Protecting Reproductive Health Through National Policies and Laws

Law is an instrument that may be used by the state, by the health care professions or by individual citizens to advance policies for reproductive health. Policy must, of course, be clear before the use of law can be determined.

Reproductive health policy must resolve the challenge of ordering priorities. Reproductive health goals and values must be pursued on the basis of a realistic assessment of how the laws that are used to pursue them will operate in practice. For instance, there have been cases where laws drawn up to protect would-be spouses against their partner's HIV infection failed because people found ways to avoid the laws. Specifically, authorities in a number of places have tried to make the issuing of marriage licences conditional on the exchange of HIV test results by those intending to marry. The effect in many cases was that couples went elsewhere to marry, or lived together and started families without getting married. Further, the law had no impact on couples of the same sex who moved in together since they were precluded from marriage.

As policy on reproductive health is drawn up on the basis of values and priorities, it must balance advantages against disadvantages. For instance, some policies give priority to the value of unborn human life over the value of women's choice; other policies, however, conclude that the costs of this in terms of the failure to recognize women as responsible decision-makers and of maternal mortality resulting from illicit abortion is too high. This illustrates a challenge that reproductive health policy must resolve—that of balancing high but abstract principles against inadvertent harmful consequences such as avoidable death.

Modern law-making generally follows two models. The first is based on principles of virtue to which those governed by law are expected to conform in order for society to achieve moral goals. The second is pragmatic, based on experiences and practices that individuals are empowered or required to follow and that are believed likely to produce desired results. Activities relevant to reproductive health have historically in many places been regulated by moral or principle-based law, often linked with religious beliefs. To shift to a more secular concept of reproductive health, implementing pragmatic rules that associate the validity of laws with their practical consequences, may be difficult.

Each country's laws fit in with its traditions of legal development. Some countries embody their law in comprehensive codes that contain all of the rights that may be claimed, others set their law in a framework of custom that judges declare, and yet others fit enacted law into a framework of sacred law interpreted by religious authorities.

Where all legal claims to rights are codified, a section of the code may be devoted to reproductive health. For instance, the Russian Federation was considering the enactment of a comprehensive law that expresses the reproductive rights of citizens. In contrast, many countries have laws limited to advancing a particular goal in reproductive health care, as in the case of Ghana which in 1994 enacted a law prohibiting female genital mutilation. Several countries that are developing new constitutions have included provisions for the protection of reproductive rights. For example, Article of the 1991 Constitution of Colombia protects the right to decide on the number and spacing of one's children. Other constitutions have more general provisions, such as on the rights to liberty and security of the person, that have been applied to protect reproductive rights. In this regard, Canada in 1982 adopted a Charter of Rights and Freedoms that included this right in general terms. In 1988, Canada's Supreme Court found that the provisions of the criminal code that limited women's choice of abortion violated this right and were unconstitutional and therefore inoperative.

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