—Verónica Undurraga, Professor at the Faculty of Law, Universidad Adolfo Ibáñez
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
Two years ago, at the ICON-S Conference in Madrid, I and the other editors – Francisca Pou Giménez, Ruth Rubio Marín – presented the book Women, Gender, and Constitutionalism in Latin America. An updated Spanish edition has just been published. One of the book’s central findings is the remarkable volume of constitutional jurisprudence on gender issues produced by Latin American courts—much of which remains understudied. A natural next step is to examine this case law comparatively and thematically.
Reproductive health is one such theme, and a particularly important one in a region marked by high levels of social and gender inequality, weak state capacity, and serious shortcomings in the functioning of health systems. The concept of reproductive health has a well-documented origin and purpose. Mahmoud F. Fathalla developed an initial definition, which was later expanded and adopted in the Programme of Action of the 1994 International Conference on Population and Development in Cairo,[1] and reaffirmed at the 1995 Beijing World Conference on Women. More recently, the 2030 Agenda for Sustainable Development has embedded reproductive health within broader global development goals.
This concept emerged as a response to the fragmentation of health and reproductive services. It sought to move beyond the narrow focus of earlier family planning programs and replace it with a comprehensive, integrated approach to reproductive-related health needs—placing women at the center, not merely as mothers. Since then, it has served as a guiding framework for health providers, lawyers, governments, international organizations, and courts, enabling the integration of ethical, legal, and human rights principles into the protection and promotion of reproductive health.
It is worth examining how Latin American constitutional jurisprudence engages with, and contributes to this framework. The first question is how courts conceptualize the right to reproductive health. This understanding is shaped by multiple factors and is unlikely to remain stable over time. It depends on where the boundary between the public and private spheres is drawn; how individual and social responsibilities for health are allocated; technological developments; and changes in the epidemiological profile of populations—all of which influence the organization of health systems.
It also depends on how constitutions recognize the right to health, as some of them contain explicit provisions on health or reproductive rights.[2] It is important to understand how courts across the region—often receptive to the evolutionary development of rights—have interpreted and applied those and other related constitutional provisions, particularly in constitutions adopted or reformed in recent decades, where feminist movements played a more direct role in shaping the text.
One distinctive feature of Latin American constitutionalism, whose impact on reproductive health warrants further analysis, is its comparatively strong recognition of justiciable social and economic rights. While the justiciability of social and economic rights, combined with expanded avenues for constitutional litigation, may have enabled women to gain access to reproductive health services, there is also a risk that judicialization may privilege individual curative care over required public health measures and narrow broader aspirations for health justice. At the same time, some courts have addressed these risks through structural judgments and dialogical decisions, requiring governments to implement systemic reforms in health policy. The comparative study of judicial decisions specifically addressing reproductive health may shed more light on the ongoing debate about the effects of judicialization and structural judgments in the field of health.
Another conclusion of the book was the need to highlight, alongside undeniable common trends, the diversity of Latin American constitutionalism. Courts are not the primary drivers of rights advancement in every country. In Uruguay and Chile, for example, legislatures and executives have often played a more prominent role than courts. Examining the role the courts play when reproductive-health issues are primarily addressed through legislative and executive action may help us better understand the institutional and political conditions necessary to secure rights in Latin America beyond the active intervention of constitutional courts.
Reproductive health poses distinctive challenges for law, as it is deeply shaped by gender biases that manifest across a wide range of domains—from the lack of research on reproductive diseases to inadequate health services in addressing women’s health needs, to stigma and violence in healthcare settings. The scope of the right to reproductive health will therefore depend on whether courts can identify these biases and on the extent to which rights-based tools are used to dismantle the gender structures that sustain them.
Here, two additional features of Latin American constitutionalism become particularly relevant. First, its openness to international human rights law, which offers a more developed account of the right to reproductive health than many domestic legal systems, and which frames state duties not only as obligations to refrain from interference, but also as positive duties of protection and fulfillment. Second, its embrace of substantive equality, an asymmetrical conception oriented toward addressing real-world inequalities.
Future research should examine how these features shape reproductive health jurisprudence in the region. More specifically, how do positive obligations and the commitment to substantive equality influence judicial decisions concerning individual access to services, the functioning of health systems, and the broader socioeconomic conditions that determine women’s ability to exercise their reproductive-health rights. For example, it would be valuable to examine how and how much national courts engage with CEDAW General Recommendation No. 24 on women and health, CESCR General Comment No. 14 on the right to the highest attainable standard of health, decisions of the CEDAW Committee on maternal mortality and obstetric violence, and the jurisprudence of the Inter-American Court of Human Rights on issues such as forced sterilization and assisted reproductive technologies—all of which develop the right to reproductive health and envision transformative measures to ensure it.
The doctrine of the bloque de constitucionalidad has provided important support for feminist litigation strategies that invoke international treaties and decisions, and standards developed by treaty-monitoring bodies before domestic courts. In turn, national judgments that incorporate international law are cited by courts elsewhere in the region, creating a dynamic field of transnational law to which both the Inter-American human rights system and Latin American courts contribute their distinctive perspectives. Understanding these cross-references and their effects is another important task for future research.
On the ground, judicial decisions concerning reproductive health rights may be beneficial, problematic, or a combination of both, depending on the level of analysis. To identify their strengths and shortcomings, this regional jurisprudence must be studied carefully and systematically. Such research requires taking the right to reproductive health seriously, while remaining mindful of the purpose behind the concept’s creation and of the structural inequalities that women continue to face in accessing that right. It must also be situated within broader debates about the role of constitutional courts in addressing the failures of political institutions to guarantee fundamental rights.
Suggested citation: Verónica Undurraga Valdés, Reproductive Health and Constitutionalism in Latin America: A Research Agenda, Int’l J. Const. L. Blog, Jun. 24, 2026 at: http://www.iconnectblog.com/reproductive-health-and-constitutionalism-in-latin-america/
[1] “Reproductive health is a state of complete physical, mental and social well-being (…) implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit (…) are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law, and the right of access to appropriate health-care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.” United Nations, Programme of Action of the International Conference on Population and Development, UN Doc. ST/ESA/SER.A/149 (1994), para. 7.2.
[2] For example, article 66 (10) of the Constitution of Ecuador establishes the right to take free, responsible and informed decisions about one’s health and reproductive life and to decide how many children to have.