Johanna Westeson - The ICHRP

More documents

Recommendations

Info

obstetric or gynecological care to also offer family planning counseling. 749 Furthermore, hospitals must ensure the free distribution of contraception. 750 In the United Kingdom, case law has established that it is lawful for doctors to provide contraceptive advice and treatment to minors without parental consent, provided certain criteria are met. This policy was laid out in Gillick v. West Norfolk and Wisbech Area Health Authority in 1985. 751 The criteria specified by the judge – that have come to be known as the Fraser Guidelines – are also considered applicable to abortion. 752 According to these guidelines, it is lawful for doctors to provide contraceptives and other treatment without parental consent if, inter alia, the health professional is satisfied that the young person will understand the professional’s advice, that she cannot be persuaded to inform her parents, and that it is in her best interest that she be given contraceptive advice or treatment with or without parental consent. 753 In 2002, the issue of emergency contraception was brought to the attention of the England and Wales Court of Justice. In Smeaton v. Secretary of State for Health, 754 the Society for the Protection of Unborn Children [SPUC] challenged a government decision to reclassify a particular emergency contraceptive (the so-called morning after-pill) as a drug that could be sold without a doctor’s prescription. SPUC claimed that the drug in question was an abortafacient, arguing that anything that might prevent a fertilized egg from implanting was equivalent to abortion – even though emergency contraception cannot end a pregnancy if a fertilized egg is already implanted in the womb. Because the provision of emergency contraception did not meet the statutory requirements for legal abortion, SPUC argued, it was criminal. Taking pains to point out that, “[i]t is no part of my function as I conceive it to determine the point at which life begins,” and that it was not the job of the court to concern itself with religious or moral issues, the judge noted that SPUC’s argument, if taken to its logical conclusion, could call into question the lawfulness of all hormonal contraception and intra-uterine devices, both of which had been in popular use in the UK for about 50 years. 755 The Court found that the drug in question was a contraceptive, not a form of abortion, and allowed the government’s over-the-counter policy to proceed. As discussed by the European Court of Human Rights in Pichon (above), pharmaceutical providers may object to the sale of contraceptives on religious or moral grounds. In some countries, such ‘conscience clauses’ have been codified in law. Poland, for instance, allows physicians to withhold services contrary to their consciences, but they must 749 Decree DL 259/2000 (17 October 2000), Art. 6.1. 750 Ibid. at Art 6.3. 751 House of Lords [1985] 3 All ER 402, decided on 17 October 1985. 752 The guidelines are available at http://itsacr02a.nottscc.gov.uk/apps/pr/diary/memdiary.nsf/0/FB7DEF429A4FCD95802573D90030190C/$fil e/08A_Appendix%20to%20Free%20Pregnancy%20Testing%20Service.pdf. Last visited on 20 December 2009. 753 See also Chapter 7A: Sexual education and information. 754 [2002] EWHC 610 (Admin), decided on 18 April 2002. 755 Paras 54-72. 240
document the patient’s opportunities to obtain treatment elsewhere. 756 According to commentaries, in practice, that requirement is frequently unfulfilled. 757 This raises sexual health concerns because individual physicians may effectively be able to successfully prevent their patients from accessing desired health care. 6. Concluding remarks Abortion policies still vary across Europe, but since the 1970s there has been a strong trend in the region to liberalize abortion. In a few small European countries, abortion is completely prohibited (Malta, Andorra, and San Marino). Other countries have varying degrees of restrictions with regard to access to service. Some permit abortion only to save the woman’s life (Ireland), while others also permit abortion to preserve her physical health (Poland), and her mental health (Spain, Israel). Some countries also permit abortion for socio-economic reasons (United Kingdom, Cyprus, Finland, Iceland). 758 Many countries that have restrictive laws make exceptions for pregnancies that are the result of rape or incest, though it is well-known that in practice it may be difficult to access an abortion in such cases. 759 However, in most European countries abortion is now available without restriction during the first period of pregnancy. Gestational limits for free access to abortion vary between ten and 18 weeks, and there are also differences with regard to whether parental notification for minors is required. 760 The accessibility of abortion services in practice is also affected by whether abortion falls under national health insurance coverage. Several courts have struck a balance between the rights of the pregnant woman and the state’s interest in protecting potential life, reaching the conclusion that the fundamental protection of the rights of the woman requires that abortion be legal when certain minimum conditions exist. 761 With regard to access to health care and the right to health in relation to 756 According to Joanna Z. Mishtal, “Matters of ‘Conscience’: The Politics of Reproductive Healthcare in Poland.” Medical Anthropology Quarterly, v. 23 no. 2 (June 2009), at p. 169, and in Federation for Women and Family Planning et al, “Report to the UN Human Rights Committee in Connection with the 6 th Period Review of Poland.” (July 2009) [discussing The Act of the medical doctor profession and the dentist profession of 5 th of December 1996 – unified text. Journal of Laws No 226, item 1943, as amended.] The FWFP’s Report translates Article 39 of the Act as: “the doctor may abstain from accomplishing medical services discordant with his/her conscience, (…) nevertheless s/he is obliged to indicate real possibilities of obtaining the service from another doctor, or in another medical institution and justify his/her decision and mention about the refusal in the medical documentation.” FWFP, at p. 3. 757 Ibid and in Mishtal at 163-172. 758 See Center for Reproductive Rights, “The World’s Abortion Laws” (2009), fact sheet available at http://reproductiverights.org/sites/crr.civicactions.net/files/pub_fac_abortionlaws2008.pdf. Last visited on 20 December 2009. 759 See, inter alia, the HRC 2004 Concluding Observations to Poland, 2 December 2004 CCPR/CO/82/POL, at para. 8; the CESCR 2006 Concluding Observations to Mexico, 9 June 2006, E/C.12/MEX/CO/4, at para. 25, and the Inter-American Commission for Human Rights case Paulina Ramirez v. Mexico, Case 161-02, Friendly Settlement, Report No. 21/07 (2007). 760 Center for Reproductive Rights, “The World’s Abortion Laws” (2009), fact sheet available at http://reproductiverights.org/sites/crr.civicactions.net/files/pub_fac_abortionlaws2008.pdf. Last visited on 20 December 2009. 761 These include courts in Italy, Germany, Spain, and France. See Amicus Brief prepared by the Center for Constitutional Rights, The Lowenstein International Human Rights Clinic at Yale Law School, Red Alas, and Gómez-Pinzón, Linares, Samper, Suárez, Villamil Abogados S.A. presented before the Colombia Constitutional Court, Case No. D5764, May 2005, available at http://reproductiverights.org/sites/crr.civicactions.net/files/documents/BriefColombia_English_0505_FINAL. pdf. Last visited on 20 December 2009. 241
Page 1 and 2:
SEXUAL HEALTH AND HUMAN RIGHTS: EUR
Page 3 and 4:
ACKNOWLEDGMENTS This report was wri
Page 5 and 6:
In choosing these eight topics, and
Page 7 and 8:
amputation, or arbitrary imprisonme
Page 9 and 10:
headquarters situated in Strasbourg
Page 11 and 12:
unfounded applications: the applica
Page 13 and 14:
margin. 18 This standard has been k
Page 15 and 16:
financial, and democratic supervisi
Page 17 and 18:
EU and the Euro as its currency. Th
Page 19 and 20:
3. Domestic legal systems As mentio
Page 21 and 22:
METHODOLOGY The WHO project on sexu
Page 23 and 24:
Because this report, and the projec
Page 25 and 26:
grounds for discrimination. Gender
Page 27 and 28:
assume large parts of her household
Page 29 and 30:
In Lustig-Prean and Beckett v. the
Page 31 and 32:
asis of family responsibilities (Ar
Page 33 and 34:
promote social justice and protecti
Page 35 and 36:
ground that the scheme did not cove
Page 37 and 38:
ut also to discrimination arising f
Page 39 and 40:
Many constitutions call for equalit
Page 41 and 42:
The three criminal provisions inclu
Page 43 and 44:
eassignment is defined broadly, ref
Page 45 and 46:
iv.4. Gender identity discriminatio
Page 47 and 48:
harassed workers out of their emplo
Page 49 and 50:
epealed accordingly, but the conten
Page 51 and 52:
and reactive) steps to protect the
Page 53 and 54:
features of sexual harassment have
Page 55 and 56:
harassment to make a claim against
Page 57 and 58:
4. Regional non-binding material Th
Page 59 and 60:
he or she he has “no disease caus
Page 61 and 62:
In other European countries, calls
Page 63 and 64:
Article 10 addresses reasons for pe
Page 65 and 66:
her country of origin and cannot re
Page 67 and 68:
compromised medical privacy or doub
Page 69 and 70:
whether or not the participants wer
Page 71 and 72:
uns contrary to EU non-discriminato
Page 73 and 74:
provision criminalizing sexual rela
Page 75 and 76:
2B. CRIMINALIZATION OF HIV TRANSMIS
Page 77 and 78:
Swedish courts had determined that
Page 79 and 80:
infected the women. In the lower co
Page 81 and 82:
Several prosecutions of cases of HI
Page 83 and 84:
unprotected sex), and can prohibit
Page 85 and 86:
The case, when reaching the Court,
Page 87 and 88:
material on the internet blurring,
Page 89 and 90:
a balancing act on behalf of the le
Page 91 and 92:
4. Domestic legislation, case law,
Page 93 and 94:
5. Concluding remarks Given the sca
Page 95 and 96:
2. Council of Europe Jurisprudence
Page 97 and 98:
leaves room for forced examinations
Page 99 and 100:
3A. SAME-SEX MARRIAGE, PARTNERSHIP,
Page 101 and 102:
The Court made clear that there is
Page 103 and 104:
extend the scope of this Convention
Page 105 and 106:
violating the principle of non-disc
Page 107 and 108:
held that the law was introducing a
Page 109 and 110:
In France, registered partnership i
Page 111 and 112:
eform. Thus, allowing for same-sex
Page 113 and 114:
woman have the right to marry accor
Page 115 and 116:
The law makes clear that the two pa
Page 117 and 118:
opposite sex. While the Hungarian,
Page 119 and 120:
In the European region, divorce is
Page 121 and 122:
5. Concluding remarks In Johnson, t
Page 123 and 124:
concern that such legislation could
Page 125 and 126:
exceptions: countries that have cho
Page 127 and 128:
3E. POLYGAMY/POLYGYNY 1. Introducti
Page 129 and 130:
4. Domestic legislation In France,
Page 131 and 132:
In relation to the above, it is rel
Page 133 and 134:
In the European region, there are f
Page 135 and 136:
United Kingdom, 414 the Court consi
Page 137 and 138:
(2) Whoever completes an act of sex
Page 139 and 140:
characteristics are important featu
Page 141 and 142:
discrimination, whereas laws agains
Page 143 and 144:
2. Council of Europe Jurisprudence
Page 145 and 146:
It is possible but not certain that
Page 147 and 148:
When an application has been grante
Page 149 and 150:
Case law: partnership rights for pr
Page 151 and 152:
investigation and the provision of
Page 153 and 154:
In a couple of decisions, the Europ
Page 155 and 156:
very practical aspect of gender ide
Page 157 and 158:
Case law: the right to respect for
Page 159 and 160:
pathologizing the issue of transsex
Page 161 and 162:
gender. Specific legal issues invol
Page 163 and 164:
concerning their young child. Howev
Page 165 and 166:
world, with work, health services,
Page 167 and 168:
on repeated occasions from her husb
Page 169 and 170:
Similarly, the European Commission
Page 171 and 172:
a person who has been acquitted of
Page 173 and 174:
[w]hoever, on repeated occasions or
Page 175 and 176:
International human rights standard
Page 177 and 178:
In M.C. v. Bulgaria, 523 the applic
Page 179 and 180:
With regard to the failure to effec
Page 181 and 182:
Italy offers another example in the
Page 183 and 184:
In Russia, the Supreme Court has pr
Page 185 and 186:
testimony of the victim in rape tri
Page 187 and 188:
number and passport details within
Page 189 and 190: condemnation of immunity for marita
Page 191 and 192: some regions have exempted from pen
Page 193 and 194: The 2007 Council of Europe Conventi
Page 195 and 196: European Social Charter and the Eur
Page 197 and 198: takes place, or whether the prosecu
Page 199 and 200: either to persons who were in fact
Page 201 and 202: permanently changes them will be se
Page 203 and 204: 6. Concluding remarks European laws
Page 205 and 206: event of police abuse, on the other
Page 207 and 208: Greece illustrates this trend. In 2
Page 209 and 210: (a) must treat the fact that the of
Page 211 and 212: 5E. HONOR CRIMES 1. Introduction Pr
Page 213 and 214: making provision for penalties to b
Page 215 and 216: that a decision of the family assem
Page 217 and 218: (Article 62.2). Mitigation of the s
Page 219 and 220: persons, regardless of what kind of
Page 221 and 222: purpose of exploitation) (Art. 4a).
Page 223 and 224: victims will be granted “standard
Page 225 and 226: e guilty of an offence, if the traf
Page 227 and 228: expanded. For example, a victim can
Page 229 and 230: last decade, on regional as well as
Page 231 and 232: sexual health services interacts wi
Page 233 and 234: provide abortion services at a mini
Page 235 and 236: Convention. These procedures, the C
Page 237 and 238: 5. Domestic legislation and case la
Page 239: pregnant woman is disabled or dies
Page 243 and 244: Generally, it has been difficult to
Page 245 and 246: 2. to provide advisory and educatio
Page 247 and 248: not anonymous) treatment even thoug
Page 249 and 250: 5. Concluding remarks It is difficu
Page 251 and 252: information about contraceptive met
Page 253 and 254: sex with women) is to provide insuf
Page 255 and 256: a democratic society, the Court rei
Page 257 and 258: 3. European Union The issues of sex
Page 259 and 260: eduction of sexual risks, the fight
Page 261 and 262: 5. Concluding remarks The European
Page 263 and 264: conveyed via texts, images, and spe
Page 265 and 266: images can be easily known from the
Page 267 and 268: considered necessary in a democrati
Page 269 and 270: 3. European Union The Council of th
Page 271 and 272: In 2008, the Criminal Justice and I
Page 273 and 274: By contrast, in Baczkowski, the Cou
Page 275 and 276: however, the dominance of criminali
Page 277 and 278: Other legal regimes are more rights
Page 279 and 280: The Assembly recommends Council of
Page 281 and 282: Netherlands, when they had not prev
Page 283 and 284: number. 896 As of late October 2009
Page 285 and 286: offence only if it includes exploit
Page 287 and 288: Zoning laws are determined by local
Page 289 and 290: sexual intercourse, but other forms
Page 291 and 292:
sex workers (like other adults) hav
Page 293 and 294:
DOMESTIC Albania - Law no. 9669 of
Page 295 and 296:
Portugal - Law No 6/2001 of 11 May
Page 297 and 298:
APPENDIX II: TABLE OF CASES Within
Page 299 and 300:
- Gabrielle Defrenne v Société An
Page 302 and 303:
APPENDIX IV: SELECT BIBLIOGRAPHY Ha
Page 304:
STI AIDS Netherlands, “A Delicate
show all

Johanna Westeson - The ICHRP

Create successful ePaper yourself

Delete template?

Save as template?