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58 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 standards of maternal health care are all aspects of a comprehensive approach to ensuring the right to maternal health care. 75 Using a human rights perspective to approach the global problem of maternal mortality will help achieve the “fundamental shift in thinking and action [that] is required if progress towards reducing maternal mortality is to be achieved.” 76 Maternal mortality is caused by acknowledged, documented and universal determinants. 77 “These determinants are often mutually reinforcing, and directly linked to poverty.” 78 Approaching the right to maternal health care as a human right is a way to comprehensively address the varying but interrelated determinants of maternal mortality, as well as a way to bring a woman-centered approach into international efforts to eliminate preventable maternal mortality. Separating the Right to Maternal Health Care from the Right to Health Viewing the right to maternal health care as a human right that stands on its own, apart from the right to health framework, achieves greater protection for the right to maternal health care. 79 The right to maternal health care is integral 75 Maha Muna, a representative of the United Nations Population Fund described a comprehensive approach to reducing maternal mortality as part of a panel discussion in 2009. “What does it take [to reduce maternal mortality]? Three focus areas: first of all, a recognition that giving birth safely is a human rights standard and principle which is inexpensive. Limited measures need to be taken to get there: access to contraceptives, skilled personnel and prompt emergency obstetric care. Secondly, acknowledging the challenges in addressing rights-holders, which require mobilizing communities, raising awareness as well as tackling inequality and discrimination. Complications during childbirth are the leading cause of death for women in Africa and for girls 15-19 in developing countries in general. This reflects entrenched discrimination against women and failure to promote women's rights. Many women are unable to exercise their rights because of their youth, poverty and ethnic background. The link between rights-holders and duty-bearers is made through civil society. This needs a comprehensive approach that tackles also sexual violence, early child marriage etc. And finally, we need culturally-sensitive access to health care. We must bring international norms and standards to the lives of women and girls.” M. Muna, Combating Maternal Mortality: Why Bring Human Rights Into the Picture, Panel Discussion (5 June, 2009), available at http://righttomaternalhealth.org/resource/HRC-panel-2009. 76 Hawkins et al., supra note 74, p. 2. 77 The DFID Health Resource Centre, which provides technical assistance and information to the British Government’s Department for International Development, notes that the causes of maternal mortality are well known. The report the DFID issued on addressing maternal mortality lists the actual determinants of maternal mortality as: • Women’s status, starting with lack of education, which is linked to early marriage and childbearing; inability to take decisions regarding health care; low valuation of girls and women, particularly in the peak reproductive years, and poorer access to nutrition • Family and community beliefs which prevent early identification of problems related to pregnancy, or lack of awareness of pregnant women’s needs • Women’s lack of access to health care services due to inaccessibility, cost, or perceived poor quality • Poorly functioning health systems and a lack of skilled personnel, supplies, equipment, and adequate referral systems • A lack of a supportive and protective legal and policy environment, or where it exists poor enforcement of its provisions Hawkins et al., supra note 74, p. 6. 78 Id. 79 In response to the valuable article by B. J. Hill, which argues that advocates and scholars interested in achieving greater protection for reproductive rights, specifically abortion, in the United States should look to the negative right of health, I note that Professor Hill herself has acknowledged: “the negative right to
THE RIGHT TO MATERNAL HEALTH CARE 59 to reducing maternal mortality – “the greatest unsolved public health issue of our time.” 80 Leaving the right to maternal health care as a right encompassed under the right to health may allow states defining “health” in a certain way to ignore the specific needs of pregnant women. For example, state-run family planning programs with explicit goals of population control (such as in China, India and Indonesia) have “long-standing records of neglect of women’s health needs and coercion.” 81 As part of the right to maternal health that states must protect, the right to maternal health care requires “positive measures to ensure access to reproductive health care and services for all women.” 82 A woman’s right to health during pregnancy is relevant to diverse value systems, but the right to maternal health care should traverse diverse value systems, particularly when a value system jeopardizes a woman’s right to health care. While cultural practices should be taken into account in international human rights decisionmaking, 83 allowing cultural practices to shape the right to health can allow the right to maternal health care to go unrecognized. Failing to recognize the right to maternal health care is ignoring the most obvious human right – the right to life. The reality is “that the right to life is violated daily by death in pregnancy and childbirth, which could have been avoided if women enjoyed better health and better access to reproductive health services.” 84 The right to maternal health care is particularly susceptible to manipulation by individuals, societies and governments. Advocates for the right to maternal health care must fight for a right that is not only female-specific, but also traditionally and ideologically a right that is held within the private sphere. 85 Because pregnancy and 79 health will not necessarily expand access to reproductive health care for women who lack it.” Hill, supra note 14, at 531. As my focus is on combating maternal mortality by expanding access to maternal health care, I frame the right to maternal health care more as a positive right. For further reading on the shift from the framing of reproductive rights as positive rights to a negative human rights framework, see R. A. Dempsey & B. M. Meier, Going Negative: How Reproductive Rights Discourse Has Been Altered from a Positive to a Negative Rights Framework in Support of “Women’s Rights,” in Women’s Global Health and Human Rights 83 (P. Murthy & C. L. Smith eds., 2010). 80 A. Foster-Rosales, Maternal Mortality: The Eye of the Storm, in Women’s Global Health and Human Rights 279 (P. Murthy & C. L. Smith eds., 2010). 81 Id. at 331. 82 S. Maiga, Combating Maternal Mortality: Why Bring Human Rights Into the Picture, Panel Discussion (5 June, 2009), available at http://righttomaternalhealth.org/resource/HRC-panel-2009. Maiga argues that as part of ensuring maternal health, states must also take into account “cultural intricacies and women’s health and nutritional needs.” Here the reader is reminded that the focus of this paper is on the right to maternal health care, and not the right to maternal health. 83 For an approach – “a methodology of respect” – for deciding when cultural differences are to be respected and when not in international human rights law-making, see B. H. WESTON, The Universality of Human Rights in a Multicultured World, The Future of International Human Rights 65 (B. H. Weston & S. P. Marks, eds., 1999), reprinted (with changes from B. H. Weston) in Human Rights in the World Community: Issues and Actions 39 (R. P. Claude & B. H. Weston eds., 2006). 84 Sadasivam, supra note 6, at 326. Or as the International Initiative on Maternal Mortality and Human Rights (“IIMMHR”) notes: “Even though dying of an easily preventable cause is a human rights violation--as much as extrajudicial executions, torture, and arbitrary detentions are--the connection between maternal mortality and human rights has not been widely recognized. The time is ripe for an effort that confronts this unacceptable situation.” International Initiative on Maternal Mortality and Human Rights Brochure, supra note 63. 85 Sadasivam discusses the public/private distinction “central to western liberal theory,” a distinction that “implies that the private sphere is beyond the reach of the state’s legal powers.” Sadasivam notes that is very difficult to guarantee human rights in the private sphere. Sadasivam, supra note 6, pp. 325-326.
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