INTERIGHTS Bulletin

INTERIGHTS Bulletin
Volume 16 Number 4 2011
185
Out of the Silo: Using Reproductive
Rights Jurisprudence to Litigate
Abuses in Healthcare Settings
Elisa Slattery
Women and girls seeking sexual and
reproductive health services frequently
experience abuse and mistreatment at
the hands of healthcare personnel, who
hold clear positions of authority and
often exercise significant control over
women in these contexts. Reproductive
rights violations in healthcare settings
include: verbal, physical and sexual
abuse; coercive practices, such as forced
sterilisation; and denial of abortion and
post-abortion care services. 1 These
abuses are often exacerbated when the
health services they seek, such as
abortion, are highly stigmatised or the
women themselves belong to a
marginalised group. 2
Many of these issues, such as coercive
sterilisation, denial of legal abortion
services and failure to provide quality
maternal health care have been, and
are being, litigated in national,
regional and international fora. 3 While
this jurisprudence, especially abortion
jurisprudence, is not widely drawn
upon in the wider body of efforts to
seek accountability for abuses in
healthcare facilities, it can be extremely
relevant to the litigation of healthrelated
cases which are often
accompanied by stigma, complex
medical fact patterns and timesensitivity.
Furthermore, much of this
jurisprudence claims rights violations
beyond the right to health, moving the
discussion out of the realm of
progressive realisation to immediate
governmental obligations, such as
preventing discrimination and torture
or cruel, inhuman and degrading
treatment. For example, as discussed
in this article, recent jurisprudence
from the Human Rights Committee
and the European Court of Human
Rights (the European Court) have
analysed violations in the abortion
context through a cruel, inhuman and
degrading treatment lens.
This article discusses several recent
pioneering cases from regional and
international human rights bodies
which strengthen the human rights
and accountability framework around
violations in healthcare settings;
establish limits on providers’ ability to
place their own beliefs and biases
above the well-being of their patients;
and affirm the importance of timely
and effective measures to both prevent
and redress violations.
Addressing Maternal Death as a
Systemic Problem Which Violates
Fundamental Human Rights,
Including the Right to be Free From
Discrimination
In August 2011, the Convention on the
Elimination of All Forms of
Discrimination Against Women
(CEDAW) Committee became the first
international human rights body 4 to
issue a decision on maternal mortality,
Alyne da Silva Pimentel Teixeira v
Brazil (Alyne). 5 Alyne, a young Afro-
Brazilian woman, was denied timely
medical care for a high-risk pregnancy,
including a timely referral and transfer
to a facility better equipped to handle
her complications. Even when she was
finally transferred to a higher level
facility, she ‘was left largely unattended
in a makeshift area of the hospital for
21 hours until she died.’ 6 The
Committee analysed the individual
medical circumstances of the case as
well as the broader systemic factors
surrounding the provision of, and
access to, quality maternal health care
in both public and private health
facilities in Brazil.
Compounded Discrimination
In assessing the interlocking factors
that led to Alyne’s death – the substandard
care, her family’s inability to
obtain an ambulance to transfer her to
the hospital and the unequal
geographical distribution of higherlevel
health facilities in Brazil – the
Committee concluded that Alyne ‘was
discriminated against, not only on the
basis of her sex, but also on the basis of
her status as a woman of African
descent and her socio-economic
background.’ 7
State Responsibility for Violations in
Private Healthcare Facilities
The CEDAW Committee rejected the
Government’s claim that it was not
responsible for Alyne’s death because
she had received sub-standard care in a
private health facility. The Committee
observed that ‘the State is directly
responsible for the action of private
institutions when it outsources its
medical services’ and ‘always
maintains the duty to regulate and
monitor private health-care
institutions.’ The state, it added, ‘has a
due diligence obligation’ to ensure
‘that the activities of private actors in
regard to health policies and practices
are appropriate.’ 8 This language is
crucial in further articulating state
responsibility for violations which
occur in private healthcare facilities, 9
as health care continues to be
increasingly privatised, and where in
many parts of the world, the sparse
distribution of public facilities may
mean that people only have access to
private facilities. 10
Individual and Systemic Remedies
The CEDAW Committee’s
recommendations to the Brazilian
Government recognise both the harms
suffered by Alyne’s family and the
need for systemic change and are
groundbreaking in their specificity to
bring about this change. In addition to
calling for reparations, including
financial compensation, for Alyne’s
mother and daughter (who was five
when her mother died), the Committee