A Feminist Critique of the Human Right to Health

Instruments such as the International Covenant on Economic, Social and Cultural Rights have
recognized international human rights obligations surrounding the right to health. And while
equality between men and women has been a guiding principle in this regard for several decades, globally, gender still remains a key determinant of health.

This essay analyses the evolution, expression and enforcement of the right to health to determine to what extent, and on what grounds, it remains prone to criticism from feminist
perspectives. The essay will focus on the gender blindness of the existing framework caused
due to the prevalent hierarchy in human rights. The analysis on enforcement will be framed
primarily in the context of mitigation measures adopted against current COVID-19 pandemic
focusing on impact on reproductive health, caring responsibilities and violence against women.

The essay then puts forth two suggestions as ways forward towards realizing the right to health. First, that international human rights instruments need to move away from the public-private dichotomy to acknowledge impact of actors other the government and family on human rights. And second, that a violations approach could be used in order to transform the right to health into a ‘hard’ obligation of state parties to international instruments.

By Pallavi Khatri

right to health

Introduction

Health as a human right has been recognized by different international instruments in varying terms. It was first espoused as a universal right in 1946 by the WHO constitution which defined health as a ‘state of complete physical, mental and social well-being. [1] This was followed by the articulation of the ‘right to a standard of living adequate for the health and well-being of himself and of his family’ in the Universal Declaration of Human Rights in 1948. [2] Then, in the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), which came into force in 1976, the 171 signatories recognize the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. [3]

Further, instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Beijing Declaration of 1995 have specifically reiterated international obligations relating to the right to health of women. [4] Yet, globally, gender remains a key determinant of health.

In this essay, I analyse the human right to health as expressed and enforced under international instruments. I argue that despite gender-specific obligations in various instruments, the framework surrounding the right to health continues to be gender blind due to the accepted hierarchy between first and second generation human rights.

I shall substantiate this critique using examples from the routine functioning of the international agencies as well as evidence from health emergencies. I will analyse the ongoing COVID-19 pandemic to show how the abovementioned critiques reveal themselves in mitigation responses, with a focus on impacts on reproductive health, caring responsibilities and violence against women.

I will then conclude with two suggestions. First, that the still dominant divide the between the public and private spheres must be addressed as, along with preventing action on certain matters, it leads to ignorance of roles of actors beyond the state or the family. Second, that state parties must re-recognize obligations related to the right to health as ‘hard obligations’, and that this can be achieved through the use of a ‘violations approach’ to assessing status of human rights in a country.

Gender Blindness of the Framework

Gender blind can generally be defined as that which ignores the differences in socially or culturally determined gender roles, responsibilities, capabilities and needs of women (or genders other than male) as compared to men. The creation of gender blind policies was one of the key criticisms of the first-wave feminist philosophy. The focus on formal equality often overemphasized “sameness” and in the process, ignored the qualitatively different experiences of women and the structures which created pervasive hierarchies disadvantaging women. [5]

There has certainly been greater recognition of women’s unique experiences and human rights have slowly become more gender-specific, particularly under the CEDAW. Yet, gender blindness is still palpable in a different form – lower priority of those rights which are more specific and necessary for women. This lack of priority renders specificity which has formally been added into binding international instruments ineffective as it allows for health responses, especially in health emergencies, to be gender blind again.

Women’s Rights As Second Generation Rights

There exists an accepted hierarchy between rights perceived as “first generation” and “second generation” human rights. [6] Civil and political rights under the ICCPR are considered first generation human rights with the greatest level of protection. [7] Rights under the ICESCR are not accorded the same value by the international community. This is because they are deemed to indicate actions to be taken progressively over a long period of time.

Additionally, ICCPR rights can be ‘measured’ based on progress, say, using laws on preventive detention, or based on violations, using instances of detention or torture by the state against individuals. Compliance with ICESCR rights is much more difficult to measure. For instance, the more subjective nature of a right such as getting non-discriminatory access to health makes adequate gender-segregated information gathering tougher, especially if undertaken for comparison on a country-wide or world-wide scale. For these reasons, enforcement of ICESCR is pursued with much less vigour than ICCPR, and their violations are considered less problematic.

The right to health, thus, becomes a less prioritized second generation right. The gender blindness here can be located in the fact that civil and political rights are usually those which are exercised more often by men. Women, due to their historical relegation to the private sphere [8] need to realize economic, social and cultural rights to enter the public sphere to even exercise civil and political rights. Further, since human rights are usually interconnected –reducing the right to health to a ‘soft’ right reduces the importance of other vital rights connected to it – such as the right to adequate food and clothing, to earn a livelihood, to
adequate family planning information, to determine when to marry or reproduce, to an education etc. This is also why conventions focused on women such as CEDAW, while binding, see little vehement enforcement. [9]

Thus, this seemingly objective rights hierarchy is blind to the specific needs of women and ignores rights which women need to enter the public sphere. Some aspects of the lower priority to women’s needs as objects of the right rather than the subject can be seen in the text of the instruments itself. For example, in Article 12(b) of the ICESCR, there is an explicit mention of the need to reduce stillbirth rate and of the infant mortality rate and ensuring the healthy development of the child.

Yet, despite there being as many as 295,000 pregnancy-related, mostly preventable, deaths in 2017, the protection of the mother and her reproductive health is a conspicuously absent subject. [10] The life of the child is explicitly being valued over the life of the mother even when the fact of birth and reproduction is specifically addressed – and thus, the right is blind to the requirements and situation of women.

Impact on Enforcement

The consequences of this conceptual lack of concern for women’s experiences and needs, specifically related to the right to health and related rights, are easily discernable in enforcement. State parties often fail to comply with even their routine reporting requirements with respect to progress made and challenges faced with respect to realization of rights in the ICESCR.

Often, data which is required to be disaggregated based on gender or other parameters is also not available. [11] And yet, because State parties see little rebuke or incentives, they invest less than sufficient attention to their obligations.

Similar evidence is also demonstrable in the case of health emergencies. For instance, all 189 signatories of the CEDAW have binding obligations to provide non-discriminatory healthcare to women. This is a ‘core’ obligation and must be followed even during the COVID-19 pandemic. [12] However, states have been quick to violate the same – displaying their lack of prioritization of women’s necessities – similar to the gaps in the ICESCR. [13]

Sexual and reproductive services including pre-natal and post-natal healthcare was not considered a “life-saving” priority by most nations, even when they are necessities for most women. Thousands of community based care outlets have closed or scaled down across the world. [14] Supplies of contraceptives, delivery services for pregnant women, post abortion care have been severely restricted along with services relating to HIV and cervical cancer. Further, several signatory states have followed a pattern of attempting to restrict abortion services under the garb of COVID-19 prevention, forcing women to travel further to access services and putting themselves at risk of infection.

The UN Working Group on Discrimination Against Women noted the case of several states in the United States issuing emergency orders suspending procedures “not deemed immediately medically necessary” in order to restrict access to abortions. [15] These restrictions were successfully challenged and lifted in some cases but the ban in Texas stayed until restrictions on “elective” procedures were lifted. Similar explanations were provided for shutting down an abortion clinic in Brazil. [16]

In Poland, which has extremely strict abortion laws, the parliament began discussing a bill to further restrict abortion hoping to use the lockdown provisions to avoid largescale protests. [17] The above example of reproductive health related policies is the most stark consequence of the ‘second generation’ nature accorded to the right to health. It shows that it is not viewed as a necessity but only as a standard which has to be achieved in the long term and can be retrogressed in the short term.

Concerns relating to domestic violence and excessive caring responsibilities faced by women are similarly overlooked as “ideal” but not “essential” in a pandemic. However, this view further exacerbates the violation of women’s right to health because of the unique nature of the COVID-19 pandemic. The primary mitigation measure for COVID-19 has been home quarantine enforced through lockdowns of varying strictness.

Two consequences of this are: first, increased incidence of domestic violence against women as they are pushed into spaces with abusers; second, increased caring responsibilities. This arises because of segregated gender roles and women’s higher propensity to be leave employment. For example, in Asia, women earn 15% less than men on an average and anecdotal evidence shows that they have been more likely to let male partners continue working outside, 18 thereby putting their own job security at risk to care for children and elderly. However, instead of a positive emergency response to these changes, women, particularly survivors of domestic violence are faced with reduced services.

Looking at Ways Forward

The previous sections demonstrated how the gender blindness of and around women’s right to health reduced it to one ‘suspended’ during emergencies even though the ICESCR does not come with a specific set of limitations like the Siracusa principles. [19]

The lack of priority to the right is evident because issues such as domestic or sexual violence against women have been present in most humanitarian crises – including health crises such as the Ebola and Zika outbreaks. [20] And yet, the right as articulated does not cover these needs.

Beyond the Public and Private Spheres

One way of improving the conceptual and practical underpinnings of the right can be found by moving beyond the presumption that there are just two spheres – public, representing state/government which has certain obligations and private i.e. family. The perceived distinction between the ‘public’ and the ‘private’ sphere has contributed to the government, and international institutions remaining distanced from non-state perpetuated violations of women’s human rights. [21]

While the current international instruments recognize the aspect of the right to health in the private sphere, they rarely impact actors beyond the government and family which affect human rights in significant ways. Non-government actors such as women’s employers have great influence on women’s health during the COVID-19 pandemic and yet, international human rights law will not be concerned with them. Cultural peculiarities in the public sphere may be perpetuated by religious groups or communities.

For instance, in several countries women patients are expected to be treated by women. Here, the state’s obligation during an emergency could be reframed to one which ensures access to health for women instead of an ‘objective’, gender blind one. The scientific community is another sphere to be addressed as it has great part to play in the right to health and historically, health problems have been studied from the perspective of middle and upper class white men, who have been a dominant group based on social, political and economic power. [22]

Right to Health as ‘Hard’ Obligation: Violations Approach

It is also imperative to transform the perception of the right to health into a ‘hard’ obligation instead of its status as a second generation right. This could be done by using what Audrey Chapman calls a ‘violations’ approach which would evaluate performance based on violations of the right rather than progress. This would reduce the problem of ‘measurement’ as it is easier to identify violations. [23] They could even be classified into violations by the government and violations by non-governmental entities, or due to patterns of discrimination– thereby, venturing beyond the public-private divide.

Further, the current approach is largely dependent on insufficient self-reporting by state parties which would seldom volunteer information about violations. Non-governmental organizations could be involved in order to gather relevant data on such violations. While it would be extremely difficult, and dependant
on political and diplomatic circumstances, the international community could also be called upon to impose economic sanctions or embargoes on states which needlessly violate human rights.

Conclusion

In conclusion, the current framework surrounding the human right to health, especially for women, is gender blind and thus, prone to feminist critique. Specific and binding conventions such as the CEDAW have based themselves on women’s experience but they have been reduced in effectiveness due to the perception of the right to health as a second generation right and as something to be achieved as an ideal in the long term. This has caused grave ignorance of women’s basic necessities as ‘soft’ obligations which can be easily violated by state parties.

Evidence of the same has been abundant in mitigation measures adopted by state parties during the COVID-19 pandemic – specifically with respect to reproductive health services which were categorized as non-essential. This classification draws a direct parallel to the ICESCR which recognized the problem of infant mortality but not of maternal mortality.

Further, in most state parties no emergency measures were adopted increased caring responsibilities for women and increased rates of domestic violence. In fact, the facilities available to women were reduced or diverted – further demonstrating the gender blindness of the right to health. The flaws in the existing framework were even more stark since effects like increased domestic violence were predictable outcomes of a health emergency.

In the future, two methods could be adopted to improve the framework. First, recognizing the impact of non-state actors such as culture, communities etc. on the right to health can help adopt mitigation measures which are based on women’s experiences and address their needs. Second, the right to health could be transformed into a hard obligation by using a violations approach which focuses on instances of breaches of human rights. This would be an improvement from the current, ineffective model of measuring progressive realization.

References:

  1. Constitution of the World Health Organization 1947
  2. Universal Declaration of Human Rights 1948 (‘UDHR’), art 25
  3. International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) 1966, art 12
  4. Convention on the Elimination of All Forms of Discrimination Against Women 1979(‘CEDAW’), art 12; Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, 1995
  5. Laura Parisi, ‘Feminist Perspectives on Human Rights’, Oxford Research Encyclopedia of International Studies (2017); https://oxfordre.com/internationalstudies/view/10.1093/acrefore/9780190846626.001.0001/acrefore-9780190846626-e-48> accessed 7 April 2021
  6. Pamela Goldberg, ‘Women, Health and Human Rights’, (1997) 9 Pace Int'l L. Rev. 271
  7. Theodore Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80 The American Journal of International Law 1
  8. Catherine A. MacKinnon, ‘Towards a feminist theory of the State’ (Harvard University Press 1989); Shelly Wright, Economic Rights and Social Justice: A Feminist Analysis of Some International Human Rights Conventions; (1988-1989) 12 Aust YBIL 241
  9. Charlotte Bunch, ‘Women’s Rights as Human Rights: Towards a Re-Vision of Human Rights’, (1990) 12(4) Human Rights Quarterly 486
  10. ‘Maternal Mortality’, (World Health Organization, 19 September 2019); https://www.who.int/news-room/fact-sheets/detail/maternal-mortality; accessed 7 April 2021
  11. Audrey R Chapman, Monitoring Women’s Right to Health under the International Covenant on Economic, Social and Cultural Rights; (1995) 44 Am U L Rev 115
  12. ‘Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Compliances’ (International Commission of Jurists, September 2020) <https://www.icj.org/wp- content/uploads/2020/09/Universal-Global-Health-COVID-19-Publications-Reports-Thematic-Reports-2020-ENG.pdf; accessed 7 April 2021
  13. Tim Fish Hodgson, ‘COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 2)’ (OpinioJuris, 1 April 2020); http://opiniojuris.org/2020/04/01/covid-19-symposium-covid-19-responses-and-state-obligations-concerning-the-right-to-health-part-2/; accessed 7 April 2021
  14. COVID-19 pandemic cuts access to sexual and reproductive healthcare for women around the world’ (International Planned Parenthood Federation, 9 April 2020);https://www.ippf.org/news/covid-19-pandemic-cuts-access-sexual-and-reproductive-healthcare-women-around-world; accessed 7 April 2021
  15. UN Office of the High Commissioner for Human Rights, ‘United States: Authorities manipulating COVID-19 crisis to restrict access to abortion, say UN experts’ (Yubanet, 27 May 2020); https://yubanet.com/usa/united-states-authorities-manipulating-covid-19-crisis-to-restrict-access-to-abortion-say-un-experts/; accessed 7 April 2021
  16. Emily Keller, ‘Feminists Defend Abortion Access Amid Pandemic’, (International Women’s Health Coalition, 7 May 2020); https://iwhc.org/2020/05/feminists-defend-abortion-access-amid-pandemic/; accessed 7 April 2021
  17. ‘Poland abortion: Protesters against ban defy coronavirus lockdown’, (BBC, 15 April 2020); https://www.bbc.com/news/world-europe-52301875> accessed 7 April 2021
  18. ‘The First 100 days of Covid-19 in Asia and the Pacific: A Gender Lens’, (UN Women, 9 April 2020); https://www2.unwomen.org/-/media/field%20office%20eseasia/docs/publications/2020/04/ap_first_100-days_covid-19-r02.pdf?la=en&vs=3400; accessed 7 April 2021
  19. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights 1984
  20. Sarah E. Davies and Belinda Bennett, ‘A gendered human rights analysis of Ebola and Zika: locating gender in global health emergencies’ (2016) 92(5) International Affairs 1041
  21. Gayle Binion, Human Rights: A Feminist Perspective; (1995) 17 Hum Rts Q 509
  22. Jamie Rogers and Ursula A. Kelly, ‘Feminist intersectionality: Bringing social justice to health disparities research’ (2011) 18(3) Nursing Ethics 397
  23. Audrey R Chapman, Monitoring Women’s Right to Health under the International Covenant on Economic, Social and Cultural Rights' (1995) 44 Am U L Rev 115 

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