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So You want to be An International Lawyer: Keynote in Reproductive Health in a Pluralist Legal World

The sound of freedom that resonates from civil and political rights rings hollow to a newborn who has low birth weight, because the baby's mother had no access to a clean workplace, good nutrition or adequate prenatal care.  And, what good are political and civil rights to a different baby, whose Mom died in childbirth or who has lost a parent due to an accident, or whose parents are debilitated by occupational disease, or to the baby who may suffer personal injury due to the effects of a parent's exposure to toxic substances, or whose father has terminal cancer?

The United Nations International Conference on Population and Development in 1994 codified the definition, “Reproductive health is a state of complete physical, mental and social well_being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and its functions and processes.”

Consistent with this legal mandate, in March 2016 the UN Committee on Economic, Social and Cultural Rights (ECSCR) adopted General Comment n. 22 (GC/22) which elaborates “[r]eproductive health …concerns the capability to reproduce and the freedom to make informed, free and responsible decisions. It also includes access to a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free and responsible decisions about their reproductive behavior.” (para. 5 E/C.12/GC/22).

 When we care about reproductive health we are protecting Posterity, thereby extending human rights to lives beyond our own. Universal norms, codified in international instruments, outlast lifetimes and reach across geographic borders and ethnicities and national jurisdictions, to enrich all human society. Pregnancy underscores the complex reality that no one is either: self-sufficient or completely dependent on others. Human existence is a confluence of interdependence, which makes even the highest ranking leader dependent on human rights protection. Civil society has not fully replaced human childbearing for human reproduction, and therefore protecting posterity especially during childbirth and pregnancy is a shared health concern of people throughout the world.  

Committee in GC22  further stated that these rights are “indivisible from and interdependent with other human rights. It is intimately linked to civil and political rights underpinning the physical and mental integrity of individuals and their autonomy, such as the right to life; liberty and security of person”.

Several key areas challenge implementation of  these beautiful notions about reproductive health and sexual health.  The mission of this conference is to think carefully and with grandeur about giving these words meaning in daily life.  The charge for this conference is “On the basis of this recent legal authoritative opinion, and in the light of recent developments in many national legal orders, this conference calls upon the academic community to substantively contribute to the enhancement of effective legal solutions to “new” social concerns”.

Our conference goal therefore is to review and revise an existing Declaration with Plan of Action for Reproductive health in order to reflect new knowledge about longstanding health disparities and new science that bring a larger constituency to these issues.  Note that although the Declaration from 1998 needs an update, unfortunately, so little has changed in the field regarding unmet needs to protect reproductive health that one can work from this text to craft a strategy that embraces assisted reproductive technologies and the needs of LGBT families, nanotechnologies for preventing cervical cancer and emerging issues in the workforce. 

 Legal pluralism offers the opportunity to eliminate embedded sexism in the human rights law, which has closeted womens health and reproductive health away from mainstream rights to health. The impact of this inequality presents a second challenge which can be met by good science and sound legal strategy for attacking the problems of reproductive health: empirically documented negative differences in womens health and shockingly high rates of maternal mortality during pregnancy and childbirth, and avoidable infant mortality must be reduced. Inequality embedded under law translates into large health disparities that undermine womens health,   as WHO discussed in 2009 « Women and Health: Today's Evidence , Tomorrow's Agenda »  d [1]. According to WHO, the difference in male versus female health outcomes using their indicators showed better health among men in 5 stages of the life cycle[2]1. birth to 5 years, 2. adolescence (including implications of adolescent pregnancy) 3. Reproductive years 4. Post-reproductive years (menopause and greater risk for cancer among sex-based target organs) and 5. Advanced ageing (65-80 years).  New technology offers the opportunity to discard skewed methods that have been used in the past,  and thereby reduce health disparaties.  

Legal pluralism offers the first solution to these challenges. By requiring that parallel systems within our own legal system inform our jurisprudence using those legal systems of indigenous peoples, laws of diverse states within a matrix of federalism and of course the needs of diverse groups of people we expand our constituency for implementing human rights to reproductive health. Legal pluralism also requires concern for equitably including all groups of people within the same system, such as LGBT and infertile populations using assistive reproductive technologies. 

New mandates ensuring reproductive health however, can use the force of old language mandating separation to solve the need to legitimately link these issues to the larger human rights framework. Frozen eggs and a variety of new forms of surrogacy enable women to continue working in a highpowered career without staring squarely at the face of a biological clock. Into this mix too, jurisprudence must reflect upon the meaning of  GC22 “freedom to make informed, free and responsible decisions”. HIV testing has taught the importance of moving the modern paradigm away from examining the physical  "invasiveness" of testing, examining instead the emotional burden that a “simple blood test”places upon individuals.  Civil society’s recent experience with HIV policy provides a useful precedent for discussing emerging informed consent requirements in highly emotional aspects of reproductive health, such as prenatal gene therapy, medically recommended therapeutic abortion, embryo selection in multiple fetus pregnancy, or fetal surgery.

Will  empirically documented, gender-based health disparities between men and women be reproduced, OR  improved, following the widespread use of new technology? Good science applying new technology may offer solutions to the challenge of documented health disparities that undermine reproductive health for all.  By expanding the  “Capability to reproduce”, new technologies offer a rare opportunity to uproot embedded errors in our methods of creating and administering health care and thereby to reduce health disparities.

[1]Ilise Feitshans, Invited Presentation “Beauty, Babies And Dieting: The Impact Of Nanotechnology Law On Reproductive Health  and Women's Occupational Health Disparities”  IDA background briefing for use by OSTP,  Washington D C December 2013

[2]World Health Organization  (WHO) Women and Health: Today's Evidence , Tomorrow's Agenda »  World Health Organization, Geneva Switzerland 2009 ISBN: 9789241563857 : http://whqlibdoc.who.int/publications/2009/9789241563857_eng.pdf

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