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Monday, 15 June 2015

The Government’s Obligation to Uphold the Right to Maternal Health

by Sara Malkani

Photo credit: Patient with nurse at Koohi Goth Women's Hospital/ Dr. Sarwan

WHO estimates the rate of maternal mortality in Pakistan at 170 per 100,000 lives births. In developed countries the figure is around 11 per 100,000.

The high rates of maternal mortality and morbidity in Pakistan are not simply a reflection of inadequate resources or poverty, or lack of priorities on the part of the government. They also constitute violations of the fundamental right to health guaranteed under the Constitution of Pakistan. The right to health does not mean that everyone has a right to be healthy. Nor does it mean that the state is responsible for every death or injury. Instead, the right to health means that governments must generate conditions in which everyone can be as healthy as possible.[1]

The right to health is enshrined in a number of international human rights treaties to which Pakistan is a party. For example, Article 12 of the International Covenant on Economic Social and Cultural Rights recognizes the “right of everyone to the enjoyment of the highest attainable standard of living.” The Committee on Economic Social and Cultural Rights issued a General Comment on Article 12, in which it provided a comprehensive explanation of the right to health.[2] It states that the right to health contains the following “interrelated and essential elements”: availability, accessibility, acceptability and quality. These four elements form the cornerstones of the right to health as understood in international human rights law.

A human rights-based approach to maternal health identifies the entitlements of women as right-bearers and the corresponding obligations of the state as the duty-bearers. It entails that the state should undertake all possible measures to ensure that woman do not die or face injury due to pregnancy and child-birth.

The Office of the High Commissioner on Human Rights (OHCHR) issued a technical guidance on maternal mortality in 2012 in which it comprehensively described the right to a healthy pregnancy and childbirth.[3] The guidance notes that “sound public health practice is crucial to enable States to fulfill basic rights, but it must be complemented by broader measures to address women’s empowerment.”[4] This includes efforts by States to end gender-based discrimination in all its forms.

The OHCHR guidance also notes that a rights-based approach to maternal health requires an effective and just health system, which is accessible to all women irrespective of their class, geographical location, religion or ethnicity. Further, states should use “maximum available resources” in a “deliberate, concrete and targeted manner” to fulfill women’s right to maternal health.[5]

Accountability is fundamental to a rights-based approach to maternal health. States must establish appropriate monitoring mechanisms and remedies to ensure that health systems are just and effective. States must also establish standards for administrative officials and medical personnel at all levels in the health sector and ensure that these standards are met.[6]

Indian courts have recognized and enforced the right to maternal health in a number of significant decisions. In 2010, the Delhi High Court decided the landmark Laxmi Mandal/Jaitun case, which involved two pregnant women who were denied emergency care at hospitals in violation of specific government policies and schemes. One of the women, Shanti Devi, was compelled to give birth prematurely at home without a skilled birth attendant, and died. Fatema, the other petitioner in the case was forced to give birth in public view under a tree since she had nowhere to turn to for delivery.

The Delhi High Court ordered the government to take specific measures to strengthen maternal healthcare provisions and implement government policies and schemes. The Delhi High Court stated that “[N]o woman, more so a pregnant woman, should be denied facility or treatment at any stage irrespective of her social and economic background … This is where the inalienable right to health which is so inherent in the right to life gets enforced.”

Article 9 of Pakistan’s Constitution, which guarantees the right to life and liberty, should be interpreted to cover the right to maternal health. Pakistan’s courts have liberally construed Article 9 of Pakistan’s Constitution to include “all such amenities and facilities which a person born in a free country is entitled to enjoy.” (Shehla Zia v. WAPDA, 1994 PLD SC 693). Certainly, such facilities and amenities should include accessible, affordable and quality maternal health services.

When women in Pakistan die during pregnancy and childbirth due to preventable causes, our government is responsible for failing to implement conditions under which women have affordable access to quality medical services. As expressed by maternal health advocates Rebecca Cook and Bernard Dickens, “women’s reproductive health risks are not mere misfortunes and unavoidable natural disadvantages of pregnancy but, rather, injustices that societies are able and obligated to remedy.”

[1] World Health Organization, Factsheet No. 323, The Right to Health, November 2013 available at http://www.who.int/mediacentre/factsheets/fs323/en/
[2] Committee on Economic, Social and Cultural Rights, General Comment No. 14, U.N. Doc. E/C.12/2000/4 (2000).
[3] Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights: Technical Guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable mortality and morbidity, Resolution A/HRC/21/22 (2 July 2012).
[4] Id. at para. 8
[5] Id. at para. 21
[6] Id. at para. 18.

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