Ackowledging Sexual and Reproductive Rights in Latin American Constitutions

The recognition of sexual and reproductive rights of women is usually a controversial matter in Latin American Parliaments and Constitutional Courts. It is often argued by conservative parties and right wing movements that the "so called sexual and reproductive rights" do not exist as long as there is no mention of such rights in the Constitutions.

Indeed, only Ecuador has explicitly included these rights in its Constitutional text. The women's movement played a key role and managed to include sexual and reproductive rights in Ecuador's 1998 Constitution after a remarkably hard-fought campaign, a significant milestone in Latin America. That is why, despite the fact that this country is currently working on a new Constitution, the draft still includes an explicit recognition of sexual and reproductive rights.

In the case of Bolivia, a Constituent Assembly, made up of 34% of women, almost half of whom are indigenous women, drafted a new Constitution that will be voted on in a referendum later this year and that specifically "guarantees women and men the exercise of their sexual and reproductive rights."

And at a provincial level, it is important to mention the Constitution of the City of Buenos Aires, whose text acknowledges "sexual and reproductive rights" as basic human rights.

For other Latin American countries such as Brazil, Mexico, Colombia, Peru and Paraguay, reproductive and/or sexual rights are recognized in their Constitutional texts (although they are not literally stated) by acknowledging the range of rights that inform them, i.e. the right of every person to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so.

However, in regards to Ecuador and Bolivia, it is interesting to consider what would happen if those countries' new Constitutions were to omit the expression "sexual and reproductive rights" from their text, as is the case in most Latin American Constitutions. Would that mean that sexual and reproductive rights would no longer be considered constitutional rights? Many argue that it is not essential that constitutional texts literally include the term "sexual and reproductive rights" since these can be interpreted from the fundamental rights already stated in Constitutions.

Others argue that it is necessary to include "sexual and reproductive rights" in the constitutional texts, in part in order to end the debate with conservative parties and movements, but also to strengthen the development and implementation of public policy regarding sexual and reproductive rights issues and to protect these rights from internal struggles within political parties or changes of the administration in power.

Some Constitutional Courts -- like the Courts in Colombia and Peru -- have dealt with cases regarding sexual and reproductive rights where they have had to interpret their constitutional texts: the decriminalization of abortion in Colombia and the free delivery of emergency contraception in Peru. In the first case, the Colombian Court's decision decriminalized the voluntary termination of the pregnancy based on the violation of women's rights to life and dignity for being forced to have an abortion in unsafe conditions. In the second case the Peruvian Constitutional Court decided that the Health Ministry failed to comply with a regulation that obliged it to freely deliver emergency contraception and ordered that it started right away.

There is no doubt that both decisions do tacitly guarantee and recognize the legitimacy of sexual and reproductive rights even though they are not quoted in Constitutional texts, but neither of them dares to explicitly mention these rights as the rights being ultimately protected by these decisions. It seems to me that despite the amount of international human rights treaties and bodies that promote and defend sexual and reproductive rights (to which Latin American countries are State parties), the Courts will keep on not alluding to them unless they explicitly see them stated on their constitutional texts.

It is important then, that although sexual and reproductive rights do not need to be literally recognized to be protected and guaranteed, Ecuador's new Constitution does not take a backward step on this matter, and fully guarantees the protection of sexual and reproductive rights. Likewise, Bolivia should take a further step and specifically recognize sexual and reproductive rights at a constitutional level and not as part of other fundamental rights already recognized, so that these rights are well noticed and more easily exercised.