Rebecca Thomas (Final year student pursuing the 3 Year LLB Program from Jindal Global Law School)
The jurisprudence of reproductive rights has developed significantly since the 1960s. What started out as a challenge by women advocates on reproductive rights and access to health facilities has eventually translated into the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Prior to the CEDAW, women were often referred to as the hidden gender in international law. The question still remains - has CEDAW resolved this statement or are we still failing to make progress within the international realm.
Liberal feminists believe that the law is objective and in the process of regulation it subscribes to principles of decision making. The goal of liberal feminists is to attain equality between both genders. Critics argue that this concept does not hold water primarily because men and women cannot be treated equally. It is argued that we cannot have a male centric law when it concerns a whole other gender with reproductive needs that calls for better medical facilities and rights that adequately safeguards their autonomy. Cultural feminist on the other hand, are “concerned with the identification and rehabilitation of qualities and perspectives identified as particular to women”[i]. In simple terms, the cultural feminist seeks to identify the gender implication on rules that may otherwise seem to be objective or gender neutral. The larger question being whether international law subscribes to the concept of transformative equality.
In Griswold v. Connecticut [ii] the court struck down a law that prohibited access to contraception on the ground that it violated the right to privacy. A few years later, in Roe v. Wade the court extended this very right to the decision of a woman for termination of her pregnancy. This was a significant decision within the realm of reproductive rights.
The Universal Declaration of Human Rights (UDHR) is a document that is considered to be foundational within the realm of the modern human rights regime providing special care and attention to “motherhood and childhood”. Even children who are born out of wedlock are given protection under this regime. However, this right as provided by the UDHR does not directly protect reproductive rights. It is worthy to note that the model of reproductive rights, in specific, Article 12 of the ICESCR, is based on the aspect of right to health. The emphasis is on the right to health. However, General Comment 14 [iii] does inculcate certain aspects of reproductive health but in a very minimalistic sense. In short, the UDHR reinforces the concept of prohibition of discrimination however, it does not discuss issues that specifically affect women. The approach adopted is more generic in nature than gender specific. Women are not addressed as autonomous individuals but rather as child bearers giving special attention/protection to motherhood.
CEDAW was seen as a ground-breaking intervention and is often referred to as the international bill of rights for women. It sought to abolish discrimination against women and in more ways than one it echoes liberal feminist notions. For instance, a critique on the liberal thought argues that CEDAW does not address concerns regarding women’s lives and their rights within private spheres. CEDAW makes no explicit mention of domestic violence, an issue that continues to plague the lives of women. However, in 2017 the launch of General Recommendation 35 introduced gender-based violence as a form of gender-based discrimination. While this issue has been resolved, CEDAW has been heavily criticised for its approach to intersectionality as it does not address the issue of women’s interactional identities[iv]. This essentially isolates women and categorises them as facing only one form gender discrimination, while in reality they may be facing a host of other forms of discrimination such as racism, classism etc. Moreover, CEDAW has also been criticised for its lack of specificity. In addition to this, CEDAW has extensive reservations which permit states to bind themselves by provisions that they voluntarily want to comply with. Although CEDAW may have seemed like the light at the end of the tunnel for issues pertaining to women, these critiques highlight how CEDAW further amplifies discriminatory practices.
Within the international regime, there are several glaring questions that one may ask but not find an appropriate answer. For instance, “Why is there a whole series of treaties obsessed with straddling stocks, when the use of breast milk substitutes, which is a major health issue for women in Africa, remains subject to voluntary W.H.O. codes?”[v]. This question should open our eyes to the broader perspective of issues concerning women. While CEDAW may seem progressive in letter, in practise it leaves much to be desired and leaves us to conclude whether women continue to be the hidden gender?
[i] Charlesworth, H., “The Hidden Gender of International Law”, 16 TEMP. INT’L & COMP. L.J. 93 (2002) [ii] 381 U.S 479 (1965) [iii] CESCR General Comment No.14: The Right to the Highest Attainable Standard of Health (Art.12) [iv] Paulina Montez, Women’s Rights are Human Rights: CEDAW’s Limits and Opportunities [v] Charlesworth, H., “The Hidden Gender of International Law”, 16 TEMP. INT’L & COMP. L.J. 93 (2002)