Access to Safe and Legal Abortion: Urgent call for Turkmenistan to adhere to women’s rights convention

Date: December 27, 2024

Document: Right to Abortion, Turkmenistan CEDAW Final.pdf

Country: Turkmenistan

Issues: Women’s Rights

Mechanism: UN Committee on the Elimination of Discrimination against Women

Report Type: Shadow/Parallel Report

I. Introduction

1. We prepared this report to provide additional information to the Committee on the Elimination of Discrimination against Women (“the Committee”) in its upcoming review of the Government of Turkmenistan’s (State party) compliance with the Convention on the Elimination of All Forms of Discrimination against Women (“the Convention”) based on the Committee’s Concluding Observations (“2018 COs”) – particularly paras. 38 (b) and 39 (b) – issued during its 70^th session on July 2-20, 2018, and List of Issues (“2023 LIs”) adopted during its 87th pre-session on May 30-June 2, 2023 (2023 LOIs).
2. In the 2018 COs, the Committee expressed concern on the “the criminalization of all abortions performed outside of hospitals and/or without the authorization of a medical doctor and the fact that parental consent is required for girls under 18 years of age to obtain an abortion” and called on the State party to “legalize abortion, not only in cases of threat to the life or health of the pregnant woman and severe fetal impairment, but also in cases of rape and incest, decriminalize abortion in all other cases and increase access for women to safe abortions and post-abortion care.”
3. In the 2023 LIs, the Committee requested the State party to provide information on its “efforts to reduce the rate of maternal mortality” and “the health-care infrastructure available to women in rural areas,” describing “efforts to guarantee access for women and girls to non-judgmental and accessible sexual and reproductive health information and services, affordable or, if needed, free, modern contraceptives and emergency contraception, in particular for rural women and adolescent girls, including by authorizing sexual and reproductive health services outside of hospitals, especially in cases in which no medical procedure is required.” The Committee also requested the State party to “clarify whether the requirement of parental consent for access to contraceptives and reproductive and sexual health services for adolescent girls has been removed.”
4. In its report to the Committee, the State party shared that only “95 reproductive health offices across the country” provide reproductive health care services such as safe abortion. It also noted that “in order to prevent the practice of illegal abortions, criminal liability has been established.” The State party also reported that abortion services are legal and “provided up to five weeks of gestation [or] until the beginning of the fetal heartbeat.” It also admitted that the written consent of parents (or persons acting in loco parentis) for abortion is [still] required for those who are under 18 years of age.
5. In its response to the Committee’s LIs, the State party stated that the maternal mortality rate declined resulting from its implementation of various strategies, policies, and protocols.  It also reported that “in 2022, 76 gynecologists were certified in safe abortion methods for indications, in particular, medication and vacuum aspiration.” In addition, it clarified that girls above 16 years of age no longer need parental consent to receive reproductive health services.
6. During the Committee’s 87^th pre-session in 2023, Progres Foundation and Saglyk submitted a report (2023 NGO report) that included a section on health, highlighting the restrictive abortion legal framework in the country. This submission builds on this section of the 2023 NGO report and provides additional information on the: (1) status of abortion laws and policies in the State party; (2) available abortion-related data and statistics; and (3) remaining legal and practical barriers to abortion access. In this report, we further outline the existing public health and human rights standards on abortion, including those under the WHO Abortion Care Guideline (“WHO Guideline”), to highlight the relevant obligations of the State party and its accountability for multiple rights violations.

II. Overview of the State party’s legal framework and obligations on abortion

7. The Constitution of Turkmenistan guarantees fundamental rights including the rights to life, health, equality of men and women, freedom from torture and ill-treatment, and freedom from discrimination. In addition, the country’s 2015 law on “Equality and Equal Opportunities for Men and Women” seeks to prevent gender-based violence and guarantees the right to health and information on reproductive health. 
8. The State party acceded to major international human rights treaties that require them to respect, protect and fulfil sexual and reproductive health and rights (SRHR) including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR),the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishments (CAT),the Convention on the Rights to Child (CRC),  the Convention on the Rights of Persons with Disability (CRPD),and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
9. Despite the State Party’s human rights commitments, its legal framework on abortion remains highly restrictive and discriminatory against women, only allowing abortion up to five weeks of gestation on request of the pregnant person.The current provision – the result of a 2015 amendment of the Public Health Care Act and further amendment by the Law of Turkmenistan in 2017 – is a regression on the provision of abortion under the 2002 Public Health Care Act that allowed women and girls to undertake abortion up to 12 weeks’ gestation on request.
10. The current law has also limited the provision of legal abortion for social and medical reasons up to 22 weeks of gestation, contingent upon a decision by a medical advisory commission. For pregnancy beyond the gestation of 22 weeks, abortion is allowed only for medical reasons and based on a decision of a council of doctors in the manner prescribed by the authorized body. All abortions must be performed in state medical facilities. The current law additionally requires parental written consent and a medical advisory commission decision for abortions involving pregnant minors including those up to 5 weeks of pregnancy.
11. The abortion services obtained beyond the specified grounds are criminalized under Article 118 of the country’s Criminal Code. Accordingly, doctors who provide abortion services outside of a medical setting and without a legal ground may be penalized with up to 2 years of correctional labor, or compulsory labor of up to 480 hours, or asked to pay a fine. If the person does not possess the necessary medical qualifications, they may be imprisoned or subjected to correctional labor for up to 2 years, or asked to pay a fine. Further, if they are found guilty of committing more than one of these offenses, then imprisonment may be increased up to three years. In cases where an abortion resulted in death or harmed the health of the person seeking abortion, the imposable penalty may be up to five years of imprisonment. In all cases, an accessory penalty of disqualification to hold certain positions or engage in certain activities may also be imposed.

III. Key data and statistics on abortion

12. One of the issues raised in the 2023 NGO report is the absence of comprehensive and disaggregated data that would allow for a more nuanced and accurate assessment of the situation of women and girls in the State party. The lack of reliable public data extends to abortion. Based on data from sources other than the State party, estimates on the number of abortions in the country are described below.
13. Globally, the number of unintended pregnancies ending in abortion decreases in countries with less restrictions and where it is broadly legal. Given the highly restrictive legal framework on abortion in Turkmenistan, it is not surprising to see a high percentage of unintended pregnancies ending in abortion. According to the Guttmacher Institute, the share of unintended pregnancies ending in abortion is estimated to be around 83% between 2015-2019. This translates to an annual total of approximately 28,900 abortions out of the 35,000 unintended pregnancies in the country.
14. The country’s abortion number is slightly higher compared to the overall estimates for the subregion i.e. Central Asia where the share of unintended pregnancies ending in abortion is at 80%, and significantly elevated compared to other subregions in Asia e.g., South Asia (44-72%), Southeast Asia (42-65%),  West Asia (53-64%), and East Asia (76%). This substantially high proportion of unintended pregnancies ending in abortion reflects the urgent need for tens of thousands of women in Turkmenistan to have access to the full range of sexual and reproductive health care including comprehensive abortion care.
15. Turkmenistan’s restrictive abortion laws also increase vulnerability to further abuse and violence among women. For example, unwanted pregnancy and denial of abortion may subject victims of sexual violence to not only physical and mental suffering but also further stigmatization and isolation. Access to quality and timely abortion care in the country is important where approximately 1 out of every 3 women who experience physical and sexual abuse or violence from their partner resort to abortion.
16. In 2021, UNFPA laid down an investment case for reducing the unmet need for family planning in Turkmenistan. UNFPA reported that under the current family planning policy of the country, only 4.32% of specific groups of vulnerable women can be reached. UNFPA argued that addressing their unmet need for family planning in the next 10 years (2021-2030) will prevent a total of 6,600 unsafe abortions and 132,800 safe abortions.  References in the 2021 UNFPA report are not publicly accessible though. It is important to note, however, that improving access to family planning is only a part of creating a supportive law and policy for quality abortion care. According to UN bodies and experts, to prevent unsafe abortion and reduce maternal mortality and morbidity, laws and policies providing quality contraceptive information and services, including a full range of contraceptive methods must be provided to lower unintended pregnancies. Both abortion and contraception are considered as essential health care.
17. Finally, as noted earlier, the State party reported that there are only 95 reproductive health offices throughout the country providing safe abortion and 76 gynecologists certified in 2022 to provide abortion through medication and vacuum aspiration. The total number of certified gynecologists providing abortion care is unavailable. Given the estimated number of abortions annually i.e., 28,900, it seems that there is an insufficient number of providers who can effectively cater to the needs of the population. Further, it is unclear whether gynecologists including those certified in 2022 are adequately spread out across the country, whether abortion can be accessed in all state medical facilities and not limited to the 95 reproductive health offices, and whether it is available for free. Furthermore, the inaccessibility and inferior quality of care in the public health facilities coupled with bribery and corruption demonstrates the poor state of and inability of the public health care system to effectively respond to the population’s health needs.

IV. Legal and practical gaps and challenges in abortion access

18. International human rights law grounds the right to abortion in a constellation of rights, including: the rights to life and the highest attainable standard of health; information; autonomy; liberty; privacy; equality and non-discrimination; freedom from cruel, inhuman, and degrading treatment; and to determine the number and spacing of children. Despite the Committee’s recommendations to the State party to legalize and decriminalize abortion, as well as the adoption of the WHO Guideline, multiple legal and practical barriers to abortion access persist in the country. These include: (1) continued criminalization of abortion, (2) a highly restrictive gestational limit, (3) grounds-based approaches and vaguely drafted laws, (4) third-party authorization requirements, (5) other access restrictions, (6) lack of accurate, public data on abortion, and (7) abortion stigma and discrimination. In this section, we briefly discuss each of these issues and then summarize the State party’s relevant human rights violations and failure to follow WHO standards.

Continued criminalization of abortion

19. As noted above, abortion continues to be criminalized under the country’s Criminal Code carrying a maximum penalty of 2 years for a qualified provider performing an abortion beyond the legal grounds. The State party, in its report to the Committee, failed to outline the specific steps taken to implement the Committee’s recommendation on legalizing and decriminalizing abortion.
20. The Committee has linked the criminalization of abortion and its consequences to the resulting high number of women and girls seeking unsafe abortions and preventable maternal mortality, and noted that the criminalization of abortion is a form of gender-based violence. In its General Comment on the right to life, the Human Rights Committee stated that while states may regulate abortion, it “must not result in violation of the right to life of a pregnant woman or girl, or her other rights under the [ICCPR]” such as  her right to privacy, equality and non-discrimination, and to be free from torture and ill-treatment. It prohibits regulations that force women to undergo an unsafe abortion which includes “apply[ing] criminal sanctions against women and girls undergoing abortion or against medical service providers assisting them in doing so.” Further, in recommending the decriminalization of abortion, the WHO has clarified what decriminalization means in practice: “removing abortion from all penal/criminal laws, not applying other criminal offences (e.g. murder, manslaughter) to abortion, and ensuring there are no criminal penalties for having, assisting with providing information about, or providing abortion, for all relevant actors.” Decriminalization ensures that anyone who has experienced pregnancy loss does not come under suspicion of illegal abortion when they seek care.

Highly restrictive gestational limit

21. As admitted by the State party in its report to the Committee, abortion is allowed only “until the beginning of the fetal heartbeat.”  The five-week limit imposed by the State party is the lowest in the world.
22. UN bodies including the Committee on Economic, Social, and Cultural Rights (ESCR Committee) have reinforced four essential and interrelated standards for sexual and reproductive health services: availability, accessibility (including affordability), acceptability and quality. This also means that everyone has a right to non-discrimination and equality in accessing sexual and reproductive health care including abortion.
23. As noted by the WHO, studies have shown how gestational age limits discriminate and can disproportionately impact vulnerable groups of women such as those with cognitive impairments, adolescents, younger women, women living further from clinics, women who need to travel for abortion, those with lower educational attainment, those facing financial hardship and those who are unemployed.It recommended against laws and other regulations that prohibit abortion based on gestational age limits explains that, “Imposed through formal law, institutional policy or personal practice by individual health workers, these [gestational] limits restrict when lawful abortion may be accessed by reference to the gestational age of a pregnancy . . . While methods of abortion may vary by gestation. . . pregnancy can safely be ended regardless of gestation. Gestational limits are not evidence-based; they restrict when lawful abortion may be provided by any method.”

Grounds-based approaches and vagueness in their applicability

24. As highlighted earlier, abortion in Turkmenistan is allowed only on social reasons up to 22 weeks of pregnancy and may be allowed beyond 22 weeks of gestations for medical reasons. Under the law, however, it is unclear what is meant by “social” and “medical” reasons. This lack of clarity is further complicated by the involvement of medical advisory commissions or council of doctors who must decide and agree on abortions which may be performed on these grounds.
25. The Committee together with the Committee against Torture, and the Human Rights Committee have found that denying or delaying safe abortion or post-abortion care may amount to torture or cruel, inhuman or degrading treatment. Similar to gestational age limits, a grounds-based approach can also disproportionately impact marginalized groups including those who face financial hardship, with lower educational attainment, and those who seek abortion for pregnancies resulting from rape. As observed by the WHO, a grounds-based approach can be often “too narrowly defined or too conservatively applied” and does not serve the goals protecting women from unsafe abortions and reducing maternal morbidity and mortality.
26. In Turkmenistan, it is highly likely that narrow interpretation and application of the abortion legal provisions will occur because of the law’s vagueness e.g., lack of definition on what constitutes as medical and social grounds, unclear scope of authority of the medical advisory commissions and council of doctors, and absence of known mechanisms in cases abortion is wrongfully denied. Based on WHO’s review of existing studies, grounds-based laws lead to delays in abortion due to inconsistent interpretation and application of laws and other burdensome and unnecessary bureaucratic processes. The WHO recommended against laws and other regulations that restrict abortion by grounds. It also recommended that abortion be available on the request of the woman, girl, or other pregnant person.

Third-party authorization requirements

27. Initially, the State party reported to the Committee that anyone below the age of 18 would require written parental consent to access abortion. However, the State party subsequently reported that only those below 16 years of age are required to do so. In addition to the confusion that these statements bring to girls, parents, and providers alike, these statements make it clear that the State party continue to require third-party authorizations for girls and adolescents. This third-party authorization also extends to the requirement that the State party has imposed for abortions up to 22 weeks based on medical and social grounds where a medical advisory commission would be involved, and beyond 22 weeks of gestation for medical grounds where a council of doctors would have to decide.
28. UN treaty monitoring bodies have urged States to repeal third-party authorization requirements – such as those required from spouses, judges, parents, guardians, or health authorities – to access reproductive health services and information, classifying these requirements as forms of discrimination against women and barriers to women’s access to reproductive health services. In its General Recommendation No. 33 on access to justice, the Committee called on States to “abolish rules and practices that require parental or spousal authorization for access to services such as…health, including sexual and reproductive health.” UN bodies have also expressed concern about multiple medical authorizations for abortion services, such as permission from a panel of doctors or more than one certifying consultant, which may make women dependent on the benevolent interpretation of a rule which nullifies their autonomy.
29. Numerous cases in international human rights fora, including the Committee, have established that where abortion is legal, states must establish a legal framework that enables women to effectively exercise this right. Such a legal framework requires, among other things, the implementation of effective, immediately accessible, rapidly-responding processes by which individuals can assert their rights to treatment and receive an authoritative response from an independent body when they are denied access to sexual and reproductive health services.
30. Further, the Committee on the Rights of the Child (CRC Committee) has also specifically urged States to review abortion legislation with a view to guaranteeing the best interests of pregnant adolescents, and ensure that their views are always heard and respected in abortion-related decisions. The CRC Committee then urged States to remove parental and guardian consent requirements by giving consideration “to the introduction of a legal presumption that adolescents are competent to seek and have access to preventive or time-sensitive sexual and reproductive health commodities and services.”
31. Agreeing with all these human rights standards, the WHO recommends that abortion be available on the request of the woman, girl or other pregnant person without the authorization of any other individual, body or institution. Studies considered by WHO found the “associations between mandated parental involvement (including authorization) and barriers to accessing abortion (including delay, continuation of pregnancy, anticipated interpersonal violence or exploitation, reproductive coercion, family disharmony and recourse to unsafe abortion).” WHO also pointed out how “third-party authorization requirements operate without regard to whether the person who seeks to end a pregnancy has capacity to consent to medical treatment” and therefore denies them of their right to exercise their reproductive autonomy.

Other access restrictions

32. Other forms of ambiguity and restrictions remain a significant part of the remaining barriers and challenges faced by any Turkmen seeking abortion in the country. As mentioned earlier, under the country’s Criminal Code, abortion is allowed only in state medical institutions. However, as reported by the State party, there are only 95 reproductive health offices across the country provide for safe abortion and 76 gynecologists certified to provide abortion in 2022. This is significantly insufficient to cater to the over 1.6 million of women of reproductive age in the country. Further, it remains unclear whether medication abortion or the use of mifepristone and misoprostol, a WHO recommended method for abortion, is allowed and available in the country. Furthermore, whether abortion may be availed of for free is undefined as there is no publicly available information on whether public health insurance will cover the procedure. Finally, while self-managed abortion is not expressly prohibited under the Criminal Code, it may still be interpreted as an offense and subject the women to imprisonment, correctional labor, or fine for “carrying out an artificial termination of pregnancy by a person who does not have a higher medical education in the relevant field.”
33. Under General Comment 22 of the ESCR Committee, States have an obligation to ensure the availability of health care including ensuring the adequate training of health care providers, a sufficient number of health facilities throughout the country, adequate sanitation and infrastructure for sexual and reproductive health services, including in rural areas, and essential drugs, as defined by the WHO Model List of Essential Medicines. The obligation also extends to ensuring the accessibility of essential health care by guaranteeing that women do not have to travel long distances to health facilities and have access to transportation to ensure their right to health information and services; ensure that health services and goods are affordable for everyone and should provide free or low-cost reproductive health goods and services for women who cannot afford them, including abortion; and women have access to comprehensive, age-appropriate, unbiased, and scientifically accurate sexuality education, and the information and education necessary to enable them to freely determine the number and spacing of their children.
34. The WHO recommends the use of mifepristone and misoprostol for medication abortion. If mifepristone is not available, misoprostol alone can be administered to procure a safe and effective abortion. Mifepristone and misoprostol have been included on the WHO List of Essential Medicines since 2005.The WHO has also recommended self-managed abortion with medicines as a method of abortion for persons who are less than 12 weeks pregnant and have “a source of accurate information and access to a health-care provider.”

Lack of accurate, public data on abortion

35. As highlighted on multiple occasions in this report as well as in the 2023 NGO report, availability and access to data remain a major challenge. For example, the State party has not provided comprehensive data concerning abortion rates for over three decades. Public information on how to access post-abortion care is also unavailable. There is no available information on whether conscientious objection or refusal by health workers to provide abortion care is allowed and if so, how women’s and girls’ access to abortion is guaranteed. Similarly, national strategies mentioned by the State party in their report to the Committee such as the National Strategy for Reproductive, Maternal, Newborn, Child and Adolescent Health for 2020-2030 and the 2021-2025 National Strategy on “Healthy Mother – Healthy Child – Healthy Future,” have not been published online.
36. States have an obligation to gather disaggregated data on health outcomes including abortion and to formulate laws, policies, and programs that reflect the needs of society, including marginalized groups. During its 2011 review of Turkmenistan, the ESCR Committee expressed concern that “the abortion rate in the State party, especially among young people, remains high” and regretted that “the State party did not provide sufficient information about its efforts in the field of education and prevention with respect to sexual and reproductive health, and that the State party did not provide statistical data, disaggregated by sex and age, on health issues.”

Abortion stigma and discrimination

37. Another change introduced during the amendment of the Public Health Act was a complete elimination of the term “abortion”; instead the phrase “induced or artificial termination of pregnancy” was used. The term creates confusion due to its lack of clarity and specificity, poses clear disadvantages for research visibility, and has the potential to reinforce stigma around abortions.Meanwhile, state media promotes pronatalist propaganda encouraging Turkmen women to have eight children and reinforcing their primary role as child-bearers in society.
38. Several of the treaty monitoring bodies, and this Committee in particular, have regularly called on States to work to eradicate gender stereotypes, noting that patriarchal attitudes, cultural stigma, and gender stereotypes about women as mothers and caregivers, prejudices about sexual and reproductive health services, and taboos about sexuality outside of marriage all contribute to the lack of access to reproductive health information, goods and services. In General Comment No. 22, the ESCR Committee called on States to eliminate discriminatory stereotypes, assumptions, and norms concerning sexuality and reproduction that underlie restrictive laws and undermine the realization of sexual and reproductive health. Both the CEDAW and ESCR Committees have suggested that States must adopt temporary special measures to eliminate conditions and combat gender-based stereotypes and attitudes that perpetuate inequalities and discrimination in order to enable all individuals and groups to enjoy sexual and reproductive health on a basis of equality.

Proposed Questions and Recommendations

Considering the information above and the State party’s obligations under the Convention, we propose that the Committee raise the following questions to the State party:

1. What measures has the State party adopted to implement the Committee’s recommendation to decriminalize abortion? Please also share information on the number of arrests and prosecutions resulting from the implementation of the criminal provisions on abortion.
2. Given the vagueness of the Public Health Act, it remains unclear how women and girls can effectively, legally, and timely access abortion within the five-week limit, between 5 and 22 weeks, and after 22 weeks as well as what the relevant roles of medical advisory commissions and council of doctors are. To shed some light on this and ensure abortion access –
   1. Please clarify when parental consent for abortion is necessary i.e., below 18 years of age or 16 years of age given the conflicting information provided to the Committee.
   2. Please provide information on the composition, location, and number of authorized commissions and councils that have been set up as well as the number and location of medical facilities where abortion may be legally provided in the country. Please also share the total number of certified gynecologists throughout the country currently providing comprehensive abortion care.
   3. Please share the available remedies and redress of the person seeking abortion if abortion is denied by a commission or council, or consent is withheld by their parent.
   4. Please also share a copy of the Order of the Ministry of Health and the Medical Industry of Turkmenistan (2022) on abortion as mentioned in the State party report.
3. What steps has the State party taken to systematically collect, analyze, and disseminate disaggregated data on the number of safe and unsafe abortions and their impact on women’s health outcomes including by age, gender, ethnicity and race, socioeconomic status, and geographic location? Please share where the official findings and reports of the State party may be accessed by the public.
4. What steps has the State party taken to ensure access to abortion according to the WHO recommended methods? Please provide information on the registration of mifepristone and misoprostol in the country’s essential medicines list and its availability in public and private health facilities. Please also clarify if self-managed abortion is allowed under the current abortion laws.
5. What measures has the State party taken to prevent and address the stigma on abortion and ensure the safety and security of those who seek and provide abortion? Please also provide information on the policy providing incentives to women who give birth to more children.
6. Please also share a copy of the Order of the Ministry of Health and the Medical Industry of Turkmenistan (2022) on abortion as mentioned in the State party report.

We further propose that the Committee urge the state party to:

1. Systematically collect and disseminate disaggregated data on women’s health outcomes including on the number of trained providers, and public and private health facilities where comprehensive abortion care is available and accessible.
2. Fully decriminalize abortion and not impose any penalties on any person supporting, assisting, or providing abortion including by repealing the relevant provisions of the Criminal Code and 2015 Public Health Care Act.
3. Repeal the 5-week gestational age limit and other restrictions on abortions based on specific grounds or gestational age limits.
4. Make abortion available on the request of the woman and other pregnant persons without restrictions as to reason and without the authorization of any other individual, body, or institution.
5. Adopt and disseminate regulations to ensure effective and timely access to comprehensive abortion care in accordance with international human rights norms and standards and the WHO Abortion Care Guideline.
6. Remove arbitrary restrictions on who can provide abortions, where it can be provided, and allow the self-management of abortion and access to medical abortion by ensuring access to mifepristone and misoprostol.
7. Challenge harmful gender stereotypes of women including their primary role of being child-bearers and child rearers, conduct education and awareness raising activities including providing training in schools, government offices, and health facilities to address negative cultural attitudes to abortion and gender equality in general.

We sincerely hope that this information is useful to the Committee as it prepares to review the government’s compliance with the provisions of the Convention. If you have any questions or would like further information, please contact Jihan Jacob at jjacob@reprorights.org or Prabhakar Shrestha at shresthap@reprorights.org of the Center for Reproductive Rights.