PHA-Exch> Impact of The Global Gag Rule on Healthcare in Kenya/blog

[Marcy Bloom]

http://www.feministe.us/blog/archives/2007/12/13/the-impact-of-the-global-ga
g-rule-on-healthcare-in-kenya/

12.13.2007


The Impact of The Global Gag Rule on Healthcare in Kenya
<http://www.feministe.us/blog/archives/2007/12/13/the-impact-of-the-global-g
ag-rule-on-healthcare-in-kenya/> 

Posted by Anne @ 9:25 am 

I have been reading a really interesting publication produced by The Crowley
Program in International Human Rights (part of Fordham Law School). Titled
'Exporting Despair - The Human Rights Implications of U.S. Restrictions on
Foreign Health Care Funding in Kenya', the project examines both the impact
of the Mexico City Policy (popularly known as the Global Gag Rule) on
Kenya's healthcare system, as well as the legal ramifications of it for both
the Kenyan government as well as the U.S. For anyone interested in the legal
issues of the Global Gag Rule, I highly recommend obtaining a copy.

The report starts out by examining international laws and treaties in order
to assess whether or not Kenya's government can be held responsible for
violating international human rights, as well as assessing what legal role
donor nations, particularly the United States, has in requiring countries to
violate their own human rights laws in order to receive funding. Using the
International Covenant on Economic, Social and Cultural Rights (ICESCR),
Committee on Economic, Social and Cultural Rights (CESCR), The International
Covenant on Civil and Political Rights (ICCPR), Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW), the
Beijing Platform and the Cairo Program, they conclude that there are three
main areas that can be violated: the right to health, freedom of speech, and
gender discrimination.

The report then goes on to examine the historical and current healthcare
situation in Kenya. While the Kenyan government has attempted to improve the
healthcare system, funding problems and the burden the AIDS crisis has
placed on the healthcare system has caused minor improvements and in many
cases retrogression. In 1991 the government switched from a free healthcare
program to a cost-sharing one, which has created barriers in access for the
poor. When the research for this report was being done (2004) the following
are some of the frightening statistics that illustrate the problems Kenyan
women face:
- Despite abortion law only allowing the procedure to save the life of the
mother, 45% of hospital admissions for women in Kenya are because of
complications from botched abortions.
- 20% of all pregnancies in Kenya are unwanted.
- By age 19, 45.6% of Kenyan girls have begun childbearing.
- Only 39.8% of women have the final say in decisions relating to their own
health care.
- 24.6% of men felt that a woman's refusal to have sex was a justification
for wife-beating.
- Life expectancy for people in Kenya in 2002 was 45.2 years

The Kenyan government has heavily relied on donor funding to provide
healthcare to its citizens. The report states: "reproductive health,
including family planning and HIV/AIDS, depends entirely upon the support of
donors, including USAID. [who is] the single most significant donor [for
reproductive health]. 

While I know Jill has blogged significantly about what the Global Gag rule
is, I thought I would recap its impact on the US Agency for International
Development (USAID) funding. The Global Gag Rule (formally known as the
Mexico City Policy), "prohibits foreign non-governmental recipients of U.S.
family planning funds from, among other things, promoting or advocating
abortion as either a means of family planning or, in all but potentially
fatal cases, as a procedure to safe-guard a woman's health. These
restrictions bind USAID, the principal conduit through which US bilateral
funding for healthcare flows to Kenya." 

The report then uses two case studies of clinics that refused to accept
USAID funding, The Family Planning Association of Kenya (FPAK), who lost 60%
of its annual budget, and Marie Stopes International - Kenya, who ultimately
had to lay off about 1/5th of its staff, cut salaries, increase user fees,
and closed 2 clinics that served some of the poorest communities in Kenya.
The impact of the Global Gag rule on individuals in Kenya has been huge.
Education and outreach programs have been slashed, a reduction in the number
of clinics means women have to travel farther to obtain services, higher
user fees hinder the poor, fewer healthcare professionals means that even
when a woman can travel to a clinic she can't always see the correct person
on that day, and poor training means many women do not receive adequate
information about the contraceptives that are available. Additionally, a
lack of medicine/supplies resulted in the Kenyan government issuing a
statement in January of 2004 stating that they had run out of stock of
Norplant, progesterone-only pills, and female condoms in May 2003. The lack
of available resources results in increased numbers of unwanted or ill-timed
pregnancies as well as an increase in the spread of AIDS/HIV.

Finally, the report looks at the Kenyan government's legal responsibility
for human rights violations. They conclude that the government: 

- Failed to fulfill the right to health under CESCR
- While not responsible for deliberate retrogression, they are responsible
for a backslide and therefore violate their obligation under the ICESCR
- The Kenyan government has not fully met its obligation to ensure the
freedom of expression of NGOs within the state.

It then goes on to examine the United State's role as the donor nation in
violating international law (aka third party responsibility). The conclusion
is that the US does not bear any responsibility for the human rights
violations, despite the fact that they stem from the Mexico City Policy. 

After reading the report I came to two conclusions. The first, which the
report itself states, is that there is an important and critical area of
international law that needs to be examined. In an age of globalization and
international policies, we need to establish rules that hold more powerful
nations accountable for violating either and/or both international laws
signed by recipient nations as well as individual state's national laws. 

The other is how much can we hold a recipient state responsible for
violations and/or retrogression? The report says: "Although the Kenyan
government is not responsible for imposing the Mexico City Policy, it does
exercise control over the structure of its healthcare delivery system and
the funding of private providers." 

They go on to give three arguments:
1. The government relies too heavily on donor funding and as a result makes
the healthcare subject to the priorities of donors;
2. Because of USAID funding rules, while NGOs can't receive funding if they
promote abortion, the government can receive funding as long as the funds
are contained in separate accounts. As a result, they argue the Kenyan
government could have used USAID funds more heavily in some areas, using
other government funds to support clinics that lost funding under the Mexico
City Policy; and
3. The Global Gag Rule has been in place off and on since 1984. As a result
the Kenyan government should have anticipated the impact it might have in
the future and therefore better planned for resource allocation. 

I agree in part with these arguments, but I have to also question the
reality of the level of control the Kenyan government has. Misallocation of
funds and corruption aside, what do you do if there just is not enough money
for everything? Since healthcare is an area that receives large amounts of
funding from foreign donors, how realistic is it to refuse it? If you do
refuse it, or limit it, what alternative crises are individuals facing
beyond simply the whims of donors? In the short run, is it better to be
subject to the whims of donors and receive some funding, or cut off funding
entirely and just not have enough money for healthcare in general?

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