Sexual health human rights and the law

Sexual health, human rights and the law | 15
needed for the promotion of sexual health, such as
antiretrovirals for HIV, emergency contraception, or
mifepristone and misoprostol for medical abortion
– all of which are included on the WHO Model List
of Essential Medicines (46) – are often either not
available (due to intellectual property laws) or are
restricted or prohibited by law. This situation has
been challenged in various countries, including
Colombia (47), Mexico (48), Peru (49), and England
and Wales (50), resulting in the overturning of such
restrictions or prohibitions. Some countries have
declared contraception a “public good” and provide
subsidized or free services for this aspect of sexual
health (e.g. Canada; 51, 52).
3.2.2 Conscientious objection by health-care
providers
Another major barrier to sexual health services in
some countries is the refusal by some health-care
providers to provide sexual and reproductive health
services on grounds of conscientious objection.
By claiming conscientious objection, health-care
professionals or institutions exempt themselves
from providing or participating in the provision of
certain services on religious, moral or philosophical
grounds. This has affected a wide range of
procedures and treatments, including abortion
and post-abortion care, components of assisted
reproductive technologies relating to embryo
manipulation or selection, contraceptive services
including emergency contraception, treatment in
cases of unavoidable pregnancy loss or maternal
illness during pregnancy, and prenatal diagnosis
(53). While most health-care providers who claim
conscientious objection are obstetricians and
gynaecologists, such objections have also come
from pharmacists, nurses, anaesthesiologists and
cleaning staff. Some public health institutions have
informally refused to provide certain reproductive
health services based on the beliefs of individual
hospital administrators (54).
While other regulatory and health system barriers
also hinder women’s right to obtain abortion services,
conscientious objection is unique because of the
tension existing between protecting, respecting and
fulfilling a woman’s rights, and a health-care provider’s
own right to follow his or her moral conscience (55).
This situation leads to people’s health being put in
jeopardy when they are denied the services they
need (53, 55).
International human rights standards clearly
stipulate that, although the right to freedom of
thought, conscience and religion is protected by
international human rights law, freedom to manifest
one’s religion or beliefs may be subject to limitations
in order to protect the fundamental human rights
of others (32). Specifically, human rights and health
system standards stipulate that health services
should be organized in such a way as to ensure that
an effective exercise of the freedom of conscience of
health-care professionals does not prevent people,
with special attention to women, from obtaining
access to services to which they are entitled under
the applicable legislation (56–60). Therefore, laws
and regulations should not allow health-care
providers or institutions to impede people’s access
to legal health services (28, 61–63). Health-care
professionals who claim conscientious objection
must refer people to a willing and trained service
provider in the same or another easily accessible
health-care facility. Where such referral is not
possible, the health-care professional who objects
must provide safe services to save an individual’s life
or to prevent damage to her health (59, 60).
Some human rights bodies have explicitly
addressed conscientious objection in the context of
contraceptive service provision, stating that where
women can only obtain contraceptives from a
pharmacy, pharmacists cannot give precedence to
their own religious beliefs and impose them on others
as justification for their refusal to sell such products
(64). States have particular responsibility to ensure
that adolescents are not deprived of any sexual and
reproductive health information or services due to
providers’ conscientious objection (40).
3.2.3 Availability and quality of health-care
facilities and providers
The availability of health-care facilities and trained
providers within reach of the entire population is
essential to ensuring access to sexual health services.
Some national laws stipulate that only doctors