University of Botswana Law Journal - PULP

THE RIGHT TO MATERNAL HEALTH CARE 61
or groups in particular instances are restricted as much as is necessary to
secure the comparable rights of others and the aggregate common interest”;
and (5) “are understood to be quintessentially general or universal in
character.” 91
This independent right to maternal health care meets the standards
set by both Alston and Weston to transition from being a value to being a
fundamental human right with the same international legal status as other
more widely recognized human rights. The right to maternal health care
reflects both individual and group demands for a fundamentally important
social value, as a claim for the fundamental human right of life. Just as
pregnancy is universal, the causes of maternal and infant mortality are also
universal, and thus maternal health care should be universal. “Given that
maternal mortality is the medical manifestation of deep-rooted socioeconomic,
gender and cultural inequities, a human rights framework can be
applied.” 92 Civil, political, economic, social and cultural rights are all
wrapped up in a woman’s right to maternal health care. 93 Finally, the right to
maternal health care is eligible for recognition, as it is a human right at least
already articulated in international human rights law and there is a growing
body of customary international law reflecting the consensus that the right to
maternal health care is a human right. While the right to maternal health care
does fall within the right to health framework, and valuable lessons can be
learned from advocacy for the right to health, the right to maternal health care
is a human right that is and must be individually recognized in international
law.
The International Law Realm
The right to maternal health care has been articulated in international human
rights law, but further development is needed before state and non-state actors
alike will recognize the right to maternal health care as a human right. To quote
91 Id. pp. 20-21.
92 Foster-Rosales, supra note 87, at 282. Foster-Rosales also lends support to my statement that the causes
of maternal and infant mortality are universal in writing: “While most pregnancies and deliveries occur
without serious problems, it is a biological truth that 10-15% of pregnant women will develop a
complication. This complication, if not recognized in a timely fashion and managed correctly, may result
in the death of the mother.” Id. at 281.
93 For example, the IIMMHR states: “Failure to provide available, accessible, acceptable and quality health
care, including emergency obstetric care, for women during pregnancy and childbirth is a violation of
women's rights to life, health, equality and non-discrimination. Respect and protection of women's rights
to information and decision-making in reproductive health, to freedom from gender-based discrimination
and violence, and to participation in planning and implementing health policies are critical for making
pregnancy and delivery safer for women.” IIMMHR, About Maternal Mortality, http://
righttomaternalhealth.org/about-maternal-mortality (last visited Feb. 22, 2010). Further, IIMMHR lists
separate human rights that can be applied to maternal mortality: “Right to Life; Right to the highest
attainable standard of health; Right to equality; Right to freedom from discrimination; Right to decide the
number and spacing of children; Right to be free from cruel, inhuman or degrading treatment; Right to
education; Right to information; and Right to enjoy the benefits of scientific progress.” International
Initiative on Maternal Mortality and Human Rights Brochure, supra note 63.