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44 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 Part 1: The Right to Health and The Right to Maternal Health Care The human right to health has been recognized in several fundamental human rights instruments, and numerous international agreements articulate state responsibility for the right to health. 17 Among the international instruments recognizing the human right to health are the Universal Declaration of Human Rights, 18 the International Covenant on Economic, Social and Cultural Rights, 19 the International Convention on the Elimination of All Forms of Racial Discrimination, 20 the Convention on the Elimination of All Forms of Discrimination Against Women, 21 and the Convention on the Rights of the Child. 22 “Several regional human rights instruments also recognize the right to health, such as the European Social Charter of 1961 as revised (article 11), the African Charter on Human and Peoples' Rights of 1981 (artricle 16) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (article 10).” 23 Perhaps the most widely used and accepted definition of “health” in international human rights law at present is contained in the preamble to the Constitution of the World Health Organization (“WHO”). 24 The WHO Constitution states: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity.” 25 Maternal health care falls under 17 B. C. A. Toebes, The Right to Health as a Human Right in International Law 4 (1999). Toebes provides a comprehensive and detailed examination of the right to health in her book, from examining the right to health in international treaties and declarations to discussing the implementation of the right to health. As a thorough discussion of the right to health in international law is beyond the scope of this paper, this author recommends Toebes for a complete study of the right to health. See also Realizing the Right to Health (A. Clapham & M. Robinson eds., 2009), the third of the Swiss Human Rights books available at http://www.swisshumanrightsbook.com/SHRB/shrb_03.html. 18 Universal Declaration of Human Rights, G.A. Res. 217A, at Article 25(1) (10 December, 1948), available at http://www.un.org/Overview/rights.html, reprinted in Health and Human Rights: Basic International Documents 1, 3 (S. P. Marks ed., 2006) [hereinafter Universal Declaration]. 19 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A, at Article 12 (16 December, 1966), reprinted in Health and Human Rights: Basic International Documents 4, 7 (S. P. Marks ed., 2006) [hereinafter CESCR]. 20 International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106, at Article 5(e) (iv) (21 December, 1965), reprinted in Health and Human Rights: Basic International Documents 81, 81 (S. P. Marks ed., 2006). 21 Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, at Article. 11.1(f) and Article. 12 (18 December, 1979), reprinted in Health and Human Rights: Basic International Documents 81, 81 (S. P. Marks ed., 2006) [hereinafter CEDAW]. 22 Convention on the Rights of the Child, G.A. Res. 44/25, at Article 24 (20 November, 1989), reprinted in Health and Human Rights: Basic International Documents 249, 255 (S. P. Marks, ed., 2006) [hereinafter CRC]. See also A. Eide & W. B. Eide, Article 24: The Right to Health, in A Commentary on the United Nations Convention on the Rights of the Child (A. Alen et al. eds., 2006). 23 UN Econ. & Soc. Council [ECOSOC], The right to the highest attainable standard of health: Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights 2, E/C.12/2000/4 (11 August, 2000) (General Comment No. 14) [hereinafter ECOSOC General Comment]. 24 I. L. Feitshans, Is There a Human Right to Reproductive Health? 8 Tex. J. Women & L. 93, 97 (1998) and Toebes, supra note 17, at 24. 25 Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference (19-22 June, 1946), available at http://www.who.int/governance/eb/constitution/en/ index.html.
THE RIGHT TO MATERNAL HEALTH CARE 45 the right to health as a form of health care that individuals are entitled to as part of the overarching right to health. In other words, the right to health encompasses the right to maternal health care. The health of pregnant women was not specifically recognized as part of the right to health until the 1994 Programme of Action of the International Conference on Population and Development (“ICPD”). 26 The ICPD Programme of Action embraced the right to “reproductive health” and emulated the WHO definition of health in stating: “Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity in all matters relating to the reproductive system and its functions and processes.” 27 The ICPD Programme of Action also noted that implicit to any reproductive rights was “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.” 28 The ICPD Programme of Action’s “holistic approach” to reproductive rights was endorsed at the 1995 Beijing Women’s Conference, which again placed reproductive rights firmly within the right to health framework. 29 Part 2: Description and Analysis of Past Trends in Establishing the Right to Maternal Health Care The 1994 ICPD Programme of Action encompassed a broad spectrum of reproductive health needs, and symbolized a significant departure from early articulations of reproductive rights in international law. 30 Early attempts to articulate reproductive rights were heavily influenced by the population control movement, such as the 1968 International Conference on Human Rights and the 1974 World Population Plan of Action, both of which recognized reproductive rights as the right of all couples to decide freely and responsibly the number and spacing of their children and the right to have the information, 26 Feitshans, supra note 24, p. 115. 27 United Nations, Programme of Action of the International Conference on Population and Development 7.2 (1994), UN Doc. A/CONF.171/13 (18 October, 1994), reprinted in Health and Human Rights: Basic International Documents 223, 225 (S. P. Marks, ed., 2006) [hereinafter ICPD Programme of Action]. 28 Id. The ICPD also defined reproductive health care as “the constellation of methods, techniques and services that contribute to reproductive health and well-being by preventing and solving reproductive health problems. It also includes sexual health, the purpose of which is the enhancement of life and personal relations, and not merely counseling and care related to reproduction and sexually transmitted diseases.” Id. 29 Sadasivam, supra note 6, pp. 321-323. In 1995, the UN Fourth World Conference on Women met in Beijing, and instead of attempting to write a treaty issued an extremely detailed “Platform Document” which reflected the voices and interests of the thousands of participants. Feitshans, supra note 24, at 107. The Platform for Action “placed reproductive rights squarely within human rights already recognized in national laws, international human rights documents and other consensus documents.” Sadasivam, supra note 6, p. 323. See also, United Nations, Platform of Action of the Fourth World Conference on Women (1995), UN Doc. A/CONF.177/20 (17 October, 1995), reprinted in Health and Human Rights: Basic International Documents 229 (S. P. Marks, ed., 2006) [hereinafter Beijing Platform for Action]. 30 Sadasivam, supra note 6, pp. 318-321.
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