If we all agree that maternal mortality represents a human rights violation, why do lawyers, providers, NGOs, and individuals hesitate to use the legal system in the wake of a maternal death or morbidity? The legal system is used to protect rights and health everyday:
- Specific laws in most countries outline legal remedies for survivors of domestic violence.
- In the case of an arbitrary or unjust arrest, many legal systems allow for a habeas corpus petition, which brings the prisoner before court to determine if the arrest and detention is lawful.
- People living with HIV who cannot access medicines sue multinational corporations and governments.
We accept that victims of these rights violations will routinely demand accountability and compensation from the state through the legal system. However, for maternal health related violations, the law remains an underused resource for accountability.
In the seventh month of her fifth pregnancy, Shanti Devi, a migrant worker from Bihar, India, fell at home. A local midwife advised Shanti Devi to visit the hospital, but she could only afford the visit two weeks later. The first local hospital discovered that her fetus had not survived the fall and referred Shanti to another hospital for a D&C, a surgical procedure needed in about 50% of miscarriages.
At Sanjay Gandhi Hospital in New Delhi doctors refused to treat Shanti until her family procured blood for the D&C surgery. After three days at Sanjay Gandhi, the hospital staff referred Shanti to another hospital due to a shortage of beds. Although Shanti Devi provided documentation of her poverty status, doctors at the third hospital demanded Rs. 2.5 lakhs (>$4000) to operate. Shanti Devi returned to Sanjay Gandhi Hospital, only to be referred to another institution, where doctors finally removed the dead fetus.
Lawyers and activists with the New Delhi-based Human Rights Law Network (HRLN) filed a court case on behalf of Shanti Devi, outlining a myriad of fundamental rights violations, state failures and demands for systematic change. While Shanti Devi’s case was pending, she became pregnant for the sixth time and died at home while prematurely delivering her daughter, Archana. A court-ordered maternal death review by Dr. Prakasamma, Director of the Hyderabad-based Academy for Nursing Studies and Women’s Empowerment Research Studies, found, the “direct cause of Shanti Devi’s death was extensive [postpartum] hemorrhage (PPH) with retained placenta. However, there were many indirect and contributing factors to her death, which broadly include her dismal socio-economic status which denied access to needed resources and services and her poor health condition which is a culmination of anemia, tuberculosis and repeated, unsafe pregnancies.”
While the Court considered Shanti Devi’s case, a government facility in New Delhi refused to provide care to Fatima, a homeless woman, which forced her to deliver under a tree in full public view. HRLN also submitted Fatima’s case to the High Court seeking compensation and improved implementation of government health schemes for homeless women. These devastating facts and overwhelming violations of women’s rights to life, health and dignity prompted the Delhi High Court to become the first court in the world to hold that a woman has a constitutional right to survive pregnancy. In addition to providing compensation to Fatima and Shanti Devi’s family, the Court expanded the scope of entitlement schemes, directed the government to make immediate improvements to its referral system and ensured long-term accountability by requiring the state to report on improvements.
Using this groundbreaking judgment as precedent, field-level health workers, NGOs and individual women throughout India have filed legal cases resulting in court orders to immediately improve health facilities and to guarantee access to staff, services, and dignified treatment. Increasingly, courts award compensation to families who have lost partners, mothers, wives and daughters as a result of the state’s failure to end preventable maternal mortality.
Of course, there is a risk that a court will ignore a case, or even worse, pass a judgment that misunderstands the fundamental issues. A single case in India can take years to complete and without vigilant oversight court orders may be ignored. However, today, with over fifty petitions filed in High Courts and the Supreme Court of India, we have learned that filing cases
- provides access to justice for marginalized women and families;
- forces the state to formally respond to rights violations;
- shows the state that a group of committed activists is paying attention and is ready to take action to ensure meaningful results on maternal health;
- creates an official record of facts and state failures;
- spurs press coverage on maternal health as a rights issue that belongs in court along side cases on civil rights violations and violence against women;
- starts a conversation rooted in law and state obligations that can shift lawyers’, judges’ and policy makers’ approaches to maternal health;
- sets the stage for future legal advocacy at higher levels including superior courts, regional human rights institutions, and United Nations human rights systems;
- can result in compensation (financial and otherwise) for individuals and families; and
- can result in broad changes where courts order changes in entitlement schemes or health policy.
Ultimately, filing a legal case brings women’s sexual and reproductive health to a space where human rights, justice and accountability can thrive. To end preventable maternal mortality, activists must demand justice for every woman, every time.
Note: This blog post is not about medical negligence. Medical negligence may cause some maternal death and most jurisdictions have legal remedies to compensate victims. This blog post pertains to countries with high maternal mortality (in general or in specific communities), where maternal death represents a systematic failure of the state to ensure a woman’s rights to life, health, and dignity.
For Shanti Devi and Fatima’s full judgment see Laxmi Mandal vs. Deen Dayal Hari Nagar Hospital & Ors. WP (C) 8853/2008, final judgment 4 June.