Sunday, July 17, 2016

General legal obligations of States parties to the full realization of the right to sexual and reproductive health 8/16


33. As prescribed by article 2 (1) of the Covenant, States parties must take steps, to the maximum of their available resources, with a view to achieving progressively the full realization of the right to sexual and reproductive health. States parties must move as expeditiously and effectively as possible towards the full realization of the highest attainable standard of sexual and reproductive health. This means that, while full realization of the goal may be achieved progressively, steps towards it must be taken immediately or within a reasonably short period of time. Such steps should be deliberate, concrete and targeted, using all appropriate means, particularly including, but not limited to, the adoption of legislative and budgetary measures.

34. States parties are under immediate obligation to eliminate discrimination against individuals and groups and to guarantee their equal right to sexual and reproductive health. This requires States to repeal or reform laws and policies that nullify or impair the ability of certain individuals and groups to realize their right to sexual and reproductive health. There exists a wide range of laws, policies and practices that undermine 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. States parties should also ensure that all individuals and groups have equal access to the full range of sexual and reproductive health information, goods and services, including by removing all barriers that particular groups may face.

35. States must adopt the measures necessary to eliminate conditions and combat attitudes that perpetuate inequality and discrimination, particularly on the basis of gender, in order to enable all individuals and groups to enjoy sexual and reproductive health on the basis of equality.29 States must recognize, and take measures to rectify, entrenched social norms and power structures that impair the equal exercise of that right, such as gender roles, which have an impact on the social determinants of health. Such measures must address and eliminate discriminatory stereotypes, assumptions and norms concerning sexuality and reproduction that underlie restrictive laws and undermine the realization of sexual and reproductive health.
36. As needed, States should implement temporary special measures to overcome long-standing discrimination and entrenched stereotypes against certain groups and to eradicate conditions that perpetuate discrimination. States should focus on ensuring that all individuals and groups effectively enjoy their right to sexual and reproductive health on a substantively equal basis.

37. A State party has the duty to establish that it has obtained the maximum available resources, including those made available through international assistance and cooperation, with a view to complying with its obligations under the Covenant.

38. Retrogressive measures should be avoided and, if such measures are applied, the State party has the burden of proving their necessity. 30 This applies equally in the context of sexual and reproductive health. Examples of retrogressive measures include the removal of sexual and reproductive health medications from national drug registries; laws or policies revoking public health funding for sexual and reproductive health services; imposition of barriers to information, goods and services relating to sexual and reproductive health; enacting laws criminalizing certain sexual and reproductive health conduct and decisions; and legal and policy changes that reduce oversight by States of the obligation of private actors to respect the right of individuals to access sexual and reproductive health services. In the extreme circumstances under which retrogressive measures may be inevitable, States must ensure that such measures are only temporary, do not disproportionately affect disadvantaged and marginalized individuals and groups, and are not applied in an otherwise discriminatory manner.

29 See Committee on Economic, Social and Cultural Rights general comment No. 16, paras. 6-9.
30 See Committee on Economic, Social and Cultural Rights general comment No. 14, para. 32.


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