University of Botswana Law Journal - PULP

THE RIGHT TO MATERNAL HEALTH CARE 41
Part 1 begins by identifying the right to maternal health care as part
of the right to health. Part 2 clarifies the international community policies
establishing maternal health care as a human right. In Part 3, I build from
existing international community policy to develop a multifaceted human
rights approach to prevent maternal mortality. First I note that while the right
to health includes the right to maternal health care, the right to maternal health
care must be separated from the right to health to ensure that international
human rights law is meeting the specific needs, cultural differences and
particular experiences of women. 7 Next, I focus on policy alternatives for
states, using the United States as an example. I then turn to examining how
individuals and non-state actors can use a human rights perspective and frame
strategies within the current international human rights law regime to act to
ensure the right to maternal health care. I conclude by arguing that building
from existing international community policy that establishes maternal health
care as a human right is an opportunity for both states and individuals to act to
prevent maternal mortality globally.
Clarification of the Right to Maternal Health Care
I use the term “maternal health care” to refer to prenatal, obstetric, and
postnatal health care that, at minimum, means: (1) having access to a skilled
health care professional when needed during pregnancy; (2) having a skilled
health care professional present during delivery if desired; (3) the access and
ability to utilize basic emergency obstetric care; 8 and (4) having access to a
skilled health care professional as needed for 42 days after the birth of a child
or the termination of a pregnancy (such as through miscarriage). 9 These four
6 assert that the formal articulations of reproductive rights in international law, which are being advanced
through the development of customary international law and through individual lawsuits, provide a
foundation from which reproductive health advocacy can advance its goals. Id.
7 This statement borrows language from an essay by E. Brems, who uses the theoretical framework of
“inclusive universality” to focus on the “adaptation of international human rights law to the specific needs
and experiences of women.” E. Brems, Protecting the Rights of Women, in International Human Rights in
the 21st Century: Protecting the Rights of Groups 100 (G. M. Lyons & J. Mayall, eds., 2003), reprinted
(with changes from E. Brems) in Human Rights in the World Community: Issues and Action 120, 123 (R.
P. Claude & B. H. Weston eds., 2006).
8 For the definition of “basic” emergency obstetric care that I use, see infra, note 12.
9 Because I use a definition of maternal health care that is specifically tailored to preventing maternal
mortality, at a minimum maternal health care must include access to a skilled health care professional for
42 days after the termination of a pregnancy, whether through birth or through other causes. This is
because the World Health Organization defines maternal death as: “the death of a woman while pregnant
or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from
any cause related to or aggravated by the pregnancy or its management but not from accidental or
incidental causes.” Further, the World Health Organization distinguishes between maternal death (the
cause of which is related to or aggravated by the pregnancy itself) and death during pregnancy (the cause
of which can be accidental or incidental) in stating: “To facilitate the identification of maternal deaths in
circumstances in which cause of death attribution is inadequate, a new category has been introduced:
Pregnancy-related death is defined as the death of a woman while pregnant or within 42 days of
termination of pregnancy, irrespective of the cause of death.” World Health Organization, Maternal
Mortality Ratio, http://www.who.int/healthinfo/statistics/indmaternalmortality/en/index.html (last visited
16 March, 2010).