CEDAW/C/49/D/17/2008 Ms. da Silva Pimentel Teixeira’s status as a pregnant woman should have assured her expedited and qualitatively better access to medical treatment, but concluded that the errors in Ms. da Silva Pimentel Teixeira’s maternal health care were almost entirely unrelated to discrimination. The failure to provide adequate mater nal health services for the female population of Belford Roxo constitutes a violation of the right to non-discrimination. The fact that the population of the city is largely of African descent further compounds this violation. 5.11 The State party definition of discrimination is overly narrow because it fails to recognize the distinction between de jure and de facto discrimination. The Committee has addressed this problem in its concluding observations regarding Brazil. 5.12 With regard to the responsibility of the State party at the international level, the author refers to article 2 (e) of the Convention, according to which States parties must “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise”. This obligation is further explained in the Committee’s general recommendation No. 24 (1999) on article 12 of the Convention (women and health), which, in its paragraph 15, requires States parties to “take action to prevent and impose sanctions for violations of rights by private persons and organizations”. The State party has acknowledged that States parties cannot absolve themselves of responsibility in these areas by delegating or transferring these powers to private-sector agencies. Jurisprudence from the Committee on the Elimination of Discrimination against Women and the Inter -American Court of Human Rights establish State liability for medical malpractice committed in private health institutions. Significantly, in Ximenes Lopes v. Brazil, the Inter-American Commission on Human Rights noted that the petitioner had received mental health care from “a private entity licensed by the Federal Government’s Single Health System”, although Brazil had not contested liability on these grounds. 16 In the ultimate decision of the Inter-American Court, this public/private distinction was no longer a central issue; the liability of the Brazilian State for human rights violations at the publicly licensed private health facility was assumed. 17 Additionally, in A.S. v. Hungary, the Committee stated that Hungary was required to monitor both public and private institutions for violations of human rights under the Convention. 18 5.13 The author challenges the assessment of the State party, according to which Ms. da Silva Pimentel Teixeira’s death was non-maternal in nature, resulting from a so-called “digestive haemorrhage”. The author emphasizes that the State party relied on an unavailable report from the State Committee on Maternal Mortality to reach such an assessment and that the classification of the death as non-maternal ignores clear medical evidence to the contrary. Medical evidence demonstrates that the death resulted from direct pregnancy-related causes and was preventable. 5.14 WHO defines a maternal death as “the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its __________________ 16 17 18 16 Inter-American Commission on Human Rights, Damião Ximenes Lopes v. Brazil, petition 12.237, report No. 38/02, para. 19. Ximenes Lopes v. Brazil, Inter-American Court of Human Rights, series C, No. 149 (4 July 2006). Communication No. 4/2004, A.S. v. Hungary, views adopted on 14 August 2006, para. 11.5. 11-51699