Los órganos de gobierno

use of different methods of calculation, or misclassification of deaths.

Rebecca J. Cook countries that are categorized as making “insufficient

progress” or “no progress.”28 _{However, the Brazilian}

estimates have to be viewed with some skepticism because reliable maternal mortality data remains a problem in Brazil for a number of reasons, including under-registration, use of different methods of calcu- lation, or misclassification of deaths.29

Major global initiatives to reduce maternal mor- tality started in 1987 with an international confer- ence in Nairobi, Kenya,30 _{and another ten years later}

in Colombo, Sri Lanka.31 _{Networks of public health}

professionals from the World Health Organization (WHO), UNICEF, UNFPA and the World Bank, pro- fessional associations such as the International Fed- eration of Gynecology and Obstetrics (FIGO) and the International Confederation of Midwives (ICM), and nongovernmental organizations such as Family Care International, helped to shape and define the Safe Motherhood Initiative, which first identified reduc- tion of maternal mortality as a global public health goal.

The purpose of these networks, and others such as the Maternal Health Task Force32 _{and the Partnership}

for Maternal, Newborn and Child Health,33 _{was and}

continues to be to create the knowledge and under- standing of the causes of maternal mortality neces- sary to determine effective health interventions for its reduction, and to devise the indicators to measure the effectiveness of health interventions, and gener- ate the political support necessary to give maternal mortality priority over other competing global health problems.34 _{These networks appreciate the human}

rights dimensions of maternal mortality, due in part to initial research on the application of human rights to preventable maternal death35 _{and early reports.}36

Nonetheless, the pursuit of human rights to promote maternal health was not a key strategy in the early years of the global safe motherhood initiative.

B. Human Rights Approaches

The emergence of human rights approaches to mater- nal health might be seen as a mixture of the develop- ment of the content and meaning of human rights, the identification of norms and standards that enables their application to preventable maternal deaths, the passage of human rights resolutions, commitments and declarations, the documentation of violations leading to important fact finding reports, and most recently to human rights and constitutional litigation. A human rights approach to maternal health gained momentum in 1999 with the Committee’s adoption of its General Recommendation on Women and Health37

to elaborate the meaning of the Convention’s Article 12 concerning women’s health. This General Rec-

ommendation explains that, when governments fail to provide health care that only women need, such as maternity care, that failure is a form of discrimination against women that governments are obligated to pre- vent and remedy.39 _{As a result, the Committee rarely}

misses an opportunity in its Concluding Observations on states parties’ reports to note its concern about the preventable nature of high maternal mortality,40

including on Brazil’s reports.41

Also at the international level, the UN Human Rights Council has adopted resolutions acknowledg- ing that preventable maternal mortality and mor- bidity are human rights violations.42 _{In accordance}

with these resolutions, the UN High Commissioner for Human Rights has compiled useful practices of human rights-based approaches to eliminate prevent- able maternal mortality and morbidity,43 _{and provided}

technical guidance on implementing policies and pro- grams to reduce maternal mortality and morbidity in accordance with human rights standards.44 _Through

these and other resolutions, such as the resolution of the UN Commission on the Status of Women,45 _gov-

ernments have made political commitments to redou- ble their efforts to meet obligations to guarantee wom- en’s rights of survival in pregnancy and childbirth, including by allocating more resources for public health systems. The UN Global Strategy for Wom- en’s and Children’s Health, launched in 2010, echoed these resolutions by recognizing the human rights and social justice dimensions of improving women’s and children’s health.46

At the national level, fact finding reports, such as those on Haiti,47 _India,48 _Kenya,49 _Nigeria,50 _Peru,51

South Africa,52 _{and the U.S.}53 _{create a record. Each}

report has its particular focus given the national con- text, but they generally document the preventable harms that women suffer in pregnancy and childbirth, generate understanding of their causes, and cast light onto conditioning factors in maternal mortality at a given time and place. The reports show how these harms can constitute violations of pregnant women’s rights to life, to health and non-discrimination in accessing care, to the benefits of scientific progress, to found families, and, for example, to be free from inhu- man and degrading treatment.

C. Human Rights Litigation

Human rights litigation is an emerging strategy to accelerate state action toward reduction in mater- nal mortality.54 _{The Committee’s decision in the case}

of Alyne is the first of its kind by an international human rights treaty body holding a government legally accountable for failure to implement a wom- an’s right to “appropriate services in connection with

SYMPOSIUM

pregnancy, confinement and the post-natal period,”55

and for discrimination in accessing care.56 _{A year}

earlier, the Inter-American Court of Human Rights, in a land claims case, held Paraguay responsible in a subsidiary claim for the avoidable maternal death of an indigenous woman, finding a violation of her right to life and her right to exercise that right without discrimination.57

At the national level, some countries are applying national constitutions to promote maternal health. Some litigants, such as in India, are pursuing public interest litigation in state high courts claiming violations of con-

stitutional rights for the life-endangering gaps between what maternal health care pregnant women actually received and their statutory entitlements, as violations of their right to life under their national Constitutions,58

and are achieving success.59 _{In contrast to India, where}

the judiciary is known to be receptive to public interest litigation, the Constitutional Court of Uganda dismissed a case for the avoidable maternal deaths of two Ugan- dan women and the associated health systems’ failures, finding that denials of the rights to life and health pro- tected by the Ugandan Constitution raise a political, rather than a legal, question.60

These various human rights approaches are fueled by the knowledge that most maternal deaths are pre- ventable but not prevented, and by maternal mortality statistics. These deaths and their preventable nature are “analytically valuable insofar as they indicate what is theoretically attainable, and therefore set a minimum standard for what is potentially avoidable through government action.”61 _{The maternal mortal-}

ity numbers allow for an understanding of the injus- tice of health inequities. They present the empirical facts that support the normative claims of injustice, and ultimately the application of human and constitu- tional rights. A disadvantage of relying solely on statis- tics is that they can too easily become depersonalizing and alienating, disguising the human side of maternal mortality and losing sight of the women themselves. The reliance on statistics might also tend to dissoci-

responsibility, with maternal mortality conceptualized as having a simple, objective existence.

Human rights litigation has an advantage when, as in the Alyne case, its focus is on a named victim and the concrete circumstances of the neglect of her care. The adversarial setting of human rights litigation can gen- erate strict assignment of fault and responsibility, and move from understanding human rights as abstract and aspirational to obligatory and concrete, and in so doing achieve a paradigm shift from political to legal accountability.

II. The Case — Alyne da Silva Pimentel Teixeira (deceased) v. Brazil

Alyne, aged 28, a Brazilian national of African descent,62 _{died following stillbirth of a 27-week-old}

fetus. On November 11, 2002, Alyne, in her sixth month of pregnancy, was treated for severe nausea and abdominal pain in a private health clinic, Casa de Saúde Nossa Senhora da Glória de Belford Roxo Health Center (Casa de Saúde), and scheduled for blood and urine analysis two days later.63 _{Her condition wors-}

ened and on November 13, when no fetal heartbeat was detected, the stillbirth was medically induced, whereupon she became disoriented.64_{On November}

14, curettage surgery removed the remaining parts of the placenta. Her condition further deteriorated, and she experienced “severe hemorrhaging, vomiting of blood, low blood pressure, prolonged disorientation, overwhelming physical weakness and an inability to ingest food.”65

The day after the curettage surgery, doctors at the

Casa de Saúde tried to transfer Alyne to a better- equipped public municipal hospital, Hospital Geral de Nova Iguaçu, but the hospital refused to use its only ambulance in the evening to transport her. She waited eight hours in critical condition, the last two with manifested clinical symptoms of coma, before reach- ing the hospital. There, she became hypothermic, had acute respiratory distress with symptoms of dissemi- nated intravascular coagulation, and was resuscitated

Human rights litigation has an advantage when, as in the Alyne case, its focus

is on a named victim and the concrete circumstances of the neglect of her