Amsterdam School of Law
LLM European and International Law - Public International Law
Master Thesis – International Human Rights Law
by Federica Licata
ENVISAGING A RIGHT TO ACCESS TO ABORTION UNDER
THE PROHIBITION OF TORURE AND OTHER CRUEL,
INHUMAN AND DEGRADING TREATMENT
Abstract: of all the Millennium Development Goals (MDGs) that were established after the United Nations Millennium Summit of 2000, goal five, purporting to improve maternal health with the target of reducing maternal mortality ratio by three quarters by 2015 and achieving universal access to reproductive health, is the furthest from being achieved. Among the several causes that can be associated with maternal mortality and morbidity we can find unsafe abortion which has been said to cause 13% of all maternal deaths. These realities are often the result of highly restrictive abortion laws which prevents women from seeking abortion where the fetus has no prospects to live outside the mother’s womb or when the pregnancy is the result of rape. However, women often resort to unsafe abortion even when they are legally entitled to a termination of pregnancy in a safe environment because the State fails to implement this right. Procedural deficit, autonomy deficit and the maternal suffering flowing from the fear connected to the health status of the child are beginning to be considered severe enough to reach the threshold necessary to amount to torture or cruel, inhuman and degrading treatments, challenging the male-centric understanding of torture and calling for more accountability on the part of States.
INDEX
INTRODUCTION……….pag 3
I.
ABORTION IN A HUMAN RIGHTS PERSPECTIVE
A. The Problem of Unsafe Abortion………..pag 6
B. Abortion, a Human Rights Issue………...pag 8
1. The right to Life………...pag 9
2. The right to Health………...pag
10
3. The right to Privacy……….pag 11
4. The Right to equality and non-discrimination………..pag
11
II.
THE FORMS OF RECOGNIZED PAIN AND SUFFERING CAUSED BY
WOMEN’S OBSTRUCTED ACCESS TO ABORTION
A. Cases where access to abortion or prerequisite health services was
permitted under domestic law………..pag 13
B. Violations in cases of restrictive abortion laws………pag 16
C. To summarize: three forms of pain and suffering………pag 17
III.
STATES’ POSITIVE OBLIGATIONS UNDER THE PROHIBITION OF
TORTURE, CRUEL, INHUMAN AND DEGRADING TREATMENTS IN
THE CONTEXT OF ABORTION AND MATERNAL HEALTHCARE
A. Defining restrictions on abortion as Torture, Cruel, Inhuman and
degrading Treatments………...pag 21
B. Torture, Cruel, Inhuman and Degrading Treatments and States’ Positive
Obligations………...pag 25
C. Consequences in categorizing restrictions on abortion as Torture and
Ill-treatments……….pag 28
CONCLUSIONS………..pag 29
BIBLIOGRAPHY………pag 31
INTRODUCTION
International human rights law has been highly criticized by some feminist scholars over the past two decades to have been and continue to be male-oriented1, in the sense that it is seen as
privileging the experiences of men while ignoring or marginalizing those of women.2 The
international prohibition of torture and cruel, inhuman and degrading treatment is identified as the classical example of this male-oriented construction of human rights law.3 In fact, the law relating
to torture was constructed on the paradigm of interrogating, punishing or intimidating detainees, a paradigm more relevant to the realities of men than of women.4
If that is the traditional context in which conducts of torture has been identified, recently a new trend has emerged. International human rights bodies, including for instance the Committee Against Torture and the Human Rights Committee, indeed have started to adopt a new approach which can be defined as a gender sensitive approach with a view towards the recognition that violation of women’s rights especially in the reproductive field can, in certain circumstances, cause such severe pain and suffering to amount at least to cruel, inhuman and degrading treatment if not to torture. Women have been found particularly vulnerable when it comes to abortion and abortion-related services which are denied either by highly restrictive abortion laws or because of the absence of a procedural framework that would allow women to have an abortion when this possibility is provided for under national law. Data have shown how the existence of such laws and practices does not stop women from seeking abortion, as they often resort to unsafe procedures to terminate their pregnancies and these procedures are likely to endanger their lives. Unsafe abortion has been said to cause the 13% of maternal mortality. Unsafe abortion and maternal mortality or morbidity have been proved to result not only from situations of poverty or disadvantage but they frequently steam from a denial of human rights.5
Thus, human rights can be used to tackle the problem of unsafe abortion and strengthen the protection of women’s reproductive rights. The legal challenge is to find not only the human rights breached in unsafe motherhood but also the rights that would contribute most effectively to future
1 D. Moeckly, S. Shah & S. Sivakumaran, International Human Rights law, Oxford 2nd Edition, pag 65.
2 Alice Edwards, The ‘Feminizing’ of Torture under International Human Rights Law, Leiden Journal of International Law 2006, Foundation of the Leiden Journal of International Law, pag 349.
3 Ibid.
4 Ron Sifris, Reproductive Freedom, Torture and international Human Rights: Challenging the Masculinization of
Torture, Routledge Research in Human Rights, 2013, pag 18.
5 WHO, Advancing Safe Motherhood Through Human Rights, Occasional Paper, WHO/RGR/01.5,
remedies.6 From this point of view, if several human rights are at stake and have been used when it
comes to maternal mortality or maternal morbidity, such as the right to life, the right to health, privacy and the right to equality and non-discrimination, recently also the right to be free from torture, cruel, inhuman and degrading treatment has been included in the catalogue of rights that could be violated in these situations. I argue that this is an important step forward in human rights law, not only because it gives support to the feminist critique and thus is able to improve human rights law in a way that take more into account the specific pain and suffering that only women experience, but also for the consequences that would follow from this finding, in terms of States’ positive obligations and accountability. The right to be free from torture, cruel, inhuman and degrading treatment in fact is a norm of customary international law. The provision is cast in absolute terms, bearing no exception, such as for public order or national security, as allowed for example for other rights.7 It carries with it obligations to prevent, punish and redress violations
calling for the adoption of legislative, administrative and judicial measures in this sense, which are non-derogable even in time of war and public emergency. In addition, it is against any doubt that the prohibition of torture is a rule of jus cogens, a peremptory rule of international law, which can be modified only by a subsequent norm of general international law having the same character. Framing acts that obstruct access to abortion as torture or ill-treatment not only can place greater pressure on States to take effective measures to respect, protect and fulfil women’s reproductive rights, but also demands government accountability and may impede future violations.8
Structure and Methodology. The purpose of my thesis is to show which are the positive obligations
States have under the prohibition of torture, cruel, inhuman and degrading treatment interpreted in a gender-sensitive way with a view to tackle the problem of maternal mortality and morbidity and to enhance women’s reproductive rights especially in the area of abortion. In order to reach such result, I decided to structure my thesis as follow: in the first chapter I will present the problem of unsafe abortion, the correlation between unsafe abortion and restrictive abortion laws and I argue that abortion is a human rights issue as several human rights are at stake. In the second chapter I will focus on the case law of the European Court of Human Rights (hereafter also ECtHR) and the views adopted on individual communications by UN Treaty Monitoring Bodies, especially the Human Rights Committee (hereafter also HRC) and the Committee Against Torture (hereafter CAT Committee) to show which are the specific forms of pain and sufferings that have been recognized to reach the threshold required to amount at least to cruel, inhuman and degrading treatment. The 6 Ibid pag 21.
7 Supra D. Moeckly and others, pag 176-177.
8 Center for Reproductive Rights Briefing Paper, Reproductive Rights Violations as Torture and Cruel, Inhuman, or
Degrading Treatment or Punishment: A Critical Human Rights Analysis, available at
prohibition against torture and other ill-treatment is contained both in article 1 of CAT and article 7 of ICCPR but only the first provision provides for a definition of the proscribed conduct. Indeed, in the last chapter I will discuss article 1 of the Convention Against Torture (hereafter also CAT), interpret it using a gender-sensitive and more normative approach showing how all the elements required by that provision to rubric a conduct as torture or ill-treatments are present when it comes to restrictive abortion laws in certain circumstances. Finally, I will use the same approach to tailor the positive obligations States have under the prohibition of torture and ill-treatment and that normally have been applied in detention and interrogation settings in the area of healthcare where women are more likely to be exposed to abuses, and the consequences that would follow from this finding.
As about the method I used to conduct my research I worked from an internal perspective and adopted a descriptive approach in the first 2 chapters and moved to a gender-sensitive and normative approach in the last one. I analyzed national abortion laws’ compliance with the prohibition of torture, cruel and inhuman treatments as laid down mainly in article 1 CAT and article 7 of the International Covenant on Civil and Political Rights (hereafter ICCPR). To interpret such rules, I relied mostly on the work of UN treaty bodies such as the CAT Committee and the HRC. In particular, I used relevant General Comments which provide authoritative guidance on the general treaty obligations and express how the treaty body interprets that particular provision, with a view to assist countries in the fulfilment of their obligations; relevant Concluding Observations which, based on periodical States reports, not only note the achievements the reporting State have reached in taking steps to bring its laws and policies into compliance with the treaty obligations, but also express concern with regard to areas in which compliance is lacking; and views given on individual complaints. Although the latter are not, strictly speaking, legally binding they “exhibit some characteristics of a judicial decision”9 and represent an authoritative interpretation of the
relevant treaty given by a body who has been entrusted to do so by States parties. For my research, of great importance was also the work of the Special Rapporteur on torture, cruel, inhuman and degrading treatments who has the mandate to formulates specific recommendations on a chosen topic, with a view to enhancing the protection of human rights. Academic books, articles as well as human rights blogs are included in the catalogue of consulted sources.
Chapter 1
I.
ABORTION IN A HUMAN RIGHTS PERSPECTIVE
A. The problem of unsafe abortion
The United Nations Office of the High Commissioner for Human Rights Report on preventable mortality and morbidity and human rights shows how among all the Millennium Development Goals (MDGs) that were established after the United Nations Millennium Summit of 2000, goal five, purporting to improve maternal health with the target of reducing maternal mortality ratio by three quarters by 2015 and achieving universal access to reproductive health, is the furthest from being achieved.10 Maternal mortality has been defined by the WHO as “the death of a woman while
pregnant or within 42 days of termination of pregnancy … from any cause related to or aggravated by the pregnancy or its management, but not from accidental or incidental causes”11, while maternal
morbidity has been identified as “a condition outside of normal pregnancy, labor, and childbirth that negatively affects a woman’s health during those times”.12
Among the several causes that can be associated with maternal mortality and morbidity we can find unsafe abortion which has been said to cause 13% of all maternal deaths.13 In fact, approximately 20
million unsafe abortions occur every year, resulting in 78,000 deaths.14
This situation does not occur solely in developing countries. The data collected in developed states confirm the failure of states to address preventable maternal disability and death.15 As the WHO
said “women’s reproductive health risks are not mere misfortune and unavoidable natural disadvantages of pregnancy but, rather, injustices that societies are obligated to remedy”.16
Data collected around the word have revealed the shocking consequences on women’s lives and health of unsafe and unplanned pregnancy, as well as denial of access to legal abortion services. In many countries of the world, “women’s alternative to unsafe abortion is not safe pregnancy and childbirth, but predictable complications during pregnancy resulting in maternal death or disability”.17
10 Office of the High Commissioner for human rights, Preventable maternal mortality and morbidity and human rights, available at http://www.ohchr.org/Documents/Issues/Women/WRGS/Health/ReportMaternalMortality.pdf, pag 2, par 3. 11 WHO, International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, vol. 2,
Instruction Manual, 2nd ed. (Geneva, 2004), p. 141 in Supra note 9.
12 S.A. Orshan, Maternity, Newborn and Women’s Health Nursing: Comprehensive Care across the Life Span (Philadelphia, Lippincott Williams and Wilkins, 2008), pag. 15 in Supra note 9.
13 Supra note 9, pag 2, par 6.
14 Rebecca J. Cook, Bernard M Dickens, Human Rights Dynamics of abortion Law Reforms, Human Rights Quarterly, vol. 25, number 1, February 2003, pag 3.
15 Supra WHO Occasional Paper note 5, pag 5. 16 Ibid pag 69.
If we have a look at what happens across the world, we see that women have always managed to have an abortion and they have done so also when abortion was illegal.18 It is clearly established
that legal restrictions have not succeeded either in preventing abortion or in lowering the number of it; for example, the incidence of abortion in Africa, where abortion is for the most part illegal is similar to that of Europe where abortion is broadly permitted in many countries (9 per 100 in Europe against 28 per 100 in Africa).19 These data strengthen the concept that restrictive abortions
laws does not reduce abortion but only improve the risk of women’s resort to unsafe abortion.20
Although several factors contribute to enhance the incidence of unsafe abortion such as social, economic and religious factors, legal restrictions have been said to constitute the main influential factor.21 Unsafe abortion is particularly common in countries with restrictive abortion laws, or when
there is a weak system of implementation of legal abortion-related services.22 Where there is no or
few restrictions on abortion, this practice is likely to be safe, that is, performed in hospitals with regulated facilities and by well-trained professionals; on the contrary, where high restrictive abortion laws prevent women from entering in such structures, they turn to clandestine procedures that might lead to life-threatening complications.23
In the light of this, the international community decided to endorse the concept of reproductive health through two UN conferences, namely the 1994 International Conference on Population and Development, held in Cairo, and the 1995 Fourth World Conference on Women, held in Beijing, where it was recognized “the aggravation of risks due to women’s obstructed access to safe reproductive health care services, and women’s common resort to abortions that are unsafe because of restrictions on procedures that can be undertaken in lawful, safe conditions”.24
In the 1995 Beijing Conference and resulting Platform, UN member states have committed themselves to “deal with the health impact of unsafe abortion as a major public health concern”.25 In
18 Susheela Singh, The incidence of unsafe abortion: a global review, pag 36 in Preventing Unsafe Abortion and its
Consequences Priorities for Research and Action, Editors Ina K. Warriner Iqbal H. Shah, Guttmacher Institute, New
York, 2006
19 Kelly R. Culwell, Marcel Vekemans, Upeka de Silva, Manuelle Hurwitz, Barnara B. Crane, Critical gaps in
universal access to reproductive health: contraception and prevention of unsafe abortion, International Journal of
Gynecology and Obstetrics, 2010, pag S14.
20 Unsafe abortion has been described by the WHO as “a procedure for terminating an unintended pregnancy either by individuals without the necessary skills or in an environment that does not conform to minimum medical standards, or both”
21 AI Mundigo, ‘Determinants of Unsafe Induced Abortion in Developing Countries’ in Ronli Sifris, Restrictive
Regulation of Abortion and the Right to Health, Medical Law Review, 18, Spring 2010, p 198
22 Ina K. Warriner, Unsafe abortion: an overview of priorities and needs, pag 10 in Supra n 9 Preventing Unsafe
Abortion and its Consequences Priorities for Research and Action.
23 Ibid, pag 2.
24 Supra, Rebecca J. Cook, Bernard M Dickens, pag 4-5.
25 Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, A/CONF.177/20/Rev.1, Beijing, 4-15 September 1995, par 106 (j) in Supra, Rebecca J. Cook, Bernard M Dickens, pag 5.
the same paragraph, the report acknowledges the correlation between laws prohibiting abortion and unsafe abortions as restrictions on abortion “drive abortion underground, thereby creating the space for unsafe abortions to flourish as abortion bans increase the number of women dying but do not decrease the number of abortions”.26 The Platform stated that the States should ‘consider reviewing
laws containing punitive measures against women who have undergone illegal abortions’, calling for the first time for the decriminalization of the phenomenon, and that ‘in circumstances where abortion is not against the law, such abortion should be safe’.27
B. Abortion, a Human Rights Issue
One of the possible way to address the problem of unsafe abortion and maternal mortality is to use a human rights framework.28
So far, no right to abortion has been clearly established. The only legally binding human rights instrument which directly addresses abortion and recognizes women’s reproductive rights as human rights29 is the Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa which provides that “states parties shall take all appropriate measures to: "protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus”.30
Nevertheless, there are others human rights provisions, which have been interpreted by human rights bodies to support women’s right to safe abortion.
So far, the work of the human rights bodies has not been taken so far as to recognize or to call for a legalization of a women’s right to abortion on request or on economic grounds, but rather these bodies have stressed that abortion should be available when it endangers women’s life or health, or in cases of rape, incest or when there is the risk of fetal malformations.31
Thus, abortion has been said to be a human rights issue. Indeed, several human rights are at stake: the right to life, to the highest attainable standard of physical and mental health including sexual and reproductive health, the right to privacy and the rights to equality and non-discrimination.
26 Supra Ron Sifris note 4, pag 79.
27 UN, Report on the International Conference on Population and Development, 5–13 September 1994,
A/CONF.171/13/Rev.1 at para 8.25 in Chiara Cosentino, Safe and Legal Abortion: An Emerging Human Right? The
Long-lasting Dispute with State Sovereignty in ECHR Jurisprudence, Human Rights Law Review, 2015, pag 3.
28 Supra Ina K. Warriner, pag 9.
29 Christina Zampas and Jaime M.Gher, Abortion as a Human Right-International and Regional Standards, Human Rights Law Review, 2008, pag 250.
30 Article 14(2)(c) Protocol to the African Charter on Human and Peoples' Rights and on the Rights of Women in Africa.
1. The right to life
Life’s protection is required by all human rights instruments. The right to life is the first right that come into mind as a tool that can be used to protect women who are at risk of dying in childbirth.32
The high rates of maternal deaths proves the failure to provide services needed by women while pregnant, which may constitute a violation of the right to life.33 The Human Rights Committee has
stressed that the right to life should not be interpreted in a restrictive manner and that this right requires States to take positive measures to increase life expectancy.34 States, on this line, are
requested to report on the measures taken to ensure that women are not forced to undergo clandestine abortions35
With regard to countries such as Chile, Guatemala, Colombia, Peru and Poland the Human Rights Committee in its Concluding observations has linked illegal and unsafe abortions with maternal mortality36, expressing big concerns about laws that prohibit abortion even when the life of the
mother is at risk, and about laws that criminalize abortion when the pregnancy was the result of rape37 thus, calling upon states to take positive steps to realize women’s right in the context of
abortion.38
On the other hand, one may wonder when does life begin and if and to what extent the fetus enjoys the right to life.39 International and regional human rights treaties do not define when life begins.
However, if we look at authoritative sources for interpretation such as the history of negotiations and human rights bodies’ jurisprudence, these instruments clarify that human rights’ protection do not apply before birth and they recognize that guaranteeing an absolute right to life to the fetus could endanger women human rights’ protection.40 In fact if we look at the human rights treaties we
notice that in the majority of them the fetus is excluded. The Universal Declaration of Human rights for example in article 1 refers to human beings that are “born free and equal” and the travaux
preparatoires indicates that the word “born” was used intentionally to exclude the application of the
rights of the Declaration to the unborn.41 The same must be said with regard to article 6 of the
International Covenant on Civil and Political Rights.
32Supra, WHO Occasional Paper, 2001, pag 27.
33 Supra Office of the High Commissioner for human rights, par 22. 34 HRC General Comment No. 6: Article 6 (Right to Life), par 5.
35 HRC, General Comment No. 28: Article 3 (Equality of rights between men and women par 10. 36 Supra Christina Zampas and Jaime M. Gher, pag 257.
37 Ibid.
38 Ibid pag 256.
39 Jacob, White and Ovey, The European Convention on Human Rights (6th Edition), Oxford 2014, pag 397. 40 Center for Reproductive Rights, Whose Right to Life? 2014, www.reproductiverights.org, pag 6.
With regard to the ECHR, in the case Vo v. France, the European Court of Human Rights, affirmed that “the unborn child is not regarded as a ‘person’ directly protected by Article 2 of the Convention and that if the unborn do have a right to life, it is implicitly limited by the mother’s rights and interests, including her rights to life, health, and privacy”.42
The only Convention which extends its rights from the moment of conception is the American Convention on Human Rights in its first article. However, both the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have clarified that this protection is not absolute and that the disproportionate restrictions on the exercise of other human rights due to absolute protection of the right to life would be contrary to the protection of human rights.43
2. The right to health
As stated by the Committee on Economic, Social and Cultural Rights, the right to health, as recognized in article 12 ICESCR, include the right to control one’s health and body as well as the right to have access to a number of services necessary to reach the highest attainable standard of health.44 When it comes to abortion, the right to health can be used to urge states to take positive
measures as to avoid that women would experience the health risks connected to unsafe abortion and to ensure women’s access to abortion when their health is in danger.45 These measures have
been said to include the necessity to lift the legal barriers to abortion and ensuring access to abortion services of good quality.46 Indeed, the Committee on the Elimination of all Forms of
Discrimination Against Women (hereafter CEDAW) has used its Concluding Observations to call upon states to remove all the barriers that could obstruct women’s access to abortion linking those barriers to the right to health.47
3. The right to privacy
The right to privacy is the provision that is mostly used by the European Court of Human Rights, so far the most prudent among the human rights bodies in sustaining the existence of a right to abortion. In fact, it did not state either whether abortion finds some place in the Convention or 42 Vo v. France, App. No. 53924/00, judgement of 8 July 2004, ECHR par 80, in Supra Center for Reproductive Rights, Whose Right to Life?, pag 7.
43 Artavia Murillo et al. v. Costa Rica, Judgment of 28 November 2012, Inter-American Court of Human Rights, par 258 in Supra Center for Reproductive Rights, Whose Right to Life?, pag 7.
44 CESCR General Comment No. 14 (2000) The right to the highest attainable standard of health par 8 and 12 in Office of the High Commissioner for human rights, pag 8, par 24.
45 Supra Christina Zampas and Jaime M. Gher, pag 268. 46 Ibid.
whether domestic law should allow for safe and legal abortion and under which conditions48,
leaving states with a large margin of appreciation in reproductive matters. Abortion claims under the ECHR have indeed been for the most part analyzed under article 8 the provision that protect private life, and the Commission first and the Court later have affirmed that article 8 cannot be interpreted as meaning that pregnancy and its termination pertain uniquely to the woman’s private life as, whenever a woman is pregnant her private life becomes closely connected with the developing fetus49, so that not every restriction on abortion is seen as an interference with the right
to private life in the European context.50 Notwithstanding this general approach, the Court has also
shown less willingness to grant states this margin when abortion was seen as necessary to save the life of the mother. This is particularly shown in the case Tysiac v. Poland51 in which the Strasbourg
Court has held Poland responsible under article 8 only for not having put in place a procedural framework allowing women to access abortion on legal grounds.
4. The right to equality and non-discrimination
The right to gender equality is recognized among the most important principle of human rights law so that every human rights instruments provide for the enjoyment of the human rights protected free from discrimination.52 Restrictive abortion laws can intensify the inequality between men and
women as the latter are, for biological reasons, the only one who can carry a pregnancy and give birth.53 Women may experience maternal-related injuries, and so health risk that men do not face.
Furthermore, abortion is a service only women need, and the denial of medical procedure only women need, or the criminalization of such procedures, in the words of the CEDAW, is a form of discrimination against them.54 This can be interpreted as meaning that law restricting abortions can
for themselves amount to discrimination against women. The Human Rights Committee itself, has repeatedly shown the correlation between the availability of reproductive services and women’s inequality.55 Thus, states are urged to ensure that their policies address the need of women due to
their exclusive capacity to become pregnant and give birth.56
48 Krzyanowska-Mierzewska, How to Use the European Convention for the Protection of Human Rights and
Fundamental Freedoms in Matters of Reproductive Law: The Case Law of the European Court of Human Rights,
(Astra, 2004) in Supra Christina Zampas and Jaime M. Gher, pag 276.
49 Jacob, White and Ovey, The European Convention on Human Rights (6th Edition), 2014, pag 397. 50 Supra Christina Zampas and Jaime M. Gher, pag 277.
51 Tysiąc v. Poland (Application n. 5410/2003), judgement of 20 March 2007, ECtHR.
52 Centre for Reproductive Rights, Safe and Legal Abortion is a Woman's Human Right, Briefing Paper, available at
http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_fac_safeab_10.11.pdf, pag 3. 53 Rebecca J. Cook, International Human Rights and Women's Reproductive Health, Studies in Family Planning, Vol. 24, No. 2, 1993, pag 78.
54 Human Rights Watch, Q&A: Human Rights Law and Access to Abortion, available at
https://www.hrw.org/legacy/backgrounder/americas/argentina0605/. 55 Ibid.
Beside these rights, traditionally used to challenge abortion laws that appear too restrictive, recently the right to be free from torture, cruel, inhuman and degrading treatment has been added to the catalogue of rights used in this field. In the following chapter I will discuss the relevant case-law concerning this provision.
Chapter II
THE FORMS OF RECOGNIZED PAIN AND SUFFERING CAUSED BY
WOMEN’S OBSTRUCTED ACCESS TO ABORTION
In this chapter I will analyze how human rights bodies have begun to consider domestic abortion regulations’ conformity with States’ human rights obligations57 under the prohibition of torture and
cruel, inhuman and degrading treatment, to show in which occasions human rights bodies have found a violation of the relevant provisions in the context of abortion with the aim to display which kind of pain and suffering have been recognized to amount to such violations.
From the examination of the relevant case law, two main trends have been identified. First, states have been found guilty for cruel, inhuman and degrading treatment when women are denied access to abortion or abortion-related services that were legally available under domestic law.58 In such
cases, UN human rights bodies and the European Court of Human Rights in particular have refrained from recognizing a general right to abortion, nonetheless they have urged States to reform their domestic legal systems in order to address the procedural deficit that obstruct women’s access to legal services.59 Second, when it comes to cases such as rape or incest, fetal malformations or
when the life or health of the woman is in danger, human rights bodies have upheld that the mere existence of laws that restrict abortion in those circumstances could inflict cruel, inhuman and degrading treatment on women.60 Here, UN Treaty Bodies such as the UN Human Rights
Committee and the UN Committee Against Torture have sustained that States, as part of their international human rights obligations, must reform particular restrictive abortion laws likely to inflict cruel, inhuman and degrading treatment to women.61
In order to show the kind of suffering that women have been recognized to feel in these situations, of particular importance are the cases dealt with by the UN Human Rights Committee K.L v. Peru
57 Ibid, p 100. 58 Ibid, p 100. 59 Ibid, p 105. 60 Ibid, p 100-101. 61 Ibid, p 106.
and L.M.R v. Argentina and two cases that were brought before the European Court of Human rights, namely R.R. v. Poland and P. & S. v. Poland. These cases will be analyzed in depth.
A. Cases where access to abortion or prerequisite health services was
permitted under domestic law
The first case I want to discuss is R.R v. Poland.62 The case concerns a Polish woman who, at the
18th weeks of her pregnancy was told that it was not possible to rule out that the fetus she was
carrying was affected with some malformations.63 A further ultrasound was performed and
confirmed the likelihood of fetal impairments, and for this reason she was recommended to undergo a genetic prenatal test to confirm or dispel this doubt.64 However, she was repeatedly denied access
to the test, apparently because she had made clear that she wished to have an abortion if the suspicious proved true.65
Eventually, she obtained the examination without referral in the 23rd weeks of her pregnancy, as she
entered the hospital as an emergency patient.66 Two weeks would have been passed before R.R was
shown the results of the test, weeks in which the applicant became increasingly desperate thinking about the possibility her fetus was suffering from severe genetic abnormalities.67 The test confirmed
the fetus was suffering from Turner Syndrome68. At this point, she asked for abortion which in
Poland is legal when prenatal tests indicate a high risk that the fetus would be severely and irreversibly damaged or suffering from an incurable life-threatening ailment.69 However, she was
refused abortion, as the doctors told her that it was too late as the fetus was, at that point, viable outside the mother’s body.70 Therefore, R.R was forced to carry out the pregnancy and eventually
she gave birth to a girl affected with Turner Syndrome.71
The ECtHR, in this case, found Poland responsible under both article 8, the right to respect for private life, and article 3 ECHR, the prohibition of torture and inhuman and degrading treatment. As to the first finding, the Court confirmed what it had already stated in the Tysiac72 case, that is, “once
62 R.R. v. Poland (Application n. 27617/04), judgement of 26 May 2011, ECtHR. 63 Ibid, par 9.
64 Ibid, par 12. 65 Ibid, par 9. 66 Ibid, par 28. 67 Ibid, par 30.
68 The Turner Syndrome is a genetic condition in which a female does not have the usual pair of two X chromosomes. Girls with this condition are normally shorter than average, infertile and can experience health problems such as kidney and heart abnormalities.
69 Supra R.R. v. Poland, par 67. 70 Ibid, par 33.
71 Ibid, par 37.
the State, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain it”.73 However, the Court in
this case did not stop here but went further and stated that R.R’s suffering was severe enough to amount to the inhuman or degrading treatments prohibited under article 3.74 Ill-treatments must
attain a minimum level of severity to fall within the scope of Article 375and in this case, the Court
underlined the multiple and senseless delays76 in accessing the prenatal testing even though the test
was clearly necessary to confirm the fetus’ impairment, the fact that these kind of diagnostic services were available all the times and most essentially that she was legally entitled to receive them.77 In the words of the Court “there was an array of unequivocal legal provisions in force at the
relevant time specifying the State’s positive obligations towards pregnant women regarding their access to information about their health and that of the fetus. However, there is no indication that the legal obligations of the State and of the medical staff regarding the applicant’s patient’s rights were taken into consideration by the persons and institutions dealing with the applicant’s requests to have access to genetic testing”.78
In addition, the Strasbourg Court emphasized the position of great vulnerability of R.R who “had to endure weeks of painful uncertainty concerning the health of the fetus, her own and her family’s future and the prospect of raising a child suffering from an incurable ailment”79. Finally, the Court
considered she was humiliated by the doctors’ refusal to provide her with accurate information or referral for the genetic test.80 Thus, taking into consideration all these facts and circumstances the
ECtHR concluded that the applicant’s suffering reached the minimum threshold of severity under art 3 of the Convention.81
The following year, the Strasbourg Court confirmed its findings in the case P & S v. Poland.82,
which involved a 14 year old girls who was raped by a classmate and as a result she became pregnant.83 P and her mother S wanted to proceed for abortion as unlawful sexual intercourse was
one of the permitted grounds under which abortion was allowed in Poland.84 However, their
requests were repeatedly refused, and several measures were undertaken by the medical personnel 73 Supra R.R. v. Poland, par 200 and Supra Tysiąc v. Poland, par 116.
74 Supra Alyson Zureick, pag 119, and Chiara Cosentino, Safe and Legal Abortion: An Emerging Human Right? The
Long-lasting Dispute with State Sovereignty in ECHR Jurisprudence, Human Rights Law Review, 2015, pag 17.
75 Supra R.R. v. Poland, par 148. 76 Supra Alyson Zureick, pag 119. 77 Ibid.
78 Supra R.R. v. Poland, par 157. 79 Ibid, par 159.
80 Supra Alyson Zureick, pag 119. 81 Supra R.R. v. Poland, par 161.
82 P. & S. v. Poland (Application n. 57375/08), judgement of 30 October 2012, ECtHR. 83 Ibid par 6 and 8.
in order to obstruct her access to abortion. In particular, she was forced to sign a statement according to which she was not going to have abortion, her medical and personal data were disclosed to the general public and further she was temporally removed from her mother’s custody and put in a juvenile shelter.85 Eventually, she managed to have an abortion in a clandestine manner
even though she met the requirements for a legal termination.86
As in R.R, the Court found that both article 8 and 3 had been violated. With regard to article 3, the ECtHR highlighted P’s vulnerability as both a minor and a rape victim, the pressure put on her by the medical personnel to persuade her not to seek abortion, and the fact that her personal information was made public.87 The Court retained that she was seriously harassed by all these
facts. This situation was aggravated as she was put in a juvenile shelter and criminal investigation for unlawful sexual intercourse was pursued against her despite the fact that she was the victim of sexual abuse.88 The Court argued that “no proper regard was had to the first applicant’s
vulnerability and young age and her own views and feelings”89 and, therefore, concluded that the
applicant was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention.90
Not only the Strasbourg Court recognized the suffering of women when denied access to lawful abortion-related services as amounting to inhuman and degrading, but also the UN Human Rights Committee in the 2011 communication L.M.R v. Argentina91 adopted a similar view.
L.M.R was a mental disabled girl, who became pregnant as a result of rape and even though Argentinian laws provided access to abortion to rape victims who had mental impairment she faced multiple obstacles in obtaining a termination and, as P before her, she only managed to have a clandestine abortion.92
The Committee stated that the State’s failure to guarantee the applicant’s right to abortion as provided under national law caused her physical and mental suffering amounting to the treatment prohibited under article 7 of the International Covenant on Civil and Political Rights.93 This
suffering was, in the words of the Committee, aggravated by the fact that she was forced to undergo
85 Ibid par 33-34. 86 Ibid par 41.
87 Supra Alyson Zureick, pag 120-121. 88 Supra P. & S. v. Poland par 165. 89 Ibid par 166.
90 Ibid par 168.
91 L.M.R v. Argentina, Communication No. 1608/2007, view of 29 March 2011, UN Human Rights Committee. 92 Supra Alyson Zureick, pag 128-129.
a clandestine abortion, so an unsafe procedure and by her vulnerable status of a young and disable rape victim.94
B. Violations in cases of restrictive abortion laws
The UN Human Rights Committee not only acknowledged in the L.M.R case that national procedural deficits can lead to a violation of art 7 ICCPR but, from 1990s on, it has also expressed serious concerns that, because of restrictive abortion laws themselves, states could be held responsible under article 7, and has urged States to reform their laws when they are too restrictive in order not to respect and fulfil their human rights obligations.95 For example, with regard to Peru the
Committee expressed concerns at the high percentage of abortion-related maternal deaths and at the fact that abortion resulting from rape or incest was still criminalized recommending Peru to review its legislation on abortion making provisions for exceptions in case of rape and incest.96 The same
worries were expressed with regard to Ireland and the highly restrictive circumstances under which women can lawfully have an abortion. The Committee noted the criminalization of abortionin cases of rape, incest, fatal fetal abnormality and serious risks to the health of the mother, which may lead to up to 14 years of imprisonment, except in cases that constitute a “real and substantive risk” to the life of a pregnant woman. Thus, in its concluding observation of 2014 it urged Ireland to provide for additional exceptions in such cases.97
Beyond these recommendations, in 2005 the UN Human Rights Committee delivered its view in
K.L v. Peru.98 This was a “groundbreaking”99 decision as was the first time a denial of abortion was
recognized to amount to cruel, inhuman and degrading treatment.100
K.L was a 17 years old girl who was diagnosed to be pregnant with an anencephalic fetus.101 She
was told that the child would not have any life expectancy after delivery and she herself would have faced risks to her life if she had carried out the pregnancy to term.102 However, she was refused
abortion on the ground that Peruvian law permitted abortion when the procedure was the only way to save the life of the mother, while it was criminalized in cases where the fetus was likely to be
94 Ibid pag 129-130.
95 Supra Alyson Zureick, pag 125-126.
96 UN Human Rights Committee, Concluding observations to Peru, 11-18 March 2013), CCPR/C/PER/CO/5, par 14. 97 UN Human Rights Committee, Concluding observations to Ireland, 19 August 2014, CCPR/C/IRL/CO/4, par 9. 98 K.L v. Peru, Communication No. 1153/2003, view of 22 November 2005, UN Human Rights Committee 99 Nancy Northupt, Reproductive Rights at Home and Abroad, Cuny Law Review, vol 15/2012, pag 266. 100 Supra Alyson Zureick, pag 128.
101 This is a rare condition in which the fetus develops without a significant part of its brain, skull, or scalp. 102 Supra Alyson Zureick, pag 127.
borne with deformities.103 Eventually, K.L gave birth to a baby girl, she breastfed her for four days
until she died.104
The Committee found that K. L’s pain and distress originated from being forced to carry out the pregnancy, and witnessing her daughter’s deformities knowing that she would have died soon after birth.105
Denial of abortion was said to have triggered the symptoms of a deep depression and affected greatly the applicant’s mental health106 both during pregnancy and after delivery, the Committee
accepting in such a way the long-term implications of the pain experienced by the claimant.107 In
addition, it pointed out that as a minor she was particularly vulnerable, her mental suffering was foreseeable and concluded that the State’s refusal to perform abortion was the direct cause of her pain and suffering.108 Therefore, the Committee considered that the existence itself of a too
restrictive law revealed a violation of article 7 ICCPR.109
One of the striking feature of the Committee reasoning is that K. L’s suffering was linked directly to that fact that she was compelled to carry out the pregnancy in those circumstances, not because she was obstructed to exercise a right recognized under national law.110 The Committee used a neutral
language; the State is responsible for not enabling the applicant a therapeutic abortion, not necessarily a legal one.111
C. To summarize: three forms of pain and suffering
From the case law presented above we can say that the ECtHR, the UN Human Rights Committee and the UN Committee Against Torture have all recognized that in some circumstances obstructing or denying women’s access to abortion or abortion-related services amounts to inhuman and degrading treatments.112 We can identify two main circumstances that have led these bodies to find
forms of cruel, inhuman and degrading treatment: a procedural deficit, an autonomy deficit. Next to them and on a second ground with regard to our analysis, we can add what we can call “maternal suffering”.
103 Ibid. 104 Ibid.
105 Supra Alyson Zureick, pag 127. 106 Ibid.
107 Pardiss Kebriaei, UN Human Rights Committee Decision in Karen Llontoy v Peru, in Interights Bulletin, vol 15 no 3, 2006, pag 151.
108 Supra Alyson Zureick, pag 127-128. 109 Supra K.L v. Peru, par 6.3.
110 Supra Alyson Zureick, pag 128. 111 Supra Pardiss Kebriaei, pag 151. 112 Supra Alyson Zureick, pag 131.
Beginning with the first aspect of the suffering, the Strasbourg Court has consistently examined abortion issues primarily under Article 8 and so the right to private life, which has been interpreted by the Court as allowing States a wide margin of appreciation when it comes to regulate and restrict abortion. As a result, the ECtHR has never judged the content of a State's abortion regulation in terms of rights granted, and has only found that procedural deficits in implementing State abortion laws violate Article 8.113
In R.R and P & S the Court retained that not only Article 8 alone was at stake. In fact the Court decided to serve itself with a more powerful tool in order to underline the seriousness of the facts alleged.114 The Court described the obstacles the applicants faced as particularly harmful because
these two women just wanted to access to services to which they were legally entitled to.115 This
means that the Court considers that the pain and suffering stem from the procedural deficit itself, in the sense that women feel harassed and humiliated because they cannot have access to a legal right.116
The Court went on in the reasoning and highlighted how this pain steamed also from the “frustration of women’s ability to make important decisions about their bodies and their futures”.117
The Court’s words in both R.R and P & S highlight the deep concern about the lack of women’s reproductive choice, and this goes beyond any procedural shortcomings and any Article 8 analysis.118 To make things clearer, the ECtHR in R.R stressed how the inability of the woman in
making crucial choices about the future of her pregnancy and the well-being of her family due of a lack of information was a cause of great suffering for her; and, on the same line, in P & S, P’s suffering was linked to the fact that her “views and feelings” were not taken into account.119
The autonomy deficit is exacerbated in cases of rape victims, minors or mentally disabled girls. In all the cases analyzed above human rights bodies have underlined the particular state of vulnerability of these women. When it comes to minors, the pain and suffering may stream from the fact that they could have not totally consented to the sexual relationship and if they do not have the possibility to have an abortion they are forced to bear the consequences of an act that have gone beyond their will.120 The impact of the autonomy deficit is obvious with regard to rape victims. In
such cases, women have clearly not made the choice of engaging in sexual intercourse, and the UN Committee Against Torture had recognized that “for the woman in question, this situation entails 113 Ibid. 114 Ibid, pag 113-114. 115 Ibid, pag 124. 116 Ibid. 117 Ibid. 118 Ibid, pag 125. 119 Ibid, pag 124. 120 Ibid, pag 135.
constant exposure to the violation committed against her and causes serious traumatic stress and a risk of long-lasting psychological problems, such as anxiety and depression”.121
In addition, we can say that the very fact of being pregnant, so carrying a fetus within the woman’s body is not always without risks to her own life and health, and the fact that she is left with no choice with regard the continuation of the pregnancy means that the State is able to impose serious consequences for her life and health.122 It seems that the State has taken women’s free will away and
this “rise feelings of fear, anguish and inferiority” in them.123
Furthermore, from the case law analysis we can say that human rights bodies have also taken into account the existence of the so-called “maternal suffering”, that is the pain linked to the woman’s fear that her fetus is likely to carry on a malformation that in turn will make him suffer as well.124
This status is dependent once more on the position of vulnerability in which pregnant women are, which can be abused and can inflict humiliation to them in the form of shabbily treatments, procrastination, confusion and of being forced to seek services by means of subterfuge.125
In sum, we can say that human rights bodies when it comes to cases in which abortion is criminalized or too much restricted, have urged States to expand the number of permitted grounds and thus allow access to abortion in cases such as rape, fetal abnormalities or when the pregnancy poses risks to the life and health of the mother. In addition, they have called upon them to guarantee that rights recognized in the domestic legal order are made available also in practice and not just theoretically.126
Chapter III
STATES POSITIVE OBLIGATIONS UNDER THE PROHIBITIONS OF
TORTURE, INHUMAN AND DEGRADING TREATMENT IN THE
CONTEXTS OF ABORTION AND MATERNAL HEALTHCARE
121 UN Committee Against Torture, Concluding Observations to Nicaragua, 10 June 2009, CAT/C/NIC/CO/1 (2009), par 16, in Supra Chiara Cosentino, pag 16.
Human Rights bodies have already recognized that the frustration of women reproductive choice may lead to the kind of pain and suffering amounting to CIDT with respect to coercive sterilization. In two cases, VC. v. Slovakia and N.B. v. Slovakia, the ECtHR in particular found treatment reaching the threshold required by article 3 when women are sterilized without their informed consent.
122 Supra Alyson Zureick, pag 136. 123 Ibid pag 137-138
124 Ibid pag 106.
125 Supra R.R. v. Poland, par 153. 126 Supra Alyson Zureick, pag 140.
Both the European Convention on Human Rights in article 3 and the International Covenant on Civil and Political Rights in article 7 contain a provision stating the right to be free from torture, cruel, inhuman and degrading treatment. In addition, the UN has adopted a specific instrument addressing the topic of ill-treatment, the Convention Against Torture which prohibits torture as defined in article 1 and cruel, inhuman and degrading treatment in article 16.
Traditionally these provisions have been used to prohibit abuses, whether physical or psychological, that occurred in detention settings against detainees at the hands of the State, behind closed doors. Torture has been a method of arriving at the truth, of determining responsibility exerting confessions or other information, where the common element being the detention of the victim in a prison-type facility.127 In such a way we can detect a connection between the deprivation of liberty
and torture.128 Despite the fact that the traditional framework in which torture and other ill-treatment
are applied, nowadays the international community is acknowledging the reality that torture can be perpetrating in other settings.129 In the last two decades indeed the concepts of torture and
ill-treatment have expanded and acts, especially of cruel, inhuman and degrading ill-treatment have been found in everyday settings, like healthcare facilities.130 These changes have led to an important
development in this area of human rights law, that is the recognition that, in certain circumstances, denying or obstructing a woman's access to abortion can cause such severe pain or suffering that they amount to cruel, inhuman, or degrading treatment, triggering state responsibility under international law.131
In the previous chapter I showed the situations in which Human Rights Bodies have found a violation of the prohibition of torture and ill-treatment. In order to argue that States have obligations in the field of abortion and which these obligations are, it is necessary to show how restrictive access to abortion-related services meets the requirements of the definition of torture and ill-treatments. Afterwards in this chapter, I will underline the traditional obligations that States have under the relevant provisions and how can these obligations be tailored with regard to healthcare services needed by women. I will conclude illustrating the consequences of dealing with restrictive access of abortion under the framework of the prohibition of torture and cruel, inhuman and degrading treatment in terms of greeter protection for women’s rights.
127 Supra Ron Sifris, Reproductive Freedom, pag 50.
128 Nigel Rodley and Matt Pollard, The Treatment of Prisoners under international Law, Oxford University Press, 2009, pag 8 in Supra Ron Sifris, Reproductive Freedom, pag 49.
129 Supra Ron Sifris, Reproductive Freedom, pag 50.
130 Alyson Zureick, (En)Gendering Suffering: Denial of Abortion as a form of Cruel, Inhuman, or Degrading
Treatment, Fordham International Law Journal, vol 38, 2015, p 101.
A. Defining restrictions on abortion as torture and cruel, inhuman and degrading
treatment
In the previous chapter it was shown that states can violate the relevant provision when it comes to abortion and abortion-related services. In order to support the thesis that States, in the area of abortion, have obligations with regards to torture and ill-treatment and what these obligations entail, I think it is appropriate to show how all the elements the definition of torture requires for an acts to be defined as torture can be seen to be present where women are denied access to abortion.
The definition of torture can only be found in article 1.1 of the Convention Against Torture which states that “torture means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.
The first element the CAT requires for an act to be classified as torture is the presence of an act by which severe pain or suffering is inflicted. In the area of abortion, in order to fulfil the criteria, one may say that the adoption of a law that criminalize or in another way prevent access to abortion constitutes an act, as law-makers must take positive steps to enact a law. However, one may also say that it would be better to see the failure to provide access to abortion as an omission rather than an act, so that the question is whether torture can be committed by means of an omission.132 It is
possible to answer in the positive to this question as in International Law the term “act” must be interpreted to include also the term “omission”.133 In fact, if we refer to article 1 of the international
law Commission’s draft Articles on Responsibility of States for Internationally Wrongful acts and the interpretations given by the ILC itself it is clear that an internationally wrongful act may consist of an act or of an omission or of a combination of both.134 This strand has been adopted more
properly in the area of torture by the European Commission on Human Rights which, in the Greek
case held that torture may be constituted by both acts and omissions.135 This proves that even if we
132 Supra Ron Sifris, pag 62-63. 133 Ibid pag 63.
134 International Law Commission, Yearbook of the International Law Commission, A/CN.4/SER.A/2001/Add.1 (Part 2), in Supra Ron Sifris, pag. 63.
categorize restrictions on abortion as omission they can anyway fall within de definition of torture.136
Following the definition, not every act (omission) constitutes torture, but only those which are able to inflict severe pain or suffering both physical and mental. This have been dealt with in depth in the previous chapter as I thought it would have been interesting to identify specifically which kind of sufferings human rights bodies have regarded to reach the threshold necessary to found a violation of the prohibition of torture and other ill-treatment. Thus as previously shown, forcing a woman to carry out an unwanted pregnancy is often detrimental of her mental health.137 In the case
of K.L v. Peru the HRC acknowledged the pain and suffering that may flow from being forced to bring a pregnancy to term where the fetus has no concrete prospects to survive.138 In the case of
LMR v. Argentina the recognized pain and suffering was caused by the fact that the unwanted
pregnancy was the result of rape. Furthermore, the HRC underlined how a timely access to legal abortion services could have minimized her mental injuries as opposed to the illegal and unsafe abortion to which she eventually resorted.139 In the cases of P & S and R.R the pain was caused by
the fact that the applicants could not have access to services that were completely legal.
As about the physical impairments that a legislation restricting access to abortion can cause it would be sufficient to show some data. According to the WHO, every year 47.000 women die and about 5 million woman suffer from morbidities such as sepsis and hemorrhage and temporary or permanent disabilities as a consequence to being forced to seek for an unsafe abortion.140 Once more, legally
preventing a woman’s access to abortion-related services can lead to the level of pain and suffering required by the definition of article 1 CAT.141
The next step in our analysis would be that of seeing whether this pain and suffering could be said to be intentionally inflicted by the State, as only pain and suffering intentionally inflicted are material for a conduct to be classified as torture, while those which are the result of an accident or of mere negligence are excluded.142
In order to see whether this element can be said to be present in our field of analysis it is important to note how intention in article 1 is not taken as requiring a subjective inquiry into the motivations of the perpetrator, but rather an objective component, in terms of foreseeability of pain and
136 Ibid. 137 Ibid pag. 70. 138 Ibid pag. 68. 139 Ibid pag. 69. 140 Ibid pag. 77-78. 141 Ibid pag. 96.
suffering.143 This means that to satisfy the intent requirement the “person must have voluntary
engaged in conduct that made severe pain or suffering objectively foreseeable, thereby distinguishing torture from accidents”.144 If we look for example at the case of K.L v. Peru
discussed above, the author attaches a psychiatric certificate, which confirms her state of deep depression and the severe consequences this caused, taking her age into account. The Committee notes that this situation could have been foreseen, since a hospital doctor had diagnosed anencephaly in the fetus, yet the hospital director refused termination.145 Thus, if this is the
prevailing interpretation of the intention element and given the available data showing the bad impact of restrictive abortion laws on the mental and physical wellbeing of women we cannot say that States are unaware of these consequences, and thus the requirement that pain and suffering must be intentionally inflicted is satisfied in this context.146
Severe pain or suffering must not only be inflicted intentionally but also for a specific purpose. Besides the purposes enumerated in the provision that echoed the classical scenario of interrogating detainees, article 1 CAT refers to discrimination of any kind. In the area of women’s reproductive rights, it has been argued that violations are often based on gender discrimination, and have the aim at straightening out behaviors that are believed consonant with stereotyped gender roles.147 For
example, legal and policy restrictions on abortion are based on the stereotypes that a woman’s primary role is to bear children and that women cannot make decisions about their sexuality and reproduction.148 It is the idea that because women are biologically predisposed towards the rearing
of children they cannot be anything but homemakers and child rearers and this constitutes discrimination149 because it seems that the sole possible destiny of a woman is to be a mother.150
The last elements required by the definition contained in article 1 CAT is that the pain and suffering must be imputed to the State, but if we consider that the pain and suffering is the result of restrictive abortion regulations or lack of practical access to abortion services, and that the authorities of a
143 Ibid pag 102.
144 Rhonda Copelon, Gender Violence as Torture: The Contribution of CAT General Comment No 2, New York City Law Review, 2008, in Supra Ron Sifris, pag 103.
145 Sarah Joseph, Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and
Commentary 3rd Edition, Part III Civil and Political Rights, 9 Freedom from Torture and Rights to Humane Treatment —Articles 7 and 10, Oxford Public International Law, pag 244.
146 Supra Ron Sifris, pag 109.
147 Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, (7th Sess.), U.N. Doc. A/HRC/7/3 (2008) in Center for Reproductive Rights Briefing Paper, Reproductive Rights Violations as Torture and Cruel, Inhuman, or Degrading Treatment or
Punishment: A Critical Human Rights Analysis, pag 15.
148 Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives, 2009, in Supra Center for Reproductive Rights Briefing Paper, pag 15.
149 Supra Ron Sifris, pag 119. 150 Ibid pag 120.
country are clearly involved in passing such legislations, stating that obstructed abortion in certain circumstances is torture for which the authorities could be held responsible is not so difficult to sustain.151 This is because when the legislative organ of a country passes a law restricting a
woman’s access to legal abortion services, the country itself has the responsibility of any pain and suffering that may result.152
The above discussion showed how all the elements required by the definition provided for in article 1 CAT are met in the area of abortion and thus that restrictions on abortion may violate the international proscription of torture. Nonetheless, a further requirement has been added by the Special Rapporteur on Torture Manfred Novak for a conduct to constitute torture, namely “powerlessness”.153 According to Novak, indeed torture presupposes a situation of powerlessness of
the victim.154 This element is not only established when a person is deprived of his personal liberty
but in every context in which a person is under the control of another. Patients in health-care settings are totally dependent on health-care workers.155 As was more in depth shown in the
previous chapter, where States fail to provide for a legal abortion either through restrictive abortion laws or because they don’t have a procedural mechanism to enact such law women are powerless because one’s exercise of decision-making is taken away and given to others.156
The analysis carried out in the previous lines showed how restrictive abortion laws fully fall under the definition of torture provided for in article 1 CAT. Nevertheless, one may ask whether it is reasonable to define restrictions on reproductive freedom as torture given the particular stigma that attach to the term and the possibility that the credibility of the state could be jeopardized on the international level, and so if it would not be better to reserve the rubric to the most extreme conduct.157 That’s why the CAT in its concluding observations and the ECtHR in its case law tend
to categorize these situations as cruel, inhuman or degrading treatments. On the contrary, the HRC has not adopted a position on the issue stating that in certain circumstances restrictions on abortion may violate article 7 ICCPR without specifying whether it views such violations as torture or ill-treatment.158
151 J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1988, in Supra Ron
Sifris, pag 151.
152 Supra Ron Sifris, pag 151.
153 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Manfred Nowak, A/HRC/7/3 15 January 2008, pag 7.
154 Ibid.
155 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Juan E. Méndez, A/HRC/22/53, 1 February 2013, para 31.
156 Ibid.
157 Supra Ron Sifris. pag 253, where this attitude is defined as “the fear of dilution”. 158 Ibid, pag 247.
Contrary to article 1 CAT which provide for a definition of torture, article 16 CAT does not do the same with regard to ill-treatment. As to the distinction between torture and inhuman and degrading treatment we should say that there are two schools of thoughts. On the one hand it could be said that the threshold is identified in the level of severity of the pain and suffering inflicted, while on the other there are authors who sustain that the distinction is a matter of purpose, so that while torture must be inflicted for the specific purposes enumerated in article 1 CAT ill-treatments do not require a specific purpose or intent.159 Anyway, it is difficult to reach a clear position whether restriction on
reproductive freedom constitute torture or just ill-treatment, because each situation is different and require a specific analysis and depends on the circumstances of each case.160 Furthermore,
experiences have demonstrated that frequently conducts that give rise to ill-treatments facilitate torture, that the methods of torture and ill-treatment are in a process of continual evolution, and for our purpose it is important to say that the CAT considers the obligation to prevent ill-treatment to overlap and to be congruent with the obligation to prevent torture.161
B. Torture, Cruel, Inhuman and Degrading Treatment and States’ Positive
Obligations
Once it has been shown how restrictions on reproductive freedom and in particular restrictions on abortion could fall within the scope of torture or cruel, inhuman and degrading treatments we can say that States have obligations in this regard. In this chapter I will try to clarify which these obligations are while in the next I will highlight what kind of consequences can flow from dealing with these situations under the framework of torture and ill-treatment for a better protection of women’s rights.
International law imposes upon State both negative and positive obligations. With regards to the prohibition of torture and other ill-treatments, States must not only refrain from committing acts of torture or cruel, inhuman and degrading treatment, but they must also take measures to prevent, punish and redress any violations.162 The CAT, the ICCPR and regional treaties require States to
take legislative, administrative and judicial measures, to provide an effective remedy and procedural guarantees against the prohibited conducts. Positive obligations in this field include also providing education and training for law enforcement personnel, normally employed in detention or custodial settings. When an act of torture occurs, States are required to conduct investigations to identify the
159 Ibid pag 238-243. 160 Ibid pag 258-259.
161 Committee Against Torture, General Comment No. 2, CAT/C/GC/2 24 January 2008, para 3-4. 162 Supra Center for Reproductive Rights Briefing Paper, pag 11.
