Blog series, Part I

Written by Lucía Berro Pizzarossa - University of Groningen 

Summary: this Blog post series focuses on the protection of prenatal health and proposes to use a human rights-based approach to discuss the different ways the topic has been framed, the available evidence and the human rights implications of some of the existing policies on the topic. In terms of health outcomes the existing research is very clear: a wide-range of adverse tobacco-related and long-term health outcomes take root during prenatal and postnatal periods. So undoubtedly this poses a global health challenge, but how do we provide a human-rights based response?

This blogpost series arises from our preliminary systematic literature review on the topic and aims to discuss two critical questions that we encountered. The first relates to the over focus on pregnant women as the target of the policies on this topic. And the second— very closely related—reflects on the need to forego strategies that solely address this challenge as an individual/attitudinal one. The aim of the blogposts is to extend an invitation to scholars, advocates and policy makers to think together about the potential of evidence and human rights-based laws to tackle this challenge.*

This research was made possible by the Dutch Cancer Society (KWF).

 Background

Recently, scholars, activists and policy makers have called for evidence and human rights-based legislation to tackle global health challenges. The report of The Lancet – O’Neill Institute Commission on Global Health and Law released this year shows how evidence-based laws, effectively implemented and fairly enforced, can create the conditions for good health and, in turn, how laws that are not informed by evidence and human rights could instead undermine health and justice, entrenching inequality and discrimination. This blog series will evaluate the existing literature on smoking and the protection of prenatal health, the existing policies on the topic (evidence) and will reflect on them using a human rights-based approach.

 While there is extensive research done with regards to the health consequences of smoking during pregnancy, our literature review reveals a series of elements that evince the need for a human rights-based approach. We searched the database Google Scholar for the terms "smoke" or "smoking" and "pregnant” or "pregnancy” and obtained 1,200,000 results that suffered a dramatic reduction to 18,500 when the words “human right[s]” are thrown in the mix.  This means that only 1,5% of the existing hits combine both fields.

  A rights-based approach to prenatal smoking

 Tobacco use is a human rights concern and is a pervasive global health challenge. As highlighted by Toebes “[t]he harmful effects of production, sale and exposure to tobacco are not only a public health concern but also a matter of social justice in the way tobacco negatively impacts on the lives and wellbeing of individuals - smokers and non-smokers alike”. Together with the considerations made in the introduction, this shows the importance of adopting a HRBA to the problem.

 This means that all measures -policy, legal, programmatic, etc- need to be grounded on international human rights obligations. Of particular importance are the International Covenant on Civil and Political Rights (ICCPR, 1966), the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), the Convention on the Elimination on Discrimination Against Women (CEDAW, 1979) and the Convention on the Rights of the Child (CRC, 1989). These treaties form the foundation to build any effort to tackle global health challenges and also provide opportunities for monitoring and tools for accountability. The analysis rests also on the indivisibility and interdependence of human rights as stipulated in the Vienna Declaration and Programme of Action (1995).

 The HRBA (to health) is described as “normatively based on international human rights standards and operationally directed to promoting and protecting human rights”.   It aims to identify rights-holders and their entitlements and corresponding duty-bearers and their obligations, and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations.

Some of the key rights are right to health, right to make autonomous decisions, right to life, right to dignity, right to education, children’s rights, women’s rights, and many others. Furthermore, tobacco companies often target specific populations based on gender, race, sexual identity and age. Some of these groups—women and girls and LGBTQ population—smoke at much higher rates than the general population, and they are warranted special protection under various international and regional human rights treaties and instruments.

 In simple terms, a HRBA aims to answer 4 key questions:

Figure 2 - Extract from "A Human Rights Based Approach to Health". Available https://www.who.int/hhr/news/hrba_to_health2.pdf

We will use this framework as a starting point to problematize some of the findings of our exploratory research. Let’s dive in!

 I will first identify the various interests’ holders (women, men, children, society at large). Then I will explain that they all have rights, and that sometimes these rights need to be balanced and that this balancing can be difficult, for example when it comes to balancing the autonomy of women against the protection of the health of children.

 Using a HRBA to contest the over-focus on pregnant women

Worldwide, women have been the target of various forms of regulations and are considered liable for ‘irresponsible’ for dangerous antenatal behavior (such as excessive consumption of drugs or alcohol and the excessive smoking of cigarettes). But is the focus on women and on pregnant women in particular justified from a HRBA? Using this approach, the next questions will show three shortcomings of the existing

 What about male partners?

At an individual level, it is very noteworthy that while pregnant women have been the subject of research and regulation, male antenatal behavior has received scant attention even though the quality of sperm plays a crucial role in fetal health. In fact, cigarette smoking is associated with decreased sperm concentration, lower sperm motility and a reduced percentage of morphologically normal sperm. Which is in turn a significant factor in certain specific birth defects and in increasing the risk of abnormal pregnancies.  Smoking and second-hand smoke during pregnancy are both harmful to the placenta and the fetus and increase the risk of fetal death by 46% and 23% respectively. Exposure to second-hand smoke is responsible for an estimated 166 ,000 child deaths each year worldwide.  According to the literature, there are two ways in which the partner’s smoking might expose the pregnant women and foetus to health harms. Firstly, through second hand and thirdhand smoke and secondly, smoking might impact the quality of the father’s sperm, leading to genetic mutations that could in turn lead to pregnancy loss.

Laws in place –such as those that criminalize “fetal assault” or “chemical endangerment”—result in a direct or indirect criminalization of women’s actions. Moreover, these “hard” measures—such as criminalization of smoking during pregnancy or mandatory carbon monoxide testing—fail to resolve addiction problems and ultimately undermine the health and well- being of women and their children. These measures, and associated stigma may actually deter women from accessing pre-natal care. In general, they result in a relatively superficial and ill-fitting response, and may even be counterproductive to the stated goal (protection of women’s and children’s health) while at the same time disproportionally targeting and affecting women.

The abovementioned measures disproportionally target women, although the evidence discussed above would suggest that not only women’s behavior would fall under their scope. This bias in the focus of/on the bodies that get regulated feeds the notion that fathering begins at birth, whilst the responsibilities of motherhood extend far back into pregnancy and even precede conception.

Applying a HRBA to the concern we are flagging here would require that we focus/would require a focus on identifying and identify all relevant interest holders, including the male partners. A rather simple way to do this would be to engage them in the solutions. For example, WHO Recommendations for the prevention and management of tobacco use and second-hand smoke exposure in pregnancy place a strong emphasis on the need to engage partners and household members in any strategy of smoke cessation.

In this line, studies on interventions to enhance partner support for pregnant and postpartum women’s smoking reduction or cessation revealed that partners play a powerful role in determining whether pregnant women quit smoking and whether they are able to maintain abstinence in the postpartum period. Similarly, however, scholars note that so far here is a serious lack of effective smoking- cessation interventions for pregnant/postpartum women that include or target partners.

Asking who is affected and who has the obligation to do something about it requires us to problematize why have women been the target of the policies shouldering the burden of intrusive measures and even criminalization of their conduct.

 What about a life-cycle approach?

The policies discussed above can also be understood within a broader pattern shown by the literature that speaks of a shift to a foetus-centric perspective in tobacco treatment—and more generally in health—. Because the approach to cessation of tobacco consumption during pregnancy seems motivated primarily by a concern for the protection of prenatal health, it has framed the interventions on fetal health outcomes and confined them largely to the period of pregnancy. Women’s health is only a secondary consideration if anything. In different words, the strong focus placed on women in this matter—rather than recognizing how the tobacco industry particularly targets women, for example—is related to the scientific evidence of harm to the foetus. Women may benefit (or not) from the process, but they (and their needs/desires) are definitely not at the centre of these policies.

A HRBA approach would also require a change in the perspective, adopting a life-cycle approach that focuses on women’s health as a continuum and does not reduce it to maternal health. Research also supports the need for intervention research that focuses on cessation/reduction beyond the period of gestation.

 What does the evidence say? The need for an evidence-based intervention

Besides the fact that the punitive solutions proposed so far clash with human rights standards, the available evidence is not strong enough to rationally justify measures liked the ones described above. Why do we say this?

One of the problems lies in the existing approach: the emphasis on smoking cessation in pregnancy has focused on individual/attitudinal changes in the woman herself. This approach obscures a much larger picture that would require an analysis of structural factors that matter in explaining smoking behavior, such as poverty, class, age, education, or experience of domestic violence. As noted by the scholarly work on the matter, the impact of smoking is much greater for mothers of low education, even controlling for the quantity of cigarettes they smoke. This clearly indicates that factors other than the woman’s smoking are at play.

Asking the second question proposed by the HRBA entails identifying the underlying and root causes of exclusion, discrimination and inequality. In this sense, further research is needed to understand the different factors that lead to prenatal harm. According to the available evidence discussed above, while reducing smoking rates during pregnancy might lead to some reduction in prenatal harm, it is not clear that a more significant reduction could not be achieved by focusing on a different factor. This is not to say that we should take the prenatal harm associated with maternal smoking seriously. Rather, the HRBA demands a holistic view that—without losing sight of the harms of tobacco smoking—includes considering how the social, political and legal framework also impact differentials in health.

 Next steps?

Over the last 20 years we have come to a largely shared perspective that a HRBA  can improve our understanding of who is disadvantaged and who is not; who is included and who is ignored; and whether a given disparity is merely a difference or an actual injustice.

By way of a starting point, it is important that we abandon harmful paradigms that overregulate women’s bodies and/or that narrow the focus to women’s smoking during pregnancy—making them the recipients but no the beneficiaries of the policies. As discussed above, women are not active agents in the design of the kind of care they wish to receive. An integral component of an HRBA would then require us to adopt gendered analyses and approaches to tobacco control research, policy and practice—including to meaningfully engage women in the design of the regulations. As we showed above, a HRBA gives importance not only to outcomes, but also to the processes. Human rights standards and principles—such as participation, equality and non-discrimination, and accountability—are to be integrated into all stages of the health programming process.

An interesting step in this direction is being taken by the Municipality of Groningen in this regard, that is currently implementing a smoking cessation strategy that empowers women to stop smoking and relies on the support and experiences of other women that have successfully done so. This peer-to-peer approach recognizes that women are “experts by experience” and provides for a judgement-free, non-punitive and non-invasive way to encourage and support women that wish to stop smoking. Evidence shows that peers and professionals working in partnership can enhance the success of support interventions.

Similarly, an initiative oriented to support smoking cessation/reduction efforts among low-income women from Canada utilized very innovative tools such as group sessions, buddy systems, individual social support, and childcare. This initiative was designed with the direct input of women, which was obtained through focus groups. Participatory approaches to policy-design can be very efficient in creating appropriate tailored interventions but also lends legitimacy to women’s knowledge and engages low-income women as a means of empowerment, in line with the HRBA.

 Additionally, more policies at a wider level than the individual woman are needed. WHO notes how many national smoking guidelines do not discuss recommendations on avoiding exposure to SHS in pregnancy, and very few address how having partners and other household members who smoke, adversely affects pregnant women’s tobacco-cessation efforts. Identifying all the relevant stakeholders and duty bearers and holding them accountable is also a crucial component of the HRBA. At the intervention and social levels, it is important that we avoid victim blaming and stigma (fostered by the surveillance and punitive measures discussed above) and replace the notion of smoking as a “lifestyle choice” with the acknowledgment that smoking is typically a response to a series of social and structural issues.

A HRBA can serve as a catalyst to speed up the progress of our responses to global health challenges.

 We would like to thank our student assistant, Ms. Nicole Rusli, for her invaluable support.

This blogpost series uses the shorthand descriptor of women when talking about pregnancy but adolescents, non-binary and trans people are included in the considerations.