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Five Lessons for Advancing Maternal Health Rights in an Age of Neoliberal

Globalization and Conservative Backlash

Article in Health and Human Rights · June 2023

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Health and Human Rights Journal

Five Lessons for Advancing Maternal Health Rights in HHR_final_logo_alone.indd 1 10/19/15 10:53 AM

an Age of Neoliberal Globalization and Conservative

Backlash

alicia ely yamin

Abstract

After considerable progress in recent decades, maternal mortality and morbidity (MMM) either

stagnated or worsened in most regions of the globe between 2016 and 2020. The world should be

outraged given that we have known the key interventions necessary for preventing MMM for over three-

quarters of a century. Since the 1990s, human rights advocacy on MMM has gained crucial ground,

demonstrating that entitlements related to maternal health are judicially enforceable and delineating

rights-based approaches to health in the context of MMM. Nonetheless, evident retrogressions, coupled

with ballooning social inequalities, redoubled austerity post-pandemic, and a conservative populist

backlash against reproductive rights, underscore the steep challenges we face. This paper offers five

lessons gleaned from what we have achieved during the past 30 years of human rights advocacy on

maternal health, and where we have fallen short: (1) maternal health is not a technical challenge alone

and is inseparable from reproductive justice; (2) reproductive justice requires strengthening health system

infrastructures; (3) we must center the political economy of global health in our advocacy, not just national

policies; (4) litigation is part of a larger advocacy toolkit, not a go-it-alone strategy; and (5) we must use

metrics that tell us why women are dying and what to do.

Alicia Ely Yamin, JD, MPH, PhD, is a lecturer on law and senior fellow on global health and rights at the Petrie-Flom Center for Health Law
Policy, Biotechnology, and Bioethics at Harvard Law School; adjunct senior lecturer on health policy and management at Harvard T.H. Chan
School of Public Health; and senior advisor on health policy and human rights at Partners In Health, Boston, United States.
Please address correspondence to the author. Email: ayamin@law.harvard.edu.
Competing interests: None declared.
Copyright © 2023 Yamin. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial
License (http://creativecommons.org/licenses/bync/4.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any
medium, provided the original author and source are credited.

JUNE 2023 VOLUME 25 NUMBER 1 Health and Human Rights Journal 185
a. e. yamin / general papers, 185-194

Introduction retrogressions, coupled with ballooning social in-

equalities, redoubled austerity post-pandemic, and
After considerable progress in recent decades, a a conservative populist backlash against a “gender
2023 study from the World Health Organization ideology,” underscore the steep challenges we face.7
(WHO) revealed that maternal mortality and This paper offers five lessons gleaned from reflec-
morbidity (MMM) either stagnated or worsened in
tions on what we have achieved during the past 30
most regions of the world between 2016 and 2020.1
years of human rights advocacy on maternal health,
WHO estimates that 287,000 women or gestating
and where we have fallen short: (1) maternal health
persons died in 2020, constituting almost 800 ma-
is not a technical challenge alone and is inseparable
ternal deaths per day.2 That number is staggering:
from reproductive justice; (2) reproductive justice
it is the equivalent of more than two large jetliners
requires strengthening health system infrastruc-
falling out of the sky every single day. For every
tures; (3) we must center the political economy of
woman who dies, an estimated 70–80 more suffer
global health in our advocacy, not just national
from severe comorbidities that may result in per-
policies; (4) litigation is part of a larger advocacy
manent health impacts, from fistula to infertility.3
toolkit, not a go-it-alone strategy; and (5) we must
Moreover, maternal deaths affect family and com-
use metrics that tell us why women are dying and
munity members. For example, studies done in East
what to do.
Africa suggest that losing a mother exponentially
increases the chances of children dying before the Lesson one: Progress on maternal health rights
age of five and has devastating consequences on depends on reproductive justice.
school attainment, nutritional outcomes, and the
navigation of sexual roles, for girls in particular.4 Advancing maternal health is inseparable from the
What should enrage us all is that we have struggle for reproductive justice. Reproductive jus-
known the key public health interventions nec- tice refers to the ability to decide if, when, and how
essary for preventing maternal mortality for over we want to have children; the right to parent chil-
three-quarters of a century. With advances in dren in safe and healthy environments; and sexual
medical science and technology, as many as 98% of autonomy and gender freedom for every human be-
the maternal deaths that occur today are entirely ing.8 The reproductive justice movement pioneered
preventable.5 That MMM not only continues to be by Black US feminists in the 1990s re-centered the
so widespread but is increasing in many parts of structural conditions and embodied realities of
the world, including in the United States, indicates differently situated people, given the narrow for-
the extent to which intertwined structures of pa- malistic approach to legal entitlements under US
triarchy, colonialism, racism, and other forms of constitutional law. From the outset, reproductive
minoritization, as well as neoliberal globalization, justice had close synergies with efforts to advance
systemically consign so many women’s lives to sexual and reproductive health and rights (SRHR)
insignificance. under international law, including the landmark
Since the 1990s, human rights advocacy on conceptualizations of reproductive rights in the
MMM has sat at complicated intersections in in- International Conference on Population and De-
ternational and national law, including navigating velopment (1994) and the Fourth World Conference
deference to patriarchal medicine, avoiding essen- on Women held in Beijing (1995).9
tializing women as mothers, and enforcing an array However, in 2001, the adoption of the Mil-
of affirmative legal entitlements within health sys- lennium Development Goals (MDGs) replaced the
tems. Human rights strategies have gained crucial broad trans-sectoral emphasis on social and insti-
ground, demonstrating that entitlements related to tutional change in those trans-sectoral conferences
maternal health are judicially enforceable and de- of the 1990s with a technocratic approach in which
lineating human rights-based approaches to health the only goal related to SRHR, MDG 5, centered
in the context of MMM.6 Nonetheless, evident solely on improving maternal health. Maternal

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 a. e. yamin / general papers, 185-194

health subsequently became a “trojan horse” to and later also adolescent health (RMNCAH).17 The
advance the legal and structural issues pertaining RMNCAH framework conceptually redefined
to SRHR more broadly.10 Along with efforts to women in accordance with their reproductive in-
generate greater accountability in maternal and tentions and capacities. In turn, in underscoring
child health through global health institutions, the role of women as child-bearers, the continuum
the Human Rights Council was a primary locus of of care approach contributed to programming that
this activity in the late 2000s and early 2010s.11 The placed women’s roles in reproduction and caretak-
United Nations (UN) Special Rapporteur on the ing of children—rather than their empowerment
right to health issued a report on maternal mortal- as independent social citizens with rights—at the
ity.12 Additionally, the Human Rights Council itself center of the agenda.18
passed a series of resolutions on maternal health Advancing maternal health rights, understood
and human rights based on reports from the Office as part of SRHR and reproductive justice, calls for
of the UN High Commissioner for Human Rights.13 a far more ambitious agenda, which recognizes
These reports explicated connections between women as agents of social change and subjects of
MMM and human rights, highlighted best practic- dignity, and calls for action across an array of issues
es, and ultimately culminated in the publication of that transcend the health sector. Moreover, in a hu-
the Technical Guidance on the Application of a Hu- man rights framework, health systems themselves
man Rights-Based Approach to the Implementation are understood not as technical delivery apparatus-
of Policies and Programmes to Reduce Preventable es but as social institutions that either mitigate or
Maternal Morbidity and Mortality (UN Technical exacerbate “multiple and intersecting forms of dis-
Guidance), the first intergovernmentally approved crimination,” including those based on race, caste,
human rights-based approach to health.14 gender, class, and ethnicity.19 As Paul Hunt, Gunilla
This UN Technical Guidance situated MMM Backman, Judith Bueno de Mesquita, et al. have
within SRHR and a reproductive justice framework, noted, stigma and discrimination in both law and
and underscored that “in all countries, patterns practice “pose a serious threat to sexual and repro-
of maternal mortality and morbidity often reflect ductive health,” which simply cannot be addressed
power differentials in society and the distribution through care delivery interventions alone.20
of power between men and women. Manifested in Precisely at a time when there is an extraor-
poverty and income inequality, gender discrim- dinary backlash against abortion rights and sexual
ination in law and practice, and marginalization orientation and gender identity rights, our advoca-
based on ethnicity, race, caste, national origin and cy needs to lean into the need for maternal health
other grounds are social determinants that affect rights to be understood in the context of broader re-
multiple rights.”15 It also importantly delineated the productive justice demands. Empirically, pregnancy
obligations of states at every stage of the policy cycle and childbirth are complicated processes where ob-
and beyond the health sector and was followed by stetric emergencies and spontaneous abortions can
summary reflection guides for different actors im- easily be confused with induced abortions. Indeed,
plicated in improving maternal and reproductive there is often no way to accurately discern whether
health.16 Nonetheless, using human rights-based a pregnancy loss is attributable to an issue of fetal
approaches to advance reproductive justice issues viability (approximately 25–30% of pregnancies re-
more broadly has been only partially successful. sult in spontaneous loss due to a variety of viability
The MDGs ushered in a focus on the “continuum issues), an accident, or a deliberate action.21 Nor-
of care” approach, exemplified by the creation of matively, the right to interrupt one’s pregnancy is a
the Partnership for Maternal Newborn and Child crucial part of reproductive autonomy and gender
Health and a shift toward programming based on equality. Beyond abortion, unwanted pregnancies
reproductive, maternal, newborn, and child health, are always high-risk pregnancies; advancing ma-

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a. e. yamin / general papers, 185-194

ternal health as a matter of rights cannot be done duction of public-private partnerships, has been
without guaranteeing access to contraception and shown to exclude remote rural communities and
comprehensive sexuality education that enables increase out-of-pocket costs for reproductive and
all pregnancy-capable persons to decide if, when, maternal health care.27 At the same time, austerity
and how they want children. Transphobia has no has exacerbated health care worker shortages and
place in maternal health advocacy; trans men face disparities in health care worker density between
greater chances of pregnancy complications than low- and high-income countries.28 Among other
cis gender women.22 In short, reproductive justice, things, the post-pandemic austerity now being
including safe motherhood, is key to gender justice, pushed by the International Monetary Fund in-
as well as to racial justice and social justice. cludes imposing draconian wage caps on public
sector workers, which drives nurses and other
Lesson two: Reproductive justice requires health providers out of health workforces and often
strengthening health system infrastructures. out of their countries.29
Just as we must refuse to separate maternal health Globally, health systems are drastically under-
from other reproductive justice struggles, it is cru- funded, understaffed, and overcrowded. As a result
cial that we pay greater attention to the financing of this underfunding, roughly a third of women do
and infrastructure necessary to ensure safe moth- not have even half of the recommended antenatal
erhood as well as the availability of other sexual checks or receive essential postnatal care, while
and reproductive health care. If health systems are some 270 million women lack access to modern
understood as social institutions that reflect and family planning methods.30 In the aftermath of the
reinforce societal values, how they are financed and COVID-19 pandemic, the World Bank estimates
organized determines both provider and patient that 41 governments will spend even less on health
rights. in 2027 than they did in 2019, before the pandemic.31
In the United States, for example, the maternal Not only does underfunding lead to more
mortality rate is the most elevated of any high-in- maternal deaths; it also leads to the disrespect and
come country, with a maternal mortality ratio of abuse of gestating persons seeking health care.32 For
23.8 per 100,000 live births.23 The situation, which example, a disturbingly common practice in many
has been getting progressively worse, is particularly countries, including Nigeria and the Philippines,
dire for Black and Indigenous women, for whom is the detention of people who recently gave birth
pregnancy-related mortality rates are between and are unable to afford their hospital charges.33
two and three times higher than the rate for white This practice is itself a gross violation of human
women.24 Increasing data point to the effects of rights and dignity. Further, it discourages people
white supremacy on Black and other minoritized from going to the hospital in the first place, thereby
women’s health in the United States, which con- increasing the risk of maternal and infant death.
tributes to excess morbidity and mortality.25 The Advancing maternal health rights in this
privatized and fragmented US health care system context requires urgently shifting health financing
exacerbates these overall patterns of structural away from privatized models and social insurance
racism, which leads to gross disparities in the avail- that fails to address inequities in the formal versus
ability and quality of health services. For instance, informal labor economies. Maternal health depends
in rural and low-income areas, the lack of hospitals on sustained public funding for robust primary
providing obstetric care has produced “maternity care systems, together with adequate referral and
care deserts” because “childbirth doesn’t pay, at communications networks and emergency care.
least not in low-income communities.”26 Moreover, we know in global health that these el-
Likewise, the privatization of health care in ements are indispensable for strengthening health
low- and middle-income countries, and the intro- systems more broadly, for achieving meaningful

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universal health coverage, and for health security.34 through reduced unemployment support and the
As the WHO Council on the Economics of Health tightening of targeted social programs dispropor-
for All states: tionately needed by women and children.39
In advancing maternal health rights, we need
Rather than invest in healthcare industries and to continually underscore and connect the dots re-
regulate the market to realize important but garding how the political economy of global health
marginal and often unequal gains for health, we
systematically perpetuates health disparities in
must first set ourselves ambitious goals to achieve
Health for All and then work towards the goals by the Global South, and how poor and marginalized
designing financial architecture and an economic women and girls are inevitably among the most
system that can deliver on this mission.35 affected.

Lesson four: Litigation is part of a toolkit, not a

Lesson three: The political economy of global go-it-alone strategy.
health must be centered in advocacy. Thirty years ago, a principal aim of applying hu-
Increasing funding for maternal health must be man rights to health, including maternal health,
connected to the political economy of global health. was to advance legal accountability for ensuring
Global health outcomes are heavily determined entitlements to care. There has been a growing
by political, economic, and commercial power trend in MMM legal advocacy to seek the legal en-
structures.36 There is simply not enough resource forcement of the right to safe motherhood through
mobilization capacity in low-income countries to domestic and international courts—much of which
finance universal, resilient health systems. For 34 has yielded positive judgments. However, we have
low-income countries alone, the annual external also learned that litigation must be embedded in
financing gap in health before the pandemic was broader social and political mobilization strategies.
estimated to be US$50 billion and is now far more, For example, in 2011, the Center for Health,
coupled with renewed austerity imposed in the af- Human Rights, and Development filed suit with
termath of the pandemic.37 the Ugandan Constitutional Court, arguing that
Moreover, loan conditionalities often mean the government had failed to provide the neces-
that heavily indebted countries cede control of their sary health care to avoid the preventable maternal
spending policies in favor of “fiscal consolidation,” deaths of two Ugandan women in 2009 and 2010.40
or austerity. As mentioned above, after the pan- Both women had suffered from obstructed labors
demic new waves of austerity measures are being and were denied care after refusing to pay bribes
imposed across the majority of the world.38 Aus- to medical personnel.41 Between the filing of the
terity affects maternal health in a panoply of ways, initial petition and the final 2020 judgment, which
including (1) in the health system, such as through produced a judicial construction of the right to
wage cuts and layoffs of health personnel; increases maternal health care, a massive social mobilization
in co-pays and out-of-pocket expenses, even for was created and sustained: 29 grassroots organiza-
critical services such as antenatal and delivery care; tions were brought together to form the “Coalition
reduced benefit packages or changes to eligibility to Stop Maternal Mortality,” which at one point
criteria; disrupted access to insurance; and cuts mobilized over one thousand people.42 Moreover, a
to sexual and reproductive health; (2) indirectly, positive judgment is an inflection point, not the end
through cuts in the education sector; reductions of the struggle. In the wake of the Constitutional
in food-assistance and security programs; and Court’s landmark judgment finding that Uganda’s
reduced funding for temporary housing/shelters failure to adequately provide basic maternal health
and housing subsidies that poor women and other care services in public health facilities violated
reproductive subjects depend on; and (3) generally, women’s rights to health and life, the Center for

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Health, Human Rights, and Development and the of politics and convert the tragedy of MMM into
grassroots coalition have continued to mobilize to a broader injustice that calls for institutional legal
ensure implementation.43 remedies.50 Yet, when courts place substantial de-
Supranational judgments may face even great- mands on states with weak institutional capacities,
er obstacles to translate standards into institutional or when judgments remain unmoored from broader
practices and enjoyment in practice. For example, social and political movements, they risk suffering
in 2011 the UN Committee on the Elimination of from a lack of compliance and undermining public
Discrimination against Women issued a landmark faith in the legal system to improve people’s lives in
decision in Alyne da Silva v. Brazil, the first case re- practice.
garding maternal death decided by an international
human rights body.44 As Rebecca Cook wrote at the Lesson five: We need to use metrics that actually
time, “Maternal deaths can no longer be explained tell us why women are dying and what to do.
away by fate, by divine purpose or as something Sèye Abímbólá argues that the gaping distance be-
that is predetermined to happen and beyond hu- tween knowledge and the actual delivery of care in
man control. Maternal deaths are preventable, global health arises “when people with resources to
and when governments fail to take the appropriate address delivery problems do not have the informa-
preventive measures, that failure violates women’s tion or motivation to either make the discoveries
human rights.”45 Not only did the committee find available or tailor them to local circumstances”
that Brazil’s failure to provide emergency obstetric and when “feedback between actors at the global
care was discriminatory, but it explicated intersec- and national level, the national and subnational
tional discrimination on the basis of gender, class, level, or the subnational level and the community,
and Afro-descendance and set out states’ obliga- or between any of the parties to these combina-
tions to regulate private actors.46 The committee tions” does not work.51 In short, “it is present when
recommended appropriate reparations, including there are asymmetries of power, motivation and
financial compensation, to the victim’s family, to- information between the helper and the helped.”52
gether with a series of systemic reforms aimed at The disconnect between the collection of algorith-
guaranteeing non-repetition.47 mically generated data by global institutions, such
However, an analysis by a follow-up com- as the Institute for Health Metrics and Evaluation,
mission in 2015 found several important gaps in and the people who need information to save lives
Brazil’s compliance with the recommendations of is keenly evident in maternal health.
the Committee on the Elimination of Discrimina- As noted above, the sole MDG relating to re-
tion against Women, including a national plan of productive health was MDG 5, which called for the
action and program (“Stork Network”) rooted in reduction of maternal mortality by three-quarters
RMNCAH as opposed to SRHR, which omitted between 1990 and 2015, measured by maternal mor-
key aspects of reproductive justice, and a failure tality ratios.53 Such ratios are notoriously difficult
of accountability and oversight at multiple levels.48 to estimate due to statistical and practical reasons,
Politics also soon intervened, with political dys- and they do not translate into programmatic ac-
function producing the election of Jair Bolsonaro, tions. They are calculated using algorithms that are
who normalized misogynistic and homophobic based on inputs regarding the number of women
discourses and set about cutting health and social of reproductive age, the percentage of women with
protections, with disproportionate effects on poor, HIV/AIDS, and other factors. Maternal mortality
Afro-descendant women.49 ratios are not actionable at the facility level, or even
In short, litigation is neither the beginning nor sometimes at national level given differing statis-
the end of any advocacy on maternal health—or tical capacities, and do not indicate the drivers of
any systemic health issue, for that matter. Judicial maternal death patterns among diverse popula-
involvement can critically change the landscape tions.54 Renewed efforts to legislate maternal death

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 a. e. yamin / general papers, 185-194

reviews to examine causal factors in specific cases Conclusion

without punitively sanctioning frontline health
workers are urgently needed.55 At a time when we face multiple complex crises in
However, it is far past time for investment global health that challenge our current knowledge
in national vital registration systems to track ma- and capacities, maternal mortality is a problem
ternal deaths and other issues critical to SRHR. we can solve. We have the tools and frameworks
to improve the embodied lives of women and
Further, indicators should be relevant to policy
pregnancy-capable persons and advance maternal
making and sensitive to policy interventions. We
health rights. As renowned obstetrician Mahmoud
have process indicators relating to the availability
Fathalla aptly noted in 2006, “Women are not dying
and utilization of emergency obstetric and neonatal
of because of untreatable diseases. They are dying
care, or EmONC, which are essential to use, along
because societies have yet to make the decision
with outcome indicators.56 The EmONC indicators
that their lives are worth saving.”58 Rajat Khosla
focus on signal functions that can be monitored
and Flavia Bustreo argue that the stagnation and
continuously and which literally indicate what may
retrogression on maternal mortality in recent years
be driving maternal deaths, from lack of access
reflect “a systematic erosion in commitment by gov-
to stored blood to delays in communication or
ernments and donors” to women’s health and rights
referral. As a result, they allow for assessing com-
that should not just be ascribed to the COVID-19
pliance with international obligations and holding
pandemic.59
governments accountable for adopting “appropri-
We cannot continue to allow national and
ate measures” on a nondiscriminatory basis, as is
global health leaders to cynically lament maternal
required under human rights law.
deaths as tragedies. These painful and horrific
How indicators are used in global health
deaths are the foreseeable consequence of global
is also problematic. For example, in part driven
and national orders that relegate women’s lives to
by imperatives set by international institutions
insignificance. In human rights, we have learned
such as the World Bank, skilled birth attendance
crucial lessons from the last 30 years; now is the
has in practice translated into a measurement of time for UN agencies, advocacy organizations, na-
institutional deliveries. When a facility does not tional governments, and donors to put them into
have actual skilled birth attendance or the capacity practice.
to provide emergency obstetric care, that elision
merely serves to drive overcrowding at facilities
that produces breeding grounds for disrespect and Acknowledgments
abuse.57 I am deeply grateful to Victoria Abut for her assis-
As opposed to the MDGs, the Sustainable tance in the preparation of this paper. This paper
Development Goals were intended to be interde- is part of a Norwegian Research Council-funded
pendent—so reproductive health was understood as CMI/LawTransform project: “Political Determi-
linked to gender equality. However, in practice, do- nants of Sexual and Reproductive Health.”
nors’ preferences for easy, fast, and cheap solutions
still do not mesh well with the nuanced, complicat-
ed, and multifaceted problems involved in sexual References
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Council, Report of the Office of the United Nations High tional-comparison; L. Hill, S. Artiga, and U. Ranji, “Racial
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