University of Botswana Law Journal - PULP

THE RIGHT TO MATERNAL HEALTH CARE 43
is being given to maternal mortality reduction is increasingly hailed
as an opportunity to improve public health systems. 13
Maternal health and maternal health care are to be distinguished. The
right to maternal health (like the right to health generally) encompasses a
range of divergent factors and underlying human rights that must be realized
to fully realize the right to maternal health (such as food, clean water, and
other socio-economic factors). While the underlying conditions that pregnant
women face around the world are a critical part of their right to maternal
health, as an attempt to define a set of minimum standards and to develop
attainable, enforceable duties on governments to prevent maternal mortality, I
focus only on the duty of governments to provide pregnant women with
maternal health care, arguing that duty exists in international human rights
law. 14 Access to abortion, an underlying condition affecting maternal health
generally, often is included in advocating for maternal health protection. I
purposefully avoid discussion about abortion rights in this paper, even though
many advocates for reproductive rights consider abortion rights to be
reproductive rights. 15 While access to abortion services would reduce
unwanted pregnancies, and therefore have some effect on reducing overall
maternal mortality, I do not discuss abortion issues, choosing instead to
examine ways in which to ensure that women have access to health care
during non-intentionally-terminated pregnancy and childbirth. 16 Because
health care during pregnancy and childbirth is known to prevent maternal
mortality, I present policy options to advocate for improved access to health
care services during pregnancy and childbirth by using international human
rights law.
13 Id.
14 This duty on governments to provide maternal health care could be considered a “positive human right.”
In arguing that the right to health should be conceived as a negative right, B. Jessie Hill, Associate
Professor and Associate Director of the Center for Social Justice at Case Western Reserve University
School of Law, distinguishes between positive and negative rights: “A positive right is generally
considered to be an entitlement to something – a right to call on the government to provide, at government
expense, a particular public good, such as shelter, education or medical care. Such rights are sometimes
referred to as ‘socio-economic rights,’ and they are recognized as constitutional rights in a number of
foreign countries. International law and numerous national constitutions, moreover, specifically recognize
a right to health, which is in most instances understood as a positive entitlement to health care. Negative
rights, by contrast, are simply rights to be free of governmental interference with one’s decision to do
something; they are ‘negative checks on government, preserving a sphere of private immunity.’” B. J.
Hill, Reproductive Rights as Health Care Rights, 18 Colum. J. Gender & L. (2009) p. 501, pp. 502-503.
15 See, “e.g” Center for Reproductive Rights, Our Issues, http://reproductiverights.org/en/our-issues (last
visited 15 April, 2010).
16 For comprehensive discussions on abortion rights as reproductive rights central to protecting women’s
health, see, e.g., Hill, supra note 14.