humiliating and judgmental attitudes in such contexts of extreme vulnerability and where timely health care is essential amount to torture or ill-treatment. States have an affirmative obligation to reform restrictive abortion legislation that perpetuates torture and ill-treatment by denying women safe access and care….^[73]

Furthermore, the Committee of Experts of the Follow-up Mechanism to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, noted that laws that establish an absolute prohibition of abortion “perpetuate the exercise of violence against women, girls and adolescents…and violate the prohibition of torture and mistreatment.”^[74] The committee concluded that states should establish “laws and policies that enable the termination of pregnancy at the very least in the following cases: i) risk to the life or health of the woman; ii) inability of the fetus to survive; and iii) sexual violence, incest and forced insemination.”^[75]

Rights to nondiscrimination and equality

The rights to nondiscrimination and equality are set forth in all major international human rights treaties,^[76] as well as the American Convention on Human Rights.^[77] CEDAW prohibits discrimination against women in all spheres, including in the field of health care. It requires that states “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”^[78]

In a 2014 statement, the CEDAW Committee observed that “failure of a State party to provide services and the criminalization of some services that only women require is a violation of women's reproductive rights and constitutes discrimination against them.”^[79] In its General Recommendation on women and health, the CEDAW Committee noted that “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 these procedures.”^[80] Furthermore, in country-specific concluding observations, the CEDAW Committee has often stated that restrictive abortion laws constitute discrimination against women.^[81]

Moreover, the Human Rights Committee has held that lack of availability of reproductive health information and services, including abortion, undermines women’s right to nondiscrimination.^[82] In the case Whelan v. Ireland, it found that the state had violated the claimant’s right to nondiscrimination by failing to provide access to abortion services.^[83]

Similarly, the Committee on the Rights of the Child has also said that punitive abortion laws constitute a violation of children’s right to freedom from discrimination.^[84] The Committee on Economic, Social and Cultural Rights has said, “A wide range of laws, policies and practices undermine the autonomy and right to equality and non-discrimination in the full enjoyment of the right to sexual and reproductive health, for example criminalization of abortion or restrictive abortion laws.”^[85] It has also noted that abortion restrictions particularly affect poor and less educated women.^[86]

The Inter-American Commission on Human Rights has expressed that limitations on accessing health services that are required only by women, including therapeutic abortion, generate inequalities between men and women with respect to the enjoyment of their rights.^[87]

Right to privacy

The ICCPR provides that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation,”^[88] and other treaties and authoritative interpretations reinforce the right to privacy and medical confidentiality. Similarly, article 11(2) of the American Convention on Human Rights states that “[n]o one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.”^[89]

The CEDAW Committee has noted that policies that require spousal authorization for abortion impinge on women’s right to privacy,^[90] and has recommended that states adopt policies guaranteeing the right to privacy or medical secrecy for patients who undergo or providers who perform abortions.^[91] Its 2014 statement on sexual and reproductive health and rights emphasized women’s “right to access sexual and reproductive health information and services with the consent of the individual alone.”^[92] It has also called for access to confidential abortion and post-abortion care services, even if the abortion is not legal.^[93]

The Committee has also stated that while breaches of patient confidentiality affect both men and women, they may deter women from seeking advice and treatment for diseases of the genital tract, contraception, incomplete abortion, and in cases where they have suffered sexual or physical violence.^[94]

The Human Rights Committee has remarked that “where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion,” this may constitute a violation of a woman’s right to privacy.^[95] The HRC’s new General Comment on the right to life reiterates that any restrictions on abortion must not interfere with the right to privacy.^[96] In several individual cases, the HRC has found that criminalization of abortion, or a state’s refusal to act in accordance with a woman’s decision to undergo a legal abortion, constituted a violation of the right to privacy.^[97] It has also called for respect for professional secrecy of health providers and confidentiality for patients who undergo abortion.^[98]

The Committee on the Rights of the Child has emphasized, “All adolescents must have access to confidential adolescent-responsive and non-discriminatory reproductive and sexual health information and services, available both on and off-line, including … safe abortion services.”^[99] It has recommended that governments ensure that children have access to confidential medical counsel and assistance without parental consent, including for reproductive health services.^[100] It has specifically called for confidential access for adolescent girls to legal abortions.^[101]

The CESCR has recommended that states ensure that the personal data of patients undergoing abortion remain confidential and has commented on the problem of women seeking health care for complications from unsafe abortions being reported to authorities.^[102] Likewise, the Committee against Torture has called for protection of privacy for women seeking medical care for complications related to abortion.^[103]

Right to information

The right to information is set forth in the ICCPR and the American Convention on Human Rights, and is directly related to rights under other treaties.^[104] For example, CEDAW provides that states must eliminate discrimination against women in order to ensure “[a]ccess to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning”^[105] and provide “[t]he 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.”^[106]

The right to information includes both a negative obligation for states to refrain from interference with the provision of information by private parties and a positive responsibility to provide complete and accurate information necessary for the protection and promotion of rights, including the right to health.^[107]

The Human Rights Committee has called on states to facilitate public information on access to legal abortion and ensure that health care providers who offer information about abortion are not subject to criminal sanctions.^[108]

The CESCR has stated that the right to health includes the right to health-related education and information.^[109] It has said, “Information accessibility includes the right to seek, receive, and disseminate information and ideas concerning sexual and reproductive health issues…. All individuals and groups, including adolescents and youth, have the right to evidence-based information on all aspects of sexual and reproductive health, including … safe abortion and post abortion care.”^[110] The Committee has called on states to ensure that information on sexual and reproductive health, including abortion, is available without discrimination.^[111]

The CEDAW Committee has urged states to raise awareness among women and girls about when abortion is legal, and to provide comprehensive information on sexual and reproductive health.^[112] The CRC has also called on states to ensure that children have access to reproductive and sexual health education and information, including in schools.^[113] It has recommended that states “adopt or integrate a comprehensive gender-sensitive sexual and reproductive health policy for adolescents, emphasizing that unequal access by adolescents to such information and services amounts to discrimination.”^[114]

The Inter-American Commission on Human Rights has noted that women cannot fully enjoy their human rights without information and education on health care services.^[115] It has specifically held that states’ obligation to provide information on sexuality and reproduction is “particularly relevant” since it “helps people be prepared to make free and informed decisions concerning these aspects that are so intimate to their lives.”^[116] For this reason, the commission has called states to provide timely, complete, accessible, and reliable information on reproductive health, in a proactive manner.^[117]

Right to decide the number and spacing of children

CEDAW provides that “States Parties shall ... 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.”^[118]

The CEDAW Committee has called on states to increase access to high-quality contraception methods as a means to prevent unwanted pregnancy and reduce the use of abortion as a method of family planning.^[119] However, in certain circumstances, abortion may be the only way for a woman or girl to exercise her right to decide the number and spacing of children, particularly if she becomes pregnant through rape or incest. The CEDAW Committee has noted that “[d]ecisions 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.”^[120] Moreover, it has called on states to “address the power imbalances between men and women, which often impede women’s autonomy, particularly in the exercise of choices on safe and responsible sex practices.”^[121]

3. Conclusion

Human Rights Watch urges the Assembly to take into account Ecuador’s international legal obligations in its consideration of reforms of the penal code. The Assembly should at the very least ensure safe and legal access to abortion in cases of rape and when the fetus will not survive outside the womb, to bring its legislation closer in line with the international standards discussed above.