Human rights accountability for maternal death and failure to provide safe, legal abortion: the significance of two ground-breaking CEDAW decisions

Abstract

In 2011, the Committee on the Elimination of Discrimination against Women (CEDAW) issued two landmark decisions. In Alyne da Silva Pimentel v. Brazil, the first maternal death case decided by an international human rights body, it confirms that States have a human rights obligation to guarantee that all women, irrespective of their income or racial background, have access to timely, non-discriminatory, and appropriate maternal health services. In L.C. v. Peru, concerning a 13-year-old rape victim who was denied a therapeutic abortion and had an operation on her spine delayed that left her seriously disabled as a result, it established that the State should guarantee access to abortion when a woman's physical or mental health is in danger, decriminalise abortion when pregnancy results from rape or sexual abuse, review its restrictive interpretation of therapeutic abortion and establish a mechanism to ensure that reproductive rights are understood and observed in all health care facilities. Both cases affirm that accessible and good quality health services are vital to women's human rights and expand States' obligations in relation to these. They also affirm that States must ensure national accountability for sexual and reproductive health rights, and provide remedies and redress in the event of violations. And they reaffirm the importance of international human rights bodies as sources of accountability for sexual and reproductive rights violations, especially where national accountability is absent or ineffective.

The emergence of a global right to health norm – the unresolved case of universal access to quality emergency obstetric care

“…However increased advocacy by surviving family members suggests that communities are starting to claim their rights and asking for governments to be held accountable. Two landmark CEDAW cases involving Brazil and Peru reinforce the role international bodies can play in holding governments accountable for maternal deaths [89]. The experience of the AIDS movement suggests that to use the emergent global right to health norm effectively requires a more intensive engagement with local human rights experiences.…”

Materno-infantilism, feminism and maternal health policy in Brazil

“…The Committee recommended that Brazil ensure women's right to safe motherhood and affordable access for all women to emergency obstetric care and reaffirmed that state policies should be action-oriented as well as adequately funded." 15 Something had to be done, and proposals for a complete change in maternity care to evidencebased, safe, effective, humane and integrated health care are again emerging. 16,18 This includes support for training of midwives and nurse-midwives to take increased responsibility for birthing care, and the expansion of midwife-led birth centres.…”

“…If the quality of obstetric care is central to the issue of maternal mortality in Brazil, then we need to modify the behaviour of health professionals so that they adhere to evidence-based practice, 14 which is one of the critical issues not being addressed, alongside how certain women are poorly treated and neglected, as in the Alyne case. 15 However, this progressive, woman-centred, evidence-based proposal was again de-politicised and reduced by the circumstances of Dilma's election and government agreements, to a return of materno-infantilism, explicitly rupturing with the PAISM quest for comprehensiveness in women's health care. Because maternal and child health, if presented in a certain way, has an uncontroversial appeal, Dilma's supporters created the "Stork Network" during the election and presented it as an electoral novelty.…”

Updated WHO guidance on safe abortion: Health and human rights

“…The Guidance not only sets forth broad interpretations, it also elaborates human rights obligations on governments to establish “[i]nstitutional and administrative mechanisms…[to] protect against unduly restrictive interpretations of legal grounds” [1] (p.98). In this respect, the Guidance follows a growing body of human rights jurisprudence on accountability in the administration of legal grounds, recognizing the rights of women to participate in the decision‐making process, and to the timely appeal and review of denials of legal care [21].…”