ACCESS TO MATERNAL HEALTH SERVICES FROM A HUMAN RIGHTS PERSPECTIVE

II.        PROTECTING THE RIGHT TO PERSONAL INTEGRITY IN THE AREA OF MATERNAL HEALTH AND BARRIERS IN ACCESS TO THESE SERVICES

22.                    Article 5 of the American Convention establishes the right of everyone to respect for their physical, mental, and moral integrity. The IACHR has established that the right to personal integrity is a very broad concept;[37] the Inter-American Court has reaffirmed that the right to personal integrity is essential for the enjoyment of human life and cannot be suspended under any circumstances.[38] The Inter-American Court has developed the link between the right to personal integrity and the rights to life and health, establishing that both are directly and immediately linked to human health care.[39]

23.              The right to personal integrity in the area of health is closely related to the right to health given that the provision of adequate and timely maternal health services is one of the principal ways to ensure women’s right to personal integrity. Article 10 of the Protocol of San Salvador states that everyone has the right to health, understood as the enjoyment of the highest level of physical, mental and social well-being. In addition, Article 3 of the Protocol of San Salvador establishes that the States undertake to guarantee the rights set forth therein without discrimination of any kind for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.

24.              For the Inter-American Court, health is a public good for which the States are responsible.[40] Thus, it has stated that the States are responsible for regulating and monitoring the delivery of health services in order to achieve the effective protection of the rights to life and personal integrity,[41] regardless of whether the entity providing such services is public or private in nature.[42]  

25.              The right to health is enshrined in several of the region’s constitutions. For example, the Constitutional Court of Colombia has developed the elements of the right to personal integrity – physical, mental and moral – establishing that “the Constitution proclaims the fundamental right to personal integrity, and in doing so, does not only cover the person’s physical constitution but also the full range of elements that have on impact on their mental health and psychological equilibrium. Both must be preserved and thus attacks on one or the other of such factors of personal integrity – by act or omission – violate that fundamental right.”[43]

26.              The Commission feels that the right to personal integrity implies the obligation of the States to respect that right and guarantee that no one is subject to physical or mental aggression. In addition, protection of women’s right to personal integrity in the area of maternal health implies the obligation of the States to guarantee through legislation or otherwise that women enjoy the right to the highest possible level of physical and mental health without discrimination.[44] To do so, although the Commission has indicated that the States must ensure the adoption of measures that are reasonably within their reach and expeditious in order to provide required medical treatment to those who need it, [45] equal treatment for women and men is an immediate obligation.

27.              In its General Comment No. 14, the Committee on Economic, Social and Cultural Rights (hereinafter “the ESCR Committee”) defined four interrelated characteristics of the right to health: availability, accessibility, acceptability and quality.[46]

28.              Specifically with respect to the accessibility of health services, the Committee established that accessibility has four overlapping dimensions:[47] 1) non-discrimination which means equitable de facto and de jure access to health services; 2) physical accessibility which includes the requirement that health services be geographically within the reach of all sectors of the population. Physical accessibility also means that medical services and the basic determining factors of health such as potable water and adequate sanitation services are within an appropriate geographic distance, even with respect to rural areas; 3) Economic accessibility (affordability) includes that requirement that service be within the reach of all. Payments for health services and related services are determining factors of health that must be based on the principle of equity, so as to ensure that such services are within the reach of all. In addition, equity requires that there not be a disproportionate burden on poor households with respect to health expenses in comparison with richer households, and 4) access to information with includes the right to seek, receive and disseminate information and ideas on health-related issues.
 

Barriers in Access to Maternal Health Services

29.              With respect to the accessibility of maternal health services, the IACHR notes that there are various barriers limiting women’s access to these services. These barriers are related to structural factors of the health services per se,[48] and laws and policies governing those services. In addition, certain practices, attitudes, and stereotypes, both within the family and community as well as on the part of personnel working in health facilities, can act as barriers impeding women’s access to these services. It is very important to bear in mind, in this regard, that women have historically been subject to various forms of discrimination and that the obligation to remedy that discrimination demands the integration of a gender perspective in the design and implementation of laws and public policies affecting women.

30.              With respect to structural factors, the IACHR has received information indicating that one of the major barriers women face in obtaining access to maternal health services are high fees for health care.[49] Fees for service become a determinant when deciding whether or not to seek out health services when there is some symptom of risk during pregnancy and/or childbirth, a situation that has a disproportionate effect on poor women, reflecting the lack of governmental support for persons with limited resources. Thus, the failure to prioritize resources in many cases reflects the lack of a gender perspective in public policies on access to basic maternal health services.

31.              Health facility hours[50] and the lack of adequate equipment, medical supplies or medications to deal with emergencies during pregnancy, childbirth and the post-partum period, as well as the lack of trained personnel within the health services to respond to these emergencies, particularly to provide emergency obstetrical care, are also barriers limiting access to the maternal health services that women need.[51]  

32.              Another structural factor faced by women, particularly those living in rural areas, is the acute distance to health services.  The distances women must travel to go to a health center as well as road conditions and transportation costs may be determinants when deciding to seek medical care.[52] The lack of transportation to take a pregnant woman to a health facility in the case of an emergency, for example, is another barrier to access. As a result, the distribution and general location of health facilities as well as transportation may constitute a form of discrimination against women living in rural and/or remote areas in terms of the accessibility of services.[53]

33.              In addition to the physical accessibility and affordability of health services that are economically and geographically within the reach of women, it is important that women, their families, and communities be aware of health services and that they also be able to identify warning signs that require medical attention.[54] As a result, the lack of information on reproductive health acts as another barrier to obtaining access to maternal health services because it prevents women from freely making decisions based on their health, and the result of this is the lack of appropriate prevention and health promotion behaviors to protect their own health and that of their children. On this point, in General Comment No. 14, the ESCR Committee determined that “accessibility includes the right to seek, receive, and impart information and ideas concerning health issues.”[55]

34.              Also, the IACHR observes the existence of cultural factors that can operate as barriers of access to maternal health services, for example, health services that are offered without considering indigenous and afrodescendent women’s expectations, traditions and beliefs. Likewise, the IACHR received information that indicates that women, particularly the poor and the marginalized, do not seek health services because of a lack of time or overburden of domestic duties placed exclusively on them. Consequently, women postpone their health care, risking their lives.

35.              The Commission considers that the perception of service quality may influence a woman’s decision to seek medical care. In addition, perceived cultural insensitivity or disrespectful treatment on the part of medical personnel may cause women and their families to cease seeking help.[56] Thus, the lack of interpreters in areas where there are communities speaking other languages may constitute an obstacle to women’s access to services.

36.              With respect to laws and policies that may represent barriers to obtaining access to maternal health services, the failure to implement laws, policies, programs and practices to benefit women’s health in the area of maternal health as well as the lack of standards and protocols governing medical care in this area stand out.[57] Thus, medical personnel’s refusal to provide services under legal conditions is not only a barrier to access but is discriminatory as well.[58]

37.              Another structural factor that acts as a barrier impeding women’s access to maternal health services are persistent gender stereotypes in the health sector. Thus, laws, policies or practices that require women to have third party authorization in order to obtain medical care and that allow forms of coercion such as sterilization of women without their consent perpetuate stereotypes that see women as vulnerable and unable to make autonomous decisions regarding their own health. In effect, situations in which women are denied medical care because they are women, because of their marital status, or because of their level of education[59] are forms of discrimination in access to such services.[60] In addition, policies, practices, and gender stereotypes that fail to respect women’s right to confidentiality may constitute barriers limiting access to maternal health services, particularly for adolescents.[61]

38.              Similarly, attitudes such as indifference, mistreatment and discrimination perpetrated by health sector employees that affects women and girls victims of violence and/or sexual abuse, as well as the lack of appropriate reproductive health services to address situations of violence, constitute barriers to access of health services.

39.              Under the Inter-American system, barriers limiting access to maternal health services may amount to affecting the right of women to physical, mental and social integrity. Although each particular situation will have to be analyzed, the IACHR feels that cases in which surgeries and medical treatments are performed on women without their consent or pose a physical risk to their health may constitute violations of the right to personal integrity. In addition, cases in which women’s dignity is assaulted, such as when they are denied medical care in the area of reproduction, thus damaging their health or causing them considerable emotional stress, would constitute a violation of the right to personal integrity. In all these cases, the provisions contained in the Convention of Belém do Pará,[62] as a specific instrument intended to provide special protection for women’s human rights, must be used to specify the obligations deriving from Article 5 of the American Convention and from Articles I and XI of the American Declaration of the Rights and Duties of Man.

40.              Although the right to personal integrity, particularly in the area of maternal health, is not a subject that has been dealt with in depth by the IACHR, the Commission has received various forms of information in its on-site visits as well as under the case system that provide examples of some of the barriers that women face in obtaining access to maternal health services that may affect their right to personal integrity. In its 1997 regional report on the situation of women in the Americas, the IACHR emphasized that comprehensive health care for women generally depends on two factors: 1) the organization and structure of adequate services and 2) the knowledge that women have regarding laws protecting their rights and governing health care services.[63]   

41.              In its report, the IACHR pointed out that women’s reproductive health should occupy an important place in legislative initiatives and health programs at the national and local level. The IACHR also expressed its concern regarding serious difficulties faced by women in the public health sector, generally due to the lack of resources, the absence of standards on reproductive health, the precarious conditions under which services are delivered, and the lack of professionals and essential materials. The report referred to high maternal mortality rates in the region and the obstacles women face to receiving adequate health services during pregnancy and after childbirth. Based on the responses sent by the States on the subject of health and reproductive health, the Commission found profound deficiencies in statistical data, generally due to the lack of appropriate resources and infrastructure. The Commission was able to confirm serious problems in terms of access to basic information and adequate medical and social services. The IACHR recommended that the States adopt measures so as to have the necessary statistical information and resources needed to adopt plans and programs that would afford women the full exercise of their right to health.

42.              In its on-site visits, the IACHR has confirmed the maternal health situation in some countries and has made recommendations to the States on addressing some of the most significant problems associated with protecting the right to personal integrity. For example, the Commission referred to the serious maternal mortality situation in the region and how that situation reflects the poverty level and exclusion of women.[64] It also referred to abortion as a very serious problem for women, not only from a health perspective but also in terms of women’s human rights to integrity and privacy.[65]

43.              The IACHR has pointed to the need to encourage policies that propose specific prevention and health care measures in maternal health and has recommended making adequate health care services as well as information and assistance in reproductive health available to women, particularly poor and indigenous women.[66] Along these lines, it has also recommended the implementation of dissemination measures and campaigns for the general public on the duty to respect women’s rights in civil, political, economic, social, cultural, sexual, and reproductive matters.[67]

44.              In addition, the Commission has underscored the problem of discrimination against women and the various ways in which it is manifested, for example, in the area of reproductive health. In effect, the IACHR voiced its concern over cases of forced sterilization in Peru. The Commission maintained that “when a family planning program ceases to be voluntary and turns women into a mere object of control so as to make adjustments to population growth, it loses its raison d’etre and instead poses a danger of violence and direct discrimination against women.”[68] The Commission felt that a campaign to disseminate family planning methods was a positive action, provided that this means voluntary family planning. Among its recommendations for addressing this form of discrimination and violence against women, the IACHR including adopting measures to promote respect for women’s rights in public health services such as: providing training in human rights for health providers, developing mechanisms to eradicate the cover-up of crimes in health facilities, and establishing complaint offices in hospitals and health centers, among other measures.

45.              In addition, the Commission emphasized the importance of a proper investigation in order to establish the respective responsibilities and penalties. However, in subsequent years the Commission has not received information on concrete results. On the contrary, very recently the Commission received information indicating that the Provincial Office of the Special Prosecutor for Human Rights, through a resolution dated May 26, 2009, archived 2,074 accumulated complaints submitted by women who were victims of forced sterilization while the National Reproductive Health and Family Planning Program was effect during the period from 1996 to 2000. The Office of the Prosecutor decided to archive the complaints based on the statute of limitations, concluding that although there was evidence indicating that crimes of manslaughter and negligent injury had been committed, since about 13 years had passed the period for prosecuting those crimes had lapsed; thus it archived the cases definitively.[69]

46.              The IACHR wishes to recall that the State itself had already recognized in 2002 that the policy in question had violated many individuals’ human rights and that the Office of the Prosecutor itself recognizes the existence of evidence. Despite that recognition, according to the reports, competent authorities have not moved investigations toward the necessary conclusions and consequences. It should be noted in general terms that the international responsibility of the State continues over time until its obligations under international law have been met.

47.              The IACHR has also expressed its concern over limited access to family planning in the countries even though in some cases there is a high unmet need for such services.[70] The Commission has expressed its view that persistent limitations on information regarding family planning services are linked to limitations on access to public health care and education. On this point, the Commission has made recommendations on measures to provide comprehensive health services, including modern family planning services, in order to protect women’s right to personal integrity and the right of couples to determine the number of children they want and how to space their births.[71]

48.              Under the case system, cases related to maternal health have been resolved through friendly settlement agreements. An important example is the Case of María Mamérita Mestanza of Peru, in which the petitioning organizations alleged that Mrs. Maria Mamérita (aged 33) was forced into a public health facility and submitted to surgical sterilization, resulting in her death.[72]  Mrs. Mestanza was allegedly harassed and threatened by health personnel who claimed she would be reported to the police if she did not submit to the operation. As a result, Mrs. Mestanza submitted to the operation, was discharged despite her complaints of pain and discomfort, and died nine days after the operation. The petitioners alleged that the case of Mrs. María Mamérita Mestanza represented just one of several cases of women affected by the application of a massive, compulsory, and systematic government policy that emphasized sterilization as a method for rapidly changing the population’s reproductive behavior, particularly poor, indigenous, and rural women.  

49.              Through a friendly settlement agreement between the parties signed in 2003, the State of Peru recognized its responsibility for having violated the victim’s right to life, physical and mental integrity, and personal integrity, to equal protection of the law, and to live free of violence.[73] The State agreed to compensate the victim’s family financially, to punish those responsible for the violations and to change national standards and policies in the area of family planning in accordance with relevant international standards.[74] The State also agreed to adopt the recommendations made by the Ombudman’s Office to protect women’s personal integrity, including: improving pre-operative evaluation of women who undergo a surgical contraceptive procedure; providing medical personnel with better training; creating mechanisms for receiving and efficiently processing complaints within the health system; and implementing measures to guarantee that women are able to provide informed consent within a period of 72 hours prior to sterilization. The IACHR is monitoring the implementation of the agreement.

50.              Another important case before the IACHR in the area of maternal health that was resolved through a friendly settlement agreement is the case of Paulina Ramirez Jacinto of Mexico.[75]  The petitioners alleged that Paulina Ramírez, aged 13, was the victim of sexual violence, was prevented from exercising her right to a legal abortion because she and her mother were the victims of intimidation and delays on the part of agents of the State. In 2007, the parties ratified a friendly settlement agreement that includes public recognition of the responsibility of the Government of Baja California and a series of measures to compensate the victim and her child, including court costs for processing the case, medical expenses arising from the events and health services, financial support for their maintenance, housing, education and professional development, psychological care, and reparation for moral damages. In publishing the report, the IACHR emphasized that it is impossible to achieve women’s full enjoyment of human rights unless they have timely access to comprehensive health care services as well as information and education on the subject. The IACHR also noted that the health of the victims of sexual violence must have priority in the States’ legislative initiatives and in health policies and programs. The IACHR is monitoring fulfillment of the agreement.

51.              In addition, on March 7, 2007, the IACHR received a petition alleging international responsibility on the part of the State of Bolivia for the alleged forced sterilization of a woman in a public health facility. The petitioner maintains that in 2000, Mrs. I.V. was subjected to tubal ligation surgery without her informed consent and thus to a non-consensual sterilization, permanently losing her reproductive function. For its part, the State maintains that when the alleged victim was undergoing a caesarian section, multiple adhesions were found. For this reason, the attending physician informed her regarding the risk to her life in her next pregnancy, which is why he suggested a tubal ligation, to which they allege she gave verbal consent. The case was accepted on July 23, 2008 for alleged violations of Articles 5.1 (right to personal integrity), 8.1 (judicial guarantees), 11.2 (protection for one’s honor and dignity), 13 (freedom of thought and expression), 17 (protection of the family) and 25 (judicial protection) of the American Convention, as they relate to the general obligations established in Article 1.1 of the American Convention. The case is currently in the merits stage.[76]

52.              A common denominator in these three cases is the assertion that the women found themselves in situations of exclusion and poverty.

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