SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

(for example, sex, gender, or sexual orientation). Young persons’ rights to information
include information about sexual health services.
State obligation for non-discriminatory access to health services includes the obligation to
eliminate both formal and substantive discrimination. Formal discrimination consists of
codified differential access and treatment (both exclusion from treatment or services, or
mandated and non-consensual treatment). Substantive discrimination includes practices, such
as derogatory, humiliating, and inferior treatment in health facilities and programs, which are
legally mandated but to which the law does not provide adequate redress. Both formal and
informal discrimination excludes or reduces the access of persons from care, treatment, and
information necessary for sexual health, increasing mortality and morbidity.
Access to health services in relation to sex and sexuality is premised on the rights to life,
health and equality. The Constitutions of the research countries recognize the right to health
to varying degrees.
India’s Constitution recognizes the right to life while the Directive Principles of State Policy
require that the Indian State protect the health and strength of the people. 642 In Consumer
Education and Research Centre v. Union of India 643 the Supreme Court recognised the right
to health and medical care as part of the right to life by reading into this fundamental right the
content of the directive principles of state policy. 644
Similarly, Bangladesh recognizes the right to life while its’ Fundamental Principles of State
Policy direct the government to improve public health. The High Court Division of the
Supreme Court of Bangladesh has interpreted the right to life with the aid of the directive
principles of state policy, to include the protection of health. 645
Sri Lanka’s Constitution does not explicitly recognize the right to life 646 or provide for the
right to health. However, in a case related to claiming of medical expenses from the State for
torture, it has determined that Sri Lankan citizens have the right to chose between State
provided and private sector health services in getting medical care and seeking compensation
on that basis. While holding as such the court referred to the enjoyment of the highest
attainable standard of physical and mental health in Article 12 of the International Covenant
on Economic, Social and Cultural Rights. 647
642 See Article 39(e) (securing the health and strength of workers, men and women), Article 41 (State within the
limits of its economic capacity and development to provide public assistance in cases of sickness and
disablement), Article 42 (maternity relief) and Article 47 (improvement of public health among primary duties)
of the Constitution of India.
643 AIR 1995 SC 922
644 See also P.B. Khet Mazdoor Samity v. State of West Bengal AIR 1996 SC 2426 where the Supreme Court
recognized the right of persons to emergency healthcare Held: Article 21 imposes an obligation on the State to
safeguard the right to life of every person. Preservation of human life is of paramount importance. The
Government hospitals run by the State and the medical officers employed therein are duty bound to extend
medical assistance for preserving human life. Failure of a Government hospital to provide timely medical
treatment to a person in need of such treatment results in the violation of his right to life guaranteed under
Article 21.”
645 Farooque v. Government of Bangladesh, WP 92 of 1996 (1996.07.01)
646 See Kottabadu Durage Sriyani Silva v Chanaka Iddamalgoda and others, S.C. (FR) Application No.
471/2000 where the Supreme Court recognized it as implicit in some of the fundamental rights.
647 See Gerald Perera v. Suraweera 2003 1SLR 317. The Human Rights Commission of Sri Lanka argues that
this case read with Sri Lankan laws on provision of health services, criminal laws on the protection of public
health all imply that the right to health is justiciable under the Sri Lankan Constitution. See “Right to Health of
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