Evaluating States’ Failure to Eliminate Discrimination against Women using Substantive Equality (Meghan Campbell)

Meghan Campbell

Meghan Campbell discusses the decision of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in Alyne da Silva Pimentel Teixeria v. Brazil and, in doing so, considers the failure of states to eliminate discrimination against women in the health sector

The decisions of the CEDAW Committee under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol to CEDAW) have the potential to contribute to a sophisticated conception of gender equality and non-discrimination, which then can be used by a variety of relevant stakeholders to affect change in a wide array of states.  The CEDAW Committee does not have the legal authority to obligate States Parties to amend discriminatory laws through the Optional Protocol to CEDAW; any legal impact comes not from the power of the CEDAW Committee as an institution but from the convincingness of its reasoning.  If the individual communication procedure is to have the desired impact it is paramount that the CEDAW Committee provides persuasive and compelling reasons and tailored remedies to convince States Parties that their commitment to gender equality and non-discrimination requires the changes the CEDAW Committee recommends.  

In this piece I examine through one case, Alyne da Silva Pimentel Teixeria v. Brazil, how the CEDAW Committee has used substantive equality to assess the violation of article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), on health, and to craft compelling decisions and recommendations.  I argue that the Committee, while coming to the right decision and making some key recommendations in Alyne da Silva Pimentel Teixeria v. Brazil, could have used its decision-making power to develop a more sophisticated concept of gender equality, as applied to the health sector.

The Role of Equality in the Individual Communications Procedure

Article 1 of CEDAW defines ‘discrimination against women’ as any distinction, exclusion or restriction made on the basis of sex (or gender) that impairs or nullifies, on the basis of equality, human rights and fundamental freedoms.  Equality is at the normative centre of assessing if a State Party has taken all appropriate steps to eliminate discrimination against women and thus is a critical element to evaluating claims under the individual communication procedure.  This leads to the challenging question: how can equality be used by the CEDAW Committee to evaluate impairment of rights in individual communications?

CEDAW is silent as to the meaning of equality.  However, the CEDAW Committee has clarified that CEDAW is premised on both formal and substantive equality.  While there is general consensus on formal equality, the precise meaning of substantive equality is contested and the CEDAW Committee has not articulated a coherent definition.  At times the Committee indicates that it requires: differential treatment; an equal start; “an enabling environment to achieve equality of results;” “strategies for overcoming underrepresentation of women and a redistribution of resources and power between men and women;” “the ability to develop personal ability … [to] make choices without the limitation set by stereotypes, rigid gender roles and prejudices;” and “real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns” (see here and here).  The Committee appears to draw on several understandings and embrace a multi-faceted concept of equality.  While a certain degree of flexibility is an important aspect in understanding equality claims in context, a completely nebulous conception of equality is not suited to evaluating individual petitions on the State Party’s failure to eliminate discrimination against women.

For the purposes of evaluating how the CEDAW Committee has developed the principle of substantive equality in Alyne da Silva Pimentel Teixeria v. Brazil, I adopt the four-part model of substantive equality developed by Sandra Fredman.  This model of equality brings together many of the aspects of equality that the CEDAW Committee refers to in its jurisprudence and provides a very workable and insightful standard to understand the harm done to the individual.  Briefly, this multi-dimensional conception of equality aims to break the cycle of disadvantage, to promote respect for dignity and worth, accommodate difference by achieving structural change and promote political and social inclusion.  Breaking the cycle of disadvantage recognises that certain individuals and groups have suffered because of their personal characteristics.  To redress this imbalance, specific and positive measures are required.  Second, the dignity dimension addresses recognition harms such as: harassment, prejudice, pernicious stereotypes, stigmas, negative cultural attitudes, humiliation and gender-based violence.  With respect to structural change, rather than requiring individual conformity, this model of equality questions and requires institutions and structures to change.  Fourth, the participation dimension requires inclusion of women in all public, private, political and social decision-making processes.

Alyne da Silva Pimentel Teixeria died in childbirth.  She was a rural, Afro-Brazilian woman who lived in poverty.  After complaining of nausea and bleeding, she delivered a stillborn foetus.  She underwent surgery to remove the placenta 14 hours after delivery, but her condition worsened.  The health centre contacted both public and private hospitals with superior facilities to treat Ms da Silva Pimentel Teixeria.  Only one private hospital had space but it refused to send its only ambulance to transport her.  She “waited in critical conditions for eight hours … to be transported to the hospital.”  At the hospital she was left largely unattended in a hallway for 21 hours until she passed away.  Her mother claimed her death was due to the failure of Brazil to eliminate discrimination against women in the field of health.

The CEDAW Committee’s reasoning on the violation of article 12 on health is very brief.  This is so even though Alyne da Silva Pimentel Teixeria v. Brazil involved complex issues and required the CEDAW Committee to assess if Brazil’s national health policies to address maternal health are appropriate measures to fulfill its obligation to eliminate discrimination against women in the health sector.  In its views, the CEDAW Committee noted that the State Party is required to have action- and result-oriented policies and concluded that “the lack of appropriate maternal health services in the State party clearly fails to meet the specific, distinctive health needs and interests of women.”  The CEDAW Committee also indicated that by failing to have action-oriented, well-funded and effective policies, Brazil was in violation of its obligations under article 12 of CEDAW.  The CEDAW Committee recommended reparations to Ms da Silva Pimentel’s family and more broadly, in relation to article 12, that Brazil ensure women’s right to safe and affordable obstetric care, reduce maternal deaths, establish a maternal mortality monitoring committee and provide necessary training to the medical profession on women’s reproductive health rights.

Assessing the Decision on the Basis of the Four-Part Model of Substantive Equality

While the decision and recommendations are pivotal in reducing maternal death, the CEDAW Committee’s legal reasoning is sparse.  It needs to be assessed: was the failure of the Brazilian maternal health care policies on the basis of equality?  The four-part model of substantive equality is an ideal rubric to investigate if the State Party’s current programs have ensured maternal health on the basis of equality. 

The Disadvantage Element

The disadvantage element of substantive equality requires the State Party to demonstrate that health policies and emergency care and prevention maternal health facilities are in place to address the health needs of vulnerable women.  In turn this requires some understanding of how marginalised women experience childbirth.  Physical access and cost of care have been identified as key factors contributing to maternal mortality in developing countries.  In this case, the distance between da Silva Pimentel Teixeria’s community health service and the private emergency obstetric centre and the failure to move her quickly contributed to her death.  These insights and standards can be used to evaluate how Brazil has created health policies to target disadvantaged women.

The Recognition Element

The recognition aspect of substantive equality is also at play in maternal health care policies.  The CEDAW Committee concluded, and Brazil acknowledged, that the fact that Ms da Silva Pimentel Teixeria was Afro-Brazilian and poor contributed to her death.  However, the CEDAW Committee did not investigate how harmful stereotypes and attitudes about poor, Afro-Brazilian women affected the location of health care, the private hospital’s refusal to provide an ambulance for Ms da Silva Pimentel Teixieria, and the level of funding and staffing of maternal health facilities in areas where ethnic, indigenous or poor women live.  In addition, it did not make recommendations designed to address those prejudices.  Thus, the CEDAW Committee missed an opportunity to recommend that Brazil address negative cultural attitudes about poor, Afro-Brazilian women in the medical profession and among other relevant stakeholders.

The Structural Element

Given that maternal deaths are highly preventable when there is a well resourced, accessible and integrated health system, it is highly regrettable the CEDAW Committee did not in precise detail review with reference to the substantive content the structure of maternal health policies in Brazil.  From reading the decision it is not clear what these policies entail and where precisely they failed.  This element is particularly important as it addresses the systemic gender inequality issues that Ms da Silva Pimentel Teixeria’s case raised.  The CEDAW Committee has recognised the importance of transforming structures and institution to achieve gender equality.  Thus, it is an important element in assessing if the State Party has taken all appropriate measures to eliminate discrimination against women when deciding an individual communication.

Notwithstanding this, there are two over-arching questions to ask: are the policies in place comprehensive to meet the needs of Brazilian women and do they have effect on the ground?  With respect to the first question, the CEDAW Committee needs to appreciate the scope of the problem of maternal mortality in Brazil and then examine how the policies are tailored to ameliorate it.  The CEDAW Committee could have used insights from the UN Special Rapporteur on the right to the highest attainable standard of health and Ms da Silva Pimentel Teixieria’s claim to assess the costs of maternal health care, the availability and quality of reproductive education and information, the adequacy of infrastructure to and in between treatment centres and the quality of hospitals, medicines and medical personnel.  In its views, the CEDAW Committee indicated that Brazil had provided some of the required disaggregated data but it did not provide the actual figure or use it in any meaningful way.

It is not enough to merely have maternal health care policies in place; they must also be implemented effectively.  There are two methods the CEDAW Committee could have used to evaluate the effectiveness of the structure of Brazil’s health policies.  First, the UN Special Rapporteur on the right to the highest attainable standard of health strongly recommends the use of indicators to monitor the effectiveness of maternal health policies.  The CEDAW Committee could have required Brazil to provide this information to assess the effectiveness of its maternal health policies in reducing maternal mortality and help craft tailored and meaningful remedies to actually address the precise failings in these programs.  Second, the UN Special Rapporteur on the right to the highest attainable standard of health repeatedly emphasises that a well-funded health care system is key to preventing maternal deaths.  The CEDAW Committee needed to review Brazil’s health budget and assess if it is adequate to reduce maternal deaths and reflects a commitment to gender equality.  This is not an easy assessment.  In cases where maternal health is grossly under-funded this may not be so challenging but in cases where there is a certain level of funding and limited resources this may be extremely difficult.  However, the CEDAW Committee cannot shy away from asking the hard questions simply because they are hard.  In assessing if distinctions which impair women’s health on the basis of equality it is necessary to assess if maternal health policies are de facto implemented which involves an assessment of how well funded these policies are.  The views of the CEDAW Committee do not even summarise, let alone openly assess, the substantive content or effectiveness of any of the policies that Brazil raises in its written submissions.

The Participation Element

The final element of substantive equality is also over-looked.  While Brazil mentioned in its submissions to the CEDAW Committee that its health policies emphasise the importance of women’s participation, it would have been helpful for the CEDAW Committee to recommend that any changes to health care are made only after consultation with all relevant stakeholders.  This would include voices that are usually marginalised: poor, indigenous and rural women.  Incorporating women’s voices in the design of health policies will also ensure that those policies are responsive to women’s actual needs and contribute to their more effective implementation.  Therefore, the CEDAW Committee’s silence as to women’s participation in designing health policies is disappointing. 

Pathways Forward

While the CEDAW Committee came to the correct conclusion that Brazil had failed to eliminate discrimination against women in health care in Alyne da Silva Pimentel Teixeria v. Brazil by not having adequate maternal health care policies and did offer many crucial recommendations, its sparse reasoning means that it missed some vital elements of Ms. da Silva Pimentel Teixeria’s claim.  The definition of discrimination against women in article 1 of CEDAW provides a useful analytical framework to assess individual claims.  Particularly, the four-part substantive model of equality is a compelling standard to evaluate if Brazil’s health policies fail women on the basis of equality.  This multi-dimensional concept of equality helps to bring all of the issues into focus and allows the CEDAW Committee to assess and remedy all potential contributing factors to Ms da Silva Pimentel Teixera’s death and thereby more powerfully influence State Party policy on maternal health care.

Meghan Campbell

DPhil Candidate (Oxford University), LLM (University of Edinburgh), LLB (University of Manitoba)

See also:

Rebecca J. Cook, “Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision” (2013) 41(1) Journal of Law, Medicine & Ethics 103

Eszter Kismödi et al, “Human Rights Accountability for Maternal Death and Failure to Provide Safe, Legal Abortion: The Significance of Two Ground-breaking CEDAW Decisions” (2012) 20(39) Reproductive Health Matters 31