Respecting Human Rights in Population Policies: An International Customary Right to Reproductive Choice


RESPECTING HUMAN RIGHTS IN POPULATION POLICIES:

AN INTERNATIONAL CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

All couples and individuals have the basic right to decide freely
and responsibly the number and spacing of their children and to
have the information, education and means to do so.'

At the 1994 International Conference on Population and Development in
Cairo, Egypt, 179 nations joined in consensus3 to support the right to
reproductive choice. Within the context of the interdependence of over-
population, social and economic development, degradation of the environment,
and women's rights, the countries attending the 1994 Population Conference
issued a report that broadly expanded the meaning of the right to reproductive
choice.

This paper posits that a human right to reproductive choice exists under
international customary law. This right derives from various international
treatises and non-binding resolutions and from the various laws of the nations.

After establishing that a basic international human right to reproductive
choice exists, this paper posits that the right necessarily encompasses two
primary rights. First, it includes the right to "the information, education and
means" to determine the number and spacing of children. Subsumed within this
right is the right to information about and access to contraceptives, the right to
education, the right to be free from discrimination and violence and the right to
reproductive health services. This right does not include the right to abortion.

1. Report of the International Conference on Population and Development, U.N.
International Conference on Population and Development, at 15, U.N. Doc. A/CONF. 171/13
(1994) [hereinafter 1994 Population Report].

2. Hereinafter 1994 Population Conference.
3. 1994 Population Report, supra note 1, at 120-22.
4. The right to decide the number and spacing of children has been referred to differently

by various authors. Berta E. Hemandez, To Bear or Not to Bear: Reproductive Freedom as an
International Human Right, 17 BROOK. J. INT'L L. 309 (1991) (referring to this right as the "right
to reproductive freedom" and arguing that the right encompasses the international right to
abortion); Ivonne Prieto, International Child Health and Women's Reproductive Rights, 14
N.Y.L. Soi. J. INT'L & COMP. L. 143 (1993) (referring to the right as "individual right to family
planning" and implying that the right only encompasses the right to contraceptives); Reed Boland,
et al., Honoring Human Rights in Population Policies: From Declaration to Action in
POPULATION POLICES RECONSIDERED: HEALTH, EMPOWERMENT, AND RIGHTS 89,94 (Gita Sen,
et al., eds., 1994) [hereinafter Honoring Human Rights] (using the term "reproductive choice" to
include more than the right to contraceptives and information about and access to them, but also
to include the right to abortion); and STEPHEN L. ISAACS, POPULATION LAW AND POLICY: SOURCE
MATERIALS AND ISSUES 352 (1981) (using the term "fertility control"). This author will use the
term "right to reproductive choice," because it seems more analogous to her definition of the right
than the other terms. This author defines the "right to reproductive choice" to include the right
to information about and access to contraceptives and the right to empowerment to effectively
exercise this right to contraceptives. The definition of the term does not include the right to
abortion.



IND. INT'L & COMP. L REV.

Second, the right to reproductive choice includes the right to decide "freely" the
number and spacing of children. Subsumed within this right is the right to be free
from governmental coercion, including overt coercion as well as incentives and
disincentives, when exercising the right to reproductive choice.

This note examines each of these arguments within the context of the over-
population and environmental degradation debate. Part I surveys both the extent
of the population problem and reasons for the attempt to limit population growth.
Part II argues that a human right to reproductive choice exists under international
customary law. Part III examines the meaning of this right.

I. THE DEBATE ON OVER-POPULATION AND ENVIRONMENTAL DEGRADATION

A. The Scope of the Population Crisis

In this century, world population has changed drastically. As recently as
1920, it was only two billion.5 By 1960, it had grown to three billion.6 In 1974,
the figure hit four billion, and only thirteen years later, it hit five billion.7 Today,
the world population is 5.6 billion.8 The United Nations estimates that the world
population is growing by eighty-six million people per year.9

The United Nations' low, medium and high growth variant projections
predict that the world population in twenty years could be 7.1 billion, 7.5 billion
or 7.8 billion, respectively. The difference of 720 million people exceeds the
current population of Africa."

Every hour, the world's population grows by 11,000 people." Every year,
the world adds the equivalent of the population of Mexico, and every decade, the
world adds 1 billion more people. 2

To grasp the rate of population growth, consider these analogies:

5. Elizabeth Rohrbough, On Our Way to Ten Billion Human Beings: A Comment on
Sustainability and Population, 5 COLO. J. INT'L ENVTL. L. & POL'Y 235 (1994).

6. ld.
7. Id.
8. 1994 Population Report, supra note 1, at 9; Julia Preston, U.N. Report: To Stem

Population, Empower Women Controversial Document Declares Fertility Is the Key to
Sustainable Development, WASH. POST, Aug. 18, 1994, at A24.

9. 1994 Population Report, supra note 1, at 9.

10. Ild.
11. GEORGED. MOFEr, CRITICAL MASSES: TIIE GLOBAL POPULATION CHALLENGE 12

(1994).
12. Jessica Mathews, TheAbortion Distraction: The True Subject at Cairo Is Population

- It's a Lot More Urgent Than Some Think, WASH. POST, Sept. 12, 1994, at A23. The author
of this editorial piece is a senior fellow at the Council on Foreign Relations.

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(1) It took 10,000 generations for the world to reach its first two billion
people, in 1930. It took only one generation to reach the next two
billion, in 1980."

(2) Every ninety-six hours, the world will have one million more
residents. That is a new Pittsburgh or Boston every two days, a new
Germany every eight months, a new Mexico or two new Canadas
every year, and a new Africa and Latin America combined during the
decade of 1990."

(3) From the time of Christ, it took eighteen centuries for the Earth to
reach its first one billion people, but only one century to reach its
second billion, and only one decade to reach its latest billion."

Predicting the level at which the world population will peak is difficult.
Achieving population stabilization and sustainable development requires that the
world population reach replacement level. This occurs when each couple replaces
itself. Replacement level equals 2.1 children per family.' 6 Currently, the world
birth rate is 3.9 children per family, even though rates have fallen below
replacement level in North America and Europe.' 7 In Asia and Latin America,
each family has 3.2 children; however, in Africa families have more than six
children per couple.'8

Compounding the problem of high birth rates is the fact that in developing
countries thirty-six percent of the population is under the age of fifteen. 9 More
than a third of the population is just beginning its reproductive years. This gives
rise to the problem of "population momentum." Even if the world population
reached replacement level today, it would skyrocket for decades to come.2" For
example, Japan reached replacement level in 1957, but it will not reach zero
population growth until 2006.21

To reach replacement level fertility, each country progresses through a
four-stage demographic transition. Stage one begins in pre-industrial societies,

13. MOFFMr, supra note 11, at 7. This description of the phenomenal growth of the
world population was first invoked by U.S. President Bill Clinton.

14. Id.
15. Id.
16. Rohrbough, supra note 5, at 235; MoFFErr, supra note 11, at 8.
17. Rohrbough, supra note 5, at 235.
18. Id. From 1985-1990, fertility ranged from an estimated 1.3 children per woman in

Italy to 8.5 children per woman in Rwanda. 1994 Population Report, supra note 1, at 35, para.
6.2.

19. 1994 Population Report, supra note 1, para. 6.6., at 36.
20. MOFFEr, supra note 11, at 8; Rohrbough, supra note 5, at 235; and 1994 Population

Report, supra note 1, at 18, para. 3.2.
21. MOF1r, supranote 11, at 8.

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IND. INT'L & COMp. L REV.V

where both birth and death rates are high, keeping the population stable. After
a country achieves improved living conditions, the country moves into the second
stage where death rates begin to fall, but birth rates remain high because families
still require a large number of children for farm labor and old-age security for
parents. Most African nations are in stage two of their development. 2

As living conditions continue to improve, urbanization occurs, the status
of women improves and the cost-benefit analysis for child bearing shifts in favor
of smaller families. Parents do not need large families for farm work and old-age
security, but instead must educate their children, which increases the cost of
raising a large family. A number of countries, particularly Latin American
countries, are advancing through stage three.23

As a country moves from stage three into stage four, birth and death rates
again reach parity, and population stabilizes. Most of the countries in Western
Europe and North America have completed this transition. A few "developing
countries," particularly South Korea and Thailand have also done so. 4

The world must reach replacement level fertility to have sustainable
development. As defined in the 1994 Population Report, "sustainable
development implies, inter alia, long-term sustainability in production and
consumption .. to optimize ecologically sound resource use and minimize
waste.""5

B. Is There a Limit to Growth or Does Population Growth Lead to
Economic Growth?

Two competing theories vie for dominance in the population debate. The
first, and the one that has achieved the most wide-spread support in policy circles
and the media, holds that population growth intensifies environmental
degradation and exhausts natural resources. According to this view, the world
population will exceed the earth's carrying capacity, and the world will undergo
massive starvation to realign population with finite natural resources. The
competing view, sometimes referred to as the "revisionist" view2 6 or the "supply-
side demographic" view,27 finds that population growth has a neutral or even a
positive influence on society.2" It holds that population growth encourages

22. Id. at 10.
23. Id
24. Id.
25. 1994 Population Report, supra note 1, at 18, para. 3.3.
26. Andrew D. Ringel, The Population Policy Debate and the World Bank: Limits to

Growth vs. Supply-Side Demographics, 6 Geo. Int'l Envt'l. L. Rev. 213, 215 (1993); Mo-FIr,
supra note 11, at 106.

27. Ringel, supra note 26, at 214. Ringel refers to this view as both the "revisionist" view
and the "supply-side demographic" view.

28. MoFFM"r, supra note 11, at 107.

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economic development through technological innovation and more efficient
resource allocation. According to this view, the world population will never
exceed its carrying capacity. The scarcity of natural resources will encourage the
development of new technologies and will stimulate the development of
substitutes to replace the need for scarce resources.29 Evidence supports both
views.

1. Limits to Growth

The first view, often referred to as the "limits to growth" theory, has as its
forefather English political economist Thomas Malthus, who in 1798 wrote
Essay on the Principle of Population." Malthus predicted that population
would expand geometrically, doubling every twenty-five years. However,
because of limited natural resources, food production would not keep pace with
increased demand. Ultimately, he concluded that the world population would
reach the limits of sustainability and would be checked by famine, disease and
war.

31

Malthus' position was followed and popularized in the conventional
wisdom32 by Stanford University biologist Paul R. Ehrlich in his 1968 book The
Population Bomb.3 Ehrlich expanded Malthus' theory to include the effects of
rapid population growth on the availability of other natural resources, such as
water and energy, and on the earth's ability to absorb increasing waste, such as
pollution.34

Although neither of these predictions have developed, ample evidence
supports the theory that the Earth has a certain "carrying capacity" which may be
reached in the future. "Carrying capacity is the largest number of any given
species that a habitat can support indefinitely." 3 If the carrying capacity is

29. Id.
30. THOMAs R. MALTHUS, AN ESSAY OFThE PRINCIPLE OF POPULATION OR A VIEW OF ITS

PAST AND PRESENT EFFECTS ON HUMAN HAPPINESS (6th ed. Ward, Lock and Company, 1890).
31. kIt at 4-7. Malthus' Essay was a response to the optimistic writers of the sixteenth

and seventeenth centuries who applauded the growth in population as a way to increase markets
and wealth for the newly industrialized Europe. However, Malthus saw extensive poverty in
England, which suffered from a series of economic crises and bad harvests. MoFFETT, supra note
11, at 102. See also Ringel, supra note 26, at 217 (succinctly discussing Malthus' hypothesis).

32. The book sold 3 million copies and brought Ehrlich and his doomsayer position into
the media limelight with an appearance on the Johnny Carson Show in 1970. MOFFETr, supra
note 11, at 109.

33. PAULR.EHRLICH, THE POPULATION BOMB, (rev. ed. 1971).
34. Ringel, supra note 26, at 219.
35. Sandra Postel, Carrying Capacity: Earth's Bottom Line in STATE OF THE WORLD

1994: A WORLDWATcI INSTr1UrE REPORT ON THE PROGRESS TOwARD A SUSTAINABLE SOCIETY

3,3 (1994).

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surpassed, the resource base and population decline.' In the 1994 edition of the
Worldwatch Institute's State of the World, author Sandra Postel illustrates a
breach of carrying capacity with the following example: In 1944, twenty-nine
reindeer were introduced to St. Mathew Island in the Bering Sea. By 1963, the
number of reindeer had grown to over 6,000 deer. However, due to overgrazing
the animals faced extensive competition for limited food supplies during a severe
winter, and the population "crashed," leaving less than fifty reindeer."

Although the world population will not "crash" as the reindeer population
did,38 evidence shows that the earth's carrying capacity may be reaching its limit.
The earth's capacity to support the world's population is determined by a
combination of food requirements, consumption levels, waste generated and
available technologies. 9

Evidence shows that the amount of available natural resources per person
in the world is falling.4" Assuming that the world's population increases by
thirty-three percent by 2010 as is expected, the amount of cropland per person
would decline by twenty-one percent,4"' and even though rangeland is expected to
increase by four percent by the year 2010, the per capita gain would actually be

36. Id at 3-4.
37. Id. at 4.
38. Id.
39. Id.
40. LESTER R. BROWN, WORLDWATCH INSTITUTE, STATE OF TME WORLD 1994: A

WORLDWATCH INSTITrE REPORT ON PROGRESS TOWARD A SUSTAINABLE SOCIETY xv (1994).
Between 1950 and 1984, as a result of the "Green Revolution", world grain production expanded
2.6-fold, outstripping population growth and increasing per capita grain harvest by 40%. The
world fish catch also increased tremendously, 4.6-fold, doubling the seafood catch per person.
However, since 1984, these trends have reversed. By 1993, the fish catch per person had fallen
by 7%, and after 1984, grain production fell behind population growth. ld. at 177. See id at 177-
197 for an in-depth discussion of trends and projections of world food production from 1950 to
2030. Brown discusses the impact of the development of fertilizer and hybrid seeds which caused
the "Green Revolution" and the lack of current technological innovations available to sustain the
"Green Revolution" into the next 40 years.

41. Postel, supra note 35, at 9. Between 1980 and 1990, cropland area worldwide
expanded by just 2%, thus any gains in food harvest resulted from an increase in yields from
already producing land. i The problem with this is that cropland yields, through the use of
fertilizer and hybrid varieties of seeds developed during the "Green Revolution," have climaxed.
Farmers have found that increasing fertilizer is no longer increasing yields. Without new
technologies to raise the yields of current land under cultivation, the amount of grain
produced is not likely to increase. Brown, supra note 40, at 180-187. Further, cropland is being
lost to industrial development. For example, between 1957 and 1990, China lost 35 million
hectares of cropland, an area equal to all the cropland in France, Germany, Denmark and the
Netherlands combined. Postel, supra note 35, at 9. Moreover, the cropland in production is
losing its capacity to produce as a result of unsound management practices and overuse. The
Global Assessment of Soil Degradation found that more than 550 million hectares are losing
topsoil or undergoing other forms of degradation. Id

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a loss of twenty-two percent.42 The world fish catch, which a number of nations
rely on heavily for protein in their diet, is expected to drop by ten percent per
person by 2010.' 3 Moreover, the amount of forests and woodlands which provide
lumber and fuelwood for consumption, and harbor the world's biodiversity of
plants and animals, is expected to shrink by seven percent by the year 2010,
which translates to a per capita drop of thirty percent.44 Further, twenty-six
countries, particularly countries in the Middle East and Africa, have insufficient
renewable water supplies to meet the needs of a moderately developed society."

Different consumption patterns and standards of living between the
developing world and the developed world alter the impact of population
increases on the earth's carrying capacity. Ehrlich developed an analytical
equation to describe this relationship: Impact (1) = Population (P) x Affluence
(A) x Technology (T).46 Thus, if one American consumes resources fifty times
faster than one Bangladeshi, every additional American child displaces fifty
potential Bangladeshi children.47 A good illustration of this is in the amount of
energy used per person. The developed world uses much more energy per person
than the developing world. Every person in the United States uses 10kw
(200,000 kcal/day), while people in developing countries use only 1 kw (20,000

42. Postel, supra note 35, at 10. Much of the world's rangeland is overgrazed. According
to the Global Assessment of Soil Degradation, some 680 million hectares of land, 20% of the
world's pasture and rangeland, has been overgrazed and is losing productivity. ld.

43. IM at 11. Even though the world fish catch has climbed rapidly since 1950, it peaked
in 1989, and the U.N. Food and Agriculture Organization estimates that all 17 of the world's
major fishing areas have either reached or exceeded their natural limits. Nine are in serious
decline. Jd at 10-il.

44. Id at 12. Recent studies show dh the world's forests shrunk by 130 million hectares
between 1980 and 1990, an area larger than Peru. Id

45. Id at 11. Water constraints also hamper food production. Food grown with the use
of irrigation accounts for only 16% of the total cropland, but one-third of the
world's harvest. Irrigated land is expected to increase in total, but again considering an increase
in population, per capita irrigated land would decrease by 12%. Id. at 11-12.

46. Paul R. Ehrlich & J.P. Holden, Impact of Population Growth, 171 SCIENCE 1212
(1974); J.P. Holden and Paul R. Ehrlich, Human Population and the Global Environment, 62
AM. SCIENTIST 282 (1974); Stephen Raucher, Book Note, 18 ECOLOGY L.Q. 259 (1991) in
Ringel, supra note 26, at 219 n. 16.

47. Russel Lawrence Barsh, Indigenous Peoples' Perspectives on Population and
Development, 21 B.C. ENvTL. AnF. L. REV. 257, 258 (1994). Barsh argues that determining
whether the resource space available is allocated to an American child or a Bangladeshi child is
a matter of relative power. The wealthy can protect their standard of living by ownership of
resources. But the poor can force the wealthy to share their resources by threatening to produce
more children who will consume remaining resources making them unavailable to the wealthy.
Thus, the poor can ultimately lower the standard of living of the wealthy by producing more
children and consuming more resources unless the wealthy countries share their wealth with the
poor.

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kcal/day).48 Thus, increasing the U.S. population by 125 million is the equivalent
of increasing the population of a developing country by 1.25 billion people.49

As a result of consumption patterns and population growth, the earth's
natural resources will be depleted and the environment will be destroyed. Further,
according to the limits to growth view, the earth will reach its carrying capacity.

2. The Revisionist View: Supply-side Demographics

The revisionist view counters by relying on technology. It proposes that
even if population increases and the earth has a limited carrying capacity, the fact
that the world is faced with a burden on the carrying capacity will cause new
technologies to be developed to avoid overburdening the earth's carrying
capacity.

The revisionist view has as its historical underpinnings in writings by
Frenchman Condorcet who predicted that new technology will reduce the need for
labor and will enhance the productivity of limited natural resources, such as
land.5 ' Today, Julian Simon is Ehrlich's nemesis in the revisionist camp. He

48. Rohrbough, supra note 5, at 237.
49. Id This relationship can also be seen in food consumption patterns. Although most

developing countries aspire to the diet of the western world, the world's population has foreclosed
that possibility. The average American consumes 800 kilograms of grain per year, most of it
indirectly through meat, while the average Italian consumes 400 kilograms of grain per year, most
of it rice. Brown, supra note 40, at 190. At U.S. consumption levels, the world grain output
could only sustain 2.75 billion people, half as many as are alive today. Id. At Italian
consumption levels, it would support 5.5 billion people, the current population, and at the Indian
level, world grain output could sustain II billion people. Id. Thus, to support the number of
people in the world in 2030, the affluence of the world's diet must be reduced, given that the earth
has a finite supply of natural resources.

The relationship between population and consumption is also apparent in the production of
waste. The developed world produces two-thirds of all greenhouse gases, such as carbon dioxide,
methane and nitrous oxide, from the burning of fossil fuels, while the developing nations produce
one-third of greenhouse gas emissions from primarily agricultural practices, such as carbon
dioxide from tropical deforestation and methane from rice cultivation and livestock. John H.
Gibbons, Energy and the Environment: Intersecting Global Issues. Decisionmaking in the Face
of Uncertainty 9 ARIZ. J. INT'L & COMP. L. 231,233-34 (1992). Gibbons, a nuclear physicist, is
Chairman of the Office of Technology Assessment, a nonpartisan analytical support agency of
the U.S. Congress. As the developing world further industrializes, its use of fossil fuels will
increase. Combining an increased use of fossil fuels with continuing population growth, the
developing world's greenhouse emissions will escalate. Id at 234. An increase in waste thus
increases the burden on the earth's carrying capacity.

50. For example:
New instruments, machines, and looms can add to man's strength and improve at
once the quality and accuracy of his productions, and can diminish the time and
labor that has to be expended on them. The obstacles still in the way of this
progress will disappear. A very small amount of ground will be able to produce
a great quantity of supplies.

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argues that population growth positively affects society because it creates
increased demand for goods, which expands markets and stimulates economic
growth." Further, he argues that by creating scarcity, population growth
develops invention." Again and again, temporary scarcities induced by the
growth of population and income have induced the search for solutions which,
when found, left us better off than if the scarcities had never arisen.""2

Evidence supports Simon's theory. In the 1960's and 1970's, technology
started the "Green Revolution" and saved large portions of the developing world
from famine.53 Scientists developed chemicals and hybrid seeds, which were
more resistant to weather changes, bugs and weeds. As a result, food harvests
increased dramatically. Worldwide grain output increased nearly twice as fast as
population growth.'

Nevertheless, trends show that the successes of the green revolution are
coming to an end. The per capita production of food worldwide is falling." And
the technology that rescued large portions of the developing world from
starvation during the 1960's and 1970's has reached a point of diminishing
returns.5 6 Further, the prospect of replacement technology is weak. 7 Leading
scientists from the National Academy of Sciences and the Royal Society of the
United Kingdom do not foresee the development of technological innovation that
could dramatically increase production yields in the near future."

Further, technology cannot solve the world's problems, but can merely buy
time while the world stabilizes population and reduces excessive consumption.

MOnFEr, supra note 11, at 104 (quoting Marie Jean Antoine, et al., THE FUTURE PROGRESS OF
THE HUMAN MIND (1795)).

51. l at 112 (citing Julian Simon, Resources. Population, Environment: An Oversupply
of False BadNews, 208 ScIENcE 1431-37 (1980)).

[M]ore people not only means the use of more resources but more units of
creativity and productivity. More people compete creatively for ways to develop
or find substitutes. Thus, the world's resources are not finite.

Id. at 113.
52. Id.
53. Years earlier, Europe was similarly saved from starvation with the advent of advanced

farming techniques. In the 17th century, farmers learned that manuring and crop rotation
eliminated the need to let land lie fallow. Farmers throughout Europe began rotating cereal crops,
such as wheat and con, with root crops, like turnips and cassava, and forage crops, such as clover
to restore nitrogen to the soil. MoPPEr, supra note 11, at 68-69.

54. 1d at 69-70.
55. See supra note 40.
56. Brown, supra note 40, at 178-87. Food yields are no longer increasing

simultaneously with heavier applications of fertilizer.
57. Id. at 186-87.
58. 1d Technology that could lower the cost of desalting seawater or that could redesign

the photosynthetic process to enable it to convert solar energy into biochemical energy more
efficiently could dramatically increase world food production; however, scientists do not believe
a break through in these technologies will occur in the foreseeable future.

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Technology stretches the earth's carrying capacity, but cannot solve the carrying
capacity problem." Ehrlich summarizes the flaws in revisionist thinking as
follows:

It's like designing an airplane where you worry more about how
many you can get on board than how many you can fly with. The
attitude of let's just hope something comes along, that technology
will save us, is fine if you want to play dice with the future of your
children and grandchildren."

3. Influence on Population Policy

Regardless of the view to which one adheres, both views have influenced
U.S. and world population policies. The limits to growth view is institutionalized
as the dominant view in the United Nations system, the World Bank, and the
media .6' For example, the 1994 Population Report framed the population issue
in terms of environmental impact: "The everyday activities of all human beings,
communities and countries are interrelated with population change, patterns and
levels of use of natural resources, the state of the environment, and the pace and
quality of economic and social development. ' 62 Further, World Bank President
and former U.S. Secretary of Defense Robert S. McNamara demonstrated his
support for the limits of growth view when he addressed the 1984 World
Population Conference in Mexico City.63 Clearly, the United Nations and other
international government and nongovernmental organizations strongly support
the view that population must be reduced to reach sustainable development.

However, the revisionist view has also influenced world population
policies. In 1984 at the International Conference on Population in Mexico City,
the United States, under the Reagan administration, officially adopted the
revisionist view, declaring that population and growth did not impede economic
development." Nevertheless, with a change in the U.S. presidency, the United

59. Postel, supra note 35, at 4-5, 12-16.
,60. MoFFETr, supra note 11, at 111.
61. Ringel, supra note 26.
62. 1994 Population Report, supra note 1, para. 3.1, at 18.
63. Ringel, supra note 26.
64. Id. U.S. Delegate James Buckley stated, "The relationship between population

growth and economic development is not a negative one. Indeed, both in the American
experience and in the economic history of most advanced nations, population growth has been
an essential element in economic progress." Policy Statement of the United States of America at
the International Conference on Population 2d Session, Mexico, D.F., at 6-13 (Aug. 1984)
quoted in Mor-Err, supra note 11, at 283-84.

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States reversed its position and re-adopted the limits to growth philosophy
concerning population growth."

The limits to growth philosophy, which advocates sustainable development,
directly impacts world population policies. In fact, the mandate of the 1994
Population Conference was to address the interrelationships between sustainable
development, sustained economic growth and population." As sustainable
development influences world policies, it necessarily affects the international
customary right to reproductive choice.

II. CUSTOMARY LAW RECOGNIZES AN INTERNATIONAL HUMAN RIGHT TO

REPRODUCTIVE CHOICE

The practice that "all couples and individuals have the basic right to decide
freely and responsibly the number and spacing of their children and to have the
information, education and means to do so"'6 has ripened into a rule of customary
international law.

A. The Nature of Customary Law

The body of international law derives from four sources: treaties,
customary law, general principles of law recognized by civilized nations and
"judicial decisions and teachings of the most highly qualified publicists of the
various nations."6" Generally, international law develops in two ways (1) by the
practice of states, known as "customary law," and (2) by agreement among states,
known as "conventional law. 69

65. John M. Goshko, PlannedParenthood Gets Aid Grant, WASH. POST, Nov. 23, 1993,
at A12-13.

66. 1994 Population Report, supra note 1, at 14.
67. Id. at 15.
68. Stat. I.C.J. art. 38(1). Article 38(l) provides:
The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;

(b) international custom, as evidence of a general practice accepted
as law;
(c) the general principles of law recognized by civilized nations;
(d) . . . judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.

Id. See also RESTATEMENT (THIRD) OF FOREIGN LAW OF THE UNrrED STATES § 102 (1987)
[hereinafter RESTATEMENT (THIRD)]; RESTATFMENT (THIRD) § 102 reporters' note 1.

69. Id. (introductory note).

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IND. INT'L & COMP. L REV.

Customary law develops from a "general and consistent practice" followed
by states from a "sense of legal obligation.!"7 The International Court of Justice
formulated the elements for customary law as follows:

The Party which relies on custom... must prove that this custom is
established in such a manner that it has become binding on the other
Party ... that the rule invoked by it is in accordance with a constant
and uniform usage practiced by the States in question, and that this
usage is the expression of a right appertaining to the State granting
asylum and a duty incumbent on the territorial State ....

1. Elements of Customary Law

To become customary international law, the custom must be a "constant
and uniform usage practiced by the states."" Generally, a practice must reflect
"wide acceptance" by the states, but the practice need not be universally
followed.' Further, contrary to earlier formulations of the rule, the practice need
not continue for a long period of time. In the North Sea Continental Shelf Cases,
the International Court of Justice acknowledged that "the passage of only a short
period of time is not necessarily, or of itself, a bar to the formation of a new rule
of customary international law."'74

In addition to being a "general and consistent practice,"" the custom must
be followed by states as a result of a legal duty or what is often called opinio
juris et necessitatis 6 The fact that states consistently act in a certain manner is
not sufficient to form customary law, unless they act under a sense of legal
obligation." Often, states do not act with acknowledged compliance with the
rules of international law,7" thus, legal obligation is inferred from acts or
omissions.

79

70. Id § 102(1)(2).
71. Asylum Case (Colom. v. Peru), 1950 I.C.J. 276,276.
72. Id
73. RESTATEMENT (TwmD),supra note 68, § 102 cmt. b.
74. North Sea Continental Shelf Cases (F.R.G. v. Den. & Neth.), 1969 I.C.J. 3, 44

[hereinafter North Sea Continental Shelf Cases]. Earlier definitions of customary law implied that
states were required to practice a custom for a long period of time before it would develop into
law. RESTATEMENT (THIRD), supra note 68, § 102 reporters' note 2.

75. Id § 102(2).
76. IAN BROWNL[E, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 7 (4th ed., 1990).
77. North Sea Continental Shelf Cases, 1969 L.CJ. at 44. In this case, the Court stated:

"The States concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not itself enough." Id.

78. BROWNLIE, supra note 76, at 7.
79. RESTATEMENT (TMIRD), supra note 68, § 102 cmt. c.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

2. Evidence of Customary Law

States act both internationally and domestically. In the international arena,
a state may enter into international agreements that create law among the
signatory states.' However, international agreements may also create customary
law for those states that are not parties."1 For example, where a multilateral
agreement is designed for adherence by states generally, is widely accepted and
is not rejected by a significant number of important states, it may become law for
non-party states that do not actively dissent.82

Another state practice in the international arena that builds customary law
is action in or through international organizations. The adoption of United
Nations' resolutions, declarations and other statements of principles evidences
and contributes to the development of customary international law. 3

States also act through national domestic laws. Typically, a general
principle of law recognized by civilized nations is an independent source of
international law.' However, it also may be evidence of customary law. Trends
in domestic laws can establish international laws. 85

3. The Effect of Customary Law

Customary international law is enforceable. The International Court of
Justice applies international conventions, international custom, general principles
of law and judicial decisions and teachings of national scholars as sources of
law.86 Customary law and treaty law are equally binding on states within the

80. See North Sea Continental Shelf, 1969 I.C.J. at 28-29, 37-43. International
agreements by themselves also create international law that binds the party states. Stat. I.CJ. art.
38(l)(1).

81. See Article 38 of the Vienna Convention on the Law of Treaties, which provides that
"[n]othing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon
a third state as a customary rule of international law, recognized as such." Vienna Convention on
the Law of Treaties, opened for signature May 23, 1969, U.N. Doc. AICONF.39/27 (in force Jan.
27, 1980) U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).

82. RESTATEMENT (THIRD), supra note 68, § 102 cmt. i.
83. iA. § 102 reporters' note 2. Recently at international conferences, states have been

reaching agreement by consensus, rather than by vote. Such was the case at the 1994 Population
Conference. 1994 Population Report, supra note 1, at 4.

84. Stat. I.C.J. art. 38(l)(c).
85. RESTATaMENT HnIRD), supra note 68, § 102, reporters' note 7. For example, a rule

against torture is a part of international law because it is a principle common to all major legal
systems.

86. Stat. I.C.J., art. 38(1). Article 38(1) provides:
The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;

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IND. INT'L & COMP. L REv.

international arena.87 Once established as customary international law, a law is
generally binding upon all states, even those states that enter the international
arena after a practice has ripened into a rule of international law.8

Nations treat international law as law and consider themselves bound by
it. They consider international law a legal obligation and are concerned about the
consequences of its violation. 9 Often, international law is observed because
states have a common interest in maintaining particular standards and in avoiding
the consequences of its violation. This is particularly true where damage to their
"credit" or reputation might result.'

In the case of the right to reproductive freedom, once it ripens into
customary international law, it binds all the states of the world. This is
significant because prior to becoming a rule of international law, this right was
only enforceable upon those nations that were signatories to the United Nations
Convention On the Elimination of All Forns of Discrimination Against Women.9'
As of 1993, only 122 states had signed the Women's ConventionY Although the
United States is a signatory to the Women's Convention, the United States is not
bound by it because it has not been ratified by the U.S. Senate.93 A number of
states are not parties to the Women's Convention, including the United States.
Nevertheless, the ripening of the right to reproductive choice into a rule of
customary law significantly expands the enforceable rights of women throughout
the world. All states are now bound to uphold the right of all couples and
individuals to freely and responsibly decide the number and spacing of their
children, and to have the information, education and means to do so.

(b) international custom, as evidence of a general practice accepted
as law;
(c) the general principles of law recognized by civilized nations;
(d) ... judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.

Id.
87. RESTATEMENT (THIRD), supra note 68, § 102 cmt. j.
88. Id. § 102 cmt. d.
89. Id. pt. I, ch. 1, introductory note.
90. l
91. Convention on the Elimination ofAll Forms of Discrimination Against Women, G.A.

Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/RES/34/180 (1979)
reprinted in 18 DUSAN J. DJONovIcHi, UNITED NATIONS RESOLUTIONS, RESOLUTIONS ADOPTED

BY ThE GENERAL ASSEMBLY 381 (1975) [hereinafter Women's Convention].
92. Boland, supra note 4, at 94 n.2.
93. Hernandez, supra note 4, at n. 148.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

B. International Documents Recognize an International Human Right to
Reproductive Choice

The right to reproductive choice is "a general practice accepted by law," 94

and as such, is customary law. International practice sufficient to form custom
is evidenced by international documents.95 Since 1968, numerous international
documents have recognized the right to reproductive choice.

The right to reproductive choice was first declared a human right by the
international community in 1968 in the Proclamation of Teheran.' The right to
reproductive choice was not formally guaranteed in the Universal Declaration on
Human Rights, although article 16 did recognize the right of "men and women
of full age" to "manry and found a family."' As formulated in the Proclamation
of Teheran, the right recognized that "[p]arents have a basic human right to
determine freely and responsibly the number and spacing of their children [and
a right to adequate education and information in this respect.]"" Just one year
later in 1969, the international community reaffirmed its commitment to this right
in the Declaration on Social Progress and Development." This document
provides that "[p]arents have the exclusive right to determine freely and
responsibly the number and spacing of their children. ' 100

The next international document to address the right to reproductive

94. Stat. I.CJ. art. 38(1). See also infra part II.A. and accompanying notes.
95. See infra part II.A.2. and accompanying notes.
96. United Nations Conference on Human Rights, Teheran, Apr. 22 to May 13, 1968,

Proclamation of Teheran, art. 16, reprinted in Official Documents: United Nations Conference
on Human Rights, 63 AM. J. INT'L. L. 674 (1969) [hereinafter Proclamation of Teheran].

97. The Universal Declaration of Hwnan Rights, G.A. Res. 217A (II), U.N. GAOR, art.
16, U.N. Doc. AJ810, (1948).

98. Proclamation of Teheran, supra note 96, art. 16.
Believing that it is timely to draw attention to the connection between population
growth and human rights [the conference]:

3. Considers that couples have a basic human right to decide freely and
responsibly on the number and spacing of their children and a right to adequate
education and information in this respect;
4. Urges Member States and United Nations bodies and specialized agencies
concerned to give close attention to the implications for the exercise of human
rights of the present rapid rate of increase in world population.

Id.
99. Declaration on Social Progress and Development, G.A. Res. 2542 (XXIV), U.N.

GAOR (1968), in 12 DUSAN J. DJONOViCH, U.N. RESOLUTIONS: RESOLuTIONS ADOPTED BY THE
GENERAL ASSEMBLY 257 [hereinafter Declaration on Social Progress].

100. Id at 258. Article 4 provides: "The family as a basic unit of society and the natural
environment for the growth and well-being of all its members, particularly children and youth,
should be assisted and protected so that it may fully assume its responsibilities within the
community. Parents have the exclusive right to determine freely and responsibly the number and
spacing of their children."

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IND. INT' L & COMP. L REV.

freedom was the World Population Plan of Action adopted by consensus at the
United Nations World Population Conference in Bucharest, Romania, in 1974.1
This was the first international conference assembled to confront the perceived
problem of over-population and environmental degradation.'02 Faced with an
increasingly expanding population, the states of the world again adhered to the
general premise that couples have a right to reproductive choice. Article 14(f)
provides:

All couples and individuals have the basic right to decide freely and
responsibly the number and spacing of their children and to have the
information, education and means to do so; the responsibility of
couples and individuals in the exercise of this right takes into
account the needs of their living and future children, and their
responsibilities towards the community.' °3

The same year as the Bucharest Conference, the international community
adopted the Resolution of the World Food Conference, which addressed the right
to reproductive choice.' Specifically, Resolution IX provided:

The World Food Conference .... Now calls on all Governments
and on people everywhere... to support ... rational population
policies ensuring to couples the right to determine the number and
spacing of births, freely and responsibly, in accordance with national
needs within the context of an over-all development strategy."0 5

Shortly after these conferences, world leaders met in Mexico in 1975 for
the World Conference on the International Women's Year. 10 6 Again, the
international community addressed the right to reproductive choice. Here, the
right was stated as:

Every couple and every individual has the right to decide freely and
responsibly whether or not to have children as well as to determine

101. Report of the World Population Conference, art. 14(f) U.N. Doc. E/CN. 60/19 (1974)
[hereinafter 1974 Plan of Action].

102. Interestingly, the developed countries of the world thought population was an issue.
The developing countries contended that the developed world's industry and heavy consumpLion
of natural resources, not the developing countries' population, caused the degradation of the earth.
Boyce Renseberg, As Birthrates Fall, Population Rises: U.N. Cairo Conference to Address
World Growth Stabilization Efforts, WASH. POST, Sept. 4, 1994, at Al.

103. 1974 Plan of Action, supra note 101, art. 14().
104. Report of the World Food Conference, Res. IX, U.N. Doc. E/CN.65/20 (1974).
105. Id.
106. Report of the World Conference on the International Women's Year, art. 12, U.N.

Doc. E/CN. 66/34 (1975) [hereinafter Women's Convention].

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

their number and spacing, and to have information, education and
means to do so." 7

These initial formulations of the right to reproductive choice are neither
consistent nor all inclusive. The right as described in the Proclamation of
Teheran grants the right to "couples," while the Declaration on Social Progress
gives the right to "parents" and the 1974 Plan of Action allows the right to be
exercised by "all couples and individuals." Further, the Declaration on Social
Progress and the Report of the World Food Conference fail to include the phrase
"and a right to adequate education and information in this respect" which was
included in the Proclamation of Teheran, the 1974 Plan of Action and the
Declaration on International Women's Year. These inconsistencies clearly
demonstrate that the right to reproductive choice as a form of customary law was
not solidified at this early stage of development.

Yet, the states of the world continued to adhere to the general premise that
couples had a right to reproductive choice. By 1981, this right was embodied in
the Women's Convention and for the first time became legally binding upon
signatory states.0 8 The Women's Convention mandates that:

State Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and
family relations and in particular shall ensure, on a basis of equality
of men and women:

(e) The same rights 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; 0 9

Thus, signatory states to the Women's Convention are legally bound to
support the basic human right of reproductive choice.

As the right of reproductive choice became a legally enforceable human
right, the formulation of the right also solidified. The language of the Women's
Convention reaffirms the language and meaning used in the Proclamation of
Teheran and the 1974 Population Plan. This consensus on the fact that "couples
and individuals" have the right to decide the number and spacing of children, and
that they are entitled to "information, education and means" to exercise this right,

107. Id.
108. Id art 16(e). See also infra, part l.A.3. and accompanying notes; Honoring Human

Rights, supra note 4, at 94 n.2; and Hernandez, supra note 4, at 340 n. 148.
109. Id.

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IND. INT'L & COMP. L REV.

establishes strong evidence that this international practice is developing into
customary law.

In 1984, the international states further solidified their adherence to the
basic human right of reproductive freedom when they convened in Mexico City
for another conference on population and environmental degradation."' At this
conference, the international community recognized the right to reproductive
choice as a basic human right and elaborated on this right by proclaiming that
"[t]he ability of women to control their own fertility forms an important basis for
the enjoynent of other rights.""' Emphasizing this, the states expanded the right
to reproductive choice by reiterating that education and the means to exercise the
right are necessary to effectively ensure the right of reproductive choice.
Recommendation 24 admonishes governments because, although the right was
"widely accepted," they were not providing couples and individuals with the
necessary education and services required to exercise the right." 2

110. As the developing world underwent significant increases in population between 1974
and 1984, the dialogue between the developing world and the developed world significantly
changed. In fact, the developing countries requested another world population conference,
whereas in 1974, the developed nations requested such a conference. Report of the International
Conference on Population, U.N. Department of Technical Co-operation for Development, 12th
plen. mtg., at 51, U.N. Doc. E/CONF.76/19 (1984) [hereinafter 1984 Recommendations].
However, the United States adopted the revisionist view espoused by Julian Simon which holds
that population growth is a positive societal force because it creates an increase in the demand for
goods, expands markets and stimulates economic growth. MoRFEr, supra note 11, at 112.

The twenty-second paragraph of the Mexico City Declaration on Population and Development
succinctly summed up the message of Mexico City:

At Bucharest, the world was made aware of the gravity and magnitude of the
population problems and their close interrelationship with economic and social
development. The message of Mexico City is to forge ahead with effective
implementation of the World Population Plan of Action aimed at improving
standards of living and quality of life for all peoples of this planet in promotion of
their common destiny in peace and security.

1984 Recommendations, supra note 110 at 51.
111. Id. at 16.
112. Id. Specifically, Recommendation 24 states:

The World Population Plan of Action recognizes, as one of its principles, the basic
human right of all couples and individuals to decide freely and responsibly the
number and spacing of their children. For this right to be realized, couples and
individuals must have access to the necessary education, information and means
to regulate their fertility, regardless of the overall demographic goals of the
Government. While this right is widely accepted, many couples and individuals
are unable to exercise it effectively, either because they lack access to information,
education and/or services or because, although some services are available, yet an
appropriate range of methods or follow-up services are not. Indeed, data from the
World Fertility Survey for developing countries indicate that, on average, over one
fourth of births in the year prior to the Survey had not been desired. In addition,
the decline in the prevalence of certain traditional practices, such as prolonged
breast-feeding and post-partum abstinence, has increased the relative importance

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

The international community next addressed the right to reproductive
choice in 1985 in the Nairobi Strategies." 3 In this international document, states
urged governments to make available "as a matter of urgency" information and
education to assist individuals and couples to exercise their right to reproductive
choice." 4

By 1994, at the U.N. International Conference on Population and
Development in Cairo, Egypt, the right to reproductive choice was well- defined.
The 1994 Population Report adopted the previously accepted language to define
the right. Specifically, Principle 8 provides "[a]ll couples and individuals have
the basic right to decide freely and responsibly the number and spacing of their
children and to have the information, education and means to do so."'' 5

Thus, "all couples and individuals," rather than "parents" or merely
"couples," could exercise the right. Further, the international community
affirmed that the right to reproductive choice necessarily includes the right to
"education, information and means" to exercise the right. Moreover, the states
emphasized that the enjoyment of other basic human rights depends upon the
effective exercise of the right to reproductive choice.

At the 1994 Population Conference, 179 states, including the Holy See, by
consensus reaffirmed their support for the right to reproductive choice. " 6 Only
six countries in the world refused to send delegates to the 1994 Population
Conference." 7

Nearly every state in the international community displayed its support for
the right to reproductive choice by adopting by consensus the 1994 Population
Report. Further, since 1968, numerous United Nations documents accepted by
the international community have recognized the human right to reproductive
choice. As international documents demonstrate international practice, the
universal acceptance of these international instruments demonstrates that the
right to reproductive choice is "a general practice accepted by law."' " As such,
the right to reproductive choice is a customary international right.

of non-traditional family planning as a tool for the proper spacing of births.
Id.

113. Report of the World Conference to Review and Appraise the Achievements of the
United Nations Decadefor Women: Equality, Development and Peace, Nairobi at 39, U.N. Doe.
A/CONF. 116/28/Rev. 1 (1985) [hereinafter Nairobi Strategies].

114. d at 39, para. 157.
115. 1994 Population Report, supra note 1, at 15.
116. Id. at 120-122. "[The International Conference on Population and Development]

affirms the application of universally recognized human rights standards to all aspects of
population programmes." Id at 13.

117. John Lancaster, Envoys to Population Meeting Try Compromise Wording on
Abortion, WASH. POST, Sept. 5,1994, at A21. Only Saudia Arabia, Lebanon, Sudan, Monaco,
Liechtenstein and Iraq failed to send delegates. l See also 1994 Population Report. supra note
1, at 120-22.

118. Stat. 1.CJ. art. 38(l). See also supra part H.A. and accompanying notes.

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IND. INT'L & COMP. L REV.

C. National Legislation Supports an International Human Right to
Reproductive Choice

A review of national legislation demonstrates that the right to reproductive
choice is recognized as an international customary right. A general principle of
law recognized by the major legal systems of the world evidences customary
international law." 9 Nearly universal support in national legislation for the right
to reproductive choice demonstrates that the right is an international right
recognized by customary law.

As of 1988, of 170 countries in the world, only seven refused to support the
right to reproductive choice by restricting access to contraceptives. 120 163 states
in the international arena have national legislation recognizing the right to
reproductive choice as evidenced by legal access to contraceptives.'' Of the 163
countries supporting access to contraceptives, 125 offered direct financial
support, while twenty-one offered indirect support. 12  Seventeen countries,
mainly developed countries, did not need to offer support for family planning
programs because the private sector provided these services. 23

Further, at least three countries have made the right to reproductive choice
a fundamental right by constitutionalizing it. In 1974, Mexico amended Article
4 of its Constitution to provide "[elvery person has the right to decide in a free,
responsible and informed manner on the number and spacing of their children."' 124

Brazil's 1988 Constitution also supports the right to reproductive freedom.
Specifically, it provides:

Based on the principles of human dignity and responsible
parenthood, family planning is a free choice of the couple, it being
within the competence of the State to provide education and
scientific resources for the exercise of this right, any coercion by
official or private agencies being forbidden.'25

119. RESTATEMENT (THIRD), supra note 68, § 102, reporters' note 7.
120. Population Trends and Policies in the 1980s, U.N. ESCOR, Population and Human

Rights: Proceedings of the Expert Group Meeting on Population and Human Rights, Geneva, at
43, U.N. Doc. ST/ESA/SER.R/107 (1989) [hereinafter Population Trends.

121. Id.

122. Id
123. Id. at44.
124. MEXICAN CONSTrrTION, art. 4, reprinted in 12 CoNsmnrnoNs OFTHE COUNTrRES

OF TE WoRLD: MEXICO 13 (Albert P. Blaustein & Gisbert H. Flanz eds., 1988).
125. CONSTrruICAo FEDERAL, ch. VII, Art. 226, p. 7 (Brazil) reprinted in Prieto, supra

note 4.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

In the United States, the due process clause of the 14th Amendment to the
Constitution guarantees the right to reproductive choice under the rubric of the
right to privacy. In 1965, the United States Supreme Court in Griswold v.
Connecticut 26 struck down a state statute prohibiting the distribution of
contraceptives because it violated the right to privacy guaranteed by the 14th
Amendment to the United States Constitution.

Nearly every country in the world supports the right to reproductive choice.
This general principle of law recognized by the major legal systems of the world
demonstrates that the right to reproductive choice is recognized as customary
international law.

Universal support in national legislation and widespread consensus in
international documents, conventions and treaties, particularly in the 1994
Population Report, shows that the right to reproductive choice is a "constant and
uniform usage practiced by the states."' 1 Clearly, the right to reproductive
choice exists within international customary law.

II. THE MEANING OF THE INTERNATIONAL HUMAN RIGHT
TO REPRODUCTIVE CHOICE

A. The Information, Education and Means to Decide the Number and
Spacing of Children

For the past thirty years, the world has interpreted the phrase "information,
education and means" to exercise the right to reproductive freedom to mean that
women have a right to information about and access to contraceptives. 2 Under
the 1994 Population Report, the scope of this right was expanded to include the
basic human right to education, 29 the right to be free from gender-based
discrimination" ° and the right to sexual health.' Although these rights had been
guaranteed as basic human rights in other international documents, 3

1 the 1994
Population Report included them as necessary rights to the fulfillment of the right
to reproductive choice. However, the right to reproductive choice as described

126. Connecticut v. Griswold 381 U.S. 479 (1965).
127. Asylum Case, 1950 I.C.J. Rep. at 276.
128. See infra part III.A.I. and accompanying notes.
129. 1994 Population Report, supra note I at 25-28. See also infra part IlI.A.2.a. and

accompanying notes.
130. Id. at 25-31. See also infra part MI.A.2.b. and accompanying notes.
131. Id at 43-54. See also infra part Ii.A.2.c. and accompanying notes.
132. For example, the basic human right to education was first enunciated in 1948 in the

Universal Declaration of Human Rights. The Universal Declaration of Human Rights, supra note
97, at art. 26.

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IND. INT'L & COMP. L REv.

in the 1994 Population Report and as developed in international law did not
include the right to abortion.'33

1. Information About and Access to Contraceptives

In the past, the right to reproductive freedom as practiced encompassed
only the right to information about and access to contraceptives. After the
adoption of the 1994 Population Report, this right has expanded, but it still
includes the basic right to information about and access to contraceptives.

After the 1974 Plan of Action, governments throughout the developing
world established family planning programs and clinics to distribute
contraceptives. By 1988, 146 governments provided, either directly or indirectly,
family planning services to their citizens.14  In addit'on to access to
contraceptives, most countries provided information about the use of family
planning methods. For instance, in Thailand, government-supported messages
that large families make families poor infiltrate every aspect of the Thai life. As
most Thai homes now have radios and some have televisions, government
announcements carry the message, and soap opera story lines subtly reinforce the
message. Village loud speakers broadcast announcements about the government-
run family planning clinic, and the clinics themselves provide literature about the
virtues of smaller families.' Further, governments typically advocate the use of
contraceptives. For example, in Zimbabwe, which has one of Africa's most
successful family planning programs, the president appointed his sister-in-law to
run the program for a brief period of time. 36 The goal has been to change the
historical, social and cultural opposition to smaller families and to alleviate
stigmatization associated with the use of modern family planning.'37

These family planning services have brought a drastic decline in the fertility
rate in developing countries since the 1960s. In Thailand, the use of
contraceptives increased from 15% to 67% of the couples from 1970 to 1987,
and the number of children dropped from 6.1 to just over two. Nearly i00% of
Thai women know of at least one modem method of contraception. 13

1 In Kenya,
where the birth rate was as high as eight children per couple in 1970, the fertility
rate has dropped to 5.4 children, and contraceptive use has increased from 6% to
33% since 1989.' In Morocco, the fertility rate has dropped from 6.9 in 1980
to 4.5 children in 1991'"' In Indonesia, the use of contraceptives increased from

133. 1994 Population Report, supra note I at 61-62, para. 8.25. See also infra part II.A.3.
134. Population Trends, supra note 120, at 43.
135. Moartr, supra, note 11,at 138.
136. Id. at 152.
137. Id at 153.
138. Id. at 146.
139. Id at 141.
140. Id

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

10% percent to fifty percent of couples and the average number of children fell
to four. 14' The rate of contraceptive use by couples in Bangladesh has doubled
to forty percent in the last ten years, and the fertility rate has dropped from 6.8
children to 4.2 children.'42 In Peru, the number of children per couple has
dropped to 3.5 since 1978.'"1 In what has become known as a model of family
planning success for sub-Saharan Africa, the use of contraceptives in Zimbabwe
has tripled since 1980. Currently, 43% of couples use family planning
services.'

44

Worldwide, the increased use of contraceptives brought about through
family planning programs has dropped the fertility rate from 6.1 to 3.9.14 Yet,
the birth rate has stalled at this level, still above the replacement level of 2.1
children per family." Family planning programs from the 1960's to the 1980's
have played a significant role in reducing the fertility rate, but this effort alone is
not sufficient to reach replacement level fertility. Women's empowerment is
necessary to reach sustainable development. 7

2. Women's Empowerment to Exercise the Right

Governments have focused solely on providing information about and
access to contraceptives. They have not interpreted the right to reproductive
choice to encompass programs to increase women's education, to eliminate
gender-discriminatory laws or to provide for women's sexual health. 48 However,
the 1994 Population Report expands the right to reproductive choice to include
the basic human right to education,'49 the right to be free from gender-based

141. Boyce Rensberger, As Birthrates Fall, Population Rises U.N. Cairo Conference to
Address World Growth Stabilization Efforts, WASH. POST, Sept. 4, 1994, at Al.

142. Id.
143. Id.
144. Id.
145. Rohrbough, supra note 5.
146. Id
147. 1994 Population Report, supra note 1, at 25, para. 4.1.

The empowerment and autonomy of women and the improvement of their
political, social, economic and health status is a highly important end in itself. In
addition, it is essential for the achievement of sustainable development ...
Experience shows that population and development programmes are most effective
when steps have simultaneously been taken to improve the status of women.

Il
148. Honoring Human Rights, supra note 4, at 99-103 (arguing that to reduce population

growth governments should focus less on providing information about and access to
contraceptives and focus more on empowering women, safe-guarding their basic human rights
and providing for their sexual health, such as treatment for sexually transmitted diseases).

149. 1994 Population Report, supra note 1, at 25-28.
The empowerment and autonomy of women and the improvement of their
political, social, economic and health status is a highly important end in itself. In

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IND. INT'L & COMP. L REV.

discrimination 5 ' and the right to sexual health."'

a. The Right to Education

"Education is one of the most important means of empowering women with
the knowledge, skills and self-confidence necessary to participate fully in the
development process."'' 12  The empowerment and autonomy of women and the
improvement of their political, social, economic and health status enhances their
decision-making capacity at all levels in all spheres of life.'

Yet, even basic primary education is not available to some women and girls
around the world. The United Nations estimates that 170 million children are not

addition, it is essential for the achievement of sustainable development .... In
addition, improving the status of women also enhances their decision-making
capacity at all levels in all spheres of life, especially in the area of sexuality and
reproduction. This, in turn, is essential for the long-term success of population
programmes. Experience shows that population and development programmes are
most effective when steps have simultaneously been taken to improve the status
of women.

Id at 25 para. 4.1. "Education is one of the most important means of empowering women with
the knowledge, skills and self-confidence necessary to participate fully in the development
process." Id para. 4.2.

150. Id at 25-3 1. "All human beings are born free and equal in dignity and rights." Id.
at 14.

Since in all societies discrimination on the basis of sex often starts at the earliest
stages of life, greater equality for the girl child is a necessary first step in ensuring
that women realize their full potential and become equal partners in development.
In a number of countries, the practice of prenatal sex selection, higher rates of
mortality among very young girls, and lower rates of school enrollment for girls
as compared with boys, suggest that son preference' is curtailing the access of girl
children to food, education and health care. This is often compounded by the
increasing use of technologies to determine foetal [sic] sex, resulting in abortion
of female foetuses [sic]. Investments made in the girl child's health, nutrition and
education, from infancy through adolescence, are critical.

Id. at 28, para. 4.15.
151. Id at43-54.

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 to its functions and processes. Reproductive health
therefore implies that people are able to have a satisfying and safe sex life and that
they have the capability to reproduce and the freedom to decide if, when and how
often to do so.... It also includes sexual health, the purpose of which is the
enhancement of life and personal relations, and not merely counselling and care
related to reproduction and sexually transmitted diseases.

Id. at 43, para. 7.2.
152. Id. at 25, para. 4.1.
153. Id.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

enrolled in primary school and seventy percent of these children are girls."'
Further, 960 million people are illiterate, and two-thirds of these people are
women.'55 Eman Ibrahim and Khadra Gomaa are two such women. 156 They live
in Buram, a small farming village seventy miles southeast of Cairo, Egypt.
Eman's father sent her brothers to school rather than her, and Khadra dropped out
of school after third grade.5 7 Often, families fail to send their daughters to
school because education is expensive and families prefer to educate their sons."5 8

The 1994 Population Report set goals for the empowerment of women
through education. The target set by the U.N. for universal primary education in
all countries is the year 2015.' In addition, the 1994 Population Report urges
governments to ensure "the widest and earliest possible" access by girls and
women to secondary and higher levels of education. 6° Further, the Report
encourages governments, schools, the media and other social institutions to
eliminate stereotypes and gender biases.' 61

Access to education is necessary to fully allow women the opportunity to
exercise their right to reproductive freedom. The scope of this right necessarily
includes the right to general education in addition to information about
contraceptives. Education is imperative to the full integration of women in the
political, social, economic and development institutions of society and is critical
to the achievement of sustainable development and replacement level fertility.

b. The Right to be Free from Discrimination and Violence

"All human beings are born free and equal in dignity and rights."'62 Yet,
discrimination and violence against women and girls are rampant throughout the

154. Id. at 25, para. 4.2.
155. Id
156. John Lancaster, Close to Cairo But Eons Away Population Conference Goals Meet

Reality in Rural Village, WASH. POST, Sept. 9, 1994, at A29.
157. Id.
158. MoFERT, supra note 11, at 198. Pilot projects around the world work to circumvent

families' reluctance to send girls to school. One such project by the Center for Women and
Development in Dhaka, Bangladesh, provides girls with books and other school supplies and
personal hygiene kits with soap, towels, lice-killing combs and five packages of vegetable seeds.
The director of the program explains: 'If a poor household has more access to vegetables and
fruits there will be increased food in the household. If there is more food it means the girls will
get their fair share to eat. If there is more food it also means her labor is less needed and the
family won't mind letting her go off to school." Id.

159. 1994 Population Report, supra note 1, at 29, para. 4.18.
160. Id.
161. Id. at 29, para. 4.19. "Countries must recognize that, in addition to expanding

education for girls, teachers' attitudes and practices, school curricula and facilities must also
change to reflect a oommitment to eliminate all gender bias, while recognizing the specific needs
of the girl child." id

162. Id. at 14.

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IND. INT'L & COMP. L REV.

world. The World Health Organization indicates that women ages fifteen to
forty-four lose more "Discounted Healthy Years of Life" to rape and domestic
violence than they do to breast cancer, cervical cancer, obstructed labor, heart
disease, AIDS, respiratory infections, motor vehicle accidents or war.'6 3

Discrimination against daughters and a preference for sons causes female
infanticide and the abortion of female fetuses. Studies in India show that girls
born to mothers who already have one or more surviving daughters have a fifty-
three percent higher mortality rate than other children.'"' Also, in a study of
8,000 abortions performed following amniocentesis in an Indian clinic, 7,999 of
the fetuses aborted were female.'65 In China, for every 100 girls born 118.5 boys
are born. Nearly 1.7 million girls are missing each year.'"

In addition to higher abortion rates of female fetuses, women endure
discrimination, exploitation and violence. Take for example the plight of
Dellnoor, a twenty-seven-year-old mother of six who lives in Dhaka,
Bangladesh.'67 Bangladesh's family planning programs are some of the best in
the world, but Dellnoor is unable to use them. Following conservative custom,
religion and law in Bangladesh, Dellnoor was given over in an arranged marriage
to Habib following her first menstruation. Under the custom of purdah, she is
forbidden, except on rare occasions and then only with another adult, to leave her
ten-by-ten home that she shares with her six children and husband. Although she
wants to use modem contraceptives, she is forbidden by Habib. "It's not my
decision," she says. "He doesn't want family planning."' 68

Like Dellnoor, numerous women throughout the world succumb to the
dictates of men concerning reproductive choices. The elimination of all kinds of
discrimination and violence against women is essential to the effective exercise
of the right to reproductive choice. The 1994 Population Report and the
international community recognize the necessity of the elimination of
discrimination and violence against women as an imperative part of the right to
reproductive choice."6 Further, the right to reproductive choice encompasses the
right to reproductive health.

163. Adrienne Germain, SiaNowrojee & Hnin Hnin Pyne, Selling a NewAgenda: Sexual
and Reproductive Health and Rights, in POPULATION POLICES RECONSIDERED: HEALTH,
EMpownmENT, AND RIoTs 26,41 (Gita Sen, Adrienne Germain & Lincoln C. Chen eds., 1994).

164. Population Trends, supra note 120, at 37.
165. MoFFEr, supranote 11, at217.
166. Honoring Human Rights, supra note 4, at 99.
167. See MOFFETT, supra note 11, at 194-96.
168. Id.
169. 1994 Population Report, supra note I at 25-31. "Advancing gender equality and

equity and the empowerment of women, and the elimination of all kinds of violence against
women, and ensuring women's ability to control their own fertility, are cornerstones of population
and development programmes." Id at 15.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

c. The Right to Reproductive Health

As recognized in the 1994 Population Report, the right to reproductive
choice includes the right to sexual health. 7" The 1994 Report defines
reproductive health as

[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 to its functions and processes.... It also
includes sexual health, the purpose of which is the enhancement of
life and personal relations, and not merely counselling and care
related to reproduction and sexually transmitted diseases. 7'

Reproductive health care includes information and counselling about and
access to: family planning methods; prenatal care, safe delivery and post-natal
care; education about the prevention of and treatment for sexually transmitted
diseases and infertility and information and counselling on human sexuality. 171

Throughout most of the world, adequate reproductive health care is
unavailable. About 500,000 pregnancy-related deaths occur every year, and for
every such death, another 100 women suffer significant pregnancy complications
with long-term physical and social consequences. 7 3 Further, of the seven million
perinatal deaths of children worldwide, about half are associated with low birth
weight resulting from maternal malnutrition, anemia and sexual transmitted
diseases. 74 Moreover, women are at higher risk for sexually transmitted diseases
than men. 71 For example, Han'a, who lives in Egypt, is sixteen-years-old and
has been married for two years.'76 She contracted syphilis and was treated but

170. Id at 43, para. 7.3.
[Rieproductive rights embrace certain human rights that are already recognized in
national laws, international human rights documents and other consensus
documents. These rights rest on the recognition of the basic right of all couples
and individuals to decide freely and responsibly the number, spacing and timing

of their children and to have the information and means to do so....
Id.

171. Id. at43, para. 7.2.
172. Id at 44, para. 7.6.
173. lain Aitken & Laura Reichenbach, Reproductive and Sexual Health Services:

Expanding Access and Enhancing Quality in POPULATION PoucIES RECONSIDERED: HEALTH,
EMPOwERm_.NT, AND RIGHTS 177, 178 (Gita Sen, Adrienne Germain & Lincoln C. Chen eds.,
1994) [hereinafter Sexual Health Services].

174. Ad
175. Id. at 179.
176. Ma. at 188.

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IND. INT'L & COMP. L REV.

was reinfected by her husband. She knew nothing about sexually transmitted
diseases and did not realize that her husband could infect her."

Adequate reproductive health care is essential for women to effectively
exercise their right to reproductive choice. The 1994 Population Report directs
all countries to make adequate reproductive health available by the year 2015.171

Sexual and maternal health is necessarily included within the right to reproductive
choice.

3. No Right to Abortion

Although the right to reproductive choice includes the right to reproductive
and sexual health, it does not include the right to an abortion. The issue of
whether the right to reproductive choice as accepted in customary international
law includes the right to abortion has been hotly debated. However, following the
adoption of the 1994 Population Report, it is clear that the right to reproductive
choice does not include the right to an abortion.

a. Previous International Documents Relating to the Right to Abortion

International documents relating to abortion neither prohibit nor endorse
it. Twice the international community has refused to prohibit the right to an
abortion by defining life as beginning at the point of conception. In the Universal
Declaration on Human Rights, Article 3 guarantees that "[e]veryone has the right
to life, liberty and security of person."'' 79 During the debates on this provision,
two amendments were submitted to apply the article "from the moment of
conception." However, the General Assembly refused to adopt these
amendments and preferred a general formula not addressing this issue. 8 ' With
the adoption of the Covenant on Civil and Political Rights, the states of the world
again refused to define conception as the beginning of life. 8' An amendment to
Article 6, which prohibits the execution of a pregnant woman sentenced to death,
was introduced to protect the right to life "from the moment of conception."'8

The international community refused to recognize such a right and the

177. Id.
178. 1994 Population Report, supra note I at 44, para. 7.6.
179. The Universal Declaration of Human Rights, supra note 97, art. 3.
180. Relationship Between Human Rights and Population Issues: Standard-Setting

Activities of the United Nations Organization, U.N. ESCOR, Population and Human Rights:
Proceedings of the Expert Group Meeting on Population and Human Rights, at 54, U.N. Doc.
ST/ESA/SER.R/107 (1989) [hereinafter Standard-Setting Activities of the U.N.].

181. Id.
182. See id. at 61 for a discussion of the arguments made by both sides.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

amendment failed by a vote of thirty-one to twenty with seventeen abstentions.'83

The documents of the United Nations do not prohibit the right to an abortion.
However, United Nations instruments do not endorse the right to abortion

either. The Declaration on the Rights of the Child proclaims that children "[need]
special safeguards and care, including appropriate legal protection, before as well
as after birth.'' Further, the 1984 Recommendations to the World Population
Plan of Action adopted at the 1984 International Conference on Population urges
governments "to take appropriate steps to help women avoid abortion, which in
no case should be promoted as a method of family planning."' 5 Significantly, in
one of the first enunciations of the right to reproductive choice, the right was
presented as not including the right to abortion. In the Declaration on Social
Progress and Development, the "exclusive right" of parents "to determine freely
and responsibly the number and spacing of their children" was presented by some
sponsors as not encompassing the right to abortion.'

Plainly, previous international documents neither endorse the right to an
abortion nor prohibit it. "International human rights law is not yet crystallized
in this field." '87  As such, a right to abortion included within the right to
reproductive choice is not a "constant and uniform usage practiced by the
states"'l88 to form a basis for international customary law.

b. National Legislation on Abortion

National legislation regarding abortion cannot form a basis for a "constant
and uniform usage practiced by the states"'89 to establish abortion as a part of the
customary right to reproductive choice. Access to abortion is by no means
universally recognized in the international community. Further, no trend in
international abortion legislation has solidified.

Abortion upon the request of the mother, as legalized in the United
States, 9 ' is available in only a minority of countries. Of eighty-two countries

183. Id
184. Declaration on the Rights of the Child, preamble (1959).
185. 1984 Recommendations, supra note 110, at 21, recommendation 18(e).
186. Standard-Setting Activities of the U.N., supra note 177, at 61 citing U.N. Doe.

AIC.3/SR.1599, at 15, and U.N. Do. A/C.3/SR.1682, at 3.
187. Standard-Setting Activities of the U.N.. supra note 180 at 62. See also Prieto, supra

note 4, at 143 (1993). However, not all writers agree. See Hernandez, supra note 4 at 312
(arguing that international documents do support an inference that the right to reproductive choice
includes the right to abortion).

188. Asylum Case, 1950 I.CJ. Rep. at 276.
189. Id
190. Roe v. Wade, 410 U.S. 113 (1973) (the landmark case establishing a woman's right

to abortion on demand. Holding that a woman's right to privacy under the 14th Amendment due
process clause necessarily encompasses her decision whether to terminate a pregnancy before the
end of the first trimester of pregnancy). Planned Parenthood of Southeastern Pennsylvania v.

1995]



IND. INT'L & COMP. L REV.

responding to a survey conducted by the Population Policy Data Bank, which is
maintained by the United Nations, only eighteen countries provide abortion on
demand.'9 Of those countries that do not have legalized abortion upon request,
most responding to the United Nations survey do authorize abortion in some
circumstances. For example, nearly two-thirds of the nations responding allow
abortion in cases of rape of the mother." However, seventeen countries do not
allow abortion to protect the physical health of the mother. 3 Finally, in six
countries, abortion is not legal even to save the life of the mother. 94

Moreover, the trend in abortion laws is not clear. While some countries are
liberalizing strict abortion laws, other nations are enacting new constitutions or
constitutional amendments to protect life from the point of conception. Canada,
in 1988, found the criminalization of abortion unconstitutional,' 95 while Cuba,
Togo, Vietnam and the People's Republic of China decriminalized abortion
through criminal code amendments. 9 6 Algeria, Burundi and Ghana now permit
abortion when a mother's life or health is in danger, and Ghana also allows
abortions in cases of rape, incest or severe physical deformities of the child. 97

Greece and Czechoslovakia, in 1986, legalized abortion upon request during the
first twelve weeks of pregnancy,' while Cape Verde did the same in 1987.'99

Malaysia,ro Saint Vincent and the Grenadines liberalized their abortion laws,
adopting the English standard, which permits an abortion if a medical practitioner
in good faith believes that continuation of the pregnancy would involve a greater
risk to the mother's life or mental or physical health than if the pregnancy were
terminated."'

Nevertheless, numerous countries have enacted stricter laws on abortion.
In 1983, Ireland enacted a constitutional amendment explicitly acknowledging the

Casey, 505 U.S. 833, 112 S.Ct. 2791(1992) (reaffirming a women's right to terminate her

pregnancy established under Roe, but modifying the point at which that right could be overcome

by compelling state interests. Under Casey, a woman may terminate her pregnancy without
interference from the state prior to the point of viability).

191. Population Trends, supra note 120, at 46.
192. Id Only 46 countries permit abortion where the mother has been raped, while twenty-

eight do not.
193. Id.
194. Id

195. Morgentaler v. The Queen, 44 D.L.R.4th 385 (1988).
196. Rebecca J. Cook, Abortion Laws and Policies: Challenges and Opportunities, 1989

INT'L J. GYNECOLOGY & OBSTETRIcs 61 (Supp. 3, 1989), (Cuba prohibits abortion only if

performed for profit, by an unqualified person, in an unofficial place or without the woman's
consent. The national health care system provides abortion free of charge).

197. 12 ANINUAL REVIEW OF POPULATION LAW xxxiii (Reed Boland ed., 1985).

198. 13 ANNUAL REVIEW OF POPULATION LAW xlii (Reed Boland, ed., 1986).
199. 14 ANNUAL REVIEW OF POPULATION LAW xxxix (1987).
200. 16 ANNUAL REVIEW OF POPULATION LAW xxxviii (1989).
201. 15 ANNUAL REVIEW OF POPULATION LAW xxxviii (1988).

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

right to life of the unborn,2
0 while Chile's Constitution, enacted in 1980, contains

similar language.2 Further, the 1986 Philippine Constitution, °4 the Constitution
of Ecuador,25 and Guatemala's Constitution' s protect the life of the unborn from
the moment of conception. Plainly, the various national laws on abortion are in
conflict and do not represent a trend either toward the liberalization or the
criminalization of abortion. Moreover, abortion upon the request of the mother
is available in only a minority of states, and abortion is illegal, even to save the
life of the mother, in at least six countries. The national laws on abortion do not
demonstrate a "general practice 20 7 of the states upon which to base an
international customary right to abortion.

c. The 1994 Population Report

Just as the national laws of the various states of the world cannot evidence
an international right to abortion, the 1994 Population Report adopted at the
1994 Population Conference cannot demonstrate a worldwide, consistent,
uniform practice supporting an international right to abortion. Prior to the 1994
Population Conference, international consensus on abortion, as demonstrated by
United Nations' documents, was not solidified.20

' However, with the adoption
of the 1994 Population Report, an international consensus developed adopting
the view that abortion is not included within the right to reproductive choice." 9

202. CONSTITUTION OF IRELAND, art. 40, sec. 3 reprinted in 9 CONSTITUTIONS OF THE
COUNTRIES OFTHE WORLD: IRELAND 132 (Albert P. Blaustein & Gisbert H. Flanz eds., 1994),
("The State acknowledges the right to life of the unborn ....").

203. CONSTITUTION OF CHILE, ch. III, art. 19, reprinted in 4 CONSTITUTIONS OF THE
COUNTRIEsFT-E WORLD: CiLE 41 (Albert P. Blanstein & Gisbert H. Flanz, eds., 1991), ("The
Constitution guarantees to all persons: 1. The right to life and to the physical and psychological
integrity of the individual. The law protects the life of those about to be born").

204. CONSTITUTION OFTHE PHILIPPINES, art. II, sec. 12, reprinted in 15 CONSTITUTIONS OF
THE COUNTRIES OF THE WORLD: PHILIPPINES, SUpp. 3 (Albert P. Blaustein & Gisbert H. Flanz
eds., 1986), ("The State ... shall equally protect the life of the mother and the life of the unborn
from conception ....9).

205. CONSTITUTION O ECtADOR, art. 25, reprinted in 6 CONSTITUTIONS OF THE COUNTRIES
OF THE WORLD: ECUADOR 16 (Albert P. Blaustein & Gisbert H. Flanz eds., 1987), ("The child
will be protected from conception ... ").

206. CONSTITUTION OF GUATEMALA, art. 3, reprinted in 7 CONSTITUTIONS OF THE

COUNTRIS OFTHEWORLD: GUATEMALA 27 (Albert P. Blaustein & Gisbert H. Flanz eds., 1986),
("The State guarantees and protects human life from the time of its conception as well as the
integrity and security of the individual.").

207. STAT. I.C.J. art. 38(l)(b).
208. See supra part IH.A.3.a. and accompanying notes.
209. However, those supporting unrestricted abortion will, nonetheless, continue to push

for an international consensus supporting an international right to abortion. At some point in the
future, an international customary right to abortion may develop; however, in 1994, this right
does not yet exist.

1995]



IND. INT'L & COMP. L REv.

First, the 1994 Population Report explicitly refuses to recognize any new
human rights. One-hundred and seventy-nine nations joined in consensus to
adopt the 1994 Population Report."' The Preamble to the Report provides that
"the International Conference on Population and Development does not create
any new international human rights, [but] affirms the application of universally
recognized human rights standards to all aspects of population programmes...211

Second, while the issue of abortion, particularly unsafe abortion, is directly
addressed, the 1994 Report explicitly states the matter of abortion is to be dealt
with by legislation at the national level." 2 Moreover, the paragraph in the 1994
Report directly dealing with the issue of abortion, paragraph 8.25, advocates that
abortion should never be promoted as a method of family planning, and the
prevention of unwanted pregnancies should be given the highest priority to
eliminate the need for abortion.2"3

Further, although all nations joined in consensus to support the 1994 Pop-
ulation Report, a number of countries issued reservations regarding the issue of
abortion. El Salvador,2 4 Ecuador, 2"1 Malta, 216 Paraguay, 21 7 Argentina, 219

210. 1994 Population Report, supra note 1, at 120-22.
211. Id at 13 (emphasis added).
212. Id. at 61-62, para. 8.25.
213. Id. Specifically, paragraph 8.25 provides:

In no case should abortion be promoted as a method of family planning. All
Governments and relevant intergovernmental and non-governmental organizations
are urged to strengthen their commitment to women's health, to deal with the
health impact of unsafe abortion as a major public health concern and to reduce the
recourse to abortion through expanded and improved family-planning services.
Prevention of unwanted pregnancies must always be given the highest priority and
every attempt should be made to eliminate the need for abortion. Women who
have unwanted pregnancies should have ready access to reliable information and
compassionate counselling. Any measures or changes related to abortion within
the health system can only be determined at the national or local level according
to the national legislative process. In circumstances where abortion is not against
the law, such abortions should be safe. In all cases, women should have access to
quality services for the management of complications arising from abortion. Post-
abortion counselling, education and family-planning services should be offered
promptly, which will also help to avoid repeat abortions.

Id.
214. Id. at 136. Specifically, El Salvador entered the following oral reservation:

Recognizing that aspects of the Programme of Action are tremendously positive
and are of supreme importance for the future development of mankind, the family
and our children, we, as leaders of nations, cannot but express the reservations we
feel are appropriate. If we did not, we could not possibly face the question from
our people that are certain to be posed.

We Latin American countries are signatories to the American Convention on
Human Rights (Pact of San Jose). Article 4 thereof states quite clearly that life
must be protected from the moment of conception. In addition, because our
countries are mainly Christian, we consider life is given by the Creator and cannot

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

and the Holy See219 objected to any reference to abortion because abortion

be taken unless there is a reason which justifies it being extinguished. For this
reason, as far as Principle 1 of the Programme of Action is concerned, we associate
ourselves with the reservation expressed by the delegation of Argentina: we
consider that life must be protected from the moment of conception.

Id.
215. Id at 143-44. Specifically, Ecuador stated on the record:

With regard to the Programme of Action of the Cairo International Conference on
Population and Development and in accordance with the provisions of the
Constitution and laws of Ecuador and the norms of international law, the
delegation of Ecuador reaffirms, inter alia, the following principles embodied in
its Constitution: the inviolability of life, the protection of children from the
moment of conception, freedom of conscience and religion, the protection of the
family as the fundamental unit of society, responsible paternity, the right of parents
to bring up their children and the formulation of population and development
plans by the Government in accordance with the principles of respect for
sovereignty.

Id.
216. Id. at 149. The country of Malta joined the consensus with the following written

reservation: "The interpretation given by Malta is consistent with its national legislation, which
considers the termination of pregnancy through induced abortion as illegal." Id.

217. Id. at 140. The delegation of Paraguay made the following oral reservation:
In accordance with the introduction to chapter II of the Programme of Action, the
delegation of Paraguay would like to express the following reservations.
On chapter VII, paragraph 7.2, the right to life is the inherent right of every human
being from conception to natural death. This is stipulated in article 4 of our
national Constitution. Therefore, Paraguay accepts all forms of family planning
with full respect for life, as provided for in our national Constitution, and as an
expression of exercising responsible parenthood.

Id.
218. Id at 142. Argentina introduced the following written reservation into the record of

the Conference:
The Argentine Republic accepts Principle 1 on the understanding that life exists
from the moment of conception and that from that moment every person, being
unique and unreproducible, enjoys the right to life, which is the source of all other
individual rights.

Id.
219. Id at 146-49. After significant turmoil, the Holy See joined the consensus document

and entered general reservations to chapters VII, VIII, X1, XII, XIII, XIV, XV and XVI and the
following specific reservation regarding abortion:

But there are other aspects of the final document which the Holy See cannot
support. Together with so many people around the world, the Holy See affirms
that human life begins at the moment of conception. That life must be defended
and protected. The Holy See can therefore never condone abortion or policies
which favour [sic] abortion. The final document, as opposed to the earlier
documents of the Bucharest and Mexico City Conferences, recognizes abortion as
a dimension of population policy and, indeed of primary health care, even though
it does stress that abortion should not be promoted as means of family planning
and urges nations to find alternatives to abortion. The preamble implies that the

1995]



IND. INT'L & COMP. L REV.

conflicts with their constitutions which protect life from the moment
of conception. Honduras,220 Nicaragua, 221 the Dominican Republic, 222

document does not contain the affirmation of a new internationally recognized
right to abortion.

Id.
220. ld. at 137-38. Honduras introduced the following oral reservation:

The delegation of Honduras in supporting the Programme of Action of the
International Conference on Population and Development bases itself on the
Declaration of the Fifteenth Summit of Central American Presidents, adopted at
Guacimo de Limon, Costa Rica, on 20 August 1994 and bases itself specifically
on the following:
(a) Article 65 of the Constitution of the Republic of Honduras, which provides for
the fact that the right to life is inviolable, and articles Il1 and 112 of the same
Constitution, which state that the State must protect the institution of the family
and maniage and the right of men and women to contract marriages and common
law marriages;

As a consequence of this, one accepts the concepts of "family planning", 'sexual
health', 'reproductive health', 'maternity without risk', 'regulation of fertility',
'reproductive rights' and 'sexual rights' so long as these terms do not include
'abortion' or 'termination of pregnancy,' because Honduras does not accept these
as arbitrary. actions; nor do we accept them as a way of controlling fertility or
regulating the population.

Id.
221. Id. at 139. Nicaragua orally made this reservation:

The Government of Nicaragua, pursuant to its Constitution and its laws, and as a
signatory of the American Convention on Human Rights, confirms that every
person has a right to life, this being a fundamental and inalienable right, and that
this right begins from the very moment of conception.

Second, we accept the concepts of 'family planning,' 'sexual health,' 'reproductive
health,' 'reproductive rights' and sexual rights' expressing an explicit reservation
on these terms and any others when they include 'abortion' or 'termination of
pregnancy' as a component. Abortion and termination of pregnancy can under no
circumstances be regarded as a method of regulating fertility or a means of
population control.

Fourth, Nicaragua accepts therapeutic abortion on the grounds of medical necessity
under our Constitution. Thus, we express an explicit reservation on 'abortions'
and 'termination of pregnancy' in any part of the Programme of Action of this
Conference.

Id.
222. Md at 143. The Dominican Republic set forth its written reservation as follows:

Pursuant to rule 33 of the rules of procedure of the Conference (A/CONF. 17112)
the Dominican Republic joins in the general agreement on the Programme of
Action. However, in accordance with its Constitution and laws and as a signatory
of the American Convention on Human Rights, it fully confirms its belief that
everyone has a fundamental and inalienable right to life an that this right to life
begins at the moment of conception.
Accordingly, it accepts the content of the terms "reproductive health", 'sexual

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

Peru2" and Guatemala 22 accepted the concepts of "family planning," "sexual
health," "reproductive health," "maternity without risk," "regulation of
fertility," "reproductive rights" and "sexual rights" only so long as those terms
did not include "abortion" or "termination of pregnancy." Numerous Islamic
nations, including Yemen,2 the United Arab Emirates 226  and Libyan Arab

health,' 'safe motherhood,' 'reproductive rights,' 'sexual rights' and 'regulation
of fertility' but enters an express reservation on the content of these terms and of
other terms when their meaning includes the concept of abortion or interruption
of pregnancy.

Id.
223. Id. at 150-51. Peru issued a written reservation concerning abortion:

1. The main lines of the Programme of Action will be implemented in Peru under
the Constitution and laws of the Republic and, inter alia, under the international
human rights treaties and the Convention on the Rights of the Child, which have
been duly approved and ratified by Peru.
2. We must mention in this context article 2 of the Constitution, which accords to
everyone the right to life from the moment of conception; abortion is rightly
classified as a crime in the Criminal Code of Peru, with the sole exception of
therapeutic abortion.

4. The Programme of Action contains concepts such as "reproductive health",
"reproductive rights" and "fertility regulation", which in the opinion of the
Peruvian Government require more precise definition, with the total exclusion of
abortion on the ground that it is inconsistent with the right to life.

Id.
224. Id. at 144-45. Guatemala entered the following written, express reservation:

We also enter express reservation on:
(a) Chapter 1I (Principles): we accept this chapter but note that life exists from the
moment of conception and that the right to life is the source of all other rights;

(c) Chapter VII: we enter a reservation on the whole chapter, for the General
Assembly's mandate to the Conference does not extend to the creation or
formulation of rights; this reservation therefore applies to all references in the
document to 'reproductive rights,' 'sexual rights,' 'reproductive health,' 'fertility
regulation,' 'sexual health,' 'individuals,' 'sexual education and services for
minors,' 'abortion in al its forms,' 'distribution of contraceptives' and 'safe
motherhood.'

Id.
225. Id at 141. The representative from Yemen included the following reservation on the

record:
In chapter VIII, we have some observations to make, particularly relating to
paragraph 8.24. Actually, we wanted to delete the words 'sexual activity.' And,
if we cannot delete them, then we wish to express our reservations. In paragraph
8.2 5, concerning 'unsafe abortion,' we find that the definition is unclear and is not
in accordance with our religious beliefs. In Islamic Sharia there are certain clear-
cut provisions on abortion and when it should be undertaken. We object to the
.expression 'unsafe abortion.' We wish to express our reservations on paragraph
8.35, relating to 'responsible sexual behavior.'

Id.
226. Id. at 141. The United Arab Emirates orally introduced this reservation:

The delegation of the United Arab Emirates believes in protecting man and
promoting his welfare and in enhancing his role in the family and in the State and

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IND. INT'L & COMP. L REV.

Jamahiriya, 2" objected to the provision on abortion included in the 1994
Population Report because it contravenes the laws concerning abortion in the
Islamic Sharia.

Finally, the 1994 Population Conference opened with an address by the
Prime Minister of Pakistan calling for "every child conceived" to be loved. Prime
Minister Benazir Bhutto of Pakistan stated, "I dream of a Pakistan, of an Asia,
of a world where every pregnancy is planned, and every child conceived is
nurtured, loved, educated and supported." 228

Plainly, the numerous reservations to the 1994 Population Report
concerning abortion and the explicit language of the Report itself indicate that
nations do not agree on the existence of an international right to abortion.
Although the 179 states attending the 1994 Population Conference reached a
consensus on the 1994 Population Report, this consensus did not extend to the
existence of an international right to abortion. Because the prior international
documents concerning abortion are unclear, the national legislation on abortion
is inconsistent and the consensus reached at the 1994 Population Conference did
not include agreement on the existence of a right to abortion, the right to abortion
is not included within the international customary right to reproductive choice.

B. The Right to Freely Decide the Number and Spacing of Children

However, the international right to reproductive freedom does include the
right to "freely" decide the number and spacing of children. Individuals and
couples have a right to be free from government coercion and government
incentives and disincentives designed to regulate their level of fertility. The 1994
Population Report emphasizes that the right to reproductive choice includes the
"right to make decisions concerning reproduction free of discrimination, coercion
and violence"229 and stresses that "[a]ny form of coercion has no part to play" in
family planning programs. 23

" Nevertheless, as the 1994 Population Report

at the international level. We consider also that man is the central object and the
means for attaining sustainable development. We do not consider abortion as a
means of family planning, and we adhere to the principles of Islamic law also in
matters of inheritance.

Id.
227. Id at 139. The representative from Libyan Arab Jamahiriya made the following oral

reservation: 'I also want to express a reservation on the words 'unwanted pregnancies' in
paragraph 8.25, because our written Constitution does not allow the State to undertake abortions
unless the mother's health is in danger." Id

228. 1994 Population Report, supra note 1, annex II.
229. 1994 Population Report, supra note 1, at 43, para. 7.3.
230. 1994 Population Report, supra note 1, at 46, para. 7.12.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

recognizes, governments have consistently violated the right to reproductive
choice by using coercion and incentives and disincentives.23 '

1. Government Coercion

Government coercion occurs where the state denies "informed free choice"
through legal and/or policy measures.232 Honoring Human Rights defines
coercion to include "forced abortion, sterilization, or contraceptive use; the denial
of safe abortion; and more subtle activities, such as the imposition of
psychological pressure and incentives that compromise voluntary choice." '233 The
most well known example of the use of coercive government policies to regulate
fertility is the People's Republic of China's (China's) "One-Child Policy., 23 4

In 1980, China amended its marriage law and created a duty upon families
to practice family planning.235 This duty was constitutionalized in 1982: "Both
husband and wife have the duty to practice family planning."236 China introduced
its "One-Child Policy" in 1980. The policy outlined the duty of the husband and
wife to practice family planning and required that couples have only one child. 37

At the national level, China officially denies.using coercive measures to
implement its "One-Child Policy."23 Nevertheless, state and provincial laws and
regulations are clearly coercive. In the province of Guangdong,

231. 1994 Population Report, supra note 1, at 46, para. 7.12. "In every society there are
many social and economic incentives and disincentives that affect individual decisions about
child-bearing and family size. Over the past century, many Governments have experimented with
such schemes, including specific incentives and disincentives, in order to lower or raise fertility."
Id.

232. Id. at 46, para. 7.12.
233. Honoring Human Rights, supra note 4, at 100.
234. For ageneral discussion of China's policies, see Mark Savage, The Law of Abortion

in the Union of Soviet Socialist Republics and the People's Republic of China: Women's Rights
in Two Socialist Countries, 40 STAN. L. REv. 1027, 1084-91 (1988) [hereinafter The Law of
Abortion in the U.S.S.R. and China]; Honoring Human Rights, supra note 4, at 98-99; and Case
Studies in Population Policy: China, U.N. ESCOR, POPULATION POLICY PAPER No. 20, at 40-45,
U.N. Doe. ST/ESA/SER.R/88 (1989) [hereinafter China Case Study].

235. Marriage Law of the P.R.C., art. 12 (1980) (adopted on Sept. 10, 1980 by the Third
Session of the Fifth National People's Congress), translated in BEIJING REV., at 24 (Mar. 16,
1981) (unofficial translation) in The law of Abortion in the U.S.S.R. and China, supra note 234,
at 1084. "Husband and wife are duty bound to practice family planning." Id

236. Constitution of the People's Republic of China, art. 49, reprinted in 4 CONsTrruTIONs
OFTHECOUNTRES OFTI-E WORLD: CIrNA 46 (Abert P. Blaustein & Gisbert H. Flanz eds., 1992).
See also 2 LAWS AND REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA 15, 23-24 (official
English translation).

237. The Law of Abortion in the U.S.S.R. and China, supra note 234, at 1084-85.
238. Honoring Human Rights. supra note 4, at 98. In 1990, China's Family Planning

Minister Peng Peiyun was quoted as saying, "In no case is coercion allowed as a means of
implementing [the] family planning policy." In 1992, he said, "It is the firm policy of the Chinese
government to prohibit coercive action in implementing family planning." Id.

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IND. INT' L & COMP. L REV.

a woman of child-bearing age who has given birth to one child must
take the measure to use an intrauterine device, .... a woman who has
given birth to two children must take the sterilization measure,....
[and] a woman who is pregnant beyond the plan must take remedial
measures (i.e. abortion) .... 239

In Hebei Province, if a woman who has already had one-child becomes pregnant,
she must abort the child, and either she or her husband must undergo
sterilization."4 In only a five month period in 1983, the province of Hebei
performed 300,000 abortions.24 Further, a number of provinces use the "double
contracting system," which requires couples to enter into contracts promising not
to have any more children in exchange for certain financial bonuses and awards.
The contract creates a legal obligation enforceable by the judicial system.242

Clearly, these provincial policies adopted to implement the national "One-Child
Policy" force families to limit their number of children. Ultimately, China's
policies violate the right of every couple and individual to freely decide the
number and spacing of their children.

India's policies also violate the right to reproductive choice. In the 1970's,
India permitted state legislatures to enact laws for compulsory sterilization.243

The state of Maharashtra enacted such a law, and police carried out the policy by
rounding up millions of people who were sterilized against their will.2 44

Currently, the most egregious abuses have been curtailed, but sterilization camps
still exist in some areas.245 In Indonesia, soldiers accompany family planning
workers on "safaris" into villages, where workers espouse the virtues of family
planning and implicitly threaten villagers with punishment if they do not accept
the government's form of birth control. Often this results in mass acceptance of
these family planning services.246

239. The Law of Abortion in the U.S.S.R. and China, supra note 234, at 1089 (citing
Guangzhow Guangdong Provincial Service radio broadcast, Apr. 22, 1983 (in Mandarin)),
transcribed and translated in Guangdong Holds Family Planning Work Conference, U.S. JoINT
PdJBLICATIONS REs. SERV. CHINA REP.: POL. Soc. & MrL. AFF., May 26, 1983, at 84 (no. 83553).

240. Id. at 1089.
241. Id (citing Shijiazhuang Hebei Provincial Service radio broadcast, June 15, 1983 (in

Mandarin)), transcribed and translated in Hebei Family Planning Issues Discussed: Success
Noted, U.S. FOREIGN BROADCASr INFO. SERv. DAILY REP.: CHINA, June 27, 1983, at RI (no. 83-
124).

242. Id. at 1088-89.
243. Rudolf Andorka, The Use of Direct Incentives and Disincentives and of Indirect

Social Economic Measures in Fertility Policy and Human Rights, U.N. ESCOR, Population and
Human Rights: Proceedings of the Expert Group Meeting on Population and Human Rights, at
132, 136, U.N. Doe. ST/ESA/SER.R/107 (1989).

244. Honoring Human Rights, supra note 4, at 97-98.
245. Id.
246. Honoring Human Rights, supra note 4, at 99. Of late, the Indonesian government has

supported Norplant as the proper method of birth control. Id.

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

These overt coercive methods of regulating women's fertility clearly violate
the international customary right to reproductive choice. The right includes the
right to freely decide the number and spacing of children. The right is foreclosed
when governments use the legal process to require contraceptive use. The right
to reproductive choice is also violated when governments offer incentives and
impose disincentives on the exercise of the right.

2. Incentives and Disincentives

Numerous governments throughout the world offer financial incentives and
disincentives to individuals and couples to encourage them to have fewer
children. In many countries, particularly developing countries, where families are
poor, these financial incentives and disincentives remove the choice of whether
to bear more children from the individual and couple. Whether to bear more
children becomes an economic decision based heavily upon the offer of incentives
or the imposition of disincentives.

Financial incentives and disincentives "encourage" families throughout the
world to reduce fertility. In China, mothers who have received a "one-child
certificate" receive a longer maternity leave with full pay, and children of one-
child families receive priority in medical treatment and admission to nurseries and
schools.U7 Furthernmre, only those families with one child are eligible for health
fee subsidies from the government.248 In the Shanxi Province, a family loses
twenty percent of its annual income for the birth of a second child and thirty
percent of its annual income for a third child.2"9 In 1985, Kenyan leader Daniel
Arap Moi warned that families who had more than four children would lose
certain social benefits.25 South Korea offers housing loan preferences and free
medical care for young children to two-child families who have been sterilized?. 2'

These financial incentives and disincentives coupled with the economic
reality of life in a developing country foreclose an individual and couple's
decision of whether to have more children. "For people who are desperately poor,
there is no such thing as free choice ... [t]hus in practice incentives often have
more to do with coercion than with choice. ' '"1 2 Financial incentives and
disincentives remove free choice from individuals and couples and violate their
international right to reproductive choice.

247. China Case Study, supra note 234, at 44.
248. Id
249. The Law ofAbortion in the U.S.S.R. and China, supra note 234 at 1086-87.
250. MoFFElr, supra note 11, at 191.
251. Id
252. MoFFET, supra note 11, at 191-92.

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IND. INT'L & COMP. L REV.

IV. CONCLUSION

Currently, the world's population is growing at a rapid rate. In the past
twenty years, efforts have reduced the fertility rate throughout the world to just
under four children per couple. Nevertheless, replacement level of 2.1 children
per couple must be reached to achieve sustainable development.

The limits to growth view asserts that the earth has a certain carrying
capacity that may be reached and exceeded if population growth is not curtailed.
On the other hand, the revisionist view contends that the scarcity of natural
resources will create new technological innovations that will prevent an increase
in population from breaching the earth's carrying capacity. Past evidence
supports both positions. Nevertheless, current trends indicate a decline in the per
capita availability of natural resources.

Although both views have influenced world population policies, the limits
to growth position is dominant. Currently, the limits to growth viewpoint
advocating sustainable development affects world population policies. Thus, any
review of international human rights in population policies necessarily must be
completed within the context of the debate over environmental degradation and
population.

International and national population policies have developed into an
international customary right to reproductive choice. To develop into customary
law, a principle must be a general and consistent practice followed by states from
a sense of legal obligation. International documents and national legislation
evidence customary law.

The right to reproductive choice derives from various international treaties
and non-binding resolutions and from the various laws of nations. Over the past
thirty years, numerous international documents have recognized the right to
reproductive choice. Most recently, 179 nations joined in consensus at the 1994
Population Conference to recognize this right. Furthermore, every country in the
world, save seven, through national legislation, supports the right to reproductive
choice. With such universal support, the right to reproductive choice has
developed into an international customary right.

The scope of the customary right to reproductive choice necessarily
encompasses two primary rights: the right to the information, education and
means to determine the number and spacing of children and the right to do so
freely.

The right to information, education and means to exercise the right to
reproductive choice includes the right to information about and access to
contraceptives, the right to education, the right to be free from discrimination and
violence and the right to reproductive health services. This right does not include
the right to abortion. Abortion is not consistently accepted within international
documents and is not universally guaranteed in national legislation.

The second right embodied in the right to reproductive choice is the right
to decide "freely" the number and spacing of children. This includes the right to

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CUSTOMARY RIGHT TO REPRODUCTIVE CHOICE

be free from governmental coercion, including overt coercion, incentives and
disincentives, when exercising the right to reproductive choice.

With the adoption of the 1994 Population Report at the 1994 U.N.
International Population and Development Conference, the right to reproductive
choice has developed into customary international law. As a principle of
customary international law, every state in the international arena is bound to
respect the human rights of all couples and individuals to decide freely and
responsibly the number and spacing of their children and to have the information
and means to do so.

Jill M. Bracken*

* J.D., May 1995, Indiana University School of Law-Indianapolis.

19951