Women's Health and Human Rights
WHEC Practice Bulletin and Clinical Management Guidelines for healthcare providers. Educational grant provided by Women's Health and Education Center (WHEC).
The right to life is a fundamental human right, implying not only the right to protection against arbitrary execution by the state but also the obligations of governments to foster the conditions essential for life and survival. The denial of women's human rights touches every aspect of women's lives. Rights violations occur whenever women are denied access to property or employment, face violence within their own homes or cannot claim fair representation within their government. In year 2000, the United Nations Human Rights Committee elaborated its General Comment on the equality of rights between men and women, which among other things, requires States to report their progress and to provide data on birth rates and on pregnancy and childbirth-related deaths of women. At a global level, maternal mortality was not recognized as a public-health concern until late in the 20th century. Every country in the world is now party to at least one human rights treaty that addresses health-related rights. This includes the right to health as well as other rights that relate to conditions necessary for health. Promoting and respecting, protecting and fulfilling human rights are inextricably linked: Violations or lack of attention to human rights can have serious health consequences (e.g. harmful traditional practices, slavery, torture and inhumane and degrading treatment, violence against women and children); Health policies and programs can promote or violate human rights in their design or implementation (e.g. freedom from discrimination, individual autonomy, rights to participation, privacy and information); Vulnerability to ill-health can be reduced by taking steps to respect, protect and fulfill human rights (e.g. freedom from discrimination on account of race, sex and gender roles, rights to health, food and nutrition, education, housing). Women's Health and Education Center (WHEC) is actively strengthening its role in providing technical, intellectual and political leadership in the field of health and human rights.
The purpose of this document is to explore the role of Women's Health and Education Center (WHEC) in health and human rights strategy and indicators for monitoring the right to health. We hope our efforts in implementing supporting governments to integrate a human rights-based approach in health development; strengthening our capacity to integrate a human rights-based approach in its work and advancing the right to health in international law and international development processes. Various forms of violence have been recognized as human rights issues, including harmful traditional practices, torture, trafficking, violence against women, and violence against children. Less attention is given, however, to the concept that the degree, to which human rights are respected, protected and fulfilled directly influences the underlying societal conditions that give rise to violence. Several risk factors shared by multiple types of violence -- for example poverty, high unemployment rates, gender inequality, racial discrimination, and weak economic and social safety nets -- are closely linked to human rights such as the right to equality and freedom from discrimination, the right to education, the right to an adequate standard of living, and the right to social security. While human rights must be promoted and fulfilled for their own sake, and not merely as a means of reducing violence, policy-makers interested in violence prevention must understand that widespread guarantee of human rights will dramatically improve the conditions that make people vulnerable to violence.
International concerns with human rights, health and environmental protection have expanded considerably in the past several decades. In response, the international community has created a vast array of international legal instruments, specialized organs, and agencies at the global and regional levels to respond to identify problems in each of the three areas. Often these have seemed to develop in isolation from one another. Yet the links between human rights, health and environmental protection were apparent at least from the first international conference on the human environment, held in Stockholm in 1972. Indeed, health has seemed to be the subject that bridges the two fields of environmental protection and human rights. At the Stockholm concluding session, the participants proclaimed that: Man is both creature and molder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth.... Both aspects of man's environment, the natural and the manmade, are essential to his well-being and to the enjoyment of basic human rights be even the right to life itself. In resolution 45/94 the United Nations General Assembly recalled the language of Stockholm, stating that all individuals are entitled to live in an environment adequate for their health and well-being. The resolution called for enhanced efforts towards ensuring a better and healthier environment (1).
In the three decades since the Stockholm Conference, the links that were established by these first declaratory statements have been reformulated and elaborated in various ways in international legal instruments and the decisions of human rights bodies. In large part, these instruments and decisions involve taking a rights-based approach to the topics, albeit with different emphases. The first approach, perhaps closest to that of the Stockholm Declaration, understands environmental protection as a pre-condition to the enjoyment of internationally-guaranteed human rights, especially the rights to life and health. Environmental protection is thus an essential instrument in the effort to secure the effective universal enjoyment of human rights. Klaus Toepfer, Executive Director of the United Nations Environment Programme, reflected this approach in his statement to the 57th Session of the Commission on Human Rights in 2001: Human rights cannot be secured in a degraded or polluted environment. The fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water. Environmental conditions clearly help to determine the extent to which people enjoy their basic rights to life, health, adequate food and housing, and traditional livelihood and culture. It is time to recognize that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well.
The General Assembly similarly has called the preservation of nature a prerequisite for the normal life of man (2). The second rights-based approach, most common in international environmental agreements since 1992, is also instrumentalist, but instead of viewing environmental protection as an essential element of human rights, it views certain human rights as essential elements to achieving environmental protection, which has as a principal aim the protection of human health. The third and most recent approach views the links as indivisible and inseparable and thus points the right to a safe and healthy environment as an independent substantive human right. At present, examples of this are found mainly in national law and in regional human rights and environmental treaties. Most formulations of the right to environment qualify it by words such as healthy, safe, secure or clean, making clear the link between environmental protection and the aim of human health. It should be noted that there are other regulatory approaches to achieving environmental protection and public health that are not rights-based. Economic incentives and disincentives, criminal law, and private liability regimes have all formed part of the framework of international and national environmental law and health law. This emphasis on responsibilities rather than rights echoes language from the Stockholm Declaration and subsequent instruments that emphasize the duty of each person to protect and improve the environment for present and future generations. It is also consistent with human rights instruments that affirm the duties of each individual to others to promote and observe internationally-guaranteed human rights (3).
United Nations (U.N.) Human Rights Committee:
General Comments: The UN Human Rights Committee has indicated that state obligations to protect the right to life can include positive measures designed to reduce infant mortality and protect against malnutrition and epidemics. The Committee has interpreted Article 2721 of the Covenant on Civil and Political Rights broadly, observing that: culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. . . . The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole (4). In sum, the links between human rights, health, and environmental protection are today well established in international law, accepted by states in agreements and implemented in practice. Further attention to the links and to the potential conflicts between the goals of the three subject areas will be of benefit to all concerned.
Concurrent with, and slightly ahead of, these efforts to address maternal mortality within the public-health community, non-governmental organizations (NGOs), international feminism -- especially women's activism around health and rights, both within countries and globally, is also growing. The early demands of the women's movement, particularly in Western Europe and North America, focused on two key demands: equal pay for work of equal value, and the rights of women to have control over their bodies and to have access to contraception and abortion (5). By the early 1980s, the health streams of the international women's movement has begun to come together through the "International Women and Health" meetings which, for the first time, brought together women from all over the world. This global activism by NGOs had a direct impact on the UN Decade for Women (1976-1985), which heighted attention by governments and the international community more broadly to the health of women, especially in developing countries. Skeptical, however, of whether UN and its partners were really committed to acting, the women's health movement launched an International Day of Action for Women's Health in 1987, focusing initially on "Preventing Maternal Mortality". Women's lack of autonomy to make decisions about their lives, including childbearing, was a central focus of these efforts.
Domains of Health Responsiveness:
The World Health Organization (WHO) has been working on a framework to evaluate the performance of health systems in a comparable way (6). How these domains have been recognized in the context of human rights and the provision of health services to the public. Human rights provide a vitally important framework for examining these domains. Like principles of ethics, human rights provide or support appropriate standards for human conduct. Yet, unlike some ethical principles, human rights are internationally recognized and globally accepted. Moreover, governments have agreed to be legally bound to upholding principles of human rights. Human rights are deliberately broad and elastic to allow for limited differences in interpretation based on cultural or religious beliefs. "While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms". If a health system is responsive, it is possible that interactions people have within the health system will improve their well being, irrespective of improvements to their health. The concept of responsiveness has been operationalised in eight domains. These include: 1) respect for the dignity of persons; 2) autonomy to participate in health related decisions; 3) confidentiality; 4) prompt attention; 5) adequate quality of care; 6) communication; 7) access to social support networks; and 8) choice of health care providers.
Consequently, the terminology and concepts underpinning human rights are particularly appropriate in providing a normative framework for measuring the domains of health systems responsiveness. Human rights principles can enhance, or justify, the relevance of responsiveness domains to the evaluation of public and private health services in three principal ways (7):
- Synergy; human rights theory and principles support the need to pay attention to the responsiveness domains when delivering health services not only to improve health outcomes, but to further respect for human rights that underlie the intrinsic value of the domains themselves. Human rights theory and principles support the need to deliver health services consistent with these domains not only to improve health outcomes, but also to further a respect for human rights that underlie the intrinsic value of domains themselves. This synergy suggests the need to conceive and build a rights-based approach to the delivery of health care services. Essentially, responsiveness supports a rights-based approach to health systems are related to the interactions between patients and health systems.
- Authority and Accountability; human rights provide a universally endorsed and thus authoritative legal basis for the domains, demanding accountability among governmental and other actors. Violations of human rights carry similar and sometimes additional penalties, as would legal violations. The potential for direct or indirect response assigns a degree of accountability against those who infringe or violate human rights. When fairly enforced, human rights provide a universal standard that holds governmental and other actors accountable.
- Cohesion; all human rights demonstrate commonalities between various domains and help identify potential gaps. In many ways, the eight domains of health system responsiveness are distinct yet related. Respecting the dignity of individuals, for example, includes respecting their autonomy to participate in health-related decisions. It also requires that an individual's interests in protecting the privacy and confidentiality of her intimate health data be protected. Human rights analysis affirms the underlying construct of responsiveness, common to all the domains, and bridges any perceived or actual gaps between domains (e.g. the implications of communication for continuity of care). Thus, as discussed above, the human right to health supports the need to provide prompt medical treatment and keeping information private. Failing to deliver on one of these domains for the sake of the other (outside medical or public health emergencies) may be viewed as infringing on the right to health, notwithstanding justifications offered by health care workers or government authorities.
Using Human Rights to Improve Maternal, Neonatal and Child Health:
Maternal and neonatal mortality have barely declined in the past two decades. The most recent estimates indicating that about 526,000 women die every year from pregnancy-related causes demonstrate that, at the global level, maternal mortality has decreased at less than 1% annually between 1990 and 2005. This is far below the 5.5% annual decline necessary to achieve the Millennium Development Goals (MDG) of improving women's health by reducing maternal mortality. 99% of these deaths occur in developing countries. Likewise, even as the under-five and infant mortality rates have dropped considerably in may developing countries, the rates of neonates (infants in the first 4 weeks of life) and in particular, early neonatal mortality (infants in the first week of life have declined much more slowly and in some regions have remained static. An estimated 4 million babies die during their first 4 weeks of which 3 million die in the first week. Maternal and neonatal health are central for the MDGs, the global roadmap for eradicating poverty and improving human well-being by the year 2015. Human rights are used by international organizations, governments, non-governmental organizations (NGOs), civil society groups and individuals in their work with respect to health in many different ways. These can broadly be categorized as: advocacy, application of legal standards, and programming, including service delivery. Some use one approach while others apply a combination in their work (8).
At a global level, maternal mortality was not recognized as a public-health concern until late in the 20th century. The International Conference on Safe Motherhood, held in Nairobi, Kenya, in February 1987, issued a Call to Action urging the Member States of the UN to improve health conditions for women in general and to reduce maternal mortality in particular. In the same year, international agencies, governments, and a few international NGOs, launched the Safe Motherhood Initiative. The purpose of this effort was to highlight the persistence of maternal ill-health and to devise solutions for maternal mortality and morbidity. It was only after its creation that the first global and regional estimates of maternal mortality were calculated, revealing the most dramatic of all public-health gaps between resource-rich and resource-poor countries. Within the public-health community, the Safe Motherhood Initiative framed the approach to addressing maternal and child health for the years to come. Consequently, it is only in recent years that the burden of neonatal mortality and stillbirths has been estimated, and the importance of the continuum of care in maternal and child health programs recognized (9).
Women's Health and Human Rights Movements:
The early demands of the women's movement, particularly in Western Europe and North America, focused on two key demands: equal pay for work of equal value, and the rights of women to have control over their bodies and to have access to contraception and abortion. By the early 1980s, the health streams of the international women's movement had begun to come together through the "International Women and Health" meetings which, for the first time, brought together women from all over the world. Among the key concerns which connected the efforts of women from very different contexts and regions were the need for safe and affordable contraceptives and access to antenatal care and safe childbirth services. Closely linked to this was the demand to abolish population control measures (including coercive sterilization) which at the time were being imposed by several governments. This global activism by NGOs had a direct impact on the UN Decade for Women (1976-1985), which heightened attention by governments and the international community more broadly to the health of women, especially in developing countries. Skeptical, however, of whether the UN and its partners were really committed to acting, the women's health movement launched an International Day of Action for Women's Health in 1987, focusing initially on "Preventing Maternal Mortality". Women's lack of autonomy to make decisions about their lives, including childbearing, was a central focus of these efforts. Concurrent with these changes and the growth of the women's health movement, human rights organizations started to demonstrate how human rights could work for women in the so-called "private sphere", including in relation to sexuality and reproduction. Throughout the 1990s, this activism and research contributed to a growing global awareness that women's health needed to be understood and addressed within the economic, social and cultural context of individual women's lives (10). Consequently, work on women's health broadened to include efforts at the household and community level, as well as on the broader social structures, such as health, education, laws and policies such as spousal authorization, that pose barriers to women accessing health services for themselves and their children.
Developing New Approaches:
It is against this background that Women's Health and Education Center (WHEC) took up the challenge of operationalizing the use of human rights to improve maternal and neonatal health. Given the work of the past decade, we hypothesized that despite the considerable efforts that a country may have made to reduce maternal and newborn mortality and achieve improvements in maternal and newborn health services; legal, policy and other barrier might nonetheless exist both within and outside the health sector. Overcoming such barriers requires their identification, careful analysis and their analysis and their subsequent modification -- through laws, policies and regulations that are consonant with human rights -- with the ultimate aim of improving women's access to needed services through the promotion and protection of their rights. We developed a process which aims to assist countries to conduct a self-assessment of their national laws, policies and practices that affect maternal and neonatal morbidity and mortality, using a human rights framework, and engaging stakeholders from different ministries, professional associations, NGOs and academics.
The key to moving towards universal access and financial protection is the organization of financing. Current government expenditure and international flows cannot guarantee universal access and financial protection, because they are insufficient and because they are too unpredictable. At the same time, historical patterns of financial management -- incremental adjustments of the recurrent program budgets, supplemented by donor-funded projects -- have often been slow to adapt to initiatives aimed at scaling up universal access to healthcare. Funding flows have not only to increase; they have to be channeled in a different way. To frame maternal, newborn and child health services in terms of universal access and financial protection may command the wide constituency and promise the political visibility that mobilization of decision-makers requires. It is important that stakeholders from civil society are represented in steering financial protection mechanisms, and particularly in the priority-setting process. Universal access for mothers and children requires health systems to be able to respond to the needs and demands of the population, and to offer protection against the financial hardship that results from ill-health. Women around the world face many inequalities during pregnancy. At this crucial time women rely on care and help from health services, as well as on support systems in the home and community. Exclusion, marginalization and discrimination can severely affect the health of mothers and that of their babies. Tackling the low status of women, violence against women and lack of employment rights for pregnant women is vital in helping to build societies that support pregnant women. In U. S. under the Pregnancy Discrimination Act, a patient might qualify for disability leave until delivery because of complications during pregnancy. Many employers in U. S. have a 4- to 6-week maximum for paid maternity leave. The Family and Medical Leave Act (FMLA) enacted in 1993 mandates that covered employers provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for certain family and medical reasons. Some states in the USA have expanded on the FMLA provisions to allow women additional, unpaid maternity leave.
Women and Girls in the Context of the HIV/AIDS Epidemic:
Over the past two decades, women and girls have increasingly become the victims of the HIV/AIDS epidemic. AIDS, and then HIV, were first detected in the United States and Europe in the early 1980s, where they were diagnosed predominantly in gay men. Today, however, HIV is transmitted primarily heterosexually, and the economic, social, cultural and legal inequality of women and girls means that they are infected more frequently and at a younger age than men or boys. Women and girls are at greater risk of being infected by HIV than men in part due to unequal access to information. In most societies, children are socialized along strong cultural gender norms. Generally, girls are expected to be sexually innocent and to preserve their virginity until marriage, whereas boys are expected to be more sexually knowledgeable and experienced. In many cultures, female ignorance of sexual matters is a sign of sexual purity, constraining women and girls from obtaining information about sex and reproduction. Thus, women and girls believe that even seeking such information may call into question their virginity. Consequently, women, and particularly young women and girls, are often poorly informed about sexual matters. Studies from Brazil, India, Mauritius and Thailand all found that young women know little about their own bodies, pregnancy, contraception or sexually transmitted diseases. This lack of knowledge limits their ability to protect themselves against HIV infection. Even when informed about HIV transmission, however, women may not change their behavior because they are socialized to please men and to defer to their authority, especially in sexual matters. Studies show that women engage in sexual behaviors that they know to be of high-risk for HIV infection because they want to please their male partners. Similarly, in many cultures, it is understood that men make the decisions in sexual relations, and that if a man initiates sex, the woman may not refuse him. Thus, many married women, although informed about HIV transmission, feel unable to negotiate safer sex with their partners. There is also widespread cultural acceptance of male infidelity in contrast to the expectation of female monogamy.
The central components of aggressive public health strategies -- name reporting of infected individuals, partner notifications, mandatory testing and treatment, and quarantine or isolation -- implicate human rights such as the rights to privacy and personal autonomy, the right against discriminatory treatment, and the freedom of movement and association. Nonetheless, control of epidemics has traditionally been accepted as justification for such infringements on individual rights. Recognizing the state's vital public health role, courts have generally granted great deference to other branches of government, upholding these public health programs against human rights challenges. Some governments have adopted traditional public health measures to address the HIV/AIDS epidemic, including compulsory testing to work, marry or travel; mandatory notification of families or employers of HIV status; prohibitions against people with HIV from marrying, working or traveling; and isolation of people with HIV/AIDS. Studies have shown, however, that these repressive measures deter people from getting tested, seriously calling into question their effectiveness in combating HIV/AIDS.
In June 2001, the 189 member states of the United Nations General Assembly adopted the Declaration of Commitment on HIV/AIDS, which endorsed an international commitment to human rights as an essential element of the global response to HIV/AIDS. This landmark in the struggle against HIV/AIDS specifically recognizes "that stigma, silence, discrimination and denial, as well as lack of confidentiality, undermine prevention, care and treatment efforts and increase the impact on individuals, families, communities and nations". The Declaration establishes time-bound targets to respond to the epidemic, such as (a) ensuring by 2005 that 90% of people aged 15 to 24 have access to HIV education to reduce their vulnerability to infection, and (b) reaching by 2005 an annual expenditure on the epidemic of seven to ten billion US dollars in low and middle income countries. Numerous international and regional human rights instruments enunciate rights relevant in the context of HIV/AIDS. All international instruments and forums, however, rely upon the states as the primary parties responsible for promoting and protecting human rights. The international laws are designed to encourage states to establish national laws and systems for human rights protection. In some countries, international law is directly applicable to provide the basis for a legal action in a domestic forum. In most countries, international laws must be adopted through legislation or constitutional reform processes before they can be the basis for legal action in domestic forums. Nonetheless, most countries already recognize many of rights enunciated in the international instruments in national constitutions or legislation. Research indicates that human rights violations related to HIV/AIDS are frequent in health-care settings. Violations of rights by health-care providers -- including discrimination against people with HIV/AIDS, breaches of confidentiality concerning HIV/AIDS-related information and HIV testing without informed consent -- are routine in some countries. Moreover, women are increasingly affected by HIV/AIDS and thus increasingly the victims of these violations.
The International Safe Motherhood Initiative, launched in 1987, gave a huge impetus to programs, interventions and advocacy aimed at reducing maternal mortality worldwide. However, 10 years later, little or no progress had been made towards such a reduction. During the same period, international feminism gathered force and together with the human rights movements, contributed to a growing global awareness that women's health needed to be understood and addressed within the economic, social and cultural context of individual women's lives. Women's lack of autonomy to make decisions about their lives, including whether to bear children -- their inability to enjoy their human rights in fact -- was a central focus of these efforts which in turn inspired the direction of the Cairo and Beijing international consensus documents. The concerns of activists, governments, donors and the international community at large converged in the mid-1990s around the articulation of the centrality of women's human rights to achieve health and well-being, including the right not to die from preventable, pregnancy-related causes. The casting of maternal mortality and morbidity in human rights terms created a new arena for intervention, one that provides an approach for systematic examination of the legal and policy environment in which health systems operate, nationally and locally.
The Project was funded by the WHEC Initiative for Global Health.
Resources and Suggested Reading:
- World Health Organization
Key documents related to health and human rights
Mental Health, Human Rights & Legislation
- United Nations Population Fund (UNFPA)
Safe Motherhood: Background Information on the Key International Agreements
- The World Bank
Women's Health and Human Rights
- Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, U.N. Doc. A/.CONF.48/14/Rev.1 at 3 (1973).
- GA Res. 35/48 of 30 October 1980.
- Universal Declaration of Human Rights, Pmbl, Art. 1, Art. 29; International Covenant on Economic, Social and Cultural Rights, (16 Dec. 1966), 993 U.N.T.S. Pmbl (the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant), Art. 5.
- The General Comment on Article 6 of the Civil and Political Covenant, issued by the United Nations Human Rights Committee, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.3 (1997) 6-7 [hereinafter Compilation].
- Cook R, Dickens B. Advancing safe motherhood through human rights. Geneva: WHO; 2000
- Murray CJL, Frank J. A framework for assessing the performance of health systems. Bulletin of the World Health Organization 2000;78:717-731
- World Health Organization. Health and Human Rights Working Paper Series No 2. Gostin LG, Hodge JG, Valentine N and Nygern-Krug H. The domains of health responsiveness -- a human rights analysis. 2003
- Gruskin S, Mills EJ, Taratola D. History, principles and practice of health and human rights. Lancet 2007;370:449-455
- Neonatal and perinatal mortality: country, regional and global estimates. Geneva, WHO; 2006
- Gruskin S, Cottingham J, Hilber AM et al. Using rights to improve maternal and neonatal health: history, connections and a proposed practical approach. Bulletin of the World Health Organization 2008;86:589-593
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