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health rights, including quality medical treatment during pregnancy and delivery?
A factor that contributed to Alyne’s death was that the attending health personnel failed to properly diag- nose and treat her.170 It was reported in 2010 that
women in Brazil had highly equitable and near uni- versal access to skilled birth attendants.171 It still needs
to be asked whether women, irrespective of their race and class, are receiving quality medical treatment that allows them to survive pregnancy and delivery, and what percentage of women in labor has access to a medical facility appropriate for their medical needs. In one part of Brazil, the majority of women in labor are forced to seek access to multiple hospitals before finding one willing to admit them.172 This search for
admission to hospitals by women in labor is such a common, well-known phenomenon in Brazil that it has been labeled “a pilgrimage.”173
To maximize the provision of quality medical treat- ment during pregnancy and delivery, it is important to determine whether pregnant women who are hem- orrhaging are being treated by health care providers trained according to the most current guidelines, such as the Guidelines in the Prevention and Treatment of Post Partum Hemorrhage in Low-resource Settings.174
For pregnant women who are hemorrhaging in child- birth or post partum, quality medical treatment also requires access to blood banks. One study on mater- nal deaths found that 26% of Brazilian women who required a blood transfusion were unable to receive it.175 The same study found that, while 74% of the
women who died had needed to be in an intensive care unit, 37% did not have access to one.176
Determining whether health workers are being trained in women’s reproductive health rights177
requires at least assessing how such rights are being taught in medical and nursing schools, how they are being applied in the treatment of pregnant women, and whether women are participating in the design of programs to improve their maternal health.178 Devel-
oping case studies on the facts of the Alyne decision would be an appropriate measure.179 A case study that
focuses on the Convention’s requirement to eliminate prejudices in the clinical treatment of poor pregnant minority women would be especially useful in the training of health personnel in women’s reproductive health rights.180
Has Brazil imposed sanctions on health professionals who have violated women’s reproductive health rights, and if so, how?
Answering this question requires understanding of whether and how remedial sanctions can be construc-
ability. It has explained that “individual punishment (and knowledge that professional standards will be enforced) has an appropriate place in a constructive accountability system.”181 Constructive professional
accountability requires the establishment of suitable professional standards for the delivery of maternity care.182 It also requires the appropriate, non-biased
and fair application of “sanctions by professional associations, medical councils and/or licensing bod- ies for negligence, abuse or malpractice, irrespective of whether providers are tenured.”183 However, caution
is needed to ensure individual sanctions are not used destructively, such as to scapegoat doctors to pacify the public and to “cover up wider, deeper problems.”184
Accountability is a foundational principle in human rights law, and its use is important to improve maternal health services. The pursuit of effective accountability for observance of women’s rights relating to mater- nal health “requires moving beyond the traditional human rights model of punishing individual perpetra- tors, to focus on institutional and systemic factors.”185
Has legal accountability established for the violations of Alyne’s rights led to: (a) professional accountabil- ity, discussed immediately above; (b) institutional accountability; (c) health system accountability; (d) private actor accountability,186 discussed above under
the section, Has Brazil takensteps to ensure that pri- vate health care facilities comply with national and international standards?187 This necessitates deter-
mining what processes for “fostering accountability of multiple actors and at various levels, within and beyond the health sector,”188 have been established as a
result of the Alyne decision. For example,
• Does institutional accountability “at the facility level require continuous oversight and regular follow-up with regard to any gaps identified”? Have complaint procedures been instituted “in all facilities for health system users, including appeal procedures for decisions by institutional management or ethics committees denying access to any form of sexual and reproductive health care”? In addition to the Rapporteur on Human Rights and Sexual and Reproductive Health in Brazil,189 have internal ombudsperson
procedures been “instituted for review of health workers’ complaints in each facility, with possi- bility for appeal”?190
• Does health system accountability provide con- tinuous systemic monitoring and regular diag- nostics of obstacles, conduct routine reviews of all maternal deaths “in order that lessons may be learned at all levels of the health system:- from
Rebecca J. Cook policies, and along the continuum of care from
home to hospital”?191 Are maternal death reviews
conducted in the spirit of shared responsibil- ity rather than attributing blame and punish- ment,192 and do they inform actions to prevent
future maternal deaths?193
• Where accountability procedures at the health facility and health systems levels are established, are they addressing potential program biases reflected in health status indicators, such as Afro-Brazilians being seven times more likely than others to die in childbirth?194 Are these pro-
cedures being used to track actual access by the end-users to medicines essential for maternal health, such as uterotonics (oxytocin and miso- prostol)?195 Where health ministries have failed
to establish procedures, health advocacy groups, such as in Brazil, have used constitutional law to secure access to medicines for HIV/AIDS within the public health system,196 and for example in
South Africa for pregnant women with HIV/ AIDS.197
Whatever accountability procedure is established, has it empowered poor, pregnant women, such as Alyne, to compel adequate responses within health systems to their specific needs during pregnancy? If a process for redress emboldens women, and their families, to assert their rights to ensure the care appropriate for their maternal health, then the process will have met a measure of effectiveness.198
Has Brazil ensured access to effective remedies in cases where women’s reproductive health rights have been violated, and provided training for the judiciary and law enforcement personnel?
For remedies to be effective, Brazil has to address intersecting grounds of discrimination that con- tributed to Alyne’s death.199 The Committee’s Gen-
eral Recommendation on Obligations requires that states “legally recognize and prohibit such intersect- ing forms of discrimination…and pursue policies and programmes designed to eliminate such occurrences, including where appropriate, temporary special mea- sures in accordance with Article 4(1) of the Conven- tion and [the] General Recommendation [on Tempo- rary Special Measures].”200 Brazil has an obligation to
give “due consideration” to the Committee’s views.201
Due consideration could be evidenced by the use of temporary special measures (TSMs). These might be especially appropriate given the health disparities among pregnant women, as evidenced by differential maternal mortality rates.202 TSMs are not considered
discriminatory provided that they are designed to
achieve substantive or de facto equality, and are truly temporary in nature until the inequity has been rem- edied.203 The measures are special because they are
necessary to “dismantle the social mechanisms and gender constructs which have disempowered [Afro- Brazilian] women.”204 An example of a TSM would be
a special project designed to address health dispari- ties among pregnant women, implemented until such time as Afro-Brazilian women are surviving at the same rates as white women.
Regarding the Committee’s recommendation on training for the judiciary and law enforcement per- sonnel, one effect of the Alyne decision might be determined by whether the judiciary has become sufficiently knowledgeable about the nature of inter- sectional discrimination, of how it manifests itself in different sectors of society, and of how it might be remedied through TSMs to ensure equality of all preg- nant women in the health sector as required by the Convention.
C. Domestic Litigation
The Alyne decision clarified and concretized how human rights can be applied to ensure pregnant women’s rights to equal access to health care and thus to enhance their prospects for survival. The Commit- tee resolved the uncertaintyabout whether there was a violation of Alyne’s rights, and in so doing estab- lished a new normative baseline. It remains to be seen whether judges in a pending case,205 or in future cases
on behalf of pregnant women, invoke the Alyne norms to defend pregnant women under Brazilian Consti- tutional provisions concerning the rights to health care,206 to safe motherhood,207 to equality on grounds
of sex and gender,208 and race.209 As the Committee
explained, Brazil’s “responsibility is strongly anchored in [its] Constitution ….”210
In exploring the effectiveness of the Alyne decision by reference to its influence on domestic case law, one has to consider how courts are currently being used to improve access to health services and to ensure women’s gender and racial equality more generally. Some argue that most Brazilian litigation is having a perverse effect on health priorities because it concerns individual claims regarding access to medicines, and less frequently access to treatment, which are not nec- essarily in the interest of the public’s health.211 That is,
“they seek the provision of a health benefit for an indi- vidual litigant rather than a change in policy to benefit a whole group or the population as a whole.”212 None-
theless, the judicialization of health shows the kind of influence the Brazilian courts are having on the health system. So how might courts and judicial authority be
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used to better effect to resolve health inequities among pregnant women?
Answering this question will depend in part on whether a particular court follows a rights-granting or rights-restricting model of adjudication in health.213
The rights-granting decisions are either derivative of a set of individual civil rights, or “collective social rights that are largely programmatic in nature, though they
may still be negatively actionable in the case of non- fulfillment.”214 The rights-restricting decisions con-
sider the right to health as either “concretized within a regulatory framework…that are based on principles of good administration such as budgetary propriety and public procurement,” or as public goods “subject to scarce economic resources to be allocated by dem- ocratically legitimated decision makers and not by unelected judges.”215
The Alyne decision sets a new standard for both models of domestic adjudication. It serves as a signal to domestic courts to address the systemic health ineq- uities that many pregnant women face in the health care system. The effectiveness of the Alyne decision will be greatly enhanced if domestic courts amplify the interpretation of the Brazilian constitutional rights by reference to the Committee’s findings on intersec- tional discrimination, and design remedies to address it. In so doing, courts will show how the judicialization of health can be used to require public health systems to address some of society’s most essential health care needs.
Conclusion
As a matter of human rights law, the Alyne decision is an historic contribution to emerging international jurisprudence regarding the gendered violation of health rights. For almost three decades, the scale of preventable maternal death worldwide has been
nized as violating human rights. The decision repre- sents the first time that an international human rights treaty body has held a government legally responsible for preventable maternal death. The Committee spe- cifically held that the failure to provide essential health care that only women need, which in this case was EmOC, is a form of discrimination that governments are obligated to prevent and remedy. The Commit-
tee’s ruling condemned the government for denying not just Alyne’s rights, but also those of all Brazilian women in ways that transcended the particulars of the individual event, by addressing the systemic health care factors that lead to maternal death.
Within what is often referred to as the expressive function of the law, the Alyne decision solidified the meaning of the right of pregnant women to be free from all forms of discrimination to ensure their access to health care that only they need. The decision raised the national and international profile of the prob- lem of preventable maternal death, and thereby has enabled further debate and cooperation to resolve it.216
The decision also concretized the obligation of gov- ernments to take all appropriate measures to elimi- nate discrimination in the field of health care through the identification of standards that governments have to satisfy. Similar to decisions in other areas of inter- national human rights law,217 this decision legitimized
and legalized transnational standards for protection of maternal health.218
Human rights litigation might be most effective in countries like Brazil that are “making progress”, but not “on track” to meet the MDG 5A by 2015, to serve as a gap filler to address health inequalities.219 Litiga-
tion offers procedures for holding governments legally accountable for gaps in clinical care and in health systems. Judicialization of health, whether through domestic courts or international treaty bodies, is