BY BEVERLINE ONGARO
The month of March marks the time during which there is a worldwide commemoration of International Women’s Day – on the 8th. The commemoration is aimed at reflecting on the progress made towards inter-alia securing full enjoyment of women’s human rights. This year’s celebration is important because it coincides with the 2015 deadline for the United Nations Millennium Development Goals (MDG).
This article is devoted to one aspect of women’s lives that is critical and touches on all people irrespective of their gender or socio-economic and political background: maternal health care. Without overstating the obvious, safe child birth is one of the means of ensuring continuation of posterity of a nation; we register the importance of safe motherhood when there is a decline in the population growth occasioned by maternal morbidity and mortality. Virtually everyone has interacted with maternity care services either directly or vicariously. The article cursorily looks at the quality of treatment women encounter at birth facilities; it specifically highlights the disrespect and abuse child delivering women encounter in such facilities and makes a case for the integration of human rights in health care facilities.
Disrespect and Abuse
Various research findings indicate that a woman’s relationship with her maternity service providers is important because this encounter is the vehicle for essential lifesaving health services. Also, women’s experiences with maternity caregivers can either be empowering and comforting or inflict lasting damage and emotional trauma. Either way, women’s memories of their childbearing experiences stay with them for a lifetime and are often shared with other women, contributing to a climate of confidence or doubt around the subject of child bearing at health care facilities.
Research conducted by the Federation of Women Lawyers-Kenya (Fida-K), the Centre for Reproductive Rights, the Population Council and Family Care International, as from 2007-2012, reveals that Kenyan women experience various dimensions of disrespect and abuse during childbirth at public health facilities. Such disrespect and abuse include non-consented treatment, non-dignified care, being abandoned during labour and after delivery, being physically assaulted such as being pinched, slapped, and verbally abused by health workers. A common phrase is: “You had fun while making this baby, didn’t you? Now open your legs!” meant to bully one into “ignoring” labour pains.
The findings of the research by Fida-K and company indicate that expectant women described the providers as being verbally and physically abusive, rude, bossy, disrespectful, insulting, angry, moody and lacking compassion. The women recounted feeling alone during delivery as health workers had poor communication skills and did not provide updates on labour progression. The women also experienced physical abuse such as being slapped, hit or forcefully held down. Such experiences are exacerbated for women of low socio-economic statuses who often encounter them in public health care facilities. As a result, the experiences have fuelled women’s perception towards public maternal healthcare and a lack of confidence in health workers generally. Conversely, the women believed they could receive high quality of care from traditional birth attendants because they are compassionate and supportive of expectant mothers.
Disrespect and abuse from health providers serves as a major deterrent to child bearing women’s decision to seek the services of public health facilities in Kenya, at the same time compelling women to choose to deliver at home. According to the aforementioned research, this abuse is one of the core reasons why only 4 in 10 expectant women will choose to give birth at a public health facility. The implication here is that expectant women are not attended to by skilled birth attendants and thus risk their lives and those of their children.
Efforts to reduce maternal mortality are directly linked to expectant women being attended to by skilled a healthcare provider, which is one of the steps identified towards achieving the fifth objective of the MDGs: to reduce by three quarters the maternal mortality rate between 1990 and 2015. But until this point, Kenya lags in efforts to realise this goal.
This can be partly attributed to Kenya’s high maternal mortality ratio. The country’s National Health Sector Strategic Plan (2009-2015) pegs the ratio to a high of 441:100,000 live births. Further, the Kenya Health Policy 2012-2030 reveals that Kenya is not on track to realising this objective, to fulfil its obligation under the African Union Maputo Plan of Action that aims at undertaking an evidence-based approach to realise the MDG.
Factors that contribute to the abuse of women during child birth include the normalisation of the disrespect and abuse. The research by Fida et al aptly captures this: on one hand, a majority of women who have endured disrespect and abuse during child birth are relieved to have survived these ordeals in birth facilities, until the next time when they will have to revisit them. On the other hand, the medical practitioners justify employing disrespect and abuse, especially verbal abuse so as to secure cooperation from the women.
Generally, the normalisation of disrespect and abuse is an erroneous indicative idea that human dignity and human rights cannot constitute patient–doctor relationship, and be integrated in health care system as a matter of practice. It is therefore not surprising that a number of health service practitioners have been involved in human rights violations: particularly in so far as respecting, promoting and protecting women’s human rights during child birth are concerned. This forlorn situation is illuminated in the case of Jimmy Paul Semenye v. Aga Khan Health Care Service & 2 others, Civil Case No. 807 of 2003, HCCC at Nairobi  eKLR. The plaintiff sued the defendant for negligence during child delivery by the plaintiff, with the court observing that, “Often, an area of neglect may continue for years and effect many individuals until someone comes forth. It allows an institution to produce a much greater incentive not to allow error to continue. Litigations serve as a ‘watchdog’ for more quality care and it is not necessarily the result of someone ‘being out for all they can get’; rather it the result of someone wanting justice, the correction of a wrong and prevention of the recurrence of a problem.”
Often the quality of health care services that a patient is accorded is scrutinised through the lens of tort law, particularly whether health care providers, as broadly defined, exercise due diligence in the course of discharging their services. But this law has its limitation as it does not incorporate, for example, participation of the patient that is afforded through a human rights framework. Further a heavy inclination towards tort law as a means to appraise and evaluate the quality of health services may be a powerful disincentive for health care providers in certain situations, including during emergencies – to avert litigation. This is because health providers, particularly health practitioners, regard claims under tort as an enduring defective personality trait on their person.
By contrast, a human rights lens emphasises the Hippocratic Oath by practitioners to commit to uphold the highest standards of personal integrity and competence, and have compassion for those under their care. Further, a human rights approach can be employed to marshal health care providers to integrate human rights in their practice.
Legal Framework for Right-Based Healthcare
Given that most dimensions of disrespect and abuse of women during child birth constitute a violation of women’s human rights, principally the right to dignity and respect, and the right to health as designed in the architectural framework of International Covenant of Economic Social and Cultural Rights (IESCR), it is critical to examine this disrespect and abuse from a human rights framework.
By and large, an examination of health care services at birth-facilities is a vantage point from which to impart awareness on the human rights and human dignity in the diminutive worldview of doctor-patients relationship.
The Constitution of Kenya 2010 provides an overarching framework to secure comprehensive and people-driven health care services. Article 43(1) (a) of the Constitution guarantees every person the right “to the highest attainable standard of health, which includes the right to health care service, including reproductive health care”.
Further, by virtue of Article 2(6) of the Constitution, treaties that Kenya has ratified are part of the laws of Kenya. Such include the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (the Maputo Protocol) and the International Covenant on Economic Social and Cultural Rights (ICESCR). Generally, these treaties guarantee the freedom from harm and ill-treatment, the right to be treated with dignity, the right to equality and freedom from discrimination, the right to privacy and the right to liberty and security of persons. Essentially, these rights have been cumulatively and interactively applied to advance the right to health particularly, reproductive health.
Of greater significance are the specific provisions in these international human rights instruments on the right to health. Article 12 of CEDAW provides for women’s rights to equal access to necessary health care, including maternity care. Also the Committee on the Elimination of Discrimination against Women’s General (Recommendation 24 on Women and Health) elaborates on the content and meaning of CEDAW’s Article 12. The Recommendation requires State Parties to reduce maternal mortality through safe motherhood services, eliminate barriers to women accessing health care services and provide acceptable services to women. Acceptable services are those that respect women’s dignity, guarantee confidentiality, are sensitive to women’s needs and perspectives, and in which women give their fully informed consent.
Article 12 of the ICESCR recognises the right of everyone to enjoy the highest attainable standard of physical and mental health. Also the Committee on Economic Social and Cultural Rights’ General Comment 14 elaborates on the content and meaning of ICESCR’s Article 12. The comment is a blueprint on what constitutes “highest attainable standards of healthcare”, and elaborates that the right to health ought to be available, accessible in terms of physical situation, economy and information, be non-discriminative, acceptable to its targeted users, and of quality. It also requires State Parties to improve maternal health and have a health strategy with the goal of lowering rates of maternal mortality.
Article 14(2) (b) of the Maputo Protocol imposes an obligation on State Parties to establish and strengthen existing delivery services for women.
Respectful Maternity Care
In the spectrum of the maternal services, a right-based facility would integrate the Respectful Maternity Care Charter: the Universal Rights of Childbearing Women in its services. Respectful Maternity Care (RMC) entails respect and promotion of the following women’s rights during child delivery and after. The right to:
Be treated with dignity and respect;
Information, informed consent, and a woman’s right to respect and preference of her choices, including preference of companionship during delivery;
Equality and freedom from discrimination and equitable care;
Liberty, and freedom from coercion;
Privacy and confidentiality; and
Freedom from harm and ill-treatment.
Although the Constitution provides a framework to prevent and seek redress for disrespect and abuse during child birth, this has not been given cogent legal and policy consideration in order to make RMC a practical reality for most women. Compounding this is lack of standards, leadership and supervision for respect and non-abuse in childbirth, and absence of accountability mechanisms within most child-birth facilities.
The need for RMC for expectant women cannot be gainsaid for it would ensure that women’s rights during childbirth and after are respected and promoted. RMC encourages women to seek services of a skilled birth attendant thereby contributing to reduction of maternal mortality.
Anchoring the Rights-Based
Approach at Birth Facilities
Rather like many other jurisdictions, Kenya’s health programmes for maternal health focus on addressing availability of resources and enhancing physical access to birth facilities. Such include programs by the Ministry of Health to provide community-based and mobile clinics; and the on-going efforts by the Office of the First Lady of Kenya – the Beyond Zero Campaign – which aims at establishing mobile clinics in all counties. These programmes aim at addressing the problems that have ailed the health sector, including few numbers of birth-facilities, inadequate funding, weak management, and shortage of qualified staff. These are commendable programmes but they are not adequate to eliminate barriers to women accessing facility health care and by extension reduce maternal mortality.
Already, there is an emerging deep appreciation on the strong need to reduce abuse and disrespect to women during child birth because it is a barrier to women’s access to facility-based delivery services. In 2014, the World Health Organisation elaborated that the right to highest attainable standard of health includes health care that is free from, and particularly, the right to dignified, respectful health care throughout pregnancy and childbirth, as well as the right to be free from violence and discrimination.
Therefore, an invitation to give cogent legislative and policy considerations to abuse and disrespect is aimed at ensuring the respect, promotion and protection of women’s rights during child birth – by and large to inculcate the culture of observance of Bill of Rights by all persons, including health care providers. It is worth noting that Article 19(1) of the Constitution underscores the fact that the Bill of Rights is the framework for social, economic and cultural policies. Further Article 19(2) of the Constitution stipulates the purpose of recognising and protecting human rights and fundamental freedoms as being to preserve the dignity of individuals. These Articles provide both persuasive and potent reasons for anchoring RMC within Kenya’s health care service delivery: that future health intervention should focus on achieving respectful, non-abusive, and high-quality intra-partum care for all women. This view is further reinforced when considered under the lens of Article 20(1) that binds all persons to the Bill of Rights.
The import and the implication of Articles 19(1), 19(2) and 20(1) of the Constitution is that first, the health care system must be accountable for the treatment of women; particularly that they ought to develop and implement policies and ethical standards that incorporate rights of women during child birth. Second, the health care providers should be provided with support in form of improved infrastructure and training so as to provide services to with compassion and dignity. Third, health care facilities should be encouraged to incorporate right-based approach in their systems.
So far, the Kenya Health Policy 2012-2030 articulates its policy direction to include employing a right-based approach in health service delivery. Although it does not specifically identify disrespect and abuse as one of the impediments or contributor to maternal mortality, it does provide an entry point and platform within which to advance respectful and dignified care for women during child birth. This stands to reason when consideration is given to the policy’s principles to incorporate a people-centred approach to health and health intervention, and to incorporate a participatory approach in health interventions.
One avenue by which RMC standards can be fully incorporated and elaborated upon, including the mechanisms for giving feedback at birth facilities and the means of expedited redress for non-adherence to RMC, is through envisaged legislations on right to health. The abortive Reproductive Health Care Bill, 2014, sought to usher in an aspect of RMC remotely, through its provisions on safe motherhood. In the event the Bill is reintroduced it ought to incorporate provision for respectful maternity care that lends from the Respectful Maternity Care Charter: The Universal Rights of Childbearing Women. This will contribute to and facilitate government’s adherence to its Constitutional obligation in Article 21(1) (2) (3) and (4) to observe, respect, protect, promote and fulfill the Bill of Rights, and the government’s intention to make health services in Kenya, right based.
Kenya has a legal framework, including obligations under international human rights treaties it has ratified, that provide a strong basis for integrating human rights in its health care services and facilities, particularly for child delivering women. However, child delivering women experience disrespect and abuse at birth facilities which compels a majority of them to shy from health facilities, thereby undermining Kenya’s efforts to reduce maternal mortality and morbidity. Overt incorporation of RMC will contribute to significant reduction of maternal mortality and facilitate the attainment of the fifth MDG objective.