Reproductive Health as a Human Right: A Matter of Access or Provision?

26 Dec, 2015 HUMAN RIGHT 0

Sara E. Davies

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition. WHO Constitution 1946

(World Health Assembly [WHA] 1946, Article 1)

What does the highest attainable standard of health for a woman look like? Globally, women continue to bear the brunt of health inequalities, which in turn affects their ability to seek financial independence, education, and freedom from social mores. For instance, the one demographic that shows a continuing upward trend for HIV infection between 1990 and 2007 is women (UNAIDS 2007: 8–9). Less than half of all women in Asia and Africa are assisted by health care personnel during birth (United Nations General Assembly [UNGA] 2008: 4–5).¹ Women in sub-Saharan Africa and South Asia have a lifetime risk of maternal death that is 1,000 times greater than that in industrialized regions (UNGA 2008). The likelihood of achieving the fifth Millennium Development Goal (MDG), which calls for a three-quarters reduction in maternal related deaths by 2015, is remote. Indeed, between 1990 and 2005, there were approximately 535,900 maternal deaths per year and the numbers in sub-Saharan Africa and South Asia have shown little, if any, sign of any improvement (Hill et al., 2007: 1311–1319). Between 1995 and 2003, 48% of all abortions were unsafe, causing at least 68,000 deaths each year (Glasier et al., 2006: 1598; Sedghet al. 2007: 1344). In 2008, the Global Campaign for Health Millennium Development Goals High Level Task Force was established by the Norwegian government. Announcing the Task Force, Prime Minister Jens Stoltenberg stated that “the fact that we have not made any significant progress at all in reducing the number of women who die in pregnancy or childbirth is appalling. There can only be one reason for this awful situation—and that is persistent neglect of women in a world dominated by men” (United Nations Department of Public Information [UNDPI] 2008a).

[A] state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfactory and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicitly in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for the regulation of fertility which are not against the law, and the right of access to appropriate health care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.

(International Conference on Population and Development [ICPD] 1994: para. 7.2)

This chapter will proceed in four parts. In the first section, I will trace the development of the health and human rights movement. This movement developed as a strategy to win the hearts and minds of developing states, donor states, and international organizations (who were often also involved in the movement) by referring to health care and treatment as a right that individuals could claim and that states had a duty to respect, to protect, and to fulfill. As the second section argues, the process of turning a declared human right into a public good accessible to all, ultimately requires states to make the necessary improvements to health care systems. However, the focus has remained on the right to access health care and the capacity of states to fulfill rights, rather than the instrumental question of how rights advocates ensure that states meet their positive duties. These problems are most pronounced in the area of women’s reproductive health, which is discussed in depth in the third section of the chapter. The fourth and final section looks at proposed strategies to advance reproductive health outcomes, based on identifying the specific rights that require satisfaction and tracing the fulfillment by states of their health-as-a-human-right obligations. Monitoring frameworks, such as the ones examined in the fourth section, may serve as a prelude to the construction of an evaluation system that could be used to fund aid projects and to attract states with the attachment of incentives for gender responsive reproductive health care policies (Behlhadj and Touré 2008). Furthermore, monitoring human rights obligations may be the start to identifying the precise scope of individual state responsibility to fulfill their reproductive rights obligations and to generate the necessary political will to ensure further devotion of political and financial resources to save women’s lives. Together, these initiatives may help establish an incentive structure that encourages reluctant states to deliver on their responsibilities in this area. In this chapter, I argue that at present, the largest obstacle to be overcome in establishing health as a human right beyond declaratory status in the case of reproductive rights is to create the political means and motivation that will force states to live up to the human rights declarations that they have ratified.

Health as a Human Right

The World Health Organization (WHO) Constitution (1946) states that health is a universal right. In so doing, it defined health as “a state of complete physical, mental and social well-being” (WHA 1946: 1). The association between health and human rights has been reaffirmed several times since the establishment of WHO. It was enshrined, for instance, in the 1948 Universal Declaration of Human Rights which stated that

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. (UNGA 1948: Article 25)

Moreover, the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in 1976, expressed the right to health in the following way:

The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
1. The provision for the reduction of the stillbirth-rate and of infant mortality and for the health development of the child;
2. The improvement of all aspects of environmental and industrial hygiene;
3. The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
4. The creation of conditions which would assure to all medical service and medical attention in the event of sickness. (UNGA 1966: Article 12)

Importantly, no government argued that health should not constitute a right during the drafting of the WHO Constitution, the Universal Declaration of Human Rights, or the International Covenant on Economic, Social and Cultural Rights (ICESCR; Toebes 1999). However, neither was it clear whose responsibility it was to realize this right, how the right would be realized, and when the right to health had been satisfied (Taylor 1992: 327). As Tomasevski argued, “public health spelled out individual obligations rather than rights” (2005: 3). Emphasis was placed mostly on what the individual should do to improve one’s health. According to Paul Hunt, the UN’s Special Rapporteur on the Right to Health, the “right to health” remained “little more than a slogan for more than 50 years” (Hunt 2007: 369). It was not, he maintained, until the UN Economic and Social Council adopted General Comment 14 in 2000 that it became clear what the right to health encompassed. The General Comment confirmed that

[T]he express wording of article 12.2 acknowledges that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment … [5]. The Committee is aware that, for millions of people throughout the world, the full enjoyment of the right to health still remains a distant goal. Moreover, in many cases, especially for those living in poverty, this goal is becoming increasingly remote. The Committee recognizes the formidable structural and other obstacles resulting from international and other factors beyond the control of States that impede the full realization of article 12 in many States parties. [6] With a view to assisting States parties’ implementation of the Covenant and the fulfilment of their reporting obligations, this General Comment focuses on the normative content of article 12 (Part I), States parties’ obligations (Part II), violations (Part III) and implementation at the national level (Part IV), while the obligations of actors other than States parties are addressed in Part V.

(UNSEC 2000: paras. 4–6)

The problem that remained even after General Comment 14 was the understanding which aspects of the right to health required simple access—for example, freedom from discrimination—and which aspects required the positive provision of goods by a specific duty bearer. The emphasis remains on the capacity of the state to meet these rights, rather than their nonderrogable responsibility to fulfill these rights. States have also been reluctant to develop empirical indicators that might measure progress towards attaining these rights. Therefore, it is worth noting that while these articles indicate that a state is responsible for the health of its citizens, the Covenant does not provide thresholds or indicators for when the right to health has been fulfilled (Toebes 1999). Critics argue that this is because a “right to health” cannot be realized because it either implies that there is such a thing as perfect health or that individuals need no more than the right conditions for good health to prevail. This denies, of course, an individual’s genetic predisposition to disease, disability and infirmity, and an individual’s own lifestyle choices that are also important factors (Aginam 2005: 5). It also ignores the extent to which the provision of other sorts of rights, such as social and economical freedoms, is then essential to improve individual health (Mann et al. 1999). Therefore, whilst the right to health is a well-established aspiration, there remains little clarity about what is required “on the ground” to satisfy it. In order to fully develop the right to health, former Special Rapporteur on the Right to Health Paul Hunt argued that key indicators and national benchmarks were essential for holding states, even aid agencies, to be “held accountable for their failures” (Palmer et al. 2009: 1990).

Access and Provision

At the heart of the debate about health and human rights is a tension between access and provision that mirrors the philosophical distinction between negative and positive rights. Simply put, negative rights require that actors refrain from certain types of activities that infringe on the rights of others. For instance, the right to life, the right to be free from torture, and the right to choose one’s religion only require that actors desist from killing people, torturing them, and inhibiting their freedom to choose their religion. In their simplest form, they do not require positive action to ensure their fulfillment. By contrast, positive rights require that actors take positive steps. For instance, they may require that the state make social, economical, and legislative provisions to accommodate and provide these rights. The right to education, the right to shelter, and the right to clean water are positive rights because they require duty-bearers to make material provisions to provide them, rather than simply refrain from certain courses of action. Put another way, Jack Donnelly suggests that negative rights only require the “forbearance on the part of others,” whilst positive rights require “others to provide goods, services, or opportunities” (Donnelly 2003: 30). However, critics contend that the bifurcation of rights into negative and positive is of little moral significance because even negative rights entail positive duties for their fulfillment (Shue 1980). For instance, all the “negative rights” noted above require significant positive steps by the government to take action to ensure these rights are fulfilled—the right to be free from torture requires a number of legislative, judicial, and policing checks and balances to ensure this right is respected. Likewise, Donnelly argues that “all human rights required both positive action and restraint on the part of the state” (Donnelly 2003: 30). Philosophically therefore, the idea that any right could require no material change to the behavior of actors has been largely debunked. However, in practice, there is a significant difference between a negative and positive approach to health rights.

The distinction between negative and positive rights has been important in the debate about health as a human right. There is a big difference between the insistence that “all I have to do is not prevent people seeking the best health care they can afford,” which is a negative right based on the “do no harm principle,” and a claim that “I have a duty to ensure that every person is able to access the best health care possible,” which is implied by the positive rights approach. The distinction in understanding what a human right to health means, is one between access (the right to seek care and not be prevented from doing so with no specific duty-bearer assuming responsibility for the provision of care) and provision (the right to be provided with the best care possible with a duty-bearer having an obligation to ensure that such a provision is made available). This distinction is vitally important for understanding the “empirical circumstances” (Donnelly 2003: 31) surrounding how the right to health is claimed and fulfilled as well as the scope of the right itself.

In the area of health, the tension between access—the obligation not to deny access to basic health care—and provision—the obligation to provide basic health care to all— pivots around two key questions. First, what is the scope of the right and responsibility to fulfill this right in relation to access and provision? Second, on whom does the obligation fall? To some extent, the relatively recent General Comment 14 on the ICESCR has gone a long way to answering these questions. But a third question remains: How can states be compelled to move from acknowledging a right exists to feeling obligated to fulfill this right? The health and human rights movement has argued that the responsibility is shared between those seeking better health (i.e., the individual), those who have the power to deny or permit access (i.e., the state), and those who see inequality in the provision of the right as it is at present and seek to plug the gaps (i.e., the international donor community, including NGOs; Gruskin et al. 2005; Hunt 2003). However, in practice the scope and focus of responsibility remains largely located in the state—as we will see next in the case of reproductive health. Therefore, the tension between access and provision is often rooted in the fact that there are no thresholds or series of indicators attached to the human rights articles that are to hold states to account for their fulfillment. The best measure thus far has been to trace domestic legal proceedings when individuals or groups of individuals claim that the state should fulfill their right obligation under the ICESCR. However, this relies upon effective, independent judicial systems, governments willing to implement the courts’ findings, and, in addition, it does not resolve the degree of social and political freedom required for individuals to feel able to claim such rights from their state in the first place. Therefore, legal proceedings alone are only one facet of ethical, practical, and moral capacity of rights language to deliver tangible improvements in the provision of health care, particularly in the case of women’s health needs. What is required is to enumerate the precise rights essential for advancing women’s reproductive health and link this to an incentive structure that encourages political will to change the situation.

Claiming Women’s Health as a Human Right

Thus far I have argued that to realize a human right to health we must keep in mind that there are at least two distinct needs—access and provision. There must be an obligation on behalf of a duty-bearer to not deny access to basic health care and, at the same time, an obligation upon a duty-bearer to provide the best care possible. What consideration has been given, then, to how access and provision of the right to health can be best realized for the specific reproductive health needs of women? As this section will argue, women’s right to reproductive health has taken a journey similar to the health as a human rights movement more generally. Though there has been much effort to establish women’s right to access gender-responsive health care policies, there has been little attention given to thinking about how specific rights can be fulfilled to ensure that women experience measurable change in reproductive health care.

The problem of provision and building political pressure on states to fulfill women’s health needs is partly related to the broader failure to articulate the political responsibilities of states and to create incentive structures for their fulfillment. As identified earlier, while the ICESCR and General Comment 14 in 2000 have been essential for identifying the responsibility of the state with respect to human rights, moving from commitment to action remains the key obstacle to achieving health as a human right, especially in the case of women’s reproductive rights (UNESC 2009). Reproductive health is particularly harder because it is often the states that are responsible for violating women’s rights in general (UNGA 2008: 18). In addition, forced early marriage, access to contraceptives, choice surrounding unwanted pregnancies, and female genital mutilation are core rights-related issues that must be dealt with by the state through legal, economical, and social reform in order to provide women with the best provision of health care. However, as will be discussed, these issues are politically and culturally controversial, stymieing any efforts to advance women’s health. Moreover, the lack of consistent international funding to improve women’s access to health care and to demand recalcitrant states to meet their obligations further hinders efforts to satisfy women’s health needs. In essence, the greatest cause for women’s right to reproductive health remaining a “silent emergency” is that there is a disconnect between what is being declared at the international level and what is being enforced at the national-local level. This disconnect exists because there has been no precise political thresholds or repercussions attached to realizing reproductive health as a human right. The failure to attach political force to the lip service paid by states to women’s reproductive needs has enabled states to continually evade their responsibility and the silent emergency to continue.

We can see the effects of this in the statistics set out at the beginning of the chapter. Today, those fighting for improvements to women’s reproductive health refer to such statistics as proof that women’s right to decide matters relating to their sexual health—and access to health treatment in general—is pivotal but is still lacking progress in political engagement (Glasier et al. 2006; Hudson 2005; Low et al. 2005; Wellings et al. 2006). However, in line with the general health as a human rights movement, I would argue that the reproductive health movement has not always agreed on how the provision versus access tension in human rights can best deliver the advances that women need in order to control and improve their reproductive health. Right to reproductive self-determination advocates generally argue that women do not need just family planning services, they also need the autonomy to decide when they should have sex and with whom, and a choice of reproductive health care options (Asal, Brown, and Gisbson Figueroa 2008; Cook, Dickens, and Schrecker 2003; Kelly and Cook 2007). The self-determination movement maintains that the right to refuse sex and the right to contraceptive choice has to be a major part of a woman’s right to health (Tomasevski 2005). By contrast, right to reproductive health care advocates generally argue that women need to enjoy access to safe, high-quality reproductive and sexual health care (Yamin 2005). In particular, they argue that the right of self-determination is more an “end product” that comes after the fulfillment of essential health care rights (Cottingham and Myntti 2002; Menken and Rahman 2006). The right to reproductive health care movement argues that the provision of services such as access to basic health care and reproductive care is what leads to the right to sexual and reproductive self-determination. Sociopolitical rights such as the right to choose contraceptive devices and access to particular services, the right to refuse sex, and the right to public sex education are all important, but they will follow once health care is promoted as the first and foremost priority (Fathalla et al. 2006; Low et al. 2005). The difference in the academic literature between the two camps on reproductive rights may be heuristic, but it is reflected in how states and international organizations take different positions and prioritize domestic programs according to these views. While neither “camp” has wavered on the need for women’s health to be expressed as a right (Buse et al. 2006; Cleland et al. 2006; Yamin 2005), the variance in what is being sought to achieve reproductive health progress has enabled political exploitation—as will be discussed next.

The subordination of women’s health has a long history. Women’s lack of education has long been associated with the premature death of their children (Knudsen 2006; Starr 2007), and their reproductive health has been dominated by myth, superstition, and trivialization, resulting in the widespread use of local remedies, forced circumcision, and social exclusion (Doyal 1995). To understand how the language of rights has been used to address some of these problems, I will briefly recount some of the international efforts. The 1979 Convention on the Elimination of Discrimination against Women (CEDAW) demanded women’s right to health and was seen as a breakthrough because it “explicitly addresses human rights regarding family planning services, care and nutrition during pregnancy, information, and, for instance, education to decide the number and spacing of one’s children” (Cook et al. 2003: 153–154). However, its reference to health was limited to one article, Article 12, and largely discussed women’s health in the context of family planning:

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Reproductive Health as a Human Right: A Matter of Access or Provision?