The human rights dimensions of Zika

By Alexandra Phelan and Lawrence O. Gostin

Emerging and re-emerging infectious diseases reveal the root causes of ill-health worldwide: poverty, inequality, and discrimination. The current Zika virus outbreak is no different, exposing systemic injustices in global health. How can we safeguard human rights during the Zika epidemic and beyond, including international law, justice, and health equalities?

On 7 May 2015, Brazil alerted the World Health Organization (WHO) of a mild disease with rash seemingly caused by infection with the mosquito-borne Zika virus. By July, Brazil reported increased cases of the neurological disorder Guillain-Barré Syndrome (GBS) and in October, an unusual increase in microcephaly in newborns. These previously unidentified harms of mosquito-borne Zika virus, the absence of vaccines and treatments, and its international spread led the WHO Director-General to declare the clusters of microcephaly and neurological syndromes (including GBS) associated with Zika virus infection a Public Health Emergency of International Concern (PHEIC) on 1 February 2016. The outbreak is ongoing and microcephaly cases are expected to increase as pregnancies come to term.1

As of 23 March 2016, Zika virus transmission has been documented in 61 countries and territories, including 34 countries with local transmission from mosquitoes and at least five countries with sexual transmission.2 Statistically significant increases in the incidence of microcephaly and foetal malformations have been reported in Brazil, Panama, and French Polynesia, while twelve countries have reported increased incidence of GBS. In the words of WHO Director-General, in “less than a year, the status of Zika has changed from a mild medical curiosity to a disease with severe public health implications”.3 Control efforts are focussed on vector eradication and mosquito bite prevention, which require well-resourced and responsive public health systems.

Mosquito-borne diseases disproportionately affect the poorest and most vulnerable. Structural failures by governments to ensure running water, plumbing, drainage, and sanitation force people to collect water in open containers, leaving stagnant water to accumulate, creating prime mosquito breeding sites. In stifling heat, the absence of air conditioning makes using bed nets uncomfortable and keeping doors or windows open a necessity for ventilation. While governments may recommend window screens, they may be unavailable, unaffordable, not widely accepted, or have holes rendering them ineffective. Governments deprioritise vector-control programs in budgets – especially as recessions and political instability emerge such as in Brazil – and there is a perfect storm for a mosquito-borne virus to grip the poorest communities.

Discrimination, economic inequality, and poverty entrench both the risks and impacts of Zika. This outbreak disproportionately impacts women, with increased risk of miscarriage and foetal malformation. The rate of sexual violence against women in the region is pervasive. As mothers, women bear the responsibility of child-rearing and development, especially in conservative societies. Unfortunately, for most countries in the Americas legal, socio-economic, and political barriers impede access to reproductive health services including contraception, abortion, and maternal/child healthcare. 

Women’s reproductive health rights and children’s health rights are protected at the international level, including under the International Covenant on Economic, Social, and Cultural Rights (right to health, article 12; right to non-discrimination based on sex, articles 2(2) and 3; right to special protection for mothers and their children, article 10), the Convention on the Elimination of All Forms of Discrimination Against Women (women’s right to non-discrimination within law, articles 2 and 3; right to health, article 12 and right to reproductive self-determination, article 16), and the Convention on the Rights of the Child (right to health, article 24).

In countries without universal health coverage and integrated social welfare support systems, persons with disabilities are especially vulnerable. Health and social welfare systems are ill-equipped to provide the support needed for individuals to live healthy and fulfilling lives following potential disability from neurological syndromes and or microcephaly. In particular, support services such as occupational therapy for women and their children born with microcephaly are vital for child development. 

Unfortunately, infectious disease outbreaks often garner attention only during the phase of transmission. Ensuring the right to health and the rights of children, women, and persons with disabilities must extend beyond the declaration of public health emergencies and international attention. Like all human rights, the rights of persons with disabilities and the rights of women are inherently intertwined, and must be fought for together – not at the expense of the other, especially when it risks perpetuating stigma and discrimination against certain populations.

Public health emergencies do not justify infringing human rights, and in fact require special protection. A PHEIC declaration under International Health Regulations (IHR) is a call to action for the international community to provide financial, technical, and political resources to respond to an international health threat. It also serves as a vital opportunity for WHO to make normative statements on the measures countries should or should not take. Under the revised IHR, countries must implement the law “with full respect for the dignity, human rights and fundamental freedoms of persons” (article 3). 

When imposing disease control measures, governments must show “respect for their dignity, human rights and fundamental freedoms…taking into consideration the gender, sociocultural, ethnic or religious concerns of travellers” (article 32). These express human rights requirements reflect not only the mainstreaming of human rights throughout United Nations agencies, but also countries’ desires to avoid harsh travel and trade restrictions such as unnecessary or unethical quarantines, discriminatory laws, and travel bans.

In her February PHEIC declaration, Margaret Chan, the Director-General of WHO, recommended against travel or trade restrictions. She recommended special attention be paid to ensure women of childbearing age and pregnant women have the information necessary to reduce their risk. Unfortunately, the recommendations gave deference to countries’ “national practice and policies” in counselling and supporting pregnant women.4 Where national practice does not protect, respect, or fulfil pregnant women’s human rights, such deference is unacceptable. It is also especially difficult for WHO to address the underlying inequities and systemic failings. Important efforts such as the Global Health Security Agenda (launched in February 2014) are examples of such capacity building processes to prevent future infectious disease outbreaks.5 

As the Zika epidemic unfolds, the underlying inequalities and injustices must not be forgotten. Governments have clear international human rights obligations, and the rights of women, their children, and people with disabilities must not be set aside with the fading headlines.

(Alexandra Phelan is an SJD candidate and General Sir John Monash Scholar at Georgetown University in Washington DC. Alexandra›s doctoral research is in the arena of global health law, with a focus on Australian, Chinese and US laws relating to human rights and health law. In particular, Alexandra›s doctoral research explores the key legal issues of infectious diseases in the face of pressing global health issues such as climate change and pandemics.)

[Lawrence O. Gostin is the Faculty Director of the O›Neill Institute for National and Global Health Law and is the Founding O›Neill Chair in Global Health Law at Georgetown University.  Prof. Gostin also serves on two global commissions to report on the lessons learned from the 2015 West Africa Ebola epidemic and he is a lifetime elected Member of the Council of Foreign Relations (providing independent advice to governments on foreign policy) and a Fellow of the Hastings Center (for bioethics and public policy). 

Prof. Gostin has led major law reform initiatives in the U.S., including the drafting of the Model Emergency Health Powers Act (MEHPA) to combat bioterrorism and the «Turning Point» Model State Public Health Act.

He is also leading a drafting team for the World Health Organization and International Development Law Organization, Advancing the Right to Health Through Public Health Law.  His proposal for a Framework Convention on Global Health – an international treaty ensuring the right to health – is now part of a global campaign, endorsed by the UN Secretary-General and Director of UNAIDS. Prof. Gostin›s latest books are: Global Health Law (Harvard University Press, 2014; Chinese Translation Due in 2016)); Public Health Law: Power, Duty, Restraint (University of California Press, 3rd ed. Forthcoming 2016); Public Health Law and Ethics: A Reader(University of California Press, 2nd ed., 2010); Law and the Health System (Foundation Press, 2014); Principles of Mental Health Law & Practice (Oxford University Press, 2010).]

 Footnotes

[1] WHO Director-General Margaret Chan, WHO Statement, “WHO Director-General briefs the media on the Zika situation” (22 March 2016). Available at:http://www.who.int/mediacentre/news/statements/2016/zika-update-3-16/en/

[2] WHO, “Situation Report: Zika Virus, Microcephaly, and Guillain-Barré Syndrome” (24 March 2016). Available at:http://apps.who.int/iris/bitstream/10665/204690/1/zikasitrep_24Mar2016_eng.pdf

[3] WHO Director-General Margaret Chan, WHO Statement, “WHO Director-General briefs the media on the Zika situation” (22 March 2016). Available at:http://www.who.int/mediacentre/news/statements/2016/zika-update-3-16/en/

[4] WHO, “WHO statement on the first meeting of the International Health Regulations (2005) (IHR 2005) Emergency Committee on Zika virus and observed increase in neurological disorders and neonatal malformations” (1 February 2016). Available at:http://www.who.int/mediacentre/news/statements/2016/1st-emergency-committee-zika/en/

[5] Gostin LO and Phelan A, ‘The Global Health Security Agenda in an Age of Biosecurity’ (2014) 312 JAMA 27.