Wednesday 17 August 2011

Ruling on Maternal Health Care by Committee on the Elimination of Discrimination Against Women

The United Nations Committee for the Elimination of Discrimination Against Women issued an important decision last week confirming the right of all women, regardless of income or racial background, to timely, non-discriminatory and appropriate maternal health services. The case was filed against Brazil on behalf of Alyne da Silva Pimentel in accordance with the Protocol to the Convention. Alyne da Silva Pimentel was a 28-year-old Afro-Brazilian woman who died in 2002 after being denied basic medical care to address complications in her pregnancy.
The litigation was undertaken by the Center for Reproductive Rights. For more information, click here.
Thanks to Janna Chan.

1 comment:

Roger Derham said...

I have had the opportunity to read the CEDAW da Silva Piemental Teixeira judgement (CEDAW/C/49/17/2008) of the 25 July 2011 in detail and there are three points I’d like to raise.
1. For the first time that I am aware an “unreasonably prolonged delay” in a domestic judicial process to allow admissibility to a Convention Committee has been quantified at 8 years. The initial domestic suit was filed on the 11 Feb 2003, the submission to CEDAW filed on 30 Nov 2007 (41/2 years), the State party response on 13 August 2008 (5+ years) and the Committee meeting 25 July 2011 (8+ years). Under Article 4, paragraph 1 of the Optional Protocol the “unreasonably prolonged delay” in domestic judicial proceedings relates to the time factor only as the committee discounted the “complexity of the case” as a qualification for “unreasonably prolonged.”

2. Although the merits of the case are unquestioned the patient whose death precipitated the submission to CEDAW died of complications of pregnancy on the 11 NOV 2002, one month after the Optional Protocol to CEDAW, to which the State party was a signatory, came into force on the 28 Sept 2002. However, and this confuses me somewhat in the admissibility of the case is that the pregnancy which resulted in the maternal death ( i.e. WHO Definition: Maternal death is the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes.) began sometime in May 2002 five months before the Optional Protocol came into force. The Committee stated that it was of the view “that the death of Ms. da Silva Piemental Teixeira must be regarded as maternal.” (italics my emphasis)

Has not CEDAW erred in applying a retrospective judgement under the Protocol to a maternal death?

3. Finally I am a little uneasy (as a medical practitioner who is an Obstetrician/Gynaecologist) that CEDAW have the judicial authority (Recommendations 2(e) ) to demand that “sanctions” be “imposed” on health professionals who “violate” women’s reproductive rights. There is an ocean of difference between a “failure of duty of care” and “violation”.

Roger Derham, MB, LLM, FRCOG, MFFLM.