IS THERE A Human Right

to Reproductive Health

At Work?

Ilise L. Feitshans JD and ScM

ENCYCOPAEDIA@ilo.orgilise@prodigy.net

Sources: • Prepared for the Conference, RECLAIMING OUR BIRTHRIGHT,

Workers’ Centre for Safety and Health, Toronto Canada Oct 4, 1999

• UN/International Labour Office ENCYCLOPAEDIA OF OCCUPATIONAL HEALTH AND SAFETY Chapter 23, “Occupational Health as a Human Right”. Geneva Switzerland

• “IS THERE A Human Right to Reproductive Health “ Texas Journal of Women and the Law, June 1999

• BRINGING HEALTH TO WORK Emalyn Press 1997

• Based on Feitshans’ work as Legal Advisor for the Conference: • Medical and Ecological Problems of Workers: Reproductive Health

Scientific Council, Reproductive health of Workers, (RAMS) Institute of Occupational Health,WHO Collaborating Centre in Occupational Health, 31 Prospect Budennogo, Moscow Russian Federation December, 1998

I. Introduction:

• Emerging scientific data suggests • increase in the incidence of

occupational and environmental cancers

• possible impact on reproductive health • this generation and their offspring.

Chemical hazards

• continue to plague people• may also impact upon reproductive health or the

health of the next generation.

• according to the Committee of Experts on Reproductive Health at Work at the World Health Organization’s Russian Academy of Medical Sciences,

• impact across national borders• across job descriptions, • and across the traditional social distinction between

men and women.

Declaration/ Position Statement on Reproductive Health at Work

• This problem, is approaching a crisis, • The emerging issues of reproductive health in the

workplace which are only slowly beginning to be studied are international in its scope; classless in targeting its victims and it is gender neutral--- hurting the children and the reproductive capabilities of men as well as women

• For this reason, our Committee of Experts unanimously adopted the DPSRHW

• Declaration urges worldwide attention to the issues of reproductive health at work

What heritage under law?

• This notion of the universality of this need to cope with occupational health factors that contribute to public health problems is fundamental to the question:

IS There A Human Right to Reproductive Health at Work?

SURVIVAL

• There has always been work as long as there has been any society of which we are aware.

• Work is part of the human condition

that makes society survive. • Under the law, this notion is called the

legal principle of “universality” in international law.

WORK,

• No society survives without work

• We enjoy the fruits of many past civilizations today, as we draw upon their architecture such as the Pyramids, the Parthenon

• Work and health are both fundamental society,

Health

• Health is needed by every society and every individual in order to survive.

• Society’s long-established universal need for occupational health, and in turn, to protect health at work is as ubiquitous and perennial as civilization and the DNA of life itself..

And ….Survival

• No society has survived without producing things or having healthy people who serve a function in society. The Great Wall, literature and philosophies and ancient values touch even today our daily lives.

• The preservation of occupational safety and health is therefore crucial for society to survive.

II. International Laws Protecting the Right to Health at Work

• The protection of the worker against sickness, disease and injury arising out of his employment” is a precondition to “Universal and lasting peace” Constitution, INTERNATIONAL LABOR ORGANIZATION, 1919 Revised 1943

•

The Role of the ILO

• ILO Codes of Practice regarding safety protections have served as the blueprint for occupational safety laws and regulations in such areas as dock work, transfer of technology to developing nations, civil engineering and heavy industries.

• ILO Convention 155: Convention Concerning Occupational Safety and Health and the Working Environment, 1981.

Role of the ILO C 155 • Article 3(e) offers the definition of health, “in relation to work,

indicates not merely the absence of disease or infirmity; it also includes the physical and mental elements affecting health which are directly related to safety and hygiene at work.”

• multidimensional,• physical and mental elements of health and well-being implicitly

takes into account the effects of occupational stress and other mental problems.

• Creation of effective national, regional and workplace mechanisms

for implementation and compliance with other ILO standards.• Article 4.1 states Convention 155’s goal of a “coherent national

policy” concerning occupational safety and health protections. • C 155 obligates ratifying Member States to promote research,

statistical monitoring of hazardous exposures (such as medical surveillance measures, not unlike technical standards in Member States) and worker education for “representative organizations”

C. 183 Safe Maternity• Article 4 • 1. On production of a medical certificate or other

appropriate certification, as determined by national law and practice, stating the presumed date of childbirth, a woman to whom this Convention applies shall be entitled to a period of maternity leave of not less than 14 weeks.

• 2. The length of the period of leave … including six weeks' compulsory leave after childbirth, unless otherwise agreed at the national level by the government and the representative organizations of employers and workers. The prenatal portion of maternity leave shall be extended by any period elapsing between the presumed date of childbirth and the actual date of childbirth, without reduction in any compulsory portion of postnatal leave.

C. 183 Safe Maternity• LEAVE IN CASE OF ILLNESS OR COMPLICATIONS • Article 5 • On production of a medical certificate, leave shall be

provided before or after the maternity leave period in the case of illness, complications or risk of complications arising out of pregnancy or childbirth. The nature and the maximum duration of such leave may be specified in accordance with national law and practice.

• BENEFITS • Article 6 • 1. Cash benefits• Protection against termination of employment due to

maternity

International Laws Protecting the Right to Health at Work

• "The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being". Constitution, WORLD HEALTH ORGANIZATION 1948

• The sound of freedom that resonates from civil and political rights rings hollow to a newborn who has low birth weight, because the baby's mother had no access to a clean workplace, good nutrition or adequate prenatal care. And, what good are political and civil rights to a different baby, who has lost a parent due to an occupational accident, or whose parents are debilitated by occupational disease, or to the baby who may suffer personal injury due to the effects of a parent's workplace exposure to mutagens?

• freedom from these harms is every child's birthright too,

Health Rights in the UN Charter

•• Under the UN Charter, nations are obligated to

"promote" economic and social advancement and "better standards of life, including the promotion of human rights protections, Article 13.

• Article 55 specifically notes the linkage between "creation of conditions of stability and well-being" for peace and "higher standards of living" and "universal respect for, and observance of, human rights and fundamental freedoms".

• This rhetoric assures "adequate" health and related basic rights. But it is difficult to patch together any consensus regarding the "better standards of life" for implementation of these protections.

Universal Declaration of Human Rights

• , Articles 23 and 25 concerning the right to work in "favourable conditions of work" are not actually defined.

• Article 25 urges the achievement of an "adequate standard of living" and social services, "in the event of disability". Lastly, the UDHR requires that human rights protections at the worksite ensure the preservation of "human dignity", which has implications not only for the quality of life, but for the implementation of programs and strategies that prevent degrading working conditions.

• The UDHR therefore provides a vague but workable blueprint for international human rights activity surrounding health.

Intern’tl Covenant on Economic, Social & Cultural Rights

• Of all the UN-based international human rights documents, ICESCR Article 12 most clearly and deliberately address health, clearest of all human rights instruments regarding the explicit right to protection for "industrial hygiene" and protections against "occupational disease". Further, is consistent with Article 7(b) of the ICESCR, regarding safe and healthful working conditions.

• Article 12 reads:

• "The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

• 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: ...

• (b) The improve ment of all aspects of environ mental and industrial hygiene;

• ( c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;"

Convention on the Elimination of All Forms of Discrimination Against Women

• The, Part III Article 11(a) states: "The right to work as an inalienable right of all human beings" and Article 11.(f) states: "The right of protection of health and to safety in working conditions, including the safeguarding of the function of reproduction".

• Article 11.(2) a prohibits "sanctions, dismissal on the grounds of maternity leave” . This article overturns generations of institutional sexism under law, which were an outgrowth of mistaken values regarding womens' presumed infirmity during pregnancy or while raising a family.

Convention on the Elimination of All Forms of Discrimination Against Women

• lacks any guidelines for effective implementation.

• Article 11.2 Subpart d. endeavors "To provide special protection to women during pregnancy in types of work proved to be harmful to them" Many facets of this provision are unclear: what is meant by special protection; are effects limited to maternal harm during pregnancy? If so, issues of Fetal Protection are implicated by this provision. It is unclear from this Convention, however, what is the standard of proof to make a "special protection" necessary or acceptable and what is the scope those protections?

• Article 11.3 places a practical limit upon the reach of "special protections" but implementation is problematic!

International Convention on Population and Development

• Reproductive Health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity.

• This language is followed by a broad mandate for health professionals to research and provide prevention strategies for the problems of adolescent sexuality, occupational exposure to reproductive health hazards in the workplace; HIV/AIDS prevention, and the elimination of other sexually transmissible diseases;, maternal and child health,; family planning and a wide range of other topics concerning human development.

• Ramazzini’s ancient question from the 18th Century: Physician, ask your patient first, “What is your work?

• This means creating new methods for risk communication; new paradigms for the awareness of risk; new concepts of the right to know and the implications for all society from exposure to workplace toxins

Redefining Traditional Values to IMPLEMENT Protections

Conclusions: IS THERE A Human Right to Reproductive Health at Work?

• YES.

• The preservation of occupational safety and health and the impact of our working conditions on the health of the next generation is therefore crucial for society to survive.

• To achieve the goals of these laws, however, we must THINK in different terms,

• New methods of risk communication• classless embracing many types of work and the impact upon

many populations, workers, older populations and children

• Therefore, it behooves us to recognize the full extent of our own risks in our own work and thereby treat these laws and protections as if it is indeed about us, in order for our profession and our society to survive.

The ILO Encyclopaedia of Occupational Health and Safety

Ilise L. Feitshans JD & ScM

• ILO SAFEWORK • +41 022 799 7443 • ENCYCLOPAEDIA@i

lo.org

• 0R ilise@prodigy.net