"Discrimination Against Women and its Implication for Women's Capacity for Self-Determination in the Areas of Reproductive and Sexual Health"

Shanthi Dairiam, IWRAW Asia Pacific

Presented at the meeting on the
Application of Human Rights to Reproductive and Sexual Health
(Glen Cove+5)
25-27 June 2001, Palais Wilson, Geneva
Organised by UNFPA and the Office of the High Commissioner for Human Rights

I wish to make a case for a holistic approach to women's reproductive and sexual health, the desired outcome of which is reproductive and sexual autonomy for women and the capacity of women to exercise such autonomy. My argument is that reproductive and sexual rights encompass not only economic social and cultural rights but more importantly also civil and political rights. The provision of the highest standard of health services has no effect, if women are not in a position to make reproductive and sexual behaviour choices that is in their interest.

Take the case of a young woman in rural Bangladesh who had recently given birth at home.[1] When the community health worker visited her on the second day of delivery, she found that she was bleeding profusely. She advised that it was urgent that she be admitted in the hospital immediately as the severity of the post partum bleeding she was experiencing was life threatening. Her mother-in-law stated that she would not allow the woman to go to the hospital without the permission of her son who was nowhere to be found. Apparently he had gone away to some neighbouring village a day or so ago for some purpose. No one knew where he was, why he had gone and when he would return. The health worker urged the young woman not to wait for her husband to return as she might die. She offered to take her to the hospital immediately. The woman refused. She was not willing to leave the house without the permission of her husband and mother-in-law. No amount of urging by the health worker would make her change her mind.

What is the situation here? Appropriate services were available, and even access was possible through the services of community-based health workers who provided the link with the hospital services. But the woman could not exercise her right to make a decision to save her life by going to the hospital. Her right to life was at risk and she had no right to self-determination, both of which are critical civil and political rights.

We need to look at the conditions that would give women the right and the capability to decide and choose freely. This does not mean merely being able to choose between one contraceptive over another or to have access to reproductive services, but the right to make choices about one's life and relationships. It implies bodily integrity, personhood and autonomy. "Bodily integrity for women in the area of reproductive rights means the exercise of affirmative rights to enjoy the full potential of one's body for health, procreation and sexuality in a state of complete physical and mental well being."[2] This concept needs legitimising. For women, the principle of bodily integrity can make the difference between life and death in situations when we face the unprecedented crisis in the form of the HIV/AIDS pandemic or ethnic cleansing.[3]

Personhood is the legal and social capacity to exercise the right to bodily integrity. It involves a commitment to developing women's capacity for decision-making and creating the means for self-determination. And for this women need power and resources. This is a project in which many actors in the public and private sphere have a role to play including, the State, donors, treaty bodies etc. The positive outcomes of women being able to exercise the right to bodily integrity and the right to personhood are that women can act and take responsibility for their actions, women's decisions are respected, equality is a primary value and motherhood is an option and not an imperative. This also means developing the agency of women as a group and as individuals to negotiate the terms of their personal relationships and in the creation of socio-economic conditions that will facilitate such negotiations.

We need to examine where women as a category are positioned at any given point to understand the complexities of the task required. We live in a world where discrimination against women, intended and unintended is socially and structurally constructed, linked and reinforced by a range of actors and institutions, constantly strengthening power structures that deny women autonomy.

Often, as health service providers and or even as social activists, we reduce the way people live their lives (male or female) to the simple dimensions of individual choices and behaviours that we assume can be brought about through programmatic interventions such as education and counselling. While not denying the benefits of such interventions, it would be naïve on our parts if we did not consider the underlying structures that compel women to make certain choices even if it meant that such choices were detrimental to their physical, emotional and mental well being. Some of these choices relate to whom and when to marry, "consent" to having sex, become pregnant, make decisions as to when to have children and as to how many, continue in an abusive relationship, take up employment, give up employment, accept promotions, transfers etc. Alicia Ely Yamin[4] points out that the so called voluntary choices that women make mask the underlying social factors that may deny women "self efficacy." This avoids challenging the underlying social and political structures that systematically undermine women's capacity for self-determination. Yamin goes on to argue that a focus on individual behaviour turns attention away from the power that men have to set the terms of their behaviour within personal relationships empowered by social and political structures outside of that relationship.

We therefore also need to consider men's ability to exercise freedoms and make choices that often seem so rational and in their best interests or their ability to exercise freedoms that speak of privilege and power. While considering the subordination of women we also have to look at the sources of male power and their ability to set the terms of their sexual behaviour. We cannot then dismiss the fact that both men's and women's sexual and reproductive behaviour is mediated by their social, cultural and economic status or positioning. A distinction needs to be made between one's condition and position. Women can enjoy good conditions such as good health, nutritional levels, good education and income without having a good position. This means not having equality before the law, a lack of ability to make decisions for themselves or to have control over their lives and a lack of social legitimacy to enjoy equal status. We need to engage with discrimination that reduces women's social positioning and consequently their negotiating power.

It is significant that the CEDAW Convention focuses on discrimination although its vision is equality between women and men because it recognises that women's inequality is created by discrimination. This is a powerful concept and creates discomfort. It implies that deliberate action and processes have contributed to inequality. People prefer to speak of disadvantage and not discrimination because that makes them less guilty and liable. But the very title of the CEDAW Convention is confrontational in this sense and does not hide the truth behind euphemisms.

What are the processes that have resulted in discrimination and against women? The theory of the social construction of discrimination is based on the premise that the basis of discrimination against women is social rules and norms that come in the form of culture and tradition.[5] These rules and norms are socially legitimised and institutions such as the family, the market, community and the state combine their practice creating, linking and reinforcing discrimination against women through the allocation of responsibilities, roles, resources, privileges and rights on the basis of the legitimacy of social rules and norms.

Culture and tradition that allocate differential roles, identities and power to women and men need to be addressed. Such cultural stereotyping has material consequences that reduce women's capacities but is seen as legitimate and presented as complementary. If we examine discriminatory laws around the world, we can clearly identify the underpinning social norm. For example, in Nepal if a woman loses a limb or an eye due to an accident or disease during the course of her marriage, then it becomes one of the grounds for divorce made available to her husband. The same ground is not provided to a woman. The implication is that the role of a wife is to cater to the physical needs of her husband for which she needs to be physically able. There is no such requirement made on the husband. Gender is everywhere and gender does not merely mean men and women. Gender takes the form of an ideology that determines:[7]

For women the ideology of gender also determines the nature and extent of:

Culture, tradition and religious values that reinforce stereotypes and gendered hierarchies need to be eliminated. Article 5 of the CEDAW Convention, which places an obligation on the state to eliminate cultural practices that are premised on the inferiority of women, can be a powerful tool for women. But this is a much reserved article.

The State and all its institutions and agents as well as the private sector are gendered to such an extent that it is uneconomical to do things differently. Resistance to change will come from every possible quarter because all institutional practices are linked. There is no linear relationship for women with the State. We have to negotiate our rights with the State in connection with the power structures all the institutions, the family, the community, and the market. Even where the State can be persuaded to reform the law or policies in favour of women or where the law or policy is apparently neutral, the outcome can still disadvantage women because it can get subverted by the power structures.

The politics of policy formulation and implementation poses interesting questions. Layers of actors are involved in this process and the question of the legitimacy and security of all these actors come into play through the dynamics of the processes of implementation. The policy itself can be subverted, adapted or accommodated through a top down as well as a bottom up process at each step of the enforcement or implementation. This can have unforeseen adverse consequences.

Caught in the web of discriminatory socio-economic political and legal structures, how do women negotiate their behaviours and choices? Amartya Sen[9] points out that women live in a constant state of "cooperative conflicts" especially in the context of their personal lives. Sen talks about certain factors that influence women's capacity to negotiate. He states that women collude with their oppressors in their personal relationship if the break down position of resistance to the oppression leaves them economically, legally and socially worse off than if they continued in the relationship. In other words, if they are in a state of dependence on the men, a position that is legally socially and culturally enforced, then women's bargaining position is weak and they will "choose" to cooperate with the oppression.

In the area of reproductive and sexual rights, a prime example is non-consensual sex within marriage, which can be classified as marital rape. How many women can negotiate sex within marriage from a position of strength? The question is whether the law and women's ability to exercise their rights in other spheres has positioned them for a more respectful and mutual sexual relationship. In many jurisdictions, women do not have the legal right to refuse sex to their husbands. This is the consequence of the legitimacy of a social norm that gives men the right of access to the bodies of their wives on their terms. The State colludes with this situation as it claims to practise a policy of non-interference in the private sphere. This is evidenced by the non-recognition of marital rape in many jurisdictions and the retention of the principle of restitution of conjugal rights in the law. The implication of the State's policy of non-interference that denies women's sexual and autonomy through law is that, it leaves women to negotiate this right with men on a person to person basis. Often women have to conduct such negotiations from a position of weakness because of the lack of rights in other areas. In many countries, the State has not fulfilled its obligation to ensure de facto rights for women in the area of education and training. The lack of social policy on child-care or measures for combining family responsibility with child upbringing like career breaks or flexible working hours prohibits many women from working. Hence their skills atrophy after marriage. Further, women are seen as secondary wage earners and their income levels and opportunities for career mobility are lower than that of men. In some countries, inheritance laws and laws that regulate the distribution of property are discriminatory. Women cannot take strong positions in their negotiations because they cannot take the risk of a breakdown in the marriage. Women who take this risk must confront the possibility that their standard of life will invariably drop. Women even have fears of losing their children as laws in many countries only recognise fathers as guardians. By entrenching women's inferior position in many spheres, the State in fact has gone all out to reduce women's power in personal and marital relationships.[10]

While reproductive and sexual health services programmes will be primarily concerned with a set of core rights to good health such as the availability, accessibility and acceptability of the services from a woman's perspective, there is a compelling need to include advocacy for the prohibition of discrimination and the promotion of all rights for women as a critical component of the programme.

Conclusion

Seeing women as the bearer of rights, the foremost of which is the right to non-discrimination, enables us to see health not merely in biological terms or in terms of individual behaviour but one that is contingent on the outcome of power relations. The role of culture, tradition and religious values in legitimising the power structures that disadvantage women also need to be addressed.

If women's reproductive health is a matter of rights, then it is critical to take into consideration the fact that there are structural causes to women's poor health that prevent their enjoyment of health rights such as pervasive discrimination and disempowerment, including the exclusion of women from the structures of power. Then the right to health becomes a political issue and not merely a development issue. We need to show how differentials in status, power and the lack of human rights result in measurable effects on women's poor health. This will also help us to establish the fact that we cannot de link the public and the private.[11]

We cannot divide socio-economic and political rights. We cannot divide the obligation of the State to respect the rights of women from their obligation to protect their rights and regulate the actions of all private actors. Many of the abuses of power that directly affect women are committed within the family. In this regard the CEDAW Convention is the one instrument that tries to safeguard the rights of women holistically. Above all we need to ensure that all our interventions accomplish the goal of facilitating the agency of women and building their capacity to negotiate change at the personal and public levels. All treaty bodies have their role to play in this agenda.

Endnotes
[1] I came to know of this situation on a visit to Bangladesh in 1992 to conduct training for development workers on gender-responsive programming.
[2] For a useful elaboration on the principles of bodily integrity and personhood, see Sonia Correa and Rosalind Petchesky. 1994. "Reproductive and Sexual Rights in Feminist Perspective" in Population Policy Reconsidered: Health Development and Human Rights. Eds G. Sen, A. Germaine and L. Chen. Harvard University Press.
[3] Correa and Petchesky. ibid.
[4] Yamin Alicia Ely. 1997. "Transformative Combinations: Women's Health and Human Rights", in Journal of American Medical Women's Association (JAMWA) Vol.52, No.4.
[5] The discussion on the social construction of discrimination is taken from IWRAW Asia Pacific. 2001 "Institutions and Inequality", in Training on the Convention on the Elimination of All Forms of Discrimination against Women. (Forthcoming). This discussion borrows heavily from Naila Kabeer's discourse on institutions and inequality found in Reversed Realities: Gender Hierarchies in Development Thought. 1995. Verso.
[6] IWRAW Asia Pacific. "Institutions and Inequality" in ibid.
[7] IWRAW Asia Pacific. 2001. "The Social Construction of Gender" in Training on the Convention on the Elimination of All Forms of Discrimination against Women. (Forthcoming).
[8] See Susan Greenhalgh and Jiali Li. 1993. "Engendering Reproductive Practice in Peasant China: The Political Roots of the Rising Sex Ratio at Birth". The Population Council. Working Papers No: 57.
[9] Sen, Amartya,. "Cooperative Conflicts" in Persistent Inequality.
[10] The discussion on reproductive rights is taken from a piece written by IWRAW Asia Pacific for a Regional Dialogue between women's rights activists and human rights organisations, organised by IWRAW Asia Pacific in Manila in 1996.
[11] Yamin, op. cit.