INFERTILITY AND HUMAN RIGHTS: A JURISPRUDENTIAL SURVEY
an article by MARTHA F. DAVIS & RAJAT KHOSLA published in the Colombia Journal of Gender & Law
Infertility defined as “a disease of the reproductive system” is a global health challenge affecting millions of individuals. Yet, evidence-based and scientifically accurate information about infertility, as well as infertility treatment, is difficult or impossible to access for many of the affected individuals. Impediments may include a government’s refusal to allocate resources to address the issue, the expense of infertility treatment, the stigma experienced by infertile individuals, and the discriminatory exclusion of some infertile individuals from access to treatment. Systemically poor health care infrastructures and inadequate training may also contribute to increased incidences of infertility.
While this paper focuses on the disease of infertility, individuals and couples experiencing childlessness for other reasons are often burdened by the same social and emotional harms. Childlessness arising from legal, regulatory, or social constraints is no less consequential for individuals than disease-based childlessness. For purposes of this paper, we identify childlessness outside of infertility, sometimes called “social infertility,” as “conditional childlessness.” We believe that the phrase “conditional childlessness “more fully defined below is a better descriptor of the distinctions between infertility as defined by the World Health Organization (WHO), and other conditions giving rise to childlessness. The human rights norms applicable to conditional childlessness are not fully explored in this paper, but where there are overlaps between the jurisprudence concerning infertility and conditional childlessness, we analyze the pertinent human rights norms applicable to both circumstances.
We believe that human rights norms can guide jurisdictions in structuring their responses both proactive and reactive to infertility (as well as conditional childlessness). A number of studies and commentaries have identified the relevant human rights concerns raised by infertility and have examined the ways in which human rights concepts map on to clinical, social, and epidemiological observations of childlessness whatever its cause. Based on this body of analysis, there is no question that the failure to prevent infertility, treat infertility, and recognize and respond to infertility and conditional childlessness raises human rights concerns. In particular, infertility implicates the right to health (e.g., International Covenant on Economic Social and Cultural Rights (ICESCR)), the right to equality and non-discrimination (e.g., International Covenant on Civil and Political Rights (ICCPR), Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW)), the equal right to determine freely and responsibly the number and spacing of one’s children (e.g., CEDAW), the right to benefit from scientific progress (e.g., ICESCR), and the rights to privacy and to form a family (e.g., ICCPR). Conditional childlessness may also be analyzed with reference to these rights, particularly the rights to equality and nondiscrimination, the right to benefit from scientific progress, and the right to privacy and to form a family.
These core human rights are set out in international human rights texts as well as regional human rights instruments such as the African Charter on Human and Peoples’ Rights and the European Charter of Human Rights. While human rights texts clearly articulate a set of norms that are relevant to infertility, the question remains whether international and national-level decisionmakers charged with interpreting and implementing these rights have employed human rights frameworks. This survey focuses on that open question: What is the evolving human rights jurisprudence relating to infertility?
To answer that question, we examine international and national practices as they exist. Our purpose is not to offer critiques, but to illuminate the extent to which international and national policies and practices regarding infertility have already engaged with human rights norms, and to explore the future implications of that approach.
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Davis, M. F., & Khosla, R. (2020). Infertility and Human Rights: A Jurisprudential Survey. Columbia Journal of Gender and Law, 40(1), 1-45. https://doi.org/10.7916/cjgl.v40i1.6847
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