E/C.12/GC/22
38.
Retrogressive measures should be avoided and, if such measures are applied, the
State party has the burden of proving their necessity. 30 This applies equally in the context
of sexual and reproductive health. Examples of retrogressive measures include the removal
of sexual and reproductive health medications from national drug registries; laws or
policies revoking public health funding for sexual and reproductive health services;
imposition of barriers to information, goods and services relating to sexual and reproductive
health; enacting laws criminalizing certain sexual and reproductive health conduct and
decisions; and legal and policy changes that reduce oversight by States of the obligation of
private actors to respect the right of individuals to access sexual and reproductive health
services. In the extreme circumstances under which retrogressive measures may be
inevitable, States must ensure that such measures are only temporary, do not
disproportionately affect disadvantaged and marginalized individuals and groups, and are
not applied in an otherwise discriminatory manner.
B.
Specific legal obligations
39.
States parties have an obligation to respect, protect and fulfil the right of everyone to
sexual and reproductive health.
Obligation to respect
40.
The obligation to respect requires States to refrain from directly or indirectly
interfering with the exercise by individuals of the right to sexual and reproductive health.
States must not limit or deny anyone access to sexual and reproductive health, including
through laws criminalizing sexual and reproductive health services and information, while
confidentiality of health data should be maintained. States must reform laws that impede
the exercise of the right to sexual and reproductive health. Examples include laws
criminalizing abortion, non-disclosure of HIV status, exposure to and transmission of HIV,
consensual sexual activities between adults, and transgender identity or expression. 31
41.
The obligation to respect also requires States to repeal, and refrain from enacting,
laws and policies that create barriers in access to sexual and reproductive health services.
This includes third-party authorization requirements, such as parental, spousal and judicial
authorization requirements for access to sexual and reproductive health services and
information, including for abortion and contraception; biased counselling and mandatory
waiting periods for divorce, remarriage or access to abortion services; mandatory HIV
testing; and the exclusion of particular sexual and reproductive health services from public
funding or foreign assistance funds. The dissemination of misinformation and the
imposition of restrictions on the right of individuals to access information about sexual and
reproductive health also violates the duty to respect human rights. National and donor
States must refrain from censoring, withholding, misrepresenting or criminalizing the
provision of information on sexual and reproductive health, 32 both to the public and to
30
See Committee on Economic, Social and Cultural Rights general comment No. 14, para. 32.
See e.g. E/C.12/1/Add.105 and Corr.1, para. 53; Committee on the Elimination of
Discrimination against Women general recommendation No. 24, paras. 24 and 31 (c);
A/66/254; and A/HRC/14/20.
32
Committee on Economic, Social and Cultural Rights general comment No. 14; and Committee
on the Rights of the Child general comment No. 4 (2003) on adolescent health and
development in the context of the Convention on the Rights of the Child.
31
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