The paper analyses the maternal mortality scenario prevalent in India and goes on to construe maternal mortality as a human rights violation especially of the right to life, right to health and principle of equity and non discrimination. The paper then examines India's obligations towards improving healthcare facilities for women and reducing maternal mortality under various International Conventions it has ratified. The next section deals with analyzing landmark maternal mortality cases in India which has held maternal mortality to be a human rights violation. The article concludes by providing recommendations for improving the maternal mortality situation in India. It makes a case for adopting the human rights based approach for tackling maternal mortality.
INTRODUCTION
India is the second fastest growing potential economic superpower in the world with a burgeoning economy whose GDP expanded at the average rate of 9.06 % from 2005-2008 (though it decelerated to 6.7 % in 2008-2009 due to recession and was 7.2 % in 2009-2010)(Economic Survey of India 2010-2011).Yet India's plentiful wealth and riches is in striking juxtaposition with its deplorable poverty and hunger statistics and it has emerged as a country of extreme paradoxes. Tendulkar Committee report of 2009 puts 37% of Indian population below the poverty line. India stands at 134th position in the World Human Development Index 2011. Another sphere where this paradox manifests itself is in access of public health care facilities for destitute pregnant women. India has one of the highest maternal mortality and pregnancy-related morbidity rates in the world. According to the data made available by UNICEF every 5 minutes, one woman somewhere in India dies from complications of childbirth and 15 per cent of all pregnant women in India develop life threatening complications, 65 per cent deliveries occur at home, 60 per cent of all maternal deaths occur after delivery but only 1 in 6 women receives postnatal care(UNICEF 2008).Most maternal deaths occur in the states of Uttar Pradesh, Bihar, Madhya Pradesh, Orissa, Rajasthan and Assam (Ibid).
In light of this, the paper begins by giving an overview of the maternal mortality scenario prevalent in India. It then goes on to construe maternal mortality as a human rights violation especially the right to life, right to health of women and principle of equity and non discrimination. The paper then examines India's obligations towards improving healthcare facilities for women and reducing maternal mortality under various International Conventions it has ratified. It then analyzes application of provisions in International Conventions by the Courts of India. The next section deals with analyzing landmark maternal mortality cases in India which has held maternal mortality to be a human rights violation. The article concludes by providing recommendations for improving the maternal mortality situation in India. It makes a case for adopting the human rights based approach to tackling maternal mortality.
MATERNAL MORTALITY IN INDIA
BBC World Service wrote the following about Maternal mortality in India : "Imagine 400 planes filled with women and girls and crashing into the sea with no survivors, that is the volume of women and girls dying in India due to pregnancy related causes" (BBC World Service 2009).This graphic description is enough to give a jolt to one's senses but is unfortunately an extremely grim reality faced by India. For a country having an enviable pace of economic growth and which came out relatively unscathed following the Global economic crisis, the level of maternal deaths is appalling.
India's maternal mortality rate (MMR) stood at 570 in 1990, which fell to 470 per 100,000 live births in 1995, 390 in 2000, 280 in 2005 and 230 in 2008(Sinha 2010). Achieving universal access to reproductive health by 2015 is one of the two targets of Goal 5-Improving Maternal Health and Mortality - of the eight Millennium Development Goals (MDG). Therefore in spite of the progress, the annual rate of decline of 4.9 per cent since 1990 is less than half of what is required to accomplish the MDG target of reducing the MMR by 75 per cent between 1990 and 2015. India's National Population Policy (NPP) 2000 has set the country an even more ambitious target of reducing the maternal mortality ratio to less than 100 deaths per 100,000 live births by 2010 (NPP 2000).
Of the estimated 536,000 maternal deaths worldwide in 2005, developing countries accounted for more than 99 per cent and India had by far the largest single number, at 117,000, or 22 per cent of the global total (UNICEF 2008). The situation improved in 2008 with India recording 63,000 maternal in that year, but it still continued to be the highest in the world according to a report released jointly by WHO, UNICEF, UNFPA and World Bank (WHO, UNICEF, UNFPA, & World Bank 2010). For every woman who dies from pregnancy-related causes, 20 to 30 suffer short- or long-term morbidities(UNFPA 2002) Based on this estimate, there could potentially be 1,260,000-1,890,000 cases of pregnancy related injuries and disabilities every year. Maternal morbidities such as fistula remain largely undocumented in India(Ibid).
UNICEF has observed that due to social and economic inequalities and shortages in primary healthcare facilities, India's fight to lower maternal mortality rates is failing (UNICEF 2009).A large number of births are not attended by doctors, nurses or trained midwives. According to UNICEF statistics covering 2005-2009, only 53 per cent of women give birth with the assistance of a skilled attendant, and only 47 percent of births happen in a hospital setting (institutional delivery). 27 % women died during labour and before delivery of placenta; and 27% within less than 24 hours of delivery (UNICEF 2005).
Maternal mortality is especially high in rural India, where fertility rates are higher and teenage marriages are common (Dhar 2009). It is also not uncommon for poor pregnant women to be routinely turned away and referred from one hospital to another. Reducing the time between referral and getting women to facilities is often critical to their survival (Ibid)
In spite of the grave nature of this problem coupled with the appalling state of public health in India in general, public spending on health continues to be low. The government has just recently decided to boost public spending in the health sector to 2.5 per cent of GDP from the current 1.4 per cent over last five years. At present, India's public spending on health as a proportion of GDP is among the lowest in the world (Indian Express 2012).
SCHEMES IN INDIA FOR REDUCING MATERNAL MORTALITY
There are a variety of laudable programs to address maternal mortality, the chief among them is the Janani Suraksha Yojna (JSY) under the National Rural Health Mission (NRHM)
3.1 National Rural Health Mission and Janani Suraksha Yojana
In 2005, as part of its efforts to reduce maternal mortality, the Central Government initiated phase two of the Reproductive and Child Health Program (RCH-II) 2005-2010. The RCH-II has been encompassed within a larger initiative, the National Rural Health Mission (NRHM), for a seven-year term from 2005-2012, which pledges to intensify strategies to reduce maternal mortality, especially in the 18 states that have the worst maternal health indicators. One important goal of the NRHM is to reduce the maternal mortality rate to 100 per 100,000 live births by 2012. A core strategy of the NRHM is the appointment of an "Accredited Social Health Activist" (ASHA) in each village for promoting the use of health services by pregnant women belonging to households certified as being "below the poverty line"(BPL). The ASHAs serve as the main proponents of the Janani Suraksha Yojana (JSY), a financial assistance scheme that offers a cash payment of 700 rupees (approximately $20) to pregnant women who obtain antenatal care during pregnancy, undergo institutional delivery and seek post-partum care. Under the JSY, ASHAs are meant to identify BPL women, register their pregnancies and help them receive services under ANMs(Ancillary Nurse Midwife) , another cadre of workers under the NRHM. The NRHM is charged with providing at least two ANMs to each village. ANMs are trained midwives, while ASHAs are community members who are trained in basic safe pregnancy protocols. The NRHM's maternal mortality reduction strategy is premised upon successful collaboration between ASHAs, ANMs and other community health workers. All women belonging to BPL households are eligible for JSY benefits if above 19 years of age and for a maximum of two "live births." An exception is made for pregnant women residing in low-performing states who may receive cash incentives for a third "live birth" if "the mother of her own accord chooses to undergo sterilization in the health facility where she delivered, immediately after the delivery." The JSY is funded entirely by the Central Government.
MATERNAL MORTALITY AS A HUMAN RIGHTS VIOLATION
Inspite of the existence of such schemes there remains an enormous gap between these commendable maternal mortality policies and their systematic and effective implementation. There is also a want of any inbuilt mechanism for corrective action, restitution and compensation in the event of the failure of any beneficiary to avail of the services under the schemes .
India has also been witness to many shameful incidents where hospitals have insensitively turned away destitute pregnant women in need of immediate medical attention for reasons ranging from lack of infra-structure, inability to prove BPL status, to the likelihood of a complicated delivery.
Apart from such incidents of negligence in Indian hospitals, anemia is responsible for 17 per cent of maternal deaths. Even some of the most basic health services are beyond the reach of many women. Although the Indian government has promised to ensure that women get four antenatal examinations through the National Rural Health Mission (NRHM), less than three quarters receive any antenatal care at all. For every maternal death in India, an estimated 30 more women suffer injury, infection, and pregnancy-related disabilities (NFHS 2006).
It is pertinent to note that most of these maternal deaths were clearly avoidable with help of timely medical attention and care.
There is increased recognition that reducing maternal mortality is not just a matter of development but also an issue of human rights. Preventable maternal mortality is a violation of a woman's right to life. It is also a failure to give effect to women's right to health, equality and non-discrimination.
4.1 Violation of Right to Life
Maternal mortality involves grave violations of the right to life. The right to life is "the most obvious right that could be applied to protect women at risk of dying in childbirth, due to lack of essential or emergency obstetric care"(Cook et al 2003).The right to life obligates states to take measures to safeguard individuals from arbitrary and preventable losses of life(HRC 1982). This includes steps to protect women against the unnecessary loss of life related to pregnancy and childbirth(HRC 2000) by ensuring that health services are accessible(HRC 2003) The Human Rights Committee (HRC) and the CEDAW Committee have repeatedly expressed concern over high rates of maternal mortality in India,(HRC 2003) and have explicitly recognized preventable maternal mortality as a clear violation of women's right to life.(HRC 2003, 2000)
4.2 Violation of Right to Health
The right to health encompasses the right to a variety of goods and services, including sexual and reproductive health care and information and enabling conditions that promote and protect the highest attainable standard of health(Amnesty International 2010).
The right to the highest attainable standard of health is legally protected by many international human rights treaties. These treaties also make it explicit the state's obligation to ensure right to health to women which includes the right of access to appropriate health care services that allow women to have a safe pregnancy and childbirth. .Article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) lays down that "special protection should be accorded to mothers during a reasonable period before and after childbirth." The features of the right to health are set out most fully in General Comments, which are authoritative interpretations of treaty provisions adopted by the bodies responsible for monitoring implementation of treaties. The UN Committee on Economic, Social and Cultural Rights, has also stated that this treaty obligation must be: "understood as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information((CESCR 2000)."
In similar vein, Article 12(2) of Convention on the Elimination of Discrimination Against Women (CEDAW) instructs that "States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation." It is the duty of every state to provide to women facilities and services for a safe motherhood.The above points have been emphasized in the General Recommendation No. 24 on Article 12 of the CEDAW, where the Committee makes explicit "states' obligation to prevent maternal mortality. Besides being responsible for reporting on maternal mortality, state parties ensure women's right to safe motherhood and emergency obstetric services and they should allocate to these services the maximum extent of available resources." (CEDAW 1999)
In short certain important entitlements and a range of health interventions have an important role to play in giving effect to a woman's right to health and in reducing maternal mortality. These include primarily: emergency obstetric care (EmOC), a skilled attendant at birth , education and information on sexual and reproductive health, safe abortion services where not against the law, other sexual and reproductive health care services, such as family planning services and primary health care services. The States that have ratified the treaty has an obligation to take concrete steps to provide these goods and services to the maximum of their available resources, and with the support of development partners, towards a progressive realisation of the right not to die an avoidable death in pregnancy and childbirth.
4.3 Violation of Principle of Equality and Non Discrimination
Gender equality and empowerment plays a crucial role in preventing maternal mortality as it leads to greater demand by women for family planning services, antenatal care and safe delivery. The Article 12.1 of the CEDAW provides that States Parties "agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women" and that they "shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning." Article 14 (1) of CEDAW directs the states parties to take into account the particular problems faced by rural women and take appropriate measures accordingly to ensure the application of the provisions of the Convention to women in rural areas.
This brings us to the position occupied by maternal health in Indian constitution and the response of the Indian judiciary to cases of maternal deaths.
ANALYSIS OF LANDMARK CASE DEALING WITH MATERNAL MORTALITY
In recent years, courts in India have played an increasing role in protecting the right to the highest attainable standard of health. The Supreme Court in India has earlier expanded the ambit of Article 21 : Right to Life to include Right to Health. It observed in Vincent Pannikulangura v Union of India that…… "every illness which can be cured by treatment, the patient must be in a position to get its medicine"
In Paschim Banga Khet Samity v. State of West Bengal it held that:
"In a welfare State the primary duty of the Government is to secure the welfare of the people. …The Government discharges this obligation by running hospital and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person…Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life."(para. 9)
However maternal mortality had till now not been given the same amount of attention by the courts. In this context it is important to examine the landmark decisions of the Indian courts regarding maternal mortality.
5.1 LAXMI MANDAL VS DEEN DAYAL HARI NAGER HOSPITAL & ORS
FACTS OF THE CASE
The Indian judiciary is cognizant of the suffering of these women and therefore the Delhi High Court, in a first of its kind judgment in the world, said maternal mortality is a human rights violation and has directed the government to create shelters for destitute pregnant women (Court on Its Own Motion vs Union Of India, 2011). In the case of Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors, the Court instructed the State of Haryana, to pay compensation of INR 2.4 lakhs($ 5359.52) to the family of Shanti Devi because it found the Respondents violated Shanti Devi's right to life and health, reiterating that her death was preventable. In November 2008, Shanti Devi, a below poverty line (BPL) member of a Scheduled Caste, who was carrying a dead fetus in her womb for five days at great risk to her physical health, was denied medical treatment (emergency obstetric care) from four different hospitals 4 because she was unable to pay the fees being demanded Shanti was eventually admitted to a Government hospital where the fetus was removed and was immediately discharged thereafter, despite her condition remaining serious. With no access to family planning Shanti Devi fell pregnant again less than two years later and gave birth at home on 20 January 2010 without a skilled birth attendant or any medial guidance and died immediately afterwards. Her daughter was born two months prematurely and weighing only three pounds (HRLN 2010).
5.2 JAITUN V MATERNITY HOME, MCD, JANGPURA & ORS
FACTS OF THE CASE
In the case of Jaitun v Maternity Home, MCD, Jangpura & Ors , the High Court directed the Municipal Corporation of Delhi and Government of National Capital Territory of Delhi to pay INR 50,000 ($1116.57) compensation to Fatima, a twenty four year old destitute woman suffering from epilepsy, for the violation of her fundamental rights by being forced to give birth under a tree on a crowded street in New Delhi. Her mother had taken her to a local government maternity home but they were turned away .
CASE ANALYSIS
The Delhi HC heard both these petitions together and held maternal mortality to be a human rights violation and has directed the government to create shelters for destitute pregnant women. It also ordered a maternal death audit be carried out with respect to the pregnancy-related death of Shanti Devi, a member of the Scheduled Caste community, setting national and international legal precedent by ensuring accountability for a maternal death.
The Court highlighted that:
"These petitions are essentially about the protection and enforcement of the basic, fundamental and human right to life under Article 21 of the Constitution. These petitions focus on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother" (para 2)
The Court emphasized that the cases demonstrated a complete failure of the public health system and a failure in implementation of Government schemes designed to reduce maternal and neo-natal mortality by encouraging institutional delivery for poor pregnant women. The Court said:
"Both the cases point to the complete failure of the implementation of the schemes. With the women not receiving attention and care in the critical weeks preceding the expected dates of delivery, they were deprived of accessing minimum health care at either homes or at the public health institutions...It points to the failure of the referral system where a poor person who is sent to a private hospital cannot be assured of quality and timely health services" (para 40)
The Court also added that it was inappropriate to place the burden on the poor to prove their eligibility for health services .Medical services are denied to poor women because they are unable to demonstrate their BPL status for medical services. Rather, the Indian government should be facilitating their access to these essential services and therefore the Court stressed that "no woman, more so a pregnant woman should be denied the facility of treatment at any stage irrespective of her social and economic background." (para 48)
In all, there is a liberal and vibrant legal scenario regarding reproductive rights and health in India. The judiciary is sensitive to the plight of poor and destitute pregnant women but the implementation at the ground level is lacking as highlighted by the courts themselves.
The Indian medical tourism industry has been promoting itself with slogans such as 'First World Treatment at Third World Price'. However the health services available to India's poor who comprises of 37.2 per cent of the total population (Tendulkar Committee Report 2009) continues to be of 'third world standards'. Destitute pregnant women don't receive even basic prenatal care, despite India's burgeoning economy which grew at an average of 7.63 percent in the past three years. (Economic Survey (2009-2010.) Pregnant women who are in need of care and assistance are turned away from a Government health facility only on the ground that they have not been able to demonstrate their BPL status or so to say their eligibility for the services. As the High Court of Delhi correctly put it:
"Instead of making it easier for poor persons to avail of the benefits, the efforts at present seem to be to insist upon documentation to prove their status as 'poor' and 'disadvantaged'. This onerous burden on them to prove that they are the persons in need of urgent medical assistance constitutes a major barrier to their availing of the services. This is one reason why the coverage under the schemes has been poor in all these years." (para 40)
This significant case highlighted the lack of implementation and operational guidelines in accessing legal entitlements, with a particular emphasis on the discrimination faced by economic migrants and women from the Scheduled Caste community. It brought to light the "non-portability" of the schemes across the states. Shanti Devi travelled from Bihar to Haryana and then to Delhi. She was unable to access public health services in Haryana and in Delhi once again she was asked to produce her BPL card and was denied public health facilities when she failed to do so. This non portability of schemes thus poses a serious handicap for the migrant workers. The Supreme Court taking cognizant of this observed that instructions would have to be issued to ensure that "if a person is declared BPL in any state of the country and is availing of the public health services in any part of the country, such person should be assured of continued availability of such access to public health care services wherever such person moves."
The Court also called for the improvement in the system of referral to private health institutions. Safe and prompt transportation of pregnant women from their places of residence to public health institutions or private hospitals and vice-versa needs to be ensured. The critical days and hours prior to the expected date and time of delivery can be a matter of life or death for a pregnant woman. Ideally special cells have to be set up within the health departments of the Central and State Government for monitoring the implementation of the schemes on a regular basis. The attitude and prompt response of the providers is a major factor in whether the women use these facilities.
Another important issue taken up for discussion by the Supreme Court was that there does not also appear to be any inbuilt mechanism for corrective action, restitution and compensation in the event of the failure of any beneficiary to avail of the services under the schemes even though the budget outlay of the schemes is in several hundreds of crores.
RECOMMENDATIONS
Preventable Maternal mortality among destitute women in India is in effect the inability of the State to protect the right to life and health of vulnerable women. The recommendations laid out in this section proceeds by first giving some suggestions regarding what needs to be done to improve the existing structure of implementation of the government based schemes. The final recommendation underlines the need and the benefits of construing maternal mortality as a human rights violation.
GENERAL SUGGESTIONS
Need For Conducting Maternal Death Audits
Maternal death audits are crucial in identifying the number and direct/indirect causes of maternal deaths, providing crucial information to ensure that such deaths are not repeated. In Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors the Court had ordered a maternal death audit be carried out in the death of Shanti Devi. Shanti Devi's death was a maternal death, yet it had not been registered as such by the Haryana administration, and no post mortem was carried out to identify the direct cause of her death. After HRLN filed a petition in the Delhi High Court, the judiciary ordered a maternal death audit to be carried out immediately. Later the Haryana government pledged to carry out audits of all maternal deaths in the state in future.
A maternal death audit is an in-depth systematic review of maternal deaths to delineate their underlying health social and other contributory factors, and the lessons learned from such an audit are used in making recommendations to prevent similar future deaths. It is not a process for apportioning blame or shame but exists to identify and learn lessons from the remediable factors that might save the lives of more mothers in future. It helps both to generate evidence for determining interventions and to provide the data needed to feed into the national civil registration system for the computing of MMR.
Making The Scheme More Accessible
Instructions will have to be issued to ensure that if a person is declared BPL in any state of the country and is availing of the public health services in any part of the country, such person should be assured of continued availability of such access to public health care services wherever such person moves. This will ensure that situations such as the one faced by Shanti Devi where in Delhi she had to once again show that she had a BPL card, and on being unable to do so, she was denied access to medical facilities does not arise.
Improving the Referral system
The system of referral to private health institutions has to be improved. Safe and prompt transportation of pregnant women from their places of residence to public health institutions or private hospitals and vice-versa needs to be ensured.
Special cells for monitoring the scheme.
Ideally special cells have to be set up within the health departments of the Central and State Government for monitoring the implementation of the schemes on a regular basis.
6.2 ADOPTING A HUMAN RIGHTS BASED APPROACH
Construing maternal mortality from a human rights perspective enables in legitimising the priority given to women's health. . Human rights can also help us change how maternal mortality is viewed and why it matters, from a "natural" occurrence and a loss of productivity, to an issue of social injustice thereby strengthening demands that maternal mortality is addressed.
It also helps to garner strong political support and national ownership which are essential for creating enabling health policies, mobilizing resources for safe motherhood, and to ensure those resources reach the most vulnerable groups.A human rights-based approach explicitly incorporates human rights norms and standards into policies, plans and programmes formulated to address maternal mortality. It would require making the realisation of human rights - such as the rights of women to life, health, and non-discrimination, the primary objective of maternal mortality related policies and programmes.
Traditional human rights techniques, such as naming victims, naming and shaming violators, letter writing campaigns, advocacy and lobbying, and taking court cases are all strategies that can help address maternal mortality
A human rights-based approach requires that duty bearers are accountable for both maternal mortality as well as for implementing policies and programmes to reduce its incidence. In order to strengthen the capacity of the right-holders claim to their rights and for proper implementation of the policies, it is essentially to clearly demarcate responsibilities of various actors in order to provide channels for redress.
CASES REFERRED
Court on Its Own Motion v. Union of India, W.P.(C) No. 5913/2010, High Court of Delhi.
Jaitun v. Maternity Home, MCD, Jangpura & Ors., W.P. No. 10700/2009, High Court of Delhi.
Laxmi Mandal v. Deen Dayal Harinager Hospital & Ors., W.P. No. 8853/2008, High Court of Delhi.
Pannikulangura v Union of India, (1997) 2 S.C.C. 165.
Paschim Banga Khet Samity v. State of West Bengal, A.I.R. 1996 S.C. 2426.
Vishaka v. State of Rajasthan, (1997) Supp. 3 S.C.R. 404
Snehalata Singh v. The State of U.P. & Ors., W.P. No. 14588/2009 ,U.P. High Court in Allahabad
Smt. Shakuntala Devi v. State of U.P. & Ors., W.P. (Civ.) No. 4999 of 2008 ,U.P. High Court, Lucknow Bench
