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74 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010 the lack of an Optional Protocol, which would authorize it to receive complaints from individuals, groups and organizations alleging violations.” 127 Today this has changed, and with the ratification of the CEDAW Optional Protocol, individuals are now able to bring complaints against governments that are parties to the CEDAW Optional Protocol. 128 With 99 states parties to the CEDAW Optional Protocol as of today, this is an extremely valuable mechanism to enforce the right to maternal health care. 129 The CEDAW Optional Protocol provides a “communications procedure” through which individuals, groups and organizations can file complaints in writing about violations of rights. 130 Further, the CEDAW Optional Protocol allows the CEDAW Committee to conduct inquiries into grave or systematic abuses by states parties to the Optional Protocol with an “inquiry procedure.” 131 In 2007, the Center for Reproductive Rights, along with the Brazilian group Advocaci, filed a complaint before the CEDAW Committee on behalf of Alyne da Silva Pimentel against the government of Brazil. 132 “Alyne, a 28- year-old Afro-Brazilian woman, died of complications resulting from pregnancy after her local health center misdiagnosed her symptoms and delayed providing her with emergency care;” Alyne da Silva Pimentel v Brazil is the first maternal mortality case to be brought before the CEDAW Committee. 133 The Center for Reproductive Rights alleged that “by failing to implement effective policies and programs that address the high rates of maternal mortality, Brazil is violating its obligations under national and international human rights law that guarantee women's rights to life, health and equality,” and cited both Brazil’s Constitution and international human rights treaties including CEDAW as creating legal obligations for Brazil to protect the right to maternal health care. 134 The CEDAW Committee gave the Brazilian government until August 2008 to render a decision regarding the case, and the CEDAW Committee planned to analyze the case following the presentation of facts and official arguments. 135 As of the writing of this paper, 127 Sadasivam, supra note 6, p. 334. 128 The General Assembly adopted the Optional Protocol to the CEDAW on October 6, 1999 in resolution 54/4 (A/RES/54/4). See CEDAW Optional Protocol, http://www.un.org/womenwatch/daw/cedaw/ protocol/sigop.htm (last visited 6 March, 2010). 129 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 54/4, 2131 Treaty Series 83, Status available at http://treaties.un.org/ [hereinafter Optional Protocol Status]. 130 CEDAW Optional Protocol, supra note 144. 131 Id. 132 Center for Reproductive Rights, Alyne de Silva Pimentel v Brazil (10 December, 2008), http:// reproductiverights.org/en/case/alyne-da-silva-pimentel-v-brazil-committee-on-the-elimination-ofdiscrimination-against-women. 133 Id. 134 For an English translation of the full text of the Center for Reproductive Rights petition in the Alyne de Silva Pimentel case, see Latin American and Caribbean Women’s Health Network, Case of maternal morbidity in Brazil goes before the CEDAW committee, The Free Library by Farlex (2008), http:// www.thefreelibrary.com/Case+of+maternal+morbidity+in+Brazil+goes+before+the+CEDAW+ committee.-a0198415431. 135 Id.
THE RIGHT TO MATERNAL HEALTH CARE 75 no decision has been rendered by the CEDAW Committee on the case, but the Center for Reproductive Rights has requested “that the Brazilian Government compensate Alyne’s family, including her nine year-old daughter, prioritize the reduction of maternal mortality, including training providers and establishing and enforcing protocols, and improve care in vulnerable communities.” 136 If the case is successful, it “will lead to recognition of government accountability for preventing maternal deaths and state obligations to promote women’s health.” 137 Individuals, or organizations advocating on behalf of individuals, can also bring litigation on domestic courts to ensure a government’s legal obligation to provide maternal health care. The Center for Reproductive Rights has utilized this approach in India, supporting several public interest lawsuits seeking better implementation of India’s National Rural Health Mission, which aims to reduce maternal mortality, improve service delivery and to increase equity and access to maternal health care. 138 In April 2009, the Center for Reproductive Rights filed a memorandum of support for Kalyani Meena in Kalyani Meena v Union of India & Others (2008), a case developed in collaboration with the Human Rights Law Network of India to “address the overwhelming number of preventable deaths of women who die either in Pregnancy or childbirth in the north Indian state.” 139 The Kalyani Meena case is before the Jharkhand High Court in India. 140 In May 2009, the Center for Reproductive Rights prepared a “friend-of-the-court” brief in support of the Centre for Health and Resource Management v The State of Bihar & Others (2008), a maternal mortality case highlighting the impact of India’s failed national and local public health policies and the lack of access to maternal health care in Bihar. 141 These are only two cases in a comprehensive strategy being employed by Indian NGOs and international advocacy groups like the Center for Reproductive Rights to promote the use of litigation in India to protect women’s reproductive rights, including the right to maternal health care. 136 L. Cabal & J. M. Todd-Gher, Reframing the Right to Health: Legal Advocacy to Advance Women’s Reproductive Rights, in REALIZING THE RIGHT TO HEALTH 120, 132 (A. Clapham & M. Robinson eds., 2009). 137 Id. 138 S. Majumdar, Lawsuits Used to Shrink India’s Maternal Deaths, REPRODUCTIVE HEALTH (24 September, 2009), available at http://www.womensenews.org/story/reproductive-health/090924/lawsuits-usedshrink-indias-maternal-deaths. 139 Center for Reproductive Rights, Kalyani Meena v Union of India & Others (2 September, 2009), available at http://reproductiverights.org/en/case/kalyani-meena-v-union-of-india-ors. 140 Id. 141 Center for Reproductive Rights, Centre for Health and Resource Management v The State of Bihar & Others (14 August, 2009), available at http://reproductiverights.org/en/case/centre-for-health-andresource-management-v-the-state-of-bihar-others.
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