Danisha Sornum, Bar-at-law,
Core Committee Member, MPower!
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol), adopted by the African Union in 2003 is considered as one of the most comprehensive and progressive women’s rights instruments. Under Article 14 of the Maputo Protocol, States have the duty to ensure that women’s right to health is respected and promoted. Sexual and reproductive rights include:
(a) the right to control fertility;
(b) the right to decide whether to have children, the number of children, and the spacing of children;
(c) the right to choose any method of contraception;
(d) the right to self-protection and to be protected against sexually transmissible diseases, including HIV/AIDS;
(e) The right to be informed of their health status and that of their partner; and
(f) The right to have family planning education
Under Article 14 of the Maputo Protocol, the State needs to ensure women have access to adequate and affordable health services, including pre-natal, delivery, and post-natal health services. The Maputo Protocol also expressly recognizes access to safe abortion as a human right. States have the duty to protect reproductive rights of women by authorizing medical termination of pregnancy in cases of sexual assault, rape, incest and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.
The Maputo Protocol is the more so an important legal instrument for African States given that Sub Saharan Africa has the highest mortality rate in the world, a high rate of unintended pregnancies, early marriages, and unsafe abortions, resulting in many preventable deaths. Having signed and ratified the Maputo Protocol, Mauritius has the legal obligation to align its laws and policies with this regional legal instrument. Mauritius has, to its credit, one of the best health systems in the African region. Women have access to free health services, including access to contraceptives and post-natal nutritional services. The criminal Code was also amended in 2012 to authorize the termination of pregnancy under specific circumstances, namely, when the woman’s life is endangered, when the continued pregnancy will result in a severe malformation, or severe physical or mental abnormality of the foetus which will affect its viability, or when the pregnancy has not exceeded its 14th week and results from a case of rape or sexual intercourse with persons under 16 or a specified person.
However, despite the quite progressive laws in Mauritius, women continue to face barriers to access good quality health services, including medical termination of pregnancy and post-abortion care. While attitudes towards women who have recourse to a medical termination of pregnancy have changed a lot for the better over the years, there are still numerous cases of illegal abortion across the island though official data is not available. In cases of rape and incest, medical termination of pregnancy may not be authorized by the medical practitioners if the pregnancy has exceeded 14 weeks, which means that women, including young girls, who have been victims of sexual assaults may have to carry on with an unwanted pregnancy. In other cases, women may not necessarily fall under the specific circumstances defined in the law, but may still want to terminate a pregnancy, which is not legally possible, thus putting women at risk for unnecessary and potentially fatal complications.
Another major challenge in Mauritius, and one that is very often slipped under the carpet, is the high rate of caesarean sections, both in public hospitals and private clinics. The World Health Organization considers 10%-15% as the ideal rate for caesarean sections. In Mauritius, in 2021, 52.1% of deliveries carried out in public hospitals and 62.8% of deliveries carried out in clinics and private health institutions, were by caesarean sections. These figures are alarming. While caesarean sections can effectively prevent maternal and newborn mortality when used for medically indicated reasons, evidence also shows that unnecessary caesarean sections may be associated with higher maternity and perinatal morbidity. Caesarean births are associated with short and long-term risks and can significantly affect the health of the woman, the child, and future pregnancies. Caesarean sections also entail higher health care costs for women, particularly if the latter have recourse to private institutions. It is, therefore, high time for policy-makers and stakeholders to address this major public health concern, and ensure that there is evidence-based guidance to address and curb the rising trend in caesarean sections.
Another issue that needs to be addressed in Mauritius is obstetric violence, which is a lesser known evil in the healthcare system, but nevertheless deeply impacts women’s rights to have access to adequate health services. For many women, pregnancy and childbirth is a period associated with ill-health, particularly mental and psychological distress, sufferings and humiliations experienced in both the public and private medical practice. Disregards of a woman’s needs and pain, verbal humiliations, detention in facility for failure to pay, physical violence, denial of treatment during childbirth, forced and coerced medical interventions, dehumanizing or rude treatment, invasive practices, and the unnecessary use of medication- each one of these instances constitutes obstetric violence, and is a grave violation of human rights. Unfortunately, obstetric violence is often overlooked and even normalized. Obstetric violence needs to be part of the medical and legal conversation so that it may be effectively addressed.
Childbearing is an intense experience for every woman. Women in Mauritius and across the African continent deserve to have access to the best quality health services and the required support as we navigate pre-natal and post-natal challenges. Women who choose to not have a child also need their choices to be respected. No woman should have to be humiliated or prosecuted for exercising her reproductive right, and States carry the obligation to ensure these rights are protected and promoted. There are no two ways about it.