EU-CHINA HUMAN RIGHTS NETWORK
SEMINAR ON THE RIGHTS TO HEALTH AND SOCIAL SECURITY
UNIVERSITY OF ESSEX, 27-28 APRIL 2004
BACKGROUND PAPER: THE RIGHT TO HEALTH OF WOMEN
Judith Bueno de Mesquitai
Introduction
Neglect of women’s health is a pervasive problem in all parts of the world. Women
often face de jure or de facto discrimination on grounds of their gender and sex,
which has a serious impact on their enjoyment of their right to health.ii Gender is a
social construct that encompasses “personality traits, attitudes, feelings, values,
behaviours and activities that society ascribes to the two different sexes on a
differential basis.”iii Sex refers to biological characteristics that define humans as men
or women.iv Discrimination on grounds of sex derives from, among others, taboos and
dysfunctions relating to women's reproductive system.
The comparative neglect of women's health, combined with more general global
health challenges, results in a sobering picture of health problems and inequalities
facing women. In 2000, an estimated 529,000 women died from pregnancy-related
causes, most of which were avoidable; 99 per cent of maternal deaths occur in
developing countries.v Around the world, 42 million people are living with
HIV/AIDS. Approximately as many women as men are infected. At least one in five
women has been physically or sexually abused by a man or men at some stage in their
lives.vi Women often lack of access to health care services and health information, and
sometimes face a lack of privacy or confidentiality within health services that may
deter them from seeking treatment or advice.
International human rights law contains a wide and increasing range of standards that
are of central relevance to women's health, including access to health care and the
underlying determinants of health. In recent years, the international human rights
community has given renewed attention to unpacking the normative content of the
right to health, including women's right to health, and the resulting obligations on
States. The focus of this paper is the protections afforded to the right to health of
women in international human rights law. The paper does not offer a comprehensive
account of international law relating to women's right to health. Instead, it focuses on
provisions in key international human rights instruments, and on other selected
important provisions concerning key issues for women's right to health such as the
principle of non-discrimination; sexual and reproductive health rights; and the impact
of violence against women.
International human rights law and the right to health of women
A general critique of international law is that its principles are inherently biased
against women.vii For example, it operates primarily in the public sphere in areas
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traditionally associated with men, while it does not so adequately address the private
sphere (e.g. the home and family), which is traditionally the realm of women. In many
countries, women are increasingly participating in the public sphere. However, their
needs, including their health needs, also remain as important as ever in the private
sphere.
International human rights law is beginning to address this dichotomy. However,
given the traditional bias, it is unsurprising that there is no single provision in
international human rights law that comprehensively addresses women’s health,
including underlying determinants. Broadly speaking, there are four types of
provision that are particularly relevant: (i) general provisions on the right to health;
(ii) prohibitions on discrimination on grounds of sex/ recognitions of the equal rights
of women and men to the enjoyment of human rights, including the right to health;
(iii) provisions that address health issues which are of particular concern to women;
(iv) recognitions of other human rights closely related to the enjoyment of women’s
health. A holistic human rights approach to women’s health requires that these types
of provision be read in conjunction with one another.viii
Key international instruments include:
 Universal Declaration on Human Rights, which recognises the right to
protection against discrimination (article 7); the right of everyone to a standard
of living adequate for health and well-being, including a right to medical
treatment; and an entitlement to special care and assistance for motherhood
(article 25).
 International Covenant on Economic, Social and Cultural Rights (ICESCR),
which recognises the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health (article 12), proscribes
discrimination on grounds of sex (article 2.2), and emphasises the equal right
of men and women to the enjoyment of economic, social and cultural rights
(article 3).
 Convention on All Forms of Discrimination Against Women (CEDAW), which
emphasises the rights to equality and non-discrimination in the context of the
right to health; and recognises the entitlement to appropriate services in
connection with pregnancy, confinement and in the post-natal period (article
12).
 Convention on the Rights of the Child (CRC), which recognises equality of the
sexes (preamble); proscribes discrimination (article 2.1); and recognises the
right to the child to health (article 24). Included within article 24 are
provisions particularly related to health protection for women and the girl
child, including pre and post-natal care for mothers (article 24.2.d) and the
abolition of traditional measures which are prejudicial to the health of children
(article 24.3).ix
These instruments do not give detailed attention to women’s health (and arguably do
not all integrate explicitly a fully gendered health perspective). However, other
instruments and documents address additional health issues of fundamental concern to
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women and the protection of their right to health. The General Assembly has adopted
several declarations of relevance, perhaps most notably the Declaration on the
Elimination of Violence Against Women.x The outcome documents of the
International Conference on Population and Development (Cairo, 1994) and the
Fourth World Conference on Women (Beijing, 1995), and their plus-fives, include
important commitments and language relating to women’s right to health, including
sexual and reproductive health rights.xi Other relevant documents include General
Comments adopted by UN treaty bodies concerning the health of women, in particular
General Comment 14 on the right to health adopted by the Committee on Economic,
Social and Cultural Rights; General Recommendation 24 on women and health
adopted by the Committee on the Elimination of Discrimination Against Women; and
General Comments 3 on HIV/AIDS and on adolescent health and development
adopted by the Committee on the Rights of the Child. These General Comments add
jurisprudential insights to the terms of international human rights treaties.
Norms and obligations
International human rights law provides protections for women in an array of
circumstances connected with their health. This paper does not extend to a
comprehensive examination of women's right to health, but instead considers several
key issues that are especially relevant to women's right to health. xii This paper should
be read in conjunction with the Working Paper on the right to health provided for this
Network Seminar, as this provides a more general introduction and comprehensive
information on the normative content of the right to health and corresponding
obligations on States.
Determinants of women’s health, and human rights responses
The right to health in international human rights law goes beyond a right to health
care, and also extends to a right to the underlying determinants of health. Frequently
mentioned underlying determinants of the right to health include access to clean water
and adequate sanitation, nutrition and environmental and occupation health.xiii
Determinants of women’s health are wide ranging and are often distinct from
determinants of men's health. International human rights law includes many standards
relating to the determinants of women's health, and gives rise to corresponding
obligations on States. Determinants of women's health and some relevant provisions
in international law include:xiv
(a) Biological factors, such as those associated with women’s reproductive health;
menopause; and the greater biological vulnerability of women to sexually
transmitted diseases. The right to health should be understood as a right to "the
enjoyment of a variety of facilities, goods, services and conditions necessary for
the realization of the highest attainable standard of health." Clearly these should
respond, as far as possible, to a woman's biological needs at different states of her
life. Particular examples include the entitlement to measures to improve maternal
health, including pre and post-natal care and access to emergency obstetric care.xv
(b) Socio-economic and cultural factors, such as poverty (which disproportionately
affects women); unequal power relationships between women and men in the
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workplace or in the home; educational attainment of women; violence against
women, including sexual abuse; and cultural or traditional practices which pose
significant health risks, such as female genital mutilation. Various human rights
address some these underlying determinants of women's health, including the right
to equality in the workplace, the right to adequate food and shelter, and the right
to education.xvi Protections in relation to violence are considered in more depth
below.
(c) Mental disorders, and psychosocial conditions such as depression, post-partum
depression, and eating disorders such as anorexia and bulimia. The right to health
encompasses both physical and mental health, although the right to mental health
has been comparatively neglected by the human rights community, as well as by
health policy makers. The issue of mental disorders and psychosocial conditions
have recently been considered by the Committee on the Rights of the Child in the
context of adolescent health and development. The Committee has emphasised
that States must provide adequate treatment and facilities for adolescents with
mental disorders, if possible through care in the community rather than through
institutionalisation, and protect adolescents from undue pressures, including
psychosocial stress.xvii
(d) Lack of respect for privacy and confidentiality of patients within medical
establishments, which may deter women and adolescent girls from seeking advice
or treatment. The right to health includes a right to have personal health data
treated with confidentiality. Health care facilities, goods and services must also be
sensitive to gender.xviii Given the sensitivity and taboo surrounding some women’s
health issues, including violence and sexual and reproductive health issues, and
the broader socio-economic position of women in society, confidentiality and
privacy are often considered particularly important in the context of women’s
right to health.
(e) Legal protections afforded to women, including protections of their human rights.
While the value of legal rights has been challenged by some feminist
commentators who argue that these do not challenge power imbalances in society
between men and women,xix national and international legal protections of human
rights may play an important role in addressing some element’s of women’s right
to health. The legal prohibition of discrimination on grounds of sex is often
particularly important, as are legal protections relating to privacy and
confidentiality. The incorporation of international human rights treaties including
CEDAW and ICESCR into domestic law is an additional important legal step
towards the protection of women's right to health. In relation to some women's
health issues, in particular sexual and reproductive health issues, the absence of
legal protections, and laws that actively discriminate against women, have had a
harmful impact on their health in some countries.
(f) Participation of women in political structures, and their participation in other
decision-making processes relating to the health of women. As well as being a
human right in itself, participation of women in decision-making processes,
whether political or otherwise, increases the chance that decisions benefit women
as well as men. The Committee on the Elimination of Discrimination Against
Women has recommended that States parties should “involve women in the
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planning, implementation and monitoring of such policies and programmes and in
the provision of health services to women.”xx
(g) Public policy, including policies concerning the health sector and other related
sectors; budgetary allocations towards health; and whether (or not) a gender
dimension is mainstreamed in public policy. The Committee on Economic, Social
and Cultural Rights has also recommended that States integrate a gender
perspective into all their health-related policies, planning, programmes and
research in order to better promote the health of women and men. xxi Particularly
important in the context of public policy (but also important in other contexts) is
the human rights principle of gender equity. Gender equity has been defined as
“fairness and justice in the distribution of benefits and responsibilities between
women and men.”xxii This often requires women-specific programmes and policies
to end existing health inequalities.
(h) A woman’s age, or her place in the life cycle. While some health problems affect
women throughout their lives, others predominantly or exclusively affect a
woman at particular times of her life, eg in infancy, childhood, adolescence,
during her productive or reproductive years, or in old age. While international
human rights law does not deal explicitly with all women’s health needs at
different stages of life, it is broadly speaking sensitive to this life-cycle
approach.xxiii The law contains a variety of provisions overtly relating to the health
problems faced by a woman at particular stages of her life, from infancy to old
age.
Equality and non-discrimination
Interlinked with all of the above factors are overarching issues of the human rights
principle of non-discrimination and the right to equal treatment. Discrimination on
grounds of gender impedes women’s access to health and hampers their ability to
respond to the consequences of ill health for themselves and their family.xxiv Women
living with disabilities, with particular health conditions including HIVAIDS; elderly
women, and women from some racial or ethnic groups are among those at risk from
double or multiple discrimination.
The protection of human rights on basis of non-discrimination and the promotion of
gender equality are key determinants of women’s enjoyment of good health. Nondiscrimination is a fundamental human right. CEDAW defines discrimination against
women as:
"Any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality
of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field" (article 1)
This definition is intended to encompass not only overt forms of discrimination, but
also "pervasive and subtle" forms of discrimination that are integrated into the fabric
of societies.xxv
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CEDAW obligates State to take all appropriate measures to eliminate discrimination
against women in the field of health care in order to ensure access to health care
services on a basis of equality between men and women.xxvi While many appropriate
measures are necessary, an important step is the collection of health and socioeconomic data disaggregated by sex. This can help identify and, together with other
measures remedy, inequalities.xxvii
Sexual and reproductive health rightsxxviii
The term 'sexual and reproductive health' includes a wide range of health issues,
including maternal mortality, sexually transmitted diseases (STDs) and sexual
violence issues, some of which are extremely sensitive and controversial within many
cultures. Nevertheless, international human rights documents, and the Cairo and
Beijing outcome documents, do address and provide some relatively clear protections
in relation to many elements of sexual and reproductive health.
Sexual and reproductive ill health gives rise to nearly 20 per cent of the global burden
of ill health for women.xxix Causes include biological and socio-economic problems,
such as the low social status of women and girls, poverty, and traditional views about
sexuality which can obstruct the provision of essential health services and
information. Adolescents and young girls under 25 are particularly vulnerable in the
context of sexual and reproductive health. While adolescence is a period characterised
by sexual and reproductive maturation, adolescents and young people frequently lack
access to information and services necessary for their health. Globally, 16 percent of
HIV infection occurs among adolescents, and 42 percent of infection among those
aged 15-24.
Sexual and reproductive health are integral elements of the right to health. Many, if
not all, of the normative elements of the right to health are closely related to sexual
and reproductive health. In the context of sexual and reproductive health some other
rights are also, of course, important e.g. the right to education, and the equal rights of
men and women to decide freely and responsibly on the number and spacing of their
children and to have access to the information, education and means to enable them to
exercise these rights.xxx The scope of this paper does not permit a full examination of
these linkages. However, I would like to mention several key normative elements of
the right to health which have special importance to sexual and reproductive health
rights.
The right to health includes freedoms, including a right to control one's health and
body. Sexual violence, non-consensual contraceptive methods and harmful traditional
practices related to reproduction function and sexuality all represent breaches of
sexual and reproductive freedoms. The right to health also includes entitlements,
including to a system of health protection which provides equality of opportunity to
enjoy the highest attainable standard of health.
Under international human rights law, States have an obligation to ensure
reproductive, maternal and child health services, including appropriate services for
women in connection with pregnancy, granting free services where necessary.xxxi
More particularly, States should improve a wide range of sexual and reproductive
health services, including access to family planning, pre- and post-natal care,
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emergency obstetric services and access to information, and ensure that women's right
to privacy and confidentiality are respected within these services. Services associated
with sexual and reproductive health should, of course, be available on a nondiscriminatory basis.
The right to health gives rise to an obligation on States to prevent, treat and control
epidemic, endemic, occupation and other diseases. By implication, this includes
STDs, including HIV/AIDS (itself a pandemic), as well as other sexual and
reproductive health diseases. The prevention, treatment and control of STDs requires
a multifaceted approach which is rooted in reliable, evidence-based assessments of the
biological, and socio-economic causes of these illnesses. Important right to health
entitlements include:

The entitlement to access health information and education, including for
adolescents, in the context of sexual and reproductive health.xxxii This
entitlement is particularly important because awareness about STDs, their
mode of transmission and safe and effective methods of prevention, including
contraception, is an important way to prevent infection, as well as an
important tool to combat discrimination against people living with HIV/AIDS
and other stigmatised STDs.

Available and accessible health care services, including family planning.xxxiii

Available and accessible treatment. In recent years the Commission on Human
Rights has recognised that access to medication in the context of pandemics
such as HIV/AIDS is a "fundamental element" for achieving the progressive
realisation of the right to health.xxxiv Medication is obviously important for the
treatment of HIV/AIDS and other STDs. But treatment, including through
medication, also plays a role in prevention and control, since the availability of
treatment can help encourage people to seek testing. The availability of
treatment also helps combat stigma.

Available and accessible testing and counselling services, which are
compassionate and provide voluntary and confidential services, including for
adolescents.xxxv
All of these entitlements must be exercised on the basis of non-discrimination. For
example, health education and information must be equally accessible for women
and men, and services in connection with sexual and reproductive health should
be available on the basis of equality in law and in fact.
Violence against Women
World wide, violence against women is as serious a cause of death and incapacity
among women of reproductive age as cancer, and a greater cause of morbidity as
malaria and traffic accidents combined. This violence takes many forms and may
affect women at all stages of the life cycle. The Declaration on the Elimination of
Violence Against Women defines violence as:
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"Any act of gender-based violence that results in, or is likely to result in,
physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or private life" (article 1)
This definition of violence against women encompasses violence in the public and
private spheres and highlights forms of violence to which women are particularly at
risk, including:
"(a) Physical, sexual and psychological violence occurring in the family,
including battering, sexual abuse of female children in the household, dowry
related violence, marital rape, female genital mutilation and other harmful
traditional practices harmful to women, non-spousal violence and violence
related to exploitation; (b) physical, sexual and psychological violence
occurring within the general community, including rape, sexual abuse,
sexual harassment and intimidation at work, in educational institutions and
elsewhere, trafficking in women and forced prostitution; and (c) physical,
sexual and psychological violence perpetrated or condoned by the State,
wherever it occurs" (article 2)
The obligations on States to respect, protect and fulfil the right to health all have
important application in relation to violence. States, and stage agents should refrain
from violent conduct against women. The State should also protect the right to health
of women from harm by third parties. This includes for, example, an obligation to
take measures to protect vulnerable or marginalized groups, including women, in the
light of gender-based expressions of violence. Such measure may include integrating
a gender perspective into policies, planning, programmes and research. Obligations to
fulfil includes providing information campaigns about domestic violence, as well as
accessible, good quality services for victims. Since health care may often sought by
victims of violence, in particular at the primary level of care, it is essential that
relevant health personnel receive appropriate training so they can deal sensitively with
the issues arising from violence.xxxvi
Conclusion
A woman's right to health is fundamental to her well-being and survival. Many
determinants of women's health are distinct, on account of reasons connected to a
woman's sex and the gendered role ascribed to women by society. As well as
promoting women's health through the elimination of discrimination in society and in
access to health care, additional measures are required to respond on an equitable
basis to the health needs of women. International human rights law includes an
increasingly detailed normative framework relating to women's right to health and
creates a range of obligations on States. Increasingly this body of law has developed
to take into account the needs and rights of women at different stages of their life, as
well as the underlying determinants of their health.
i
M.A., LL.M., Senior Research Officer, Human Rights Centre, University of Essex.
R. Cook, Women, Health and Human Rights, World Health Organisation: 1993, p. 6.
iii
WHO, Women's Health Across Age and Frontier, 1992.
ii
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iv
WHO draft working definition. See www.who.int/reproductive-health/gender/glossary.html
E/CN.4/2004/49, Report of the UN Special Rapporteur on the right to health, February 2004, para.
11.
vi
WHO, Violence Against Women: A Priority Health Issues, 1997.
vii
H. Charlesworth, Human Rights as Men’s Rights, in J. Peters and A. Wolper (eds), Women’s Rights,
Human Rights, Routledge: 1995.
viii
Since this paper focuses on women’s right to health, it does not give detailed attention to the
consideration of the fourth category of relevant provisions. Its main focus is on provisions focusing on
health, women’s health concerns, discrimination and equity.
ix
Harmful traditional practice may also, of course, affect boys, although harmful traditional practices
affecting girls are more widespread. Examples include female genital mutilation and early marriage.
x
UN doc. A/RES/48/104, adopted by the General Assembly on 20 December 1993.
xi
e.g. See UN doc. A/CONF.171/13/Rev.1, Programme of Action of the International Conference on
Population and Development, 1994; UN doc. A/CONF.177/20, Beijing Declaration and Platform for
Action, 1995.
xii
A more comprehensive account of norms and obligations in relation to the right to health, applying
equally in the context of women and men's health, is provided in the Working Paper on the Right to
Health for this Network Seminar meeting.
xiii
Eg. See General Comment 14, para. 4.
xiv
IWRAW Asia Pacific, The CEDAW convention and women’s health. Available online at
http://list.iwraw-ap.org/lists/d_read/cedaw4change/.
xv
General Comment 14, paras. 9 and 14.
xvi
ICESCR, articles 7 and 11.
xvii
General Comment 4, para. 30.
xviii
General Comment 14, para. 12.
xix
See N. Hevener Kaufman, S Lindquist, Critiquing Gender-Neutral Treaty Language: CEDAW, in J.
Peters and A. Wolper (eds), Women’s Rights, Human Rights, Routledge: 1995.
xx
General Recommendation 24, para. 31.a.
xxi
General Comment 14, para. 20.
xxii
WHO, Transforming health systems: gender and rights in reproductive health, 2001.
xxiii
General Comment 14, para. 12.c.
xxiv
UN doc. E/CN.4/2003/58, Preliminary Report of the UN Special Rapporteur on the right to health,
2003.
xxv
R. Cook, Women's Health and Human Rights, WHO: 1993, p. 20.
xxvi
Article 12.
xxvii
General Comment 14, para. 20.
xxviii
This section includes a summary of some of the points made by the Special Rapporteur on the right
to health on the issue of sexual and reproductive health rights in his report to the Commission on
Human Rights, E/CN.4/2004/49, paras. 7-56.
xxix
E/CN.4/2004/49, Report of the UN Special Rapporteur on the right to health, February 2004, para.
11.
xxx
ICESCR, article 13; CEDAW, article 16.1.e
xxxi
CEDAW, article 12.2.
xxxii
CESCR General Comment 14, para. 11; CEDAW General Recommendation 24, para. 18; CRC
General Comment 3, para. 18.
xxxiii
CEDAW, article 12.
xxxiv
Eg Commission on Human Rights resolution 2003/29 on access to medication in the context of
pandemics such as HIV/AIDS, tuberculosis and malaria.
xxxv
CRC General Comment 4, paras. 22-24.
xxxvi
E/CN.4/2004/49, Report of the UN Special Rapporteur on the right to health, February 2004,
paras. 81-86.
v
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