Do HIV infected women in Kenya have the guaranteed right to free choice contraception?

Government’s commitment to voluntary and free-choice family planning practices comes to question as Kenyan HIV infected women continue being coerced to use the IUCD. The Citizen TV on November 22, 2011 ran a story[1] about a widow in Mbita who has benefited from a fish farming venture supported by a grant from an American based non-governmental organisation. The sole qualification she needed to qualify for the grant was to be HIV positive and willing to be fitted with an intrauterine contraceptive device (IUCD). It is probable that this poor widow had no choice but to accept the condition- she needed help to support her family and, to that end, would take considerable risk. The question here is whether she had any choice in embarking on this method of family planning? Is it fair to assume she was in fact coerced to accept an IUCD by the grant of much needed cash?  What is the position of the Kenya Government on the matter?

Cash for contraception? Photo: Edgar Mwakaba/IRIN

According to Prof Peter Anyang’ Nyong’o, Minister for Medical Services, family planning practice should be voluntary[1]. Service providers must educate clients on the range of choices available, and let them choose that which suits them best. “But to flash money and say take this – no, that is not how to do it!” he added. However, it is not clear what the Minister has done to arrest the coercive practices.

Coerced sterilization of HIV-positive women came to light in 2007 when 13 cases were documented in Namibia^[2]. Shortly afterwards there were reports of HIV-positive women in Kenya being paid money to accept long-term contraceptive methods, particularly IUCD^[3]. These activities in Kenya (which include the case in point) are supported by Project Prevention, an American NGO founded in 1997 which also pays female drug users in the U.S. and UK to be sterilized. Whereas HIV-positive women do have a legitimate need for FP services, like every other woman they are entitled to exercise choice free of coercion or manipulation through incentives. Use of incentives and disincentives to pressure poor people to be sterilized was rejected at both the 1994 International Conference on Population and Development (ICPD) in Cairo, and the 1995 Fourth World Conference on Women in Beijing. In particular, the Beijing Platform for Action states clearly that “The human rights of women include their right to ….decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence”.

Coercion for sterilisation through incentives reached its peak in India during the rule of Prime Minister Indira Gandhi, with her government’s policy of sterilising (vasectomy) millions of Indian men who had fathered two or more children, being compensated with a transistor radio! This policy was ruthlessly and often illegally applied to the extent it came to symbolize the dangers of authoritarian rule[4]. It is notable that payment for sterilisation continues in India to this very day; for example, a medical college was recently reported to pay men that opt for non-scalpel vasectomy 1,100 Indian Rupees[5]. In Uttar Pradesh, to obtain a shotgun licence requires two people being sterilised; for a revolver licence, the price would be five. Wealthy farmers have managed to stock their armory through forcible sterilization of their poor farm hands![6]

Proponents of coerced contraception are usually driven by the wish to create an HIV-free tomorrow by preventing birth of children infected by their mothers. It is known that in Africa before the advent of antiretroviral drugs up to 40 percent of children born to HIV infected mothers were also infected. However, in Kenya, there has been an increasing access to services for prevention of mother-to-child HIV transmission (PMTCT), most often offered at antenatal clinics and at delivery. According to the Kenya Service Provision Assessment Survey of 2010, 58% of all health facilities nationwide offered some component of PMTCT services, with 33% of these facilities providing all four components for the minimum PMTCT package (HIV testing with pre- and post-test counseling, ARV prophylaxis for mother and newborn, counseling on infant feeding, and FP counseling or referral). This is increasingly reducing the incidence of perinatal transmission as well as rates of mortality among infected children. Accumulated evidence to date shows that administration of antiretroviral therapy to the mother during pregnancy, labour and delivery, and then to the newborn, as well as delivery by Caesarean section for women with high viral loads, can reduce the rate of perinatal HIV transmission to well below 10 percent[7]. What this means is that despite the many challenges not addressed here, it is possible to dream of an HIV-free generation without having to resort to cruel acts of forced contraception for HIV infected persons. Indeed this was the view expressed by UNAIDS Executive Director Michel Sidibé, during a visit to a Millennium Villages Projects (MVP) in Kenya: “We have seen that it is possible to virtually eliminate infant HIV infections in high-income countries ….Now we must apply the knowledge and tools to create an AIDS-free generation in Africa and the rest of the world.”[8]

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[1]Brett Davidson and Lydia Guterman. What’s Wrong with Paying Women to Use Long-Term Birth Control? February 21, 2011 http://blog.soros.org/2011/02/whats-wrong-with-paying-women-to-use-long-term-birth-control/ accessed October 22 2011

[2] Mallet J, Kalambi V. HIV AIDS Policy Law Rev. 2008 Dec;13(2-3):77-8. http://www.ncbi.nlm.nih.gov/pubmed/19297769 accessed October 22 2011

[3]Brett Davidson and Lydia Guterman. What’s Wrong with Paying Women to Use Long-Term Birth Control? February 21, 2011 http://blog.soros.org/2011/02/whats-wrong-with-paying-women-to-use-long-term-birth-control/ accessed October 22 2011

[4] “The World: The Issue that Inflamed India” Lawrence Malkin, TIME New Delhi Bureau Chief, Monday, Apr. 04, 1977

[5] Team to probe forced sterilisation charge Express News Service

http://www.indianexpress.com/news/team-to-probe-forced-sterilisation-

[6] Outrage at guns for sterilisation policy, Indian farmers given firearms licences as an incentive to curb population growth. Randeep Ramesh in Lakhimpur The Guardian, Monday 1 November 2004 23.56 GMT http://www.guardian.co.uk/world/2004/nov/01/india.randeepramesh

[7]http://www.cdc.gov/hiv/topics/perinatal/resources/factsheets/perinatal.htm

[8] http://www.avert.org/pmtct-hiv.htm

Will the poor in Kenya enjoy the “Right to Health”?

 

Background

The Kenyan media is replete with reports of patients held in public hospitals because of unpaid hospital bills. Quite often it has required a public outcry, sometimes political intervention, to get such patients released. But the message is only too clear to them- the public hospital is no longer the first option for the poor seeking health care. Only recently, there was a question in parliament regarding treatment of cancer cases in public hospitals in Kenya, in answer to which the Honourable Minister of Medical Services admitted that adequate radiotherapy is only available in one public hospital, the Kenyatta National Hospital, but the equipment there has not worked for many months (see Hansard 26 October 2010; http://www.parliament.go.ke). This means that any Kenyan who cannot afford private care either at home or abroad, has to remain in a long and uncertain waiting list for cancer treatment.

Right to Health is an important constitutional provision

The new Constitution of Kenya, which was promulgated in August 2010, is among the most progressive constitutions in Africa[i]. It provides for the right to health care services. Chapter Four on the Bill of Rights states in Article 43(1a) that every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care, and in Article 43(2), that a person shall not be denied emergency medical treatment. Article 27(2) guarantees equality and freedom from discrimination, and the full and equal enjoyment of all rights and fundamental freedoms. The Constitution obligates the government to take legislative, policy and other measures to achieve the progressive realization of the rights as guaranteed in the Constitution, including the right to health. The Right to Equality encompasses within itself the right of a poor patient to quality health care, regardless of their ability to pay.

The right to health is fundamental to the physical and mental well-being of all individuals and is a necessary condition for the exercise of other human rights including the pursuit of an adequate standard of living. Indeed health is fundamental to enjoyment of the right to life, and the right to a healthy life is fundamental to all other constitutional guarantees.

Lack of equity in access to health care

Both equity and human rights’ principles dictate the necessity to strive for equal opportunity for health for all people including the poor and marginalized groups[ii]. Unfortunately, the reality in most African countries, Kenya included, is that lack of or inadequate access to health care services remain the most prominent factors behind the persistently and unacceptably high levels of mortality and morbidity, especially among the poor and marginalized populations. Big disparities exist between the poor and the better-off with respect to access to health care services as well as in the indicators of health status; for example, there are wide gaps in child mortality rates not only between rich and poor countries, but also between the wealthy and the poor in the same countries. From available evidence it is obvious that health-related Millennium Development Goals (MDGs) cannot be achieved without emphasis on equitable expansion of access to basic services for all.

In Kenya, as in many sub-Saharan countries, four factors come to play in restricting access to health care for poor people: (a) where public health facilities lack essential equipment, drugs, supplies and commodities; (b) where people have to travel long distances to reach health facilities, especially where public transport is scarce and costly; (c) when fees charged for services are unaffordable, and even if there is official exemption (e.g. for pregnant women and children under five) or waiver of fees, people still end up paying on top, for drugs and transport (out-of-pocket expenditure); and (d) where people lack confidence in the services provided at local public health facilities and decide not to utilise them (e.g. poor quality services or negative provider attitudes).

There is a world of difference in the way the poor respond to an episode of illness compared with the response by the well-to-do. In the case of the latter, the immediate response is to see a doctor. There is little worry about the cost involved; an existing health insurance will take care of that. On the other hand, when someone falls sick in a poor household, the first thing to do is wait to see if there is spontaneous recovery. When this does not happen there is the local duka (retail shop) to source an assortment of painkillers and unhelpful often outdated antimalarials. They may try mitishamba (herbal medicine) either self-prescribed or obtained from the local herbalist. It is only when all these efforts fail, and especially in the case of children or pregnant women, that the thought of going to a formal health facility is entertained. For poor households, seeking care in the formal health system entails considerable sacrifice, which may involve the disposal of household assets to raise the cash that is needed for transport to health facilities, and to pay for cost of treatment. Cost of prolonged hospitalisation and particularly surgical treatment can, and has led to, destitution (see below).

Health financing in Kenya

As stated above, irrespective of where poor people seek health care, this depends to a large extent on their access to cash or household assets that can be sold to meet the required out-of-pocket health expenditures. Data from the National Health Accounts (NHA) for fiscal year 2001/2002 showed that Kenyan households were financing over half of all health expenditures[iii], clearly justifying a conclusion that ill-health contributes to, and perpetuates, poverty because health costs deplete people’s meagre resources. Thus, there is an urgent need for improved health financing in Kenya. Disappointedly, there is also evidence to suggest that by and large public spending on health tends to benefit the better off more than the poor. Quite often it is the better off who benefit the most from public health services, especially hospital care.

In a measure aimed at reducing the burden of out-of-pocket health expenditures the Government of Kenya in 2004 abolished user fees at public dispensaries and health centres country-wide, except for token payment of 10 and 20 shillings respectively at dispensaries and health centres. However, since these facilities most frequently lack essential drugs patients still end up paying for the larger share of their treatment ‘out-of-pocket’. At hospital level, the government retained a cost-sharing policy where patients are expected to pay part of the cost for their treatment. A fee waver system was envisaged to increase access to hospitals by the poor. However, the waver system has not worked efficiently, being bogged down by rigid bureaucracy. As a result, the very poor remain by and large, shut out of public hospitals. It can be concluded that imposition of prohibitive user charges in publicly funded health facilities is reflective of government’s inability to meet health care needs of the poor. This is compounded by increasingly diminishing real budgetary support for health care services, as well as inefficiency which has led to an unacceptably low-quality public health services.

National Health Insurance

Among the flagship projects proposed in Kenya’s Vision 2030 (http://www.planning.go.ke) to be in place by 2012, are two which directly address health care for the poor, i.e. creation of a National Health Insurance Scheme “in order to promote equity in Kenya’s health care financing”, and the “scale up of the output-based approach system to enable disadvantaged groups (e.g. the poor, orphans) to access health care from preferred institutions”. On 9^th December 2004 the Kenya Parliament passed the National Social Health Insurance Scheme Bill which aimed to increase access by the poor to health care. However, the attempt aborted. President Mwai Kibaki declined to assent to the Bill, returning it to the House for more deliberations. The NSHIF Bill had been fought tooth and nail by the private sector, especially the Health Maintenance Organisations (HMOs) and the Kenya Private Hospitals Association, who feared that private medical schemes and the quality of private care would suffer. It was also feared that equal NSHIF benefits would be to the detriment of the middle class that would end up paying higher payroll-based contributions. There was also concern about government management of the scheme- issues of inefficiency and corruption were raised. A more recent attempt by the Government to implement the insurance scheme continues to face opposition, this time round the trade unions being in the forefront.

There is no doubt that design and implementation of a well-run and effective NSHIF is an uphill task, but it is a worthwhile challenge to take on. According to the World Health Organization (WHO) ‘the purpose of health financing is to make funding available, as well as to set the right financial incentives for providers, to ensure that all individuals have access to effective public health and personal health care’.The main objective is nothing less than granting all population groups, including the poor, access to a comprehensive benefit package of health services.

Other avenues for health financing have included use of devolved funds and pre-payment schemes. Prudent utilisation of devolved funds such as the Constituency Development Fund (CDF) and Local Authority Transfer Fund (LATIF) can provide a mechanism for increasing access to health services for all including the poor. Unfortunately, uncoordinated development has resulted in some of the health facilities built with these funds becoming ‘white elephant’ because of lack of proper planning. Corruption too has shown its ugly face in these developments, resulting in some of the buildings being condemned as unfit for the intended purpose.

Pre-payment schemes such as Community-based health insurance and highly subsidised Voucher schemes are known mechanisms by which poor communities can manage health risks, in combination with publicly financed health care services. They can help absorb health shocks that add health expenditure to the burden of the poor precisely at the time when they can ill afford it. However, both schemes depend for their effectiveness on efficiency in the public health care services. Voucher schemes operate most successfully where there is strong administrative capacity for its implementation.[iv]

Conclusion

The new Constitution of Kenya has entrenched the right to health; however, enjoyment of this right by the poor will depend on what measures are implemented to improve access to health care services for all including the poor (universal access). The finding, cited above, that Kenyan households finance over half of all health expenditures highlights the huge burden the poor bear, and it explains why most of them delay seeking health care in formal health institutions until their condition becomes unbearable. Are the impoverishing effects of out of pocket health expenditure recognised as one of the challenges to be adressed in poverty reduction strategies? Indeed, for the poor to enjoy the right to health, measures must be put in place to minimize the current crippling effects of out-of-pocket expenditure on health care in Kenya.

Despite the strong opposition, there is little doubt that design and implementation of a well-run and effective NSHIF remains a worthwhile challenge to take on. Other measures include building capacity for effective utilisation of devolved funds and expansion of affordable pre-payment (voucher) schemes for the most needy groups.

Related:

• The Poor: Who cares for their health?
• The Right to Health

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[i] The South African Constitution is in this league (www.righttohealthcare.org/Intl/SAfr.htm)

[ii] Braveman P, Gruskin S. Bull World Health Organ 2003;81(7):539-45. Epub 2003 Sep 3

[iii] http://www.healthsystems2020.org › Impact

[iv] An example of a voucher scheme is the Output Based Assistance  (OBA) project (2005- 2011) – a pilot project that targets economically disadvantaged people in selected Kenyan districts and urban slums. www.ncapd-ke.org/…/Brief%20on%20RH-OBA%20-%20September%202008.pdf