International Law

International human rights instruments are the treaties and other international texts that serve as legal sources for international human rights law and the protection of human rights in general. A number of international human rights instruments guarantee the right to access safe abortion.  

As a signatory of those binding documents, Canada is required to uphold and promote human rights within its borders. This means that Canada has a legal obligation to ensure that the rights of all individuals are respected, protected, and fulfilled. 

To ensure compliance, Canada must regularly report to the United Nations’ Treaty Monitoring Bodies on its progress in meeting its human rights obligations. These Bodies, made up of experts, review Canada's reports and identify areas of concern. They then provide recommendations to Canada on how to improve its human rights practices. In addition, independent UN experts visit Canada to directly observe how human rights are being implemented and offer their own recommendations to Canada.

The right to access safe abortion is recognized under the following human rights and is interdependent with all other human rights:

• The right to the highest attainable standard of physical and mental health
• The right to non-discrimination and equality
• The right to life
• The right to privacy
• The right to be free from torture, cruel, inhuman and degrading treatment and punishment, including the right to physical and mental integrity
• The right to decide freely and responsibly on the number, spacing and timing of children and to have the information and means to do so
• The right to information and education including on sexual and reproductive health
• The right to benefit from scientific progress and its realization

See WHO Safe Abortion Guidelines for a comprehensive overview of human rights standards related to access to safe abortion.

Convention on the Elimination of all forms of Discrimination against Women (CEDAW)

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was ratified by Canada in 1981. The Convention lays out social, economic and, in particular, health care-related rights for women worldwide.¹ 

The Convention sets out the right to reproductive choice (although it does not specifically refer to abortion) in Article 12, which addresses health care, as follows:  

“States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.”²

The Committee on the Elimination of all Forms of Discrimination against Women, which is a body of independent experts that monitors the implementation of CEDAW, has clarified that when sexual and reproductive health and rights, including safe abortion, are denied or delayed, it is considered a form of gender-based violence that goes against Article 1 of the Convention, which defines discrimination against women.³

The Committee conducts periodic reviews of Canada’s compliance with its obligations under the Convention. During the review in 2016, the Committee made the following Concluding Observations about access to abortion and sexual health services in Canada:

2016 CEDAW Concluding Observations to Canada⁴

40. The Committee notes the measures taken to facilitate access to legal abortion services. It remains concerned, however, about disparities in access to such services and to affordable contraceptives.

41. In line with its general recommendation No. 24 (1999) on women and health, the Committee recommends that the State party:

(a) Ensure access to legal abortion services in all provinces and territories;

(b) Ensure that the invocation of conscientious objection by physicians does not impede women’s access to legal abortion services;

International Covenant on Economic Social and Cultural Rights (ICESCR)

The International Covenant on Economic Social and Cultural Rights (ICESCR) is a treaty that Canada ratified on May 19, 1976. This means that Canada is legally obligated to respect, protect, and fulfill the economic, social, and cultural rights enshrined in the ICESCR. These rights include, among others, the right to education, the right to work, the right to an adequate standard of living, the right to health, and the right to social security. 

Article 12 of the ICESCR highlights the significance of health as a fundamental human right. It also outlines the responsibilities of states in ensuring that this human right is realized for all individuals under their jurisdiction. The right to sexual and reproductive health, including access to safe abortion, is a core component of the right to health–that is, the right to the highest attainable standard of mental and physical health, as enshrined in Article 12 of the ICESCR.⁵

The Committee on Economic, Social and Cultural Rights (CESCR) monitors and reviews states' compliance with the ICESCR and produces reports on its observations. The following observations were made about access to abortion and sexual health services in Canada:

2016 CESCR Concluding Observations to Canada⁶

51. The Committee welcomes the information provided by the delegation on measures taken to facilitate access to legal abortion services. It remains concerned, however, at disparities in access to such services and to affordable contraceptives (art. 12).

52. The Committee recommends that the State party ensure access to legal abortion services in all provinces and territories. The Committee also recommends that the State party ensure that physicians’ conscientious objection does not impede women’s access to legal abortion services. The Committee also recommends that affordable contraceptives be made accessible and available to all, and in particular those living in remote areas and those living in poverty. The Committee refers to its general comment No. 22 (2016) on the right to sexual and reproductive health.

Report of the Special Rapporteur on the right of everyone the highest attainable standard of mental and physical health 2019 visit to Canada⁷

Special Rapporteurs are independent experts appointed by the United Nations (UN) to examine and report on specific human rights issues or thematic areas. They are part of the UN's system of Special Procedures, which is a mechanism for monitoring and promoting human rights globally. The following remarks were including in the Special Rapporteur’s report about access to abortion and sexual health services in Canada:

93. A remaining challenge is access to abortion. While abortion was decriminalized in 1988, the availability of, access to and information about safe abortion care is inconsistent across provinces and territories. Several provinces maintain discriminatory policies, practices and regulations imposing different types of barriers to gaining access to abortion services.

103 (m) Ensure that all girls and women in Canada, including migrants and indigenous women, have access to sexual and reproductive health services and to abortion procedures across provinces, regardless of conscientious objections. 

United Nations Convention against Torture (UNCAT)  

Canada signed the United Nations Convention against Torture (UNCAT) in 1985; it was ratified in 1987. The Convention lays out the rights of individuals to be protected from torture and other acts of cruel, inhumane, or degrading treatment or punishment.⁸ According to a July 2017 Guideline by the CEDAW Committee, the delay or denial of abortion services may amount to torture or cruel, inhuman or degrading treatment, in contravention (violation) of the UNCAT:  

Violations of women’s sexual and reproductive health and rights, such as forced sterilizations, forced abortion, forced pregnancy, criminalisation of abortion, denial or delay of safe abortion and post-abortion care, forced continuation of pregnancy, abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.⁹

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)¹⁰ applies with respect to the health care rights of all Indigenous peoples. While Canada initially opposed UNDRIP, the federal government “adopted” the Declaration in 2016.¹¹ On June 16 2021, Canada’s Senate voted to pass Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act (the UNDRIP Act), into law. The UNDRIP Act received Royal Assent on June 21, 2021 marking a historic milestone in Canada’s implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration).¹² The UNDRIP Act is Canada’s first substantive step towards ensuring federal laws reflect the standards set out in UNDRIP. 

Article 24(1) of UNDRIP guarantees Indigenous peoples the right to traditional medicines and health practices, and states: “Indigenous individuals also have the right to access, without any discrimination, to all social and health services.”¹³ Article 24(2) of UNDRIP declares that Indigenous peoples have an equal right “to the enjoyment of the highest attainable standard of physical and mental health.”¹⁴

Additionally, with respect to the health care rights of Indigenous peoples in Canada, the Truth and Reconciliation Commission of Canada (TRC) made recommendations specific to the provision of health care services, which the federal government has committed to implementing.¹⁵