his [or her] control”142 – is equally apposite.
The ICESCR stamps these provisions with the imprimatur of international
law (binding legal force) by enshrining, amongst its provisions, the right to
“the enjoyment of the highest attainable standard of physical and mental
health”143 and also according special protection to mothers and children.144
As to how the right to health would be realized, States Parties to the ICESCR
are under obligation to take such steps as are necessary to ensure, inter alia,
“the reduction of the stillbirth-rate and of infant mortality”;145 the prevention,
treatment and control of diseases;146 and “the creation of conditions which
would assure to all medical service and medical attention in the event of
sickness.”147 Taking measures to ensure the reduction of pregnancies that
result in stillbirth is particularly crucial to the subject of this paper given that
in most cases of pregnancies resulting in fistula, the child had been
Subsequent human rights instruments (those adopted after 1966) have, by
and large, toed the path sculpted by the ICESCR. The Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW),149
for instance, not only singles out gender-based discrimination as responsible
for infringement of the rights of women and mandates its eradication,150 it
also imposes an obligation on States Parties to “ensure to women appropriate
services in connection with pregnancy, confinement and the post-natal
period, granting free services where necessary.”151 When taken seriously, this
obligation requires the provision of antenatal and obstetric care to all
pregnant women, irrespective of age, income level, or any other
distinguishing characteristics. Similar obligations are imposed by the
Convention on the Rights of the Child (CRC),152 the most widely ratified
142. UDHR, supra note 131, at art. 25.
143. ICESCR supra note 129, at art. 12; see generally United Nations Econ. & Soc.
Council, Com. On Econ., Soc. and Cultural Rights, General Comment No. 14: The Right to
the Highest Attainable Standard of Health, ¶ 12, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000)
[hereinafter General Comment No. 14] (the right to health includes the following interrelated
elements, or components, namely availability and accessibility of as well as acceptability and
quality of health facilities, goods and services, including underlying determinants of health).
144. ICESCR, supra note 129, at art. 10.
145. Id. at art. 12, ¶ 2.
148. See Engender Health, Obstetric Fistula, U.S. AGENCY FOR INT’L DEV.,
http://www.fistulacare.org/pages/what-is-fistula/ (last visited Nov. 6, 2015).
149. Convention on the Elimination of All Forms of Discrimination Against Women,
opened for signature, Dec. 18, 1979, 1249 U.N. T.S. 13 (entered into force Sept. 3, 1981).
150. See G. A. Res. 34/180, U.N. Doc. A/RES/34/180 (Dec. 18, 1979).
151. Id. at art. 12, ¶ 2.
152. G. A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49, art. 24,
¶ 2(d) (Nov. 20, 1989).