Bennett, Belinda --- "Health and Human Rights and Law, Policy and Reproductive Autonomy" [2014] SydLawRw 25; (2014) 36(3) Sydney Law Review 581

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Book Review

Health and Human Rights by Thérèse Murphy (2013) Hart Publishing, 258 pp, ISBN 9781841138046

Law, Policy and Reproductive Autonomy by Erin Nelson (2013) Hart Publishing, 448 pp, ISBN 9781841138671

Belinda Bennett^[∗]

Increasingly, claims for ethical and legal recognition of the health-related interests of individuals and groups are articulated in terms of autonomy and/or rights. Two recent books make valuable contributions to contemporary debates in this area and the relationships between health, rights and autonomy.

In Health and Human Rights, Thérèse Murphy analyses the intersections between health and human rights, seeking to find ‘a way to combine hopefulness and critique’.^[1] In the introductory chapter, Murphy sets out a core argument of the book, which is ‘that engagement with human rights legal method is essential’.^[2] This is not simply an appeal for a focus on international human rights law, but also a need to understand human rights law in a broader context — or, as Murphy argues, ‘there is more to human rights than human rights law’.^[3] Murphy uses her approach to legal method ‘to interrogate and navigate aspects of health and human rights today’.^[4]

In Chapter 1, Murphy provides the background to the link between health and human rights. She draws on the articulation of health rights in a number of key international instruments; the arguments for a link between health and human rights that have been made in the context of public health and particularly in response to HIV/AIDS; interpretation of the right to health by the Committee on Economic, Social and Cultural Rights in General Comment No 14;^[5] and trends towards increased justiciability over health rights.

In chapters 2–5, Murphy builds upon her argument for a human rights legal method.^[6] Chapter 2 focuses on public health. Murphy asks whether ‘human rights [is] prepared for public health emergency preparedness’.^[7] To respond to the trend towards securitisation of health, Murphy argues for ‘human rights preparedness’.^[8]

Chapter 3 adds a broader dimension to human rights analysis by exploring ‘the cost of human rights’, as ‘a proposal for a particular human rights legal method, for a way of thinking and talking about cost from a human rights law perspective’.^[9] Murphy argues ‘that the “cost of human rights” ... can and should be developed in a pro-human rights way’.^[10] This is explored through the issue of access to antiretroviral medicines for people with HIV/AIDS; while in Chapter 4, Murphy considers the role of quantitative indicators to measure progress in human rights. In Chapter 5, Murphy brings together health rights and reproductive choice, arguing that ‘an almost relentless association of choice with abortion ... does tend to cause problems for choice in other reproductive contexts’.^[11] Murphy argues that we should engage with ethnographic studies of decisions made by ‘the individuals and couples who are making, or want the opportunity to make, reproductive choices’.^[12] In her conclusion to the book, Murphy argues that ‘[v]ibrant debate is ... what is required; debate that works from health and human rights, and from human rights legal method’.^[13]

Murphy’s book provides a thoughtful and well-researched analysis of the modern landscape of the intersection between health and human rights. Addressing the major challenges for contemporary human rights discourse, Murphy argues for a ‘human rights legal method’ or ‘the “law way” of doing health and human rights’.^[14] In this sense, this is a book that speaks to lawyers and, in particular, human rights lawyers. Yet, while Murphy makes an argument for legal method, this is not a narrow legal analysis. Instead, Murphy provides an impressive and wideranging analysis that challenges us to think about how lawyers engage with the breadth and complexity of contemporary health and human rights.

Erin Nelson’s recent book, Law, Policy and Reproductive Autonomy, examines health rights through a focus on reproduction, providing ‘a study of reproductive regulation, the meaning of reproductive autonomy and the implications of its meaning for the regulatory enterprise’.^[15] This area presents some of the most complex ethical and legal dilemmas in contemporary health care law. While abortion and contraception are longstanding areas of debate around reproductive rights, the development of assisted reproduction has introduced new issues to debates over such rights.

Part One, which comprises chapters 2 and 3, lays the theoretical foundations for the book by analysing the meaning of reproductive autonomy. This Part begins with a discussion of traditional philosophical understandings of the meaning of autonomy, and the place of autonomy in liberalism and contemporary bioethics. Feminist scholars have been critical of the liberal concept of autonomy and Nelson analyses these critiques and the feminist theory of relational autonomy. Drawing the themes together, Nelson analyses liberal and feminist debates over reproductive autonomy. Arguing that the way we think about ‘reproductive autonomy has important implications for how we regulate reproductive decision making’,^[16] Nelson argues that ‘we have to start with a more finely-grained, contextual view of autonomy – so that we end with a rich and nuanced appreciation of what it takes to respect reproductive autonomy’.^[17] While acknowledging the importance of relationships in autonomy, as expressed in relational autonomy, Nelson argues that reproductive autonomy must be grounded ‘on respect for the autonomy of individuals, particularly individual women’.^[18] In Chapter 3, Nelson considers the importance of women’s reproductive health in their lives, and the importance of placing women’s bodily integrity at the centre of a model of reproductive autonomy.^[19]

The chapters in Part Two focus on ‘avoiding reproduction’, analysing the regulation of contraception (Chapter 4), and abortion (Chapter 5). In her discussion of contraception, Nelson analyses barriers to women’s access to contraception and the issue of non-consensual sterilisation. The discussion of abortion addresses the legal status of the fetus; abortion laws in Canada, the United States, Australia and the United Kingdom; access to abortion services; second-trimester abortions; and selective abortion on the grounds of fetal sex or disability.

Part Three is on ‘controlling reproductive outcomes’. In Chapter 6, Nelson analyses the medicalisation of pregnancy and the perception of potential conflict between the interests of pregnant women and fetal interests. Nelson argues that ‘[m]edicalisation helps to shape not only social, but also legal responses to choice in pregnancy’.^[20] These legal responses are considered through analysis of maternal liability in tort law, and interventions during pregnancy. Chapter 7 examines the liability of health care providers for prenatal torts (wrongful life, wrongful conception and wrongful birth).

The final part of the book, Part Four, addresses the relationship between assisted reproductive technologies (‘ART’) and reproductive autonomy. The two chapters in this Part cover a wide range of issues, including: legal regulation of ART; rules relating to eligibility and access to ART (Chapter 8); the legal status of gametes and embryos used in ART; preimplantation genetic diagnosis; the legal regulation of surrogacy; parentage laws for children conceived through ART; and surrogacy and reproductive tourism (Chapter 9).

Nelson’s book is a detailed analysis of contemporary meanings of reproductive autonomy. In the conclusion to the book, Nelson argues that ‘feminism needs to claim for itself a reconfigured conception of reproductive autonomy that invokes a rich understanding of autonomy, and that places women’s interests at its core’.^[21] The comparative approach in this book, drawing on legal and regulatory developments and debates in the UK, the US, Canada and Australia, will make this book essential reading for all those interested in this complex area.

Both of these books provide rich and thoughtful analyses of the contemporary meanings of health rights. They show that these rights are complex, evolving and often contested. Through their analyses, both show that law has a central role to play in shaping these rights and highlight the importance of legal analysis in these areas. Both books deserve a wide readership from those interested in law, human rights, health law, and policy.

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^[∗] Professor of Health Law, Queensland University of Technology, Brisbane, Australia.

^[1] Thérèse Murphy, Health and Human Rights (Hart Publishing, 2013) 1.

^[2] Ibid 8.

^[3] Ibid 10.

^[4] Ibid 13.

^[5] Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 22^nd sess, Agenda Item 3, UN Doc E/C.12/2000/4 (11 August 2000).

^[6] Murphy, above n 1, 19.

^[7] Ibid 58.

^[8] Ibid.

^[9] Ibid 125.

^[10] Ibid 20.

^[11] Ibid 168.

^[12] Ibid 167.

^[13] Ibid 189.

^[14] Ibid 19.

^[15] Erin Nelson, Law, Ethics and Reproductive Autonomy (Hart Publishing, 2013) 6.

^[16] Ibid 47.

^[17] Ibid.

^[18] Ibid 48.

^[19] Ibid 67.

^[20] Ibid 169.

^[21] Ibid 355.