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III. Obligations Arising from the Human Rights of Particular Groups

2.1 Interventions for women who use drugs

Women who use drugs have the right to access health care, including sexual and reproductive care, on a non- discriminatory basis.

In accordance with this right, States should:

i. Take all necessary legislative, administrative, and policy measures to ensure the availability of and non-discriminatory access to good-quality gender-sensitive prevention, treatment, harm reduction, and other health care services for women who use drugs, including opioid substitution treatment for pregnant women, tailored to meet women’s specific needs.

ii. Ensure that these services take into account the needs of lone or primary caretakers of children and other family members.

iii. Ensure that a woman’s drug use or dependency is never the sole justification for removing a child from her care or preventing reunification with her child, as this may deter access to necessary drug-related health care services and prejudice the woman’s right to family life and the child’s right to remain in the care and custody of their parents.

iv. Take immediate steps to end the detention and punishment of women as a result of their drug use during pregnancy.

v. End any practice amounting to involuntary sterilisation or abortion on grounds of drug use.

vi. Take all necessary legislative, administrative, and policy measures to ensure that voluntary, informed consent is a precondition for any medical treatment or diagnostic intervention for women and that drug use or dependence alone are not grounds for detention or to deprive a woman of the right to withhold consent.

vii. Take all necessary legislative, administrative, and policy measures to prevent and redress violence against women who use drugs and to provide care for such women.

In addition, States may:

viii.Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption as an important step towards fulfilling women’s right to health.

Commentary:

The right to health establishes an obligation to respect, protect, and fulfil the right to sexual and reproductive health without discrimination. The Committee on the Elimination of Discrimination against Women has emphasised that this right also applies to women who use drugs, necessitating the provision of accessible, gender-sensitive drug treatment and harm reduction services in addition to other appropriate services related to sexual and reproductive health.[680] States’ maximum available resources should be committed towards ensuring universal access to appropriate, accessible, acceptable, and quality (that is, non-stigmatising and non-discriminatory) sexual and reproductive health care goods, services, and information and education, including for pregnant women who use drugs.[681] Laws, policies, and practices that impede or deny women access to essential prenatal, intrapartum, or postnatal care on any grounds violate the right to health.[682]

In some contexts, women who inject drugs are almost twice as likely as their male counterparts to be living with HIV.[683] The Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social and Cultural Rights have raised concerns about the ongoing lack of access to gender-sensitive health and harm reduction services and evidence-based drug treatment for women tailored to their specific needs, as well as the significant legislative barriers that women face in access to supervised consumption services.[684] They have called for the provision of these services in the community and in custodial settings, as well as the removal of barriers and allocation of adequate resources to them.[685]

The Committee against Torture has raised concern about the detention of women who use drugs in manual ‘labour treatment facilities’, where people are detained without access to a lawyer or appropriate medical care, and has highlighted the situation of women detainees’ lack of access to medical care, including gynaecologists.[686]

The Committee on the Elimination of Discrimination against Women has called for the establishment of a transparent process permitting the operation of supervised consumption services without risk of prosecution of clients or service providers and for measures to prevent overdose deaths, including by exempting from arrest drug users who contact emergency services for assistance when facing an overdose.[687] The Committee has also called on States to take measures to prevent and combat the use of drugs and of alcohol and to allocate sufficient resources in this regard.[688]

The Committee on Economic, Social and Cultural Rights has raised concern about the serious health risks created by the police harassment of drug users, particularly women, that forces them to undergo drug testing in the street or involuntary testing through urinary catheters. The Committee has called for an end to such forced testing practices, the investigation of such cases of abuse and harassment, and the punishment of those responsible.[689]

The Special Rapporteur on violence against women has raised concern that laws criminalising the purchase of sexual services increase the vulnerability to violence and acquisition of sexually transmitted diseases for sex workers who use drugs and work on the street. The Special Rapporteur has recommended that all women who conduct sex work be offered special protection and support; that programmes for women sex workers with ‘substance-abuse’ problems be maintained and expanded; and that these women be provided immediate access to drug dependence treatment programmes, if they choose.[690] The Special Rapporteur has also raised concern about the denial of access to shelters for women dependent on drugs who face violence and has recommended that women’s shelters be adequately funded, with particular attention paid to women with special needs, including women with substance-abuse problems.[691]

The UN Office on Drugs and Crime and the World Health Organization have developed standards to address the specific needs of women who use drugs, including pregnant women, that incorporate key ethical considerations and a review of the evidence.[692] The Commission on Narcotic Drugs has encouraged UN Member States to provide services for women who use drugs in line with those standards[693] and to mainstream a ‘gender perspective’ in the design and implementation of drug policies and programmes that takes into account the specific needs of women.[694] The UN General Assembly Special Session 2016 Outcome Document calls on States to ensure that women, including those in detention, have access to adequate health services and counselling, including in particular those needed during pregnancy, and to develop and disseminate ‘gender-sensitive’ measures that ‘take into account the specific needs and circumstances faced by women and girls with regard to the world drug problem’, referring also to the Bangkok Rules.[695]

In some jurisdictions, pregnant women who use or are suspected of using illicit drugs face criminal punishment or civil sanctions (including incarceration and civil confinement), the termination of parental rights, or charges of child abuse or neglect.[696] The Committee on Economic, Social and Cultural Rights has raised concern that women with children have unlawfully been forced to end opioid substitution therapy under threat of termination of parental rights and has recommended that such cases be investigated and those responsible be punished.[697] Pregnant women suspected of drug use are also sometimes involuntarily detained and forced to undergo medical treatment, in violation of their rights to health, equality and non-discrimination, and freedom from arbitrary detention.[698] The UN Working Group on Arbitrary Detention has criticised the involuntary detention of pregnant women who use drugs as a violation of due process, discriminatory in its reach and application, and a deterrent to seeking health care.[699] The UN Working Group on Discrimination against Women in Law and Practice considers such custodial and punitive measures for drug consumption during pregnancy to be discriminatory and an impediment to women’s right to health.[700] The Special Rapporteur on the right to health has also found that the criminalisation of illicit drug use and other conduct during pregnancy infringes the right to health of pregnant women by deterring them from seeking health care and pregnancy-related information, and therefore calls on States to abolish the application of criminal laws to such conduct.[701]

In some jurisdictions, laws, policies, and practices indicate drug use as a criterion for the loss of child custody or for forced sterilisation or abortion on the discriminatory basis that women who use drugs are necessarily unfit to bear or care for children.[702] This is part of a broader recognised global human rights problem concerning the involuntary sterilisation of women from marginalised communities[703] and poses unique disincentives for women who use drugs to access health services.[704] International and regional human rights bodies have found involuntary, coercive, and forced medical interventions (including forced or coerced sterilisation and abortion) to be a form of violence and discrimination against women,[705] violating not only the right to freedom from discrimination[706] but also the right to sexual and reproductive health,[707] the right to decide freely and responsibly on the number and spacing of one’s children,[708] the right to found a family,[709] the right to privacy,[710] and the right to freedom from torture and other cruel, inhuman, or degrading treatment.[711] States have an obligation to take effective steps to prohibit, prevent, and redress forced or coerced sterilisation and abortion, including where performed by private individuals and entities.[712] The Supreme Court of Namibia has also held that the sterilisation of women living with HIV in circumstances where defendants failed to prove that they had adequately informed the women of the nature, risks, and consequences of sterilisation or that the women had made clear, knowledgeable decisions to consent to the procedure violated informed consent required by law.[713] The European Court of Human Rights has held that the termination of parental rights of a woman in drug treatment whose children were neither neglected nor in danger violated her right to respect for her private and family life.[714]

The Committee on the Elimination of Discrimination against Women has also raised concern about the relationship between drug use and gender-based violence and has called on States to collect data on the possible correlation between the two[715] and to ensure that prevention, protection, and care strategies reach women at higher risk of violence because of their drug use or dependence, including by adopting legislative measures and targeted policies necessary to address such violence.[716] The Committee’s general recommendation on violence against women provides appropriate guidance on gender-based violence that includes specific recommendations for measures to address such violence against women who face multiple, intersecting forms of discrimination.[717]

The Committee on the Elimination of Discrimination against Women has recognised the important role that civil society organisations play in providing treatment and support services to women who use drugs and has recommended that adequate funding be provided to organisations carrying out this work.[718]

  • 680. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), paras. 30–31; Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), paras. 44–45; see also Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Women and Health, UN Doc. A/54/38/Rev.1, chap. I (1999), para. 2.

  • 681. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 18, 37, 41–42, 65(m); see also Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), para. 61.

  • 682. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), paras. 40, 49(a, b, c, f, g, h), 54, 63; Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 21, 44(a); Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 18, 41–42.

  • 683. ^

    Joint United Nations Programme on HIV/AIDS, Health, Rights and Drugs: Harm Reduction, Decriminalization and Zero Discrimination for People Who Use Drugs (2019).

  • 684. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/6 (2019), para. 39(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Norway, UN Doc. CEDAW/C/NOR/CO/9 (2017), para. 46(d); Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 30(d); Committee on the Elimination of Discrimination against Women, Concluding Observations: Montenegro, UN Doc. CEDAW/C/MNE/CO/2 (2017), para. 44(b); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 44(d).

  • 685. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Kazakhstan, UN Doc. CEDAW/C/KAZ/CO/6 (2019), para. 40(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Seychelles, UN Doc. CEDAW/C/SYC/CO/6 (2019), para. 40(d); Committee on the Elimination of Discrimination against Women, Concluding Observations: Norway, UN Doc. CEDAW/C/NOR/CO/9 (2017), para. 47; Committee on the Elimination of Discrimination against Women, Concluding Observations: Georgia, UN Doc. CEDAW/C/GEO/CO/4-5 (2014), para. 31(e); Committee on the Elimination of Discrimination against Women, Concluding Observations: Montenegro, UN Doc. CEDAW/C/MNE/CO/2 (2017), para. 45(c); Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 45; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), para. 45(b, d).

  • 686. ^

    Committee against Torture, Concluding Observations: Belarus, UN Doc. CAT/C/BLR/CO/5 (2018), paras. 23–24.

  • 687. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 45.

  • 688. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: New Zealand, UN Doc. CEDAW/C/NZL/CO/7 (2012), para. 35(c); Committee on the Elimination of Discrimination against Women, Concluding Observations: Sweden, UN Doc. CEDAW/C/SWE/CO/7 (2008), para. 35; Committee on the Elimination of Discrimination against Women, Concluding Observations: Ukraine, UN Doc. CEDAW/C/UKR/CO/8 (2017), para. 39; Committee on the Elimination of Discrimination against Women, Concluding Observations: St. Kitts and Nevis, UN Doc. A/57/38 (Supp) (2002), p. 94, para. 108; Committee on the Elimination of Discrimination against Women, Concluding Observations: Finland, UN Doc. A/56/38 (Supp) (2001), p. 32, para. 309.

  • 689. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), paras. 44(f), 45(f).

  • 690. ^

    Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk: Mission to Sweden, UN Doc. A/HRC/4/34/Add.3 (2007), paras. 44, 71(a)(iv).

  • 691. ^

    Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk: Mission to Sweden, UN Doc. A/HRC/4/34/Add.3 (2007), para. 62, 71(a)(iv).

  • 692. ^

    World Health Organization, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations: 2016 Update (2017); UN Office on Drugs and Crime, Guidelines on Drug Prevention and Treatment for Girls and Women (2016); UN Office on Drugs and Crime and the International Network of People Who Use Drugs, Addressing the Specific Needs of Women Who Inject Drugs: Practical Guide for Service Providers on Gender-Responsive HIV Services (2016); World Health Organization, Guidelines for the Identification and Management of Substance Use and Substance Use Disorders in Pregnancy (2014).

  • 693. ^

    Commission on Narcotic Drugs, Resolution 61/4: Promoting Measures for the Prevention of Mother-to-Child Transmission of HIV, Hepatitis B and C and Syphilis among Women Who Use Drugs (2018); Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).

  • 694. ^

    Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).

  • 695. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), paras. 4(b, g, n); see also Sustainable Development Goal 5.

  • 696. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 38–39; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), paras. 72–74; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 62–63; Report of the Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc. A/HRC/32/44 (2016), paras. 36, 38, 39.

  • 697. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/3 (2019), paras. 44(e), 45(e).

  • 698. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc. A/HRC/32/44 (2016), para. 39; Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), paras. 73, 89.

  • 699. ^

    Report of the Working Group on Arbitrary Detention: Visit to the United States of America, UN Doc. A/HRC/36/37/Add.2 (2017), paras. 73–74, 89; Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 62.

  • 700. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, UN Doc. A/HRC/32/44 (2016), para. 39; Report of the Working Group on the issue of discrimination against women in law and in practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), paras. 38, 39.

  • 701. ^

    Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, UN Doc. A/66/254 (2011), paras. 37–39, 41–42.

  • 702. ^

    See, e.g., European Court of Human Rights, Case of Y.I. v. Russia, Application No. 68868/14, 25 February 2020.

  • 703. ^

    Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 48.

  • 704. ^

    UN Office on Drugs and Crime and the International Network of People Who Use Drugs, Addressing the Specific Needs of Women Who Inject Drugs: Practical Guide for Service Providers on Gender-Responsive HIV Services (2016); see also Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 53.

  • 705. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 35: Gender-Based Violence against Women, Updating General Recommendation No. 19, UN Doc. CEDAW/C/GC/35 (2017), para. 18.

  • 706. ^

    Committee on the Elimination of Racial Discrimination, Concluding Observations: Slovakia, UN Doc. CERD/C/SVK/CO/9-10 (2013), para. 13.

  • 707. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), paras. 57, 59; see also Special Rapporteur on the Right to Health, Anand Grover and Special Rapporteur on Violence against Women: Communication to Russian Federation, Reference No. AL Health (2002-7) G/SO 214 (89-15) RUS 5/2013 (2013).

  • 708. ^

    Committee on the Elimination of Discrimination against Women, Communication No. 4/2004: Ms. A.S. v. Hungary, UN Doc. CEDAW/C/36/D/4/2004 (2006), para. 11.5.

  • 709. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: China, including Hong Kong, China, and Macao, China, UN Doc. E/C.12/CHN/CO/2 (2014), para. 26.

  • 710. ^

    European Court of Human Rights, K.H. and Others v. Slovakia, Application No. 32881/04, 28 April 2009, para. 58.

  • 711. ^

    Committee against Torture, Concluding Observations: Slovakia, UN Doc. CAT/C/SVK/CO/3 (2015), para. 12; Committee against Torture, Concluding Observations: Slovakia, UN Doc. CAT/C/SVK/CO/2 (2009), para. 14; Committee against Torture, Concluding Observations: Peru, UN Doc. CAT/C/PER/CO/4 (2006), para. 23; Human Rights Committee, General Comment No. 28: Equality of Rights between Men and Women, UN Doc. CCPR/C/21/Rev.1/Add.10 (2000), para. 11; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/31/57 (2016), para. 45; European Court of Human Rights, V.C. v. Slovakia, Application No. 18968/07, 8 November 2011; European Court of Human Rights, N.B. v. Slovakia, Application No. 29518/10, 12 September 2012; European Court of Human Rights, I.G. v. Slovakia, Application No. 15966/04, 29 April 2013.

  • 712. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), paras. 57, 59.

  • 713. ^

    Government of Namibia v. LM and Others [2014] NASC 19 (Namibia).

  • 714. ^

    See, e.g., European Court of Human Rights, Case of Y.I. v. Russia, Application No. 68868/14, 25 February 2020.

  • 715. ^

    Report of the Committee on the Elimination of Discrimination against Women, Twenty-Sixth session (14 January-1 February 2002), Twenty-Seventh Session, (3-21 June 2002), Exceptional Session, (5-23 August 2002), UN Doc. A/57/38 (2002), para. 108.

  • 716. ^

    See also Committee on Economic, Social and Cultural Rights, Concluding Observations: Spain, UN Doc. E/C.12/ESP/CO/5 (2012), para. 15; Committee on the Elimination of Discrimination against Women, Concluding Observations: Kyrgyzstan, UN Doc. CEDAW/C/KGZ/CO/4 (2015), paras. 33–34.

  • 717. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 35: Gender-Based Violence against Women, Updating General Recommendation No. 19, UN Doc. CEDAW/C/GC/35 (2017), paras. 12, 23, 28, 31 (b, d), 34(a, b, c).

  • 718. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Moldova, UN Doc. CEDAW/C/MDA/CO/6 (2020), paras. 40(b), 41(c).

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