Sexual health human rights and the law

16 | Sexual health, human rights and the law
can perform certain services. In the area of sexual
health, many services do not necessarily have to be
provided by a physician, but can be competently
provided by nurses, midwives or auxiliary nurses
(65, 66). Particularly in places where there are
few qualified doctors, this kind of “task shifting”
renders services more accessible (67), increasing
access to and use of contraception, for example
(68–71). International human rights standards,
while emphasizing the importance of appropriately
trained health-care providers with up-to-date
skills and knowledge, do not specify the degree of
qualification, leaving this for individual countries to
regulate as appropriate. Some national laws, such as
in South Africa (72), specifically make provision for
different levels of providers.
The right to the highest attainable standard of
health, including sexual health, places an obligation
on governments to ensure that health-care facilities,
goods and services are of good quality (29). In
addition to the guarantee of confidentiality, privacy
and informed consent (see sections 3.3.1 and 3.3.2),
this requires that services have “skilled medical
personnel, scientifically approved and unexpired
drugs and hospital equipment, safe and potable
water, and adequate sanitation” (29).
3.2.4. Criminalization of sexual-health-related
services
Laws that prohibit or criminalize the use of certain
medical procedures represent, by definition, a barrier
to access. Such laws and other legal restrictions may
prevent access to certain commodities needed for
sexual and reproductive health (e.g. contraceptives),
they may directly outlaw a particular service (e.g.
abortion), or they may ban the provision of sexual and
reproductive information through school-based or
other education programmes. In practice, these laws
affect a wide range of individuals (73, 74). Criminal
law is also used to punish HIV transmission and a
wide range of consensual sexual conduct occurring
between competent persons (see section 3.4).
These legal restrictions on sexual and reproductive
health services are likely to have serious implications
for health (74). Restricting legal access to abortion,
for example, does not decrease the need for
abortion, but it is likely to increase the number
of women seeking illegal and unsafe abortions,
leading to increased morbidity and mortality. Legal
restrictions also lead many womento seek services
in other states or countries (75, 76), which is costly,
delays access and creates social inequities (59).
International and regional human rights bodies
and national courts have increasingly called for
the removal of all barriers interfering with access
to sexual and reproductive health information and
services, including the criminalization of access to
and provision of such information and services (29,
31, 40, 74, 77). They call for the reform of laws that
interfere with the equal enjoyment of rights by
women (78), including those laws that criminalize
and restrict medical procedures needed only by
women and that punish women who undergo these
procedures (79).
3.3 Ensuring quality and respect of human
rights in the provision of sexual health
services
The way in which services are provided has long
been recognized as a crucial determinant of
whether, and to what extent, people seek health
services when needed. Studies have shown that
adherence to quality of care standards results in
outcomes such as women’s satisfaction with services
and an increase in contraceptive use (80–83).
Factors that are key to quality include: a guarantee
of privacy and confidentiality; fostering informed
decision-making; skilled health-care providers; and
quality supplies and equipment.
Human rights bodies have also called on states to
ensure timely and affordable access to good quality
health services, including for adolescents, delivered
in a way that ensures informed consent, respects
dignity, guarantees confidentiality, and is sensitive to
people’s needs and perspectives (28, 31, 37, 40).
3.3.1 Guarantee of privacy and confidentiality
Sexual health encompasses issues related to
sexuality, sexual practices, contraception and
sexually transmitted infections (STIs), which are
perceived as sensitive in many settings. Many people
may be reluctant to discuss them or reveal relevant