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Health
Insurance Amendment (Medicare Funding for Certain Types of Abortion) Bill 2013
Introduced into the Senate on 19
March 2013
By: Senator Madigan
Summary of committee view
1.135
The committee
seeks further information about the prevalence of gender selective abortions in
Australia and whether the limitations on the right to health and the right to
social security contained in the bill seek to address a pressing social
concern.
Overview
1.136
This bill seeks
to amend the Health Insurance Act 1973 to provide that a Medicare
benefit is not payable where a medical practitioner performs an abortion (or is
a service relating or connected to performing an abortion) and the abortion is
carried out 'solely because of the gender of the foetus'.
Compatibility with human
rights
1.137
The bill is
accompanied by a self-contained statement of compatibility that states that a number of human rights are engaged by the bill,
including rights of non-discrimination in the Convention on the Elimination of
All Forms of Discrimination against Women and promotion of the rights of the
child under the Convention on the Rights of the Child.[1]
It concludes that the bill is compatible with human rights 'as it limits gender
selective discrimination which enhances human rights'. The statement of compatibility
provides:
This Bill
would restrict funding for discriminatory practices of gender selection but
does not exclude access to health care services. Gender selective abortions,
while being discriminatory towards both sexes; have been demonstrated to be
predominately prejudicial to women. The bill is designed to actively encourage
the advancement of the equality of the sexes.[2]
Right
to non-discrimination on the ground of sex and the elimination of traditional
attitudes that are based on the superiority of one sex
1.138
The UN Committee
on the Elimination of Discrimination against Women has on a number of occasions
expressed concern about the practice of sex-selective abortion in certain
countries and the coercion that women may face in certain contexts to undergo
such abortions.[3]
The CEDAW Committee considers that such practices, to the extent that they
reflect a social preference for sons over daughters, fall within the scope of
article 5(a) of the CEDAW
which requires States parties to take
all appropriate measures to 'modify the social and cultural patterns of conduct
of men and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles
for men and women.'
Right
to health
1.139
Article 12 of
the International Covenant on Economic, Social and Cultural Rights (ICESCR)
provides that everyone has the right to the enjoyment of the highest attainable
standard of health. The UN Economic, Social and Cultural Rights Committee has
explained what this entails:
The right to
health is not to be understood as a right to be healthy. The right to
health contains both freedoms and entitlements. The freedoms include the right
to control one’s health and body, including sexual and reproductive freedom,
and the right to be free from interference, such as the right to be free from
torture, non-consensual medical treatment and experimentation. By contrast, the
entitlements include the right to a system of health protection which provides
equality of opportunity for people to enjoy the highest attainable level of
health.[4]
1.140
The Committee
has also noted that the right to health requires available, accessible,
acceptable and quality health care. In particular, in relation to
accessibility, the Committee has made the following comment:
health
facilities, goods and services must be affordable for all. Payment for
health-care services, as well as services related to the underlying
determinants of health, has to be based on the principle of equity, ensuring
that these services, whether privately or publicly provided, are affordable for
all, including socially disadvantaged groups.[5]
1.141
Removing the
entitlement for Medicare benefits for certain types of abortion raises issues
around the economic accessibility of health care for such procedures. While, as
the statement of compatibility notes, this 'does not exclude access to health
care services', in practice it may well do so, as those who cannot afford such
services would be unable to access such health care services.
1.142
The right to
health may be limited if it can be demonstrated that the limitation on the
right seeks to address a legitimate objective, there is a rational connection
between the limitation and the measures taken to achieve that objective and the
limitation is proportionate. A legitimate objective is one that addresses an
area of public or social concern that is pressing and substantial enough to
warrant limiting the right.
1.143
The explanatory
memorandum refers to a statement made in 2011 by a number of international
organisations which noted the problem of gender discrimination and imbalanced
sex ratios caused by sex selection, and to commitments made at the 1994 Cairo
Population Conference to 'take the necessary measures to prevent ... prenatal sex
selection'.[6]
These international documents refer to sex selection practices being most
prevalent in South Asian, East Asian and Central
Asian countries. They make no reference to this practice being common in
Australia. The explanatory memorandum states:
Recent
reports in the United States as well as Australia have suggested the practice
of gender selective abortions are taking place in Western countries as well.
While the reports indicate the numbers are smaller than those reported in the
Asian, Central Asian and Eastern European countries previously mentioned there
is an indication that they often occur in communities that originate in those
regions.[7]
1.144
However, no
reference is given as to where these reports come from or how prevalent this
practice may be in Australia.
Right
to social security
1.145
Article 9 of the
ICESCR provides that everyone has the right to social security. This includes
the right to access benefits to protect people from unaffordable access to
health care.[8]
As the UN Economic,
Social and Cultural Rights Committee
has stated, 'States parties have an obligation to guarantee that health systems
are established to provide adequate access to health services for all'.[9]
1.146
Similarly with
the right to health, restricting Medicare benefits limits the right to social
security, and so any such limitation must be justified as seeking to pursue a
legitimate objective and be reasonable, necessary and
proportionate.
1.147
Before
forming a conclusion on the human rights compatibility of the bill, the
committee intends to write to Senator Madigan to seek further information about
the prevalence of gender selective abortions in Australia and whether the
limitations on the right to health and the right to social security seek to
address a legitimate objective (being one that addresses an area of public or
social concern that is pressing and substantial enough to warrant limitations
on these rights).
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