The WHO Must Include Access to Birth Control and Abortion in its Temporary Recommendations for Zika-Associated Public Health Emergency of International Concern

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Mosquito sucking blood

This post was written by Lawrence O. Gostin, Faculty Director of the O’Neill Institute for National and Global Health Law and University Professor, Georgetown and Alexandra Phelan, an Adjunct Professor in Global Health Law at Georgetown University Law Center and Doctoral Researcher with the O’Neill Institute for National and Global Health Law. Any questions about this post should be directed to alexandra.phelan@gmail.com.

On Monday 1 February 2016, the World Health Organization (WHO) Director-General Margaret Chan declared the recent cluster of microcephaly and other neurological abnormalities (including Guillain-Barré Syndrome) in Latin America a Public Health Emergency of International Concern (PHEIC) under article 12 of the International Health Regulations (2005). While Zika Virus is strongly associated with these cases, the WHO Director-General and the Emergency Committee advising her did not expressly include Zika Virus in the PHEIC, with further research necessary to establish a causative link between Zika infections and the disease clusters.

Following the PHEIC declaration, the Director-General must release Temporary Recommendations under article 15 of the IHR, and is expected to occur on Tuesday 2 February 2016.[1] It is critical that these recommendations require countries to respect, protect, and fulfil women’s health-related human rights, including reproductive rights. This includes access to contraception (including the birth control pill and condoms) but also to accessible, affordable, acceptable, and quality abortions.

The clusters of microcephaly cases that form the basis of the PHEIC appear to be quite severe, with possible brain damage and poor long-term health outcomes for the babies including learning disabilities, impaired motor functions, facial deformities and seizures. There is no cure or treatment for microcephaly beyond physical and occupation therapy.

The Director-General’s Temporary Recommendations should include a directive to countries to ensure that women at risk of Zika virus infection have access to birth control and safe abortion. For most countries in the Americas, this will require decriminalizing abortion or ensuring exemptions permitting abortions in medical emergencies include possible Zika virus infection. Calls by countries that women simply avoid getting pregnant – including those by the governments of Brazil, Honduras, Colombia, and El Salvador – without providing access to reproductive rights services, are not only ineffective and naïve but dangerous to both women’s and public health.

According to the Center for Reproductive Rights “The World’s Abortion Laws 2016”, nearly all countries in the Americas currently experiencing or likely to experience Zika virus cases have laws that may prevent women accessing reproductive services.[2] In South America, only Uruguay, French Guiana, and Guyana have laws that allow access to abortion without restriction as to reason. Brazil, Paraguay, Suriname and Venezuela, abortion is either completely criminalized or only permitted to save a woman’s life, and Colombia allows abortion in cases of foetal impairment. In Central America, no countries provide access to abortion without restriction as to reason and in El Salvador, Guatemala, Honduras, and Nicaragua, abortion is either completely criminalized or only permitted to save a woman’s life, however Belize and Panama allows for abortion in cases of foetal impairment. In North America, Mexico allows for abortion in cases of foetal impairment, and while abortion is a constitutionally guaranteed right in the United States, a number of states have been implementing laws that restrict the accessibility of abortion, including southern states such as Texas which may experience local transmission of Zika cases.[3] The Texas case is coming before the United States Supreme Court this term in Whole Woman’s Health et al v. Hellerstedt.

It is unfair, and ineffective, to place the burden of responsibility for preventing foetal malformations solely on the women. Governments cannot ask women to postpone having a family indefinitely, especially if they do not have access to safe reproductive services. Governments must act to protect the health of their citizens, and meet their obligations under international health and human rights law.

To truly respect the dignity and health of women of childbearing age, the WHO Director-General should formally recommend that States Parties ensure access to contraception and safe abortions. A government’s duty to guarantee the health and safety of women and their reproductive freedoms is an ethical and human rights imperative in the ongoing Zika pandemic.

With her speed in calling for an Emergency Committee on Zika and declaring a PHEIC over the clusters of microcephaly cases and neurological disorders, the WHO Director-General has demonstrated that the delays that occurred with Ebola should not occur. The WHO must also show that it will not again put politics above public health.

[1] International Health Regulations (2005), art 15.

[2] Center for Reproductive Rights, “The World’s Abortion Laws 2017”, available at: http://worldabortionlaws.com/map/. In the Americas, only Canada and Chile are not predicted to have Zika transmission as the Aedes genus of mosquito is not present. Canada recognizes women’s health human rights with regard to abortion, however Chile completely prohibits abortion (life saving abortions are permitted on the grounds of a criminal defense of necessity).

[3] Zika cases in the United States are most likely to occur in returning travelers, however local spread of the virus may occur in areas where the Aedes mosquito is present and mosquito control measures are inadequate. CDC, “Zika-affected Areas”, available at: http://www.cdc.gov/zika/geo/ and L.H. Sun and B. Dennis, “Why the United States is so vulnerable to the alarming spread of Zika virus”, Washington Post (28 January 2016) available at: https://www.washingtonpost.com/national/health-science/why-the-united-states-is-vulnerable-to-spread-of-zika-virus/2016/01/26/a8c6a9b4-c440-11e5-8965-0607e0e265ce_story.html

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Kimberly Fleury says:

I get it, Mr. Gostin and Ms. Phelan — you think some people deserve to live and others don’t. While you’re certainly entitled to your opinion and have the right, under natural law (as recognized by the Catholic Church), to express your opinion, you also have a duty to use workplace resources ethically, even in regards to expression of your personal opinions. Clearly, if you worked for Coca-Cola, you would not post a blog expressing your opinion that Pepsi Cola is superior and expect to keep your job.

By the way, you let some faulty logic slip through in your carelessness: “Governments cannot ask women to postpone having a family indefinitely, especially if they do not have access to safe reproductive services.” The “safe reproductive services” you refer to are methods of postponing having a family.

Andrew Boyd says:

Contraceptives i get, but how does abortion prevent the spread of the Zika virus?
Or is this a eugenics proposal? There seems to be a disconnect…

Steve Moiles says:

The authors refer to “the responsibility to prevent fetal malformaitons” as though this is, of course, a legal or ethical obligation that every prospective parent owes to the rest of society–even at the cost of killing the unborn child who has a malformation in his or her body. I was born with a heart defect. Evidently my parents, had they known of this defect prior to my birth, would have had a “responsibility to prevent” my defect by killing me in the womb. To what end? For the supposed good of society? Some must die, evidently, so that others in society (such as the authors) are not bothered by human “malformaitons” in their midst. What an argument for law professors to promote. Please consider investing your energies in standing up for human rights instead of killing off those who are “imperfect.” Protect the vulnerable rather than write rationalizations for killing them.


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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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