Annals of Health Law - Vol 23 Issue 1

MDG 5, HUMAN RIGHTS, AND MATERNAL HEALTH IN AFRICA after General Comment No. 14.203 The Maputo Protocol toes the expansive path paved by the CESCR by imposing upon States Parties an obligation to ensure respect for, and promotion of, women’s right to health, including sexual and reproductive health.204 Women’s right to health is defined under the Protocol to include, inter alia, the right to control their fertility; the right to decide whether to have children, the number of children, and the spacing of children; the right to choose any method of contraception; and the right to have family planning education.205 This treaty provision has been confirmed by the African Commission on Human Rights, which not only affirms that “women in Africa have the right to the highest attainable standard of health, which includes sexual and reproductive health and rights”206 but forcefully elevates maternal mortality to a priority human rights concern deserving of regional assault and expurgation.207

Consistent with the ICESCR, the Protocol, in addition to requiring States Parties to take measures to provide optimal access to health services, also mandates the establishment and strengthening of existing pre-natal, delivery, and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding.208 In what is seen as a radical departure from prevailing orthodoxy, the Protocol is the first regional or international human rights instrument to recognize the right to abortion.209 This elevation of abortion to the status of a human right has been lauded as commendable based on the widespread assumption that abortion-induced morbidities and mortalities are astronomically high in Africa.210 This notion is generally blamed on stifling restrictive anti-abortion legal frameworks in many of these countries.211 However, this assumption, as previously pointed out, lacks solid evidentiary support; in fact, abortion-related maternal mortality in Africa is the least anywhere in the world, at

203. See General Comment No. 14, supra note 149.

204. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, supra note 17, art. 14( 1).

205. Id.

206. African Comm’n on Human & Peoples’ Rights, General Comment on Article 14 ( 1) (d) and (e) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa para. 5 (Nov. 6, 2012), http://www.achpr.org/news/2012/11/d65/.

207. See generally African Comm’n on Human & Peoples’ Rights, Resolution on Maternal Mortality in Africa (Nov. 10 – 24, 2008), available at http://www.achpr.org/ sessions/44th/resolutions/135/.