S.J. Quinney College of Law

by Cullen Archer

In Medicine, a physician may simply treat their patient’s symptoms.  However, to cure their patient, a physician must diagnose and treat the disease causing those symptoms.  The same principle can be applied to the problem of women’s health care in developing countries.  Disparate treatment of women, especially pregnant women, is evident in our own healthcare system and is implicated and magnified within the field of global health.  Is the current state of obstetrical care in developing countries the illness itself or merely a symptom of a more pernicious underlying disease? A recent study published in Obstetrics & Gynecology helps to elucidate the problem.[1]

Background

The World Health Organization (“WHO”) defines maternal death as “the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes.”[2]  Maternal mortality in a population is primarily a combination of two factors: (1) the risk of death in a single pregnancy or a single live birth; and (2) the fertility level—the number of pregnancies or births that are experienced by women of reproductive age.[3]  The maternal mortality ratio (“MMR”) is defined as the number of maternal deaths during a given time period per 100,000 live births during the same time period.[4]  It depicts the risk of maternal death relative to the number of live births and captures the first factor, above.[5]  Major causes for maternal mortality are preeclampsia/eclampsia (26%), hemorrhage (21%), obstructed labor (13%) and sepsis (7.7%).[6] Underlying diseases such as malaria, anemia, and HIV/AIDS during pregnancy cause the remainder of maternal deaths.[7]  

Maternal mortality has been the main way of evaluating outcomes in maternal and obstetric care.[8]  The high number of maternal deaths in some areas of the world reflects unequal access to health services, and highlights the gap between rich and poor.[9]  Almost all maternal deaths (99%) occur in developing countries.[10] Globally, an estimated 287,000 maternal deaths occurred in 2010, a decline of 47% from levels in 1990. Sub-Saharan Africa (56%) and Southern Asia (29%) accounted for 85% of the global burden in 2010.[11]   A total of 40 countries had high MMR (defined as MMR ≥300 maternal deaths per 100,000 live births) in 2010.[12]  In contrast, the MMR for women in the United States is 21, 12 in the United Kingdom, and 8 in Bosnia.[13]

A Possible Solution

The Universal Declaration of Human Rights was the first step towards progressive codification of international human rights.[14]  The principles of the Universal Declaration were translated into treaties, including the International Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), which defines what constitutes discrimination against women and establishes an agenda for national action to end such discrimination.[15] As of early 2010, 186 countries – over ninety percent of the members of the United Nations – are party to the Convention. CEDAW contains articles that are directly related to WHO’s objective of assisting governments in protecting and improving women’s health.[16]  Article 12 calls on States to take all appropriate measures to eliminate discrimination against women in the field of health care, while other Articles have a direct or indirect bearing on the enjoyment of the highest attainable standard of health.[17]  On the basis of equality of men and women, the duty of States Parties to ensure access to health care services, information and education, implies an obligation to respect, protect and fulfil human rights related to women’s health.[18]  The obligation to respect rights requires States Parties to refrain from obstructing action taken by women in pursuit of their health goals.[19]  The obligation to protect women’s rights relating to health requires States Parties to take action to prevent and to impose sanctions for violations of rights by private persons and organizations, for example, as a result of gender-based violence.[20]  The obligation to fulfill rights places an obligation on States Parties to take appropriate measures to the maximum extent of their available resources to ensure that women realize their rights to health care.[21]  High maternal mortality and morbidity is an important indicator of possible breaches of duty to ensure women’s access to reproductive health care services.[22] Using these Conventions, the UN and WHO are working toward Millennium Developmental Goal 5: improving maternal health by establishing methods to decrease the maternal mortality ratio by 75% and by achieving universal access to reproductive health by 2015.

Evidence suggests that a human rights-based approach might contribute to health improvements for women and children. The human rights based approach adopted by WHO underscores that the right to health includes timely and appropriate health care, as well as the underlying determinants of health, such as safe and potable water, health-related information, and gender equality.[23]  A human rights-based approach is based on seven key principles: availability, accessibility, acceptability and quality of facilities and services, participation, equality and non-discrimination, and accountability.[24]

Maternal health in Nepal has improved over the past 20 years.[25]  Between 1991 and 2011, the total fertility rate declined from 5.1 to 2.6 children per woman of childbearing age.[26]  The skilled birth attendance rate increased from 11% to 36% between 2001 and 2011 and data suggest that the MMR continues to fall, with data from eight districts in 2009 indicating an estimated MMR of 229 per 100 000.[27] Nepal’s 2007 interim Constitution enshrined civil and political rights, as well as economic, social and cultural rights, including the right to health.[28]  It recognized several economic, social and cultural rights that are enforceable by courts.[29]  The “Women’s Right to Life and Health Programme” is an explicit rights-based health policy with a goal of providing comprehensive obstetric care in 60 districts, and basic emergency obstetric care in 80% of primary health care centers, to reduce maternal and neonatal mortality.[30]   By improving availability and accessibility, the program has led to a five-fold increase in met need for emergency obstetric care, and a significant increase in institutional delivery rates (3.8% to 8.3%).[31]

Similar results have been observed in Brazil,[32] Malawi,[33] Italy,[34] and Sri Lanka.[35] Countries that have had the most success in reducing maternal death over the years have followed a formula that is difficult to operationalize: maximize facility deliveries while providing high-quality care.[36] Sri Lanka provides a model example of this approach in non-industrialized countries.[37]  Sri Lanka reduced its MMR from 2,000 in 1930[38] to 35 per 100,000 live births in 2010.[39]  This has been achieved through (1) the establishment of a field health system for delivering maternal and child health (MCH) services in the country in 1926, (2) a steady increase in the number of government hospitals in the country from the 1930s, (3) the commencement of training of midwives in 1931, (4) the establishment of the Family Health Bureau under the Ministry of Health to oversee MCH activities in 1969, and (5) the commencement of the National Maternal Mortality Review in 1984.[40]   Additionally, the total fertility rate was 2.3% in 2007 and the adolescent birth rate is 23 per 1000.[41]  The main contributors to this relatively low rate are early marriage not being a cultural consideration and the empowerment of women due to free education.[42]

Constitutional and international rights to health can translate into laws, policies, and programs that increase availability, accessibility, acceptability and quality of facilities and services, participation, equality and non-discrimination, and accountability.  Applying human rights to women’s health policies and other interventions not only helps governments comply with national and international obligations but also contributes to improvement in women’s health care.[43]  National and district-level planning that reflects a State’s obligations under CEDAW, and perhaps even other international human rights conventions, can achieve improved outcomes in maternal care and quite likely, women’s health care in general.

Cullen Archer, Class of 2015 candidate at the University of Utah S.J. Quinney College of Law, graduated from the University of Texas in Austin with a B.A. in Chemistry and the University of Texas Health Science Center at San Antonio with a Doctor of Medicine.  He has come to law school after practicing Obstetrics & Gynecology for many years and is focusing his studies on healthcare law.  Among other things, he volunteers at the Pro Bono Initiative Medical-Legal Clinic. Archer is also an avid golfer, scuba diver, and antiquarian book collector. Archer’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.

 

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