Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011)
The UN Committee on the Elimination of Discrimination against Women has found that Brazil’s failure to prevent the avoidable maternal death of Alyne da Silva, a 28-year-old Brazilian woman of African descent, violated articles 2 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in conjunction with article 1. The Committee’s landmark decision is the first maternal mortality case decided by a UN treaty body.
Alyne da Silva was six months pregnant with her second child when she died of complications after her local healthcare centre misdiagnosed her symptoms and delayed emergency obstetric care. The deceased’s mother, Maria de Lourdes da Silva Pimentel, submitted a communication to the CEDAW Committee claiming that Brazil’s failure to ensure appropriate medical treatment in connection with her daughter’s pregnancy and subsequent failure to provide timely emergency obstetric care, constituted a violation of the rights to non-discrimination, life and health in articles 1, 2 and 12 of CEDAW.
Access to adequate maternal healthcare
After determining that the death of Alyne da Silva was ‘maternal’ (ie, resulting from obstetric complications related to pregnancy), the CEDAW Committee found that Brazil had failed to ensure that she received appropriate services in connection with her pregnancy, in violation of article 12(2) of CEDAW. Recalling its General Recommendation No 24, the Committee affirmed that “it is the duty of States parties to ensure women’s right to safe motherhood and emergency obstetric services, and to allocate to these services the maximum extent of available resources”. It further affirmed that “measures to eliminate discrimination against women are considered to be inappropriate in a health-care system which lacks services to prevent, detect and treat illnesses specific to women”.
State responsibility for healthcare services provided by private institutions
The CEDAW Committee expressly noted in its views that States Parties to CEDAW are obligated to ensure women have access to timely, non-discriminatory, and appropriate maternal health services, irrespective of whether services are provided by public institutions or are outsourced to private institutions. The Committee explained that “the State is directly responsible for the action of private institutions when it outsources its medical services, and that furthermore, the State always maintains a duty to regulate and monitor private health-care institutions”. Applying the due diligence obligation in article 2(e) of CEDAW, the Committee noted that Brazil is obligated “to take measures to ensure that the activities of private actors in regard to health policies and practices are appropriate”. In the Committee’s expert view, Brazil’s failure to act accordingly had resulted in a violation of article 12(2) of CEDAW.
Obligation to implement action- and result-oriented public policies
The CEDAW Committee emphasised that adopting public policies and measures is not of itself sufficient to guarantee women’s rights related to maternal health. Recalling its General Recommendation No 28, the Committee explained that, under CEDAW, States Parties are required to adopt and implement policies that are action- and result-oriented and adequately funded. Although Brazil had adopted a number of policies to address women’s specific health needs, in the Committee’s expert view, the lack of appropriate maternal health services in Brazil demonstrated a clear failure on the part of the state to meet “the specific, distinctive health needs and interests of women”, in violation of articles 2, 12(1) and 12(2) of CEDAW. The Committee further noted that “the lack of appropriate maternal health services has a differential impact on the right to life of women”.
The Committee expressly acknowledged in its views that Alyne da Silva had been a victim of compounded discrimination. In failing to ensure Alyne da Silva access to timely and appropriate maternal health services, Brazil had discriminated against her not only on the basis of her sex, but also her status as a woman of African descent and socio-economic status.
This is the first communication decided under the Optional Protocol to CEDAW where the Committee has addressed compounded discrimination so directly.
Access to effective judicial protection and remedies
The Committee found that Brazil had failed to establish a judicial system capable of effectively protecting the rights of Alyne da Silva or ensuring her family access to adequate judicial remedies, in violation of articles 2(c) and 12 of CEDAW. In so finding, the Committee condemned Brazil’s failure to initiate proceedings to identify the person(s) responsible for providing medical care to Alyne da Silva. It also noted its concern that civil proceedings filed by the victim’s family had languished in domestic courts for more than eights years without resolution, and criticised the decision to deny the family access to mechanisms that could have prevented this unwarranted delay.
The CEDAW Committee urged Brazil to provide reparation to the mother and daughter of Alyne da Silva. It also called on Brazil to adopt measures to address the systematic nature of the violations experienced by Alyne, including ensuring women’s right to safe motherhood and affordable access to adequate emergency obstetric care, sanctioning health professionals who violate women’s reproductive health rights, and reducing preventable maternal deaths through the implementation of its National Pact for the Reduction of Maternal Mortality.
Relevance to the Victorian Charter
The Alyne da Silva decision has direct relevance to the Victorian Charter, in particular the interpretation and application of the right to life in section 9 and the right to non-discrimination in section 8. Although the Charter does not contain a provision similar to article 12 of CEDAW on women’s reproductive health rights, articles 8 and 9 of the Charter (among other articles as well as other relevant Victorian legislation) impose obligations on public authorities to adopt all appropriate measures to ensure women in Victoria have access to timely, non-discriminatory and appropriate maternal health services, regardless of their racial background or economic status.
The decision can be found online at: http://reproductiverights.org/sites/crr.civicactions.net/files/documents/Alyne%20v.%20Brazil%20Decision.pdf
Simone Cusack is Senior Policy & Research Officer in the Australian Human Rights Commission’s Sex and Age Discrimination Unit