Maternal mortality and accountability

Published for the first time in Human Rights in Ireland. January, 13. 2013  http://www.humanrights.ie/index.php/2013/01/10/maternal-mortality-and-state-accountability/

We are delighted to welcome this guest contribution by Sarah Houlihan.  Sarah is an attorney with Women’s Link Worldwidebased in Bogotá. She has practised as a barrister, holds an LLM in International Human Rights Law from the University of Nottingham a well as a degree in Corporate Law with German and a postgraduate degree in law from NUI Galway.

In 2010, about 287,000 women worldwide died due to complications of pregnancy and child birth, including severe bleeding after childbirth, infections, hypertensive disorders, and unsafe abortions. According to the Inter American Commission on Human Rights maternal mortality is an indicator of the disparity and inequality between men and women and its extent is a marker of women’s place in society and their access to social services, health services and nutrition as well as economic opportunities. In the wake of the truly tragic death of Savita Halappanavar last month, there has been much written on the issues of abortion and maternal death in Ireland. This brief entry will focus on the issue of state responsibility and legal accountability in the context of maternal death.

States can be, and increasingly are, held accountable for failing to comply with their national and legal obligations with regard to maternal mortality. In recent years, international treaty monitoring bodies, international and national courts have all found that a failure by States to effectively deliver appropriate maternal health services results in State accountability. Thus, in Alyne v Brazil, the CEDAW Committee held that the maternal death of a young woman due to lack of adequate maternal health services was a violation of her right to health, right to life (in the context of access to justice and the due diligence obligation to regulate the activities of health service providers) and her right to non-discriminatory treatment (with regard to her status as a woman of African descent and her socio-economic background). The Committee reiterated that is the duty of states to ensure women´s rights to safe motherhood and emergency obstetric services, and to allocate to these services the maximum extent of available resources. State policies, it opined, must be action-and result-oriented as well as adequately funded. The State is directly responsible for the action of private institutions when it outsources its medical services, and has a due diligence obligation to take measures to ensure that the activities of private actors with regard to health policies and practices are appropriate.

In Xàkmok Kasek Indigenous Community v Paraguay, the Inter-American Court of Human Rights found the State accountable for the breach of the right to life of Ms. Remigia Ruiz who died while giving birth. While the issue of maternal mortality was not core to the case, nonetheless the Court addressed the obligations of States in that context. It found that Ms. Remigia had, among other things, given birth without adequate medical care in a situation of exclusion or extreme poverty with a lack of access to adequate health services resulting in her death. It highlighted the link between a lack of adequate medical care for pregnant women or women who have recently given birth and high maternal mortality rates. It held that due to this and the special protection that must be afforded to pregnant women, the State must put in place adequate healthcare policies that allow it to offer care through personnel who are adequately trained to handle births, policies to prevent maternal mortality with adequate prenatal and postpartum care as well as legal and administrative instruments regarding healthcare policy that allow for the adequate documentation of cases of maternal mortality. Ms. Remigia’s maternal death was attributable to the State as it had failed to undertake the positive measures necessary, and reasonably expected of it, within the realm of its responsibilities including preventing or avoiding a risk to the right to life.

State accountability for maternal deaths has also been examined by national courts. In response to alarmingly high maternal mortality rates (MMR), India had launched a national programme to provide accessible, affordable and quality health care to the rural population. It aimed to reduce the MMR from 407 deaths per 100,000 live births to 200 through a series of activities. Three key goals were identified: access to emergency obstetric care, skilled attendants at birth and an effective referral system to be achieved via an extensive strategy which included training of staff, provision of ante-natal vitamins and minerals, improving access to safe abortion services and providing essential equipment and drugs for providing comprehensive abortion care. InSandesh Bansal v Union of India and others, before the High Court of Madhya Pradesh Jabalpur, the petitioner, a social activist, alleged that the programme had not been effectively implemented and there was a lack of government will to address maternal mortality. Additionally it was alleged that women were dying due to the high cost of health care and the failure of public health system, lack of qualified medical staff in rural areas, lack of appropriate transport as well as cultural and social reasons that hinder women’s access to health care, with a disproportionate impact on poorer women. The Court observed that the inability of women to survive pregnancy and child birth violates their fundamental right to live as guaranteed under the Constitution of India, and held that it was the primary duty of the government to ensure that every woman survives pregnancy and child birth, and secure her life. (See also Laxmi Mandal. v Deen Dayal Harinagar Hosptial & Ors wherein the New Delhi High Court recognized a constitutionally and internationally protected right to maternal healthcare and ordered compensation for rights violations experienced by two impoverished women and their babies during and related to childbirth.)

A myriad of rights guaranteed under many regional and international conventions are engaged and violated when women are allowed to die from maternal causes, which the WHO has estimated are 88 to 98 per cent preventable. Those violated rights include the right to life, the right to information, the right to health both physical and mental and including sexual and reproductive health, the right to dignity, the right to personal and bodily integrity, the right to autonomy, the right to equality and/or freedom from discrimination, the right to privacy, the right to avail of the benefit of scientific progress and the right to be free from cruel inhuman and degrading treatment and are contained in instruments such as the International Covenant for Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and People’s Rights, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, the American Convention on Human Rights, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the European Convention of Human Rights, the Convention on the Elimination of Discrimination against Women, the American Declaration on the Rights and Duties of Man, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment amongst others.

It is beyond dispute that States are responsible for regulating and monitoring the delivery of health services in order to achieve the effective protection of the rights to life, health, autonomy and personal integrity, among others, regardless of whether the entity providing such services is public or private in nature. It is evident from the above case law that issues such as lack of access to services, failure to provide adequate services and the denial or delay of services based on social or cultural reasons has led to State responsibility in certain contexts. Failure of States to abide by their international legal obligations in relation to maternal health and mortality negatively impacts on women’s and girls’ lives (with repercussions on their families and communities) and can and does result in death, with a disproportional impact on poorer and less educated women often living in rural areas.

In 2006, the Colombian Constitutional Court, when it liberalized its abortion laws, stated that “the legislature […] cannot ignore that a woman is a human being entitled to dignity and that she must be treated as such, as opposed to being treated as a reproductive instrument for the human race. The legislature must not impose the role of procreator on a woman against her will.” It added that “women’s sexual and reproductive rights [which] have finally been recognized as human rights […] emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity’s advancement towards social justice.” As the Irish government prepares to legislate on a woman’s right to be the author of her own decision; to decide what may or may not happen to her body within the jurisdiction, it should bear in mind not just the human rights of women and girls which are in play, such as the rights to life, dignity, autonomy, health, non-discrimination, and the freedom from torture, it should also take careful note of the legal consequences of failing to ensure such rights to women and girls, particularly where that failure results in their deaths. States can and will be held accountable for preventable maternal deaths, including deaths from abortion related incidents. There are many things that we, as a country cannot control at the moment – this, the respect, both legislative and otherwise, we accord to women and girls in Ireland and their life choices, is something we can. Let us hope for social justice.

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