Right to Maternal, Child and Reproductive Health

Article 12(2)(a) ICESCR requires that states parties shall take the steps necessary for ‘the provision for the reduction of the still-birth rate and of infant mortality and for the healthy development of the child’. In General Comment 14, the ESCR Committee defines this as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information. In the following case, Mestanza Chavez v. Peru  , Mrs. Maria Mamérita Mestanza, was coerced into undergoing a sterilisation operation which resulted in her death.

Mestanza Chavez v. Peru

Inter-American Commission on Human Rights

Case 12.191, Admissibility Decision of 3 October 2000, Report No. 66/00, Annual Report 2000

Keywords: health - obligation to respect – life - humane treatment - equal treatment



A. Position of the petitioners

3. Petitioners allege that the case of Mrs. María Mamérita Mestanza represents one more of a significant number of cases of women affected by the implementation of a massive, compulsory, and systematic government policy that emphasized sterilization as a method for quickly modifying the reproductive behavior of the population, especially of poor, indigenous, and rural women. In this respect, they note that the Office of the Human Rights Ombudsman (Defensoría del Pueblo) received several complaints in this regard,and that from November 1996 to November 1998, CLADEM documented 243 cases of human rights violations in the surgical contraception program carried out in Peru.

4. They note that Mrs. María Mamérita Mestanza, a peasant woman approximately 33 years of age and mother of seven, was subject to harassment, dating back to 1996, by the health center for the District of La Encañada, which is part of the public health system, in an effort to have her become sterilized. In this context, she and her permanent partner Jacinto Salazar Suárez received various forms of harassment, which included several visits in which health staff threatened to denounce her and Mr. Salazar Suárez to the police, as they were told the government had adopted a law under which anyone with more than five children had to pay a fine and would be taken to prison.

5. They state that ultimately, and under coercion, Mrs. Mestanza’s consent was obtained to undergo surgery for a tubal ligation. The surgical procedure was performed on March 27, 1998, at the Regional Hospital at Cajamarca, without any prior medical exam. Mrs. Mestanza was discharged the next day, March 28, 1998, when she still manifested serious anomalies, such as vomiting and intense headaches. During the next few days Mr. Jacinto Salazar informed the personnel at the La Encañada health center as to Mrs. Mestanza’s condition, which was growing worse with each passing day, and the personnel at the health center said that these were the after-effects of the operation due to the anesthesia.

6. They adduce that Mrs. Mestanza Chávez finally died at home, on April 5, 1998, and that the death certificate indicated a sepsis as a the direct cause of death and bilateral tubal blockage as the antecedent cause. They reported that days later a physician from the health center offered Mr. Jacinto Salazar a sum of money to consider the problem over and done with.

7. They indicate that on April 15, 1998, Mr. Jacinto Salazar denounced Martín Ormeño Gutiérrez, Chief of the La Encañada health center, to the Mixed Provisional Prosecutor for Baños del Inca in relation to the death of Mrs. Mestanza, for crimes against her life, body, and health, constituting the offense of manslaughter. They add that on May 15, 1998, that Provincial Prosecutor formally presented criminal charges against Mr. Ormeño Gutiérrez and other persons, to the Provincial Judge, who on June 4, 1998, declared that there were no grounds for opening an investigation. That decision was confirmed on July 1, 1998, by the Specialized Chamber for Criminal Matters, pursuant to which the Provincial Prosecutor ordered the case closed on December 16, 1998.

B. Position of the State

8. The State argues that the Ministry of Health investigated the facts, and that its investigation resulted in “inadequate counseling” for Mrs. Mestanza and a failure to monitor after the surgery, all as the result of a voluntary surgical operation.

9. It notes that as a result of this report the physicians, nurses, and anesthetists who participated in the surgery on Mrs. Mestanza, and the directors of the health center and Coordinators of the Reproductive Health Programs, were found to be administratively liable. The State adds that the case was then studied by the Office of the Inspector General for health, and also by the Mixed Court of Baños del Inca, in the city of Cajamarca, and by the Specialized Chamber of the Superior Court of Justice, which decided to halt the investigation that was begun pursuant to the criminal complaint presented by Mr. Salazar Suárez to the Criminal Provincial Prosecutor of Baños del Inca on April 15, 1998. With the foregoing, and pursuant to Peruvian legislation, the State indicated that the decision to not open the investigation became res judicata.

10. The State further adduces that the action brought by Mr. Salazar was aimed at defining the individual liability of agents in acts of medical negligence and its purpose was not to make a determination regarding what the petitioners described as “forced sterilization.” Because of this, it requested that the case be declared inadmissible, since domestic remedies were not exhausted with respect to the surgical procedure which the victim allegedly did not freely choose, and with respect to the harassment and discriminatory acts denounced by the petitioners.


11. The Commission now analyzes the admissibility requirements for a petition set forth in theAmerican Convention.

A. Competence of the Commission ratione materiae, ratione personae andratione temporis

12. The petitioners are authorized by Article 44 of the American Convention and Article 12 of the Convention of Belém do Pará to present complaints to the IACHR. The petition sets forth as the alleged victim an individual with respect to whom Peru undertook to respect and ensure the rights enshrined in the American Convention and in the Convention of Belém do Pará. As regards the State, the Commission observes that Peru is a state party to the American Convention, having ratified it on July 28, 1978, and of the Convention of Belém do Pará, having ratified it on October 18, 1995. Accordingly, the Commission is competent ratione personae to examine the complaint.

13. In addition, the Commission is competent ratione materiae since the facts alleged in the petition could be violations of rights protected by the American Convention and by the Convention of Belém do Pará, at Article 7.

14. The IACHR is also competent ratione temporis, as the facts in question allegedly occurred in 1996, when the obligation to respect and ensure the rights established in the American Convention and in the Convention of Belém do Pará was already in force for the Peruvian State.

B. Admissibility requirements of the petition

a. Exhaustion of domestic remedies

15. The petitioners and the State agree that on April 15, 1998, Mr. Jacinto Salazar lodged a complaint with the Mixed Provisional Prosecutor of Baños del Inca against Martín Ormeño Gutiérrez, Chief of the health center at La Encañada in relation to the death of Mrs. Mestanza, for crimes against the life, the body, and health, constituting manslaughter. On May 15, 1998, that Provincial Prosecutor filed formal criminal charges against Mr. Ormeño Gutiérrez and other persons before the local Provincial Judge, who on June 4, 1998, declared that there were no grounds for opening the investigation. That decision was confirmed on July 1, 1998, by the Specialized Chamber for Criminal Matters; consequently, the Provincial Prosecutor ordered the case archived with prejudice.

16. The petitioners argue that domestic remedies were exhausted with the foregoing decision. The State adduces that the December 16, 1998 decision is final and res judicata, but that it did not constitute exhaustion of domestic remedies, since it was aimed at determining liabilities for the possible negligent homicide of Mrs. Mestanza, but not in relation to the alleged forced sterilization of Mrs. Mestanza nor the alleged acts of harassment and discrimination against Mrs. Mestanza.

17. The Commission observes that the domestic remedy exhausted by Mr. Jacinto Salazar was adequate, at least in theory, to seek to obtain justice in the specific case, through criminal sanction of the Chief of the health center where the facts occurred that later caused the death of Mrs. Mestanza. Furthermore, the State has not shown what other domestic remedies should have been exhausted. In this respect, the Inter-American Court of Human Rights has established that a State that alleges non-exhaustion must indicate the domestic remedies that must be exhausted, and must show they are effective.

18. For the reasons set forth above, the Commission concludes that the requirement concerning exhaustion of domestic remedies has been met.

b. Time period for presentation

19. The requirement set forth at Article 46(1)(b) of the Convention, according to which the petition must be presented within six months of the victim receiving notification of the final decision that has exhausted domestic remedies, has been met in this case, since domestic remedies were exhausted on December 16, 1998; and even though the date of notice of that decision does not appear in the record, the petition was filed with the IACHR on June 15, 1999, before six months had run since the date of the decision.

c. Duplication of procedures and res judicata

20. The Commission understands that the subject matter of the petition is not pending before any other international procedure for settlement, nor does it deal with the same subject matter as a petition already examined by this or any other international organization. Accordingly, the requirements established at Articles 46(1)(c) and 47(d) are also satisfied.

d. Characterization of the facts

21. The Commission considers that the presentation by the petitioners states facts which, if true, tend to establish a violation of rights guaranteed in the American Convention and the Convention of Belém do Pará.


22. The Commission considers that it is competent to hear this case, and that the petition is admissible, under Articles 46 and 47 of the American Convention, in the terms set forth above.

23. Based on the foregoing arguments of fact and law, and without prejudging on the merits,


1. To declare this case admissible, in relation to the violations alleged of Articles 1, 4, 5, and 24 of the American Convention, and Article 7 of the Convention of Belém do Pará.

2. To notify the petitioners and the State of this decision.

3. To proceed to analyze the merits issues.

4. To publish this decision and include it in its Annual Report for the OAS General Assembly.



On 26 August 2003, the Peruvian state and the victims’ representatives concluded a friendly settlement. In that agreement the Peruvian state admitted international responsibility for the acts described and pledged to take steps for material and moral reparation of the harm done and to initiate a thorough investigation and trial of the perpetrators and take steps to prevent the recurrence of similar incidents in the future, including changing laws and public policies on reproductive health and family planning, eliminating any discriminatory approach and respecting women’s autonomy.

In the following case the applicants claimed that it was unconstitutional of the South African Government not to make available the anti-retroviral drug Nevirapine to all HIV positive pregnant women in South Africa.

Treatment Action Campaign and Others v. Minister of Health and Others     

Constitutional Court of South Africa

Case No. 8/02

Judgement of 5 July 2002

Keywords: children’s rights – women – health - socio-economic rights - reproductive health



[1] The HIV/AIDS pandemic in South Africa has been described as “an incomprehensible calamity” and “the most important challenge facing South Africa since the birth of our new democracy” and government’s fight against “this scourge” as “a top priority”. It “has claimed millions of lives, inflicting pain and grief, causing fear and uncertainty, and threatening the economy”. These are not the words of alarmists but are taken from a Department of Health publication in 2000 and a ministerial foreword to an earlier departmental publication.

[2] This appeal is directed at reversing orders made in a high court against government because of perceived shortcomings in its response to an aspect of the HIV/AIDS challenge. The court found that government had not reasonably addressed the need to reduce the risk of HIV-positive mothers transmitting the disease to their babies at birth. More specifically the finding was that government had acted unreasonably in (a) refusing to make an antiretroviral drug called nevirapine available in the public health sector where the attending doctor considered it medically indicated and (b) not setting out a timeframe for a national programme to prevent mother-to-child transmission of HIV.


[4] Government, as part of a formidable array of responses to the pandemic, devised a programme to deal with mother-to-child transmission of HIV at birth and identified nevirapine as its drug of choice for this purpose. The programme imposes restrictions on the availability of nevirapine in the public health sector. This is where the first of two main issues in the case arose. The applicants contended that these restrictions are unreasonable when measured against the Constitution, which commands the state and all its organs to give effect to the rights guaranteed by the Bill of Rights. This duty is put thus by sections 7(2) and 8(1) of the Constitution respectively:

“7(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

. . . .

8(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.”

At issue here is the right given to everyone to have access to public health care services and the right of children to be afforded special protection. These rights are expressed in the following terms in the Bill of Rights:

“27(1) Everyone has the right to have access to –

(a) health care services, including reproductive health care;

. . . .

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

. . . .

28(1) Every child has the right –

. . . .

(c) to basic nutrition, shelter, basic health care services and social services”.

[5] The second main issue also arises out of the provisions of sections 27 and 28 of the Constitution. It is whether government is constitutionally obliged and had to be ordered forthwith to plan and implement an effective, comprehensive and progressive programme for the prevention of mother-to-child transmission of HIV throughout the country. [?].


[17] [?] what is to happen to those mothers and their babies who cannot afford access to private health care and do not have access to the research and training sites? It is not clear on the papers how long it is planned to take before nevirapine will be made available outside these sites. Some of the provinces had not yet established any test sites by the time the application was launched in late August 2001. The first sites were established only in May 2001 following a meeting the previous month at which government had endorsed the establishment of the sites for a period of two years. These sites were to be selected according to stated criteria, one in an urban and one in a rural community in each province. Whether the programme was to be maintained strictly until the last of the provincial test sites had been functioning for two years or could possibly be extended beyond that period does not appear from the papers. What is plain, though, is that for a protracted period nevirapine would not be supplied at any public health institution other than one designated as part of a research site.


Enforcement of socio-economic rights


[25] The question in the present case [?] is not whether socio-economic rights are justiciable. Clearly they are. The question is whether the applicants have shown that the measures adopted by the government to provide access to health care services for HIV-positive mothers and their newborn babies fall short of its obligations under the Constitution.

The policy confining nevirapine to the research and training sites

[48] In deciding on the policy to confine nevirapine to the research and training sites, the cost of the drug itself was not a factor. [?]


[49] The costs that are of concern to the government are therefore the costs of providing the infrastructure for counselling and testing, of providing formula feed, vitamins and an antibiotic drug and of monitoring, during bottle-feeding, the mothers and children who have received nevirapine. These costs are relevant to the comprehensive programme to be established at the research and training sites. They are not, however, relevant to the provision of a single dose of nevirapine to both mother and child at the time of birth.

[50] The implementation of a comprehensive programme to combat mother-to-child transmission of HIV, such as that provided at the research and training sites, is no doubt the ideal. The real dispute between the parties on this aspect of the case is not, however, whether this optimum was feasible but whether it was reasonable to exclude the use of nevirapine for the treatment of mother-to-child transmission at those public hospitals and clinics where testing and counselling are available and where the administration of nevirapine is medically indicated.


Summary of the relevant evidence

[92] To sum up, the position when the application was launched was this. Two research and training sites had been selected at hospitals in each province to use nevirapine for the prevention of mother-to-child transmission of HIV. These research and training sites were linked to access points at satellite clinics. There were approximately 160 access points. (During the course of the proceedings these had increased to over 200.) At the project hospitals and satellite clinics a full package for the treatment of mother-to-child transmission was to be available. This included testing, counselling, nevirapine if medically indicated, the provision of formula feed as a substitute for breastfeeding, aftercare including the provision of vitamins and antibiotics, and monitoring of the progress of the children. At all other public hospitals and clinics nevirapine would not be available. There was, however, to be a programme for testing and counselling, including counselling on matters related to breastfeeding. Formula feed was available at some hospitals and clinics but it was not a requirement of the programme to combat mother-to-child transmission outside the research and training sites that it be made available to HIV-positive mothers of newborn babies who would like to avoid breastfeeding but cannot afford the formula feed. Although the programme envisaged the progressive establishment of testing and counselling facilities at all hospitals and clinics, progress had been slow in certain parts of the country, particularly in clinics in the Northern Province, Mpumalanga, the Eastern Cape and KwaZulu-Natal. The bulk of the rural population lives in these provinces where millions of people are still without access to clean water or adequate sanitation.

Findings concerning government’s programme

[93] In the present case this Court has the duty to determine whether the measures taken in respect of the prevention of mother-to-child transmission of HIV are reasonable. We know that throughout the country health services are overextended. HIV/AIDS is but one of many illnesses that require attention. It is, however, the greatest threat to public health in our country. [?]


[95] The rigidity of government’s approach when these proceedings commenced affected its policy as a whole. If, as we have held, it was not reasonable to restrict the use of nevirapine to the research and training sites, the policy as a whole will have to be reviewed. Hospitals and clinics that have testing and counselling facilities should be able to prescribe nevirapine where that is medically indicated. The training of counselors ought now to include training for counselling on the use of nevirapine. As previously indicated, this is not a complex task and it should not be difficult to equip existing counsellors with the necessary additional knowledge. In addition, government will need to take reasonable measures to extend the testing and counselling facilities to hospitals and clinics throughout the public health sector beyond the test sites to facilitate and expedite the use of nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV.

The powers of the courts

[96] Counsel for the government contended that even if this Court should find that government policies fall short of what the Constitution requires, the only competent order that a court can make is to issue a declaration of rights to that effect. That leaves government free to pay heed to the declaration made and to adapt its policies in so far as this may be necessary to bring them into conformity with the court’s judgment. This, so the argument went, is what the doctrine of separation of powers demands.


[98] This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.


[101] A dispute concerning socio-economic rights is thus likely to require a court to evaluate state policy and to give judgment on whether or not it is consistent with the Constitution. If it finds that policy is inconsistent with the Constitution it is obliged in terms of section 172(1)(a) to make a declaration to that effect. But that is not all. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant “appropriate relief”. It has wide powers to do so and in addition to the declaration that it is obliged to make in terms of section 172(1)(a) a court may also

“make any order that is just and equitable”.


[104] The power to grant mandatory relief includes the power where it is appropriate to exercise some form of supervisory jurisdiction to ensure that the order is implemented. [?].


[106] We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.


Circumstances relevant to the order to be made

[115] The finding made concerning the restricted use of nevirapine has implications for government’s policy on the prevention of mother-to-child transmission of HIV. If nevirapine is now made available at all state hospitals and clinics where there are testing and counselling facilities, that will call for a change in policy. The policy will have to be that nevirapine must be provided where it is medically indicated at those hospitals and clinics within the public sector where facilities exist for testing and counselling.


[122] In the present case we have identified aspects of government policy that are inconsistent with the Constitution. The decision not to make nevirapine available at hospitals and clinics other than the research and training sites is central to the entire policy. Once that restriction is removed, government will be able to devise and implement a more comprehensive policy that will give access to health care services to HIV-positive mothers and their newborn children, and will include the administration of nevirapine where that is appropriate. The policy as reformulated must meet the constitutional requirement of providing reasonable measures within available resources for the progressive realisation of the rights of such women and newborn children. This may also require, where that is necessary, that counsellors at places other than at the research and training sites be trained in counselling for the use of nevirapine. [?]



[124] What remains to be considered is whether it is appropriate in the circumstances of the present case to grant further relief. We have come to the conclusion that it is appropriate to do so, though in terms differing from the orders made by the High Court.



[135] We accordingly make the following orders:


2. It is declared that:

a) Sections 27(1) and (2) of the Constitution require the government to devise and implement within its available resources a comprehensive and co-ordinated programme to realize progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV.

b) The programme to be realised progressively within available resources must include reasonable measures for counselling and testing pregnant women for HIV, counselling HIV-positive pregnant women on the options open to them to reduce the risk of mother-to-child transmission of HIV, and making appropriate treatment available to them for such purposes.

c) The policy for reducing the risk of mother-to-child transmission of HIV as formulated and implemented by government fell short of compliance with the requirements in subparagraphs (a) and (b) in that:

i) Doctors at public hospitals and clinics other than the research and training sites were not enabled to prescribe nevirapine to reduce the risk of mother-to-child transmission of HIV even where it was medically indicated and adequate facilities existed for the testing and counselling of the pregnant women concerned.

ii) The policy failed to make provision for counsellors at hospitals and clinics other than at research and training sites to be trained in counselling for the use of nevirapine as a means of reducing the risk of mother-to-child transmission of HIV.

3. Government is ordered without delay to:

a) Remove the restrictions that prevent nevirapine from being made available for the purpose of reducing the risk of mother-to-child transmission of HIV at public hospitals and clinics that are not research and training sites.

b) Permit and facilitate the use of nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospitals and clinics when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the facility concerned this is medically indicated, which shall if necessary include that the mother concerned has been appropriately tested and counselled.

c) Make provision if necessary for counsellors based at public hospitals and clinics other than the research and training sites to be trained for the counselling necessary for the use of nevirapine to reduce the risk of mother-to-child transmission of HIV.

d) Take reasonable measures to extend the testing and counseling facilities at hospitals and clinics throughout the public health sector to facilitate and expedite the

use of nevirapine for the purpose of reducing the risk of mother-to-child transmission of HIV.

4. The orders made in paragraph 3 do not preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV.

5. The government must pay the applicants’ costs, including the costs of two counsel.

6. The application by government to adduce further evidence is refused.


In this case the Constitutional Court of South Africa took a historical decision concerning the right to maternal, child and reproductive health when it found South Africa’s controversial refusal to provide anti-retroviral drugs to HIV positive pregnant women a violation of the right to health as found in the South African Constitution. This decision is especially important as it confirms that economic, social and cultural rights are justiciable and courts can play a crucial role in enforcing these rights and granting immediate, effective and systematic remedies to economic, social and cultural rights violations.

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