Law and Policy

Gender mainstreaming at the International Criminal Court (ICC)

The ICC is the world's first permanent international tribunal for genocide, war crimes and crimes against humanity. The Women's Caucus for Gender Justice (WCGJ), which was set up to advocate a gender perspective for the ICC, is closing down as its aims have been achieved. The mainstreaming of gender into the ICC's remit is a major achievement by and for women worldwide. Among the ICC's mandates is the requirement to appoint advisors with legal expertise on sexual and gender violence, and a fair representation of women and men in the selection process for judges, prosecutors and other staff. The explicit inclusion of rape as a war crime and as a crime against humanity is considered a particular triumph of WCGJ advocacy. In February 2003, seven of the 18 elected ICC judges were women. Following the WCGJ, the Women's Initiative for Gender Justice has been created to ensure the implementation of international legislation.¹

1.	Women's Caucus for Gender Justice closes as International Criminal Court opens. We! 2003;31:4. At: 〈www.isiswomen.org〉.

Religion and UN human rights policy

Unlike any other religion, the Holy See is a permanent observer at the UN, allowed to attend and speak at conferences. Although it is not a full voting member, its presence puts pressure on the Catholic countries represented there, particularly on matters relating to abortion, birth control and sexuality.¹ As Catholics for a Free Choice and others have done before them, the Gay and Lesbian Humanist Association has called for it to lose its privileged status, following the recent publication of the Vatican's document on sexuality.² This document reaffirms the Vatican's opposition to the use of condoms for protection against HIV, and maintains its intransigent stance against homosexuality.

The Vatican is not alone in its anti-homosexual stance. A draft resolution by Brazil aimed at enshrining the protection of human rights regardless of sexual orientation into UN human rights documentation has been delayed. The resolution calls upon all states to “promote and protect the human rights of all persons regardless of their sexual orientation” and states that the UN must “pay due attention to the phenomenon of violations of human rights on the grounds of sexual orientation”. Amendments and procedural tactics by Egypt, Libya, Malaysia, Pakistan and Saudi Arabia—resulted in the chairwoman, Libya's Najat El Mehdi Al-Hajjaji, proposing to delay debate of the resolution until 2004. The proposal for delay was supported by Argentina, China and India, and opposed by Brazil and most European countries. Ireland and many Latin American countries abstained, despite earlier indications of unconditional support for the proposition. Human rights organisations have suggested that Al-Hajjaji did not act with the impartiality expected of a chairwoman of the Human Rights Commission.³

1.	Associated Press Worldstream. 24 November 2002.
2.	Gay and Lesbian Humanist Association. “Irresponsible” Vatican must lose UN status. News release, 1 April 2003. At: 〈www.galha.org/press/2003/04_01.html〉.
3.	Capdevila G. UN rights: Vatican, Muslim states oppose rights for gays. Inter Press Service, 25 April 2003.

African Union supports reproductive health rights for African women

In July 2003, the African Union adopted the Protocol on the Rights of Women in Africa, a supplementary protocol to the 1981 African Charter on Human and Peoples' Rights. It supports a wide range of measures on equality, including an end to violence against women, appropriate measures to prevent the exploitation of women, an endorsement of affirmative action to bring about equal representation of women in elected offices and the judiciary, the right to equal pay for equal work and the right to adequate and paid maternity leave in all sectors. For the first time in international law, it explicitly states that women have the right to an abortion when pregnancy results from rape or incest or when the continuation of the pregnancy endangers the health or life of the woman. It also calls for the legal prohibition of female genital mutilation.¹

1.	African Union adopts Protocol on the Rights of African Women. Press release. Equality Now, 14 July 2003. At: 〈[email protected]〉.

Changing tradition of female genital mutilation (FGM) across Africa

Female genital mutilation is still widely practised across Africa, even in those few countries where it has been made illegal. But debate on the once taboo subject is gradually opening up and reductions in the practice are occurring. One method of encouraging this change is by education—not telling people to stop, but highlighting the considerable health risks and human rights issues involved and allowing communities to come to their own decisions. This approach has resulted in 708 villages in Senegal publicly declaring their abandonment of FGM. Other alternatives are promoting the idea of female rites of passage that do not involve excision, correcting misinformation that FGM is essential for the successful delivery of a baby, and attempting to increase the status of girls who have not undergone the procedure.¹

1.	Ben-Ari N. Villagers join campaigns against female genital mutilation. Women's Global Network for Reproductive Rights Newsletter 2003;78(1):28–29.

Sexual abuse, sexual violence and abductions of women and children in Pakistan

Madadgar, Pakistan's first child helpline and protection service run by Lawyers for Human Rights and Legal Aid, has collated data on abuse of women and children in Pakistan from research and newspaper reports. The data show that in 2002, 573 children were murdered, 337 girls and 296 boys were raped, 258 children were injured and 776 children were reported missing, mostly abducted.¹ Of the 776 missing children, girls were the most likely to go missing, possibly being abducted from busy places such as parks; only 98 were recovered or traced. Other sources² suggest that child abductions number nearer 4,000 each year. Madadgar also found that in 2002, 1,406 women were murdered, 920 women were raped, and there were 848 honour killings, 1,887 cases of abduction and 1,420 cases of injuries in women. All these figures show a rise from the previous year.^1,2

1.	Karachi News. At: 〈http://www.jang.com.pk/thenews/may2003-daily/24-05-2003/metro/k11.htm〉 24 May 2003.
2.	Pakistan Friday Times. At: 〈http://www.thefridaytimes.com/inews26.htm〉 14 March 2003.

China restricts sex-selective abortion

In China, where boys are still often more welcome than girls and where limits on child numbers are officially sanctioned, sex determination tests during pregnancy are leading to the abortion of female fetuses. In an attempt to stop this practice, the Chinese government has issued a regulation banning abortions carried out after sex determination tests except with the approval of a health department. Only key, named hospitals and family planning departments will be permitted to perform such tests with abortion, and the reasons for sex determination must be documented. Breaching these new regulations will be a punishable offence.¹

1.	Asia Africa Intelligence Wire. China bans sex-selection abortion. Financial Times. 21 March 2003.

Legal ruling supports medical abortion in New Zealand

Abortion in New Zealand must be if carried out at a licensed clinic. Until recently, it has been uncertain how this law applied to women opting for medical abortion. The matter has now been clarified in the New Zealand high court, which ruled that women using early medical abortion do not have to stay in the clinic until abortion occurs. This ruling makes it likely that more clinics will offer women the option of medical abortion.¹

1.	Anti-abortion group disappointed at ruling on drug. At: 〈www.stuff.co.nz/inl.print.0,1478,2399263a10,00.html〉. Accessed 12 April 2003.

Incorporating medical abortion into US abortion services

Abortion has become one of the most divisive social issues in US society. Although legal since 1973, abortion services have remained marginalised from mainstream health services. Training in doing abortions in hospital residency programmes is inadequate, there is a shortage of abortion providers and most abortions take place in freestanding clinics. It is against this background that the abortion pill, mifepristone, finally received FDA approval in 2000. Before that no US drug company was prepared to manufacture it for fear of threats to staff safety and a product boycott by the anti-abortion lobby. Although now approved, a range of special circumstances and conditions have meant that mifepristone is being treated differently from most other drugs. A new company, Danco, was set up for its manufacture, with its location kept secret; stringent conditions were associated with FDA approval, including a detailed protocol, the signing of a “provider's agreement” by physicians, a “patient agreement” of the kind usually reserved for dangerous drugs such as thalidomide, and a requirement to report all adverse events and outcomes to the manufacturer.

The challenge now is to incorporate the use of mifepristone into mainstream medicine, but the politics of abortion is also slowing down this process. Marketing to physicians in the USA is usually carried out via sales representatives, free samples, direct mail, advertising, sponsorship programmes and demonstration of cost-effectiveness and cost–benefits to the health system. Being set up solely for the manufacture and distribution of mifepristone, however, Danco does not have the resources for normal marketing procedures. Additionally, physicians would be unable to dispense samples without signing the provider's agreement. Advertising could be deemed as advertising abortion per se and might be challenged in the courts.

The level of control exerted by the FDA has also made for complications. The protocol and doses set by them are by now considered excessive, yet as these are stipulated in the patient agreement, physicians are in an uncertain legal position if they give the more acceptable lower dosage and more user-friendly regimens. Providers must purchase the drug directly from the manufacturer as it is not available in pharmacies, placing an extra burden on new providers and making it difficult for health services that centralise purchasing. The recommendation (but not requirement) that ultrasound be used for dating early pregnancies may also put off potential providers, along with fears of high insurance premiums and malpractice suits that are affecting all gynaecological services.

The normal challenges of getting a new drug accepted, combined with the excessive scrutiny imposed, will make it more difficult for medical abortion to enter mainstream practice easily in the USA, despite its acceptability and advantages. However, increasing numbers of women are using medical abortion.¹ For example, 73 Planned Parenthood affiliates nationally are providing medical abortion at 172 sites and the numbers of women using this method in their clinics alone doubled from 2001 to 2002, forming 20% of first trimester patients in a third of their clinics.² In the first 18 months since mifepristone was approved by the Food and Drug Administration (FDA) for use with misoprostol for early medical abortion, approximately 80,000 women used the method, with a very high level of safety and acceptability.³ However, an 18 year-old recently died in the US after undergoing a mifepristone-misoprostol abortion. As we go to press, the exact cause of her death is still under investigation. inevitably, given abortion politics in the US, this extremely rare occurrence has generated considerable controversy.⁴

1.	Joffe C, Weitz TA. Normalizing the exceptional: incorporating the “abortion pill” into mainstream medicine. Social Science and Medicine 2003;56:2353–66.
2.	Amazing year two of mifepristone medical abortion. Mife Matters. No.7, Spring 2003.
3.	Hausknecht R. Mifepristone and misoprostol for early medical abortion: 18 months experience in the United States. Contraception 2003;67(6)463–65.
4.	Kolata G. New death sparks fight on drug for abortions. New York Times, 24 September 2003.

Facts don't deter US anti-abortionists

In a blatant attempt to intimidate women in Texas, USA who are seeking an abortion, a law has been passed requiring that the initial consultation is followed by a 24-hour “reflection period” before the procedure can be performed. During this time, women must be shown photographs of fetuses, offered adoption advice and warned that having an abortion will increase their risk of developing breast cancer. Earlier this year the National Cancer Institute, the official US government cancer agency, concluded after consultation with 100 experts that abortion “does not increase a woman's subsequent risk of developing breast cancer”. However, Texas is now the third US state, along with Mississippi and Minnesota, to offer this false information and the 29th to introduce counselling requirements. The Texas law also requires abortions taking place after 16 weeks of pregnancy to be performed in special centres. Supporters of the bill say that this is for safety reasons while opponents say it will quadruple the cost of such abortions. It is already difficult for women to have an abortion in Texas, where the service is available in only 15 of the state's 254 counties.¹

1.	Campbell D. Texas abortion law under fire for ignoring science. Guardian (UK). 23 May 2003.

Recruitment of midwives across national borders

It is becoming increasingly common for health workers to migrate to other countries in response to international recruitment drives. Midwives too are being recruited. In discussions about the problems arising from these practices, the International Confederation of Midwives (ICM) stated at their April 2002 International Council that “the international recruitment of midwives must not be carried out in a fashion that is against the interests of another country, where the impact will prove detrimental to the welfare of women and their newborns”. This statement is intended to strike a balance between support for the right of individual midwives to emigrate, with concern that developing countries targeted for recruitment will suffer from losing their trained health workers. The ICM conference also stated that where midwives are recruited from one country to another, they should be protected from exploitation and have access to safe and equitable working conditions.¹

1.	Meeting of the ICM's International Council. International news. Midwifery 2002;18:173.

Representation of midwives in an expanding European Union

The main purpose of the European Union (EU) is to allow free movement of people, goods and services between its members. For regulated professions this means that individuals should be able to register and practice in all member states. To this end, seven health professions currently have Advisory Committees that deal with the maintenance of appropriate standards under the relevant European directives. However, the Advisory Committees were originally set up to deal with nine member states using six languages. As the EU expands to include more countries and begin using many more languages, the decision-making process by such committees becomes cumbersome, financially prohibitive and less likely to achieve unanimous decisions. In anticipation of these problems, there are many changes occurring in the EU legislative process, including the setting up of a single General Directive for the recognition of professional qualifications covering all seven professions. The Directive includes many aspects of the sectoral directives currently in use, but with some highly controversial differences. Among these is the lack of mention of any Advisory Committees. For a small profession such as midwifery, the loss of direct representation and the capacity to set up an effective lobby in Brussels could become a serious problem. There also appears to be no designated role for the Association of European Midwives, who were instrumental in the formulation of the sectoral European Directives on the training and practice of midwives, though the Association does have a voice in the EU through participation in the EU Health Forum and the Health Professions Forum. However, no body has been given the remit to audit midwifery education and practice across the EU, in particular in the countries that are about to become members. Without serious attention to standardising midwifery training and practice, standards in midwifery throughout the EU could be adverseley affected.¹

1.	Mead M. Midwifery and the enlarged European Union. Midwifery 2003;19:82–86.

Drug companies seek to counter negative results of hormone replacement therapy studies

With information coming out about adverse effects of hormone replacement therapy (HRT), drug companies appear to be using suspect methods to negate the bad press and its negative effects on sales. Wyeth, for example, secretly briefed a number of medical societies prior to the publication of a study that showed an increased risk of dementia and mild cognitive impairment in post-menopausal women using their combined oestrogen–progestogen pill.¹ It is not normal policy to reveal such information prior to publication, and it has been suggested that the revelations were an attempt to play down the significance of the findings.² In a separate incident, Schering admitted there had been a “misunderstanding” after they distributed a fax supporting HRT to several thousand German gynaecologists, supposedly from the head of the hormone commission of the German medical association (Berufsverband), which suggested that the US studies were of “highly limited relevance” to the German population.³

1.	Shumaker SA, Legault C, Rapp SR, et al. Estrogen plus progestin and the incidence of dementia and mild cognitive impairment in postmenopausal women. JAMA 2003;289:2651–62.
2.	Moynihan R. Drug company secretly briefed medical societies on HRT. BMJ 2003;326;1161.
3.	Koch K. Schering uses German medical association to promote HRT. BMJ 2003;326:1161.

Japan restricts access to assisted conception

The latest Japanese guidelines on fertility and assisted conception, which are expected to become law by next year, are bad news for infertile couples and their doctors. Taking a much more restrictive view than expected, the guidelines ban surrogate motherhood, commercial incentives for the donation of sperm and eggs, and donations from siblings, and introduce the right of every child to know their biological parents. Penalties for not adhering to the guidelines are also included in the document. Japan is said to be worried about its low fertility rate, but with one in every 100 children being born through assisted conception procedures, these rules will not make it easier for the country's birthrate to increase.¹

1.	Watts J. Panel advises against egg and sperm donations from siblings. Lancet 2003;361(9368):1532.

Using embryos for medical research

Some ethicists consider there to be a moral difference between the use of embryos surplus to in vitro fertilisation (IVF) for research, and the non-reproductive cloning of embryos only for research purposes. In the production of embryos for IVF, the primary intention is to produce viable embryos for implantation and a subsequent successful pregnancy. The destruction of excess embryos, some of which may be used in research, is a foreseeable but undesirable consequence. In contrast, in non-reproductive cloning an embryo is formed with the primary intention of using its stem cells for research, thereby destroying it. It may be argued that the primary intention in both these cases is to cure disease, and that embryo destruction is the foreseeable event. However, this argument cannot hold when one event (i.e. the obtaining of stem cells for research to cure disease) is a constituent of the other (i.e. the destruction of the embryo). Perhaps the real question is not whether there is a moral difference between the two, which there is, but whether there is sufficient moral weight to the distinction to demand that non-reproductive cloning is halted, whilst IVF and other procedures which create excess embryos are allowed. Some argue that the use of non-reproductive cloning is the start of a slippery slope. Others say that general respect for humanity will diminish if this type of research is allowed, yet again this would be equally applicable where any embryo is destroyed. Thus, it seems that the argument centres on accepting the moral difference between the two procedures and that the use of the initial stages of human life as a research tool is inappropriate. However, this means also being aware that in choosing to do so, other considerations are negated, which may overrule them, in this case the potential benefits of such research for prevention and treatment of a range of serious diseases and conditions.¹

1.	FitzPatrick W. Surplus embryos, nonreproductive cloning, and the intend/foresee distinction. Hastings Centre Report 2003;33(3):29–36.