Author: Dr César Palacios-Gonzalez
Discussions about maternal health and rights in Mexico tend to focus on health outcomes and access to healthcare. Academics and activists have long campaigned for the government to invest more resources in maternal health. Unfortunately, healthcare provision for women who want to have a child and are struggling to conceive hasn’t received enough attention. In celebration of today’s International Day for Maternal Health and Rights, I share how I am trying to change this through my work on the ethical and legal aspects of uterus transplants in Mexico.
Uterus transplantation is a procedure where a woman who doesn’t have a functioning uterus receives one either from a live or a cadaveric donor. In my work, I have argued that under Mexican law, women have a right to uterus transplants, that cadaveric uterus donation and post-menopausal uterus donation are allowed, and that legal reform is needed to allow live uterus donation.
In Mexico, live uterus donation, from pre-menopausal women, is forbidden by article 333 of the General Health Law, which states that for live donation of organs to take place, the donor’s body must be able to compensate the functions of the donated organ. This article is reasonable and it aims at avoiding situations which could cause serious harm to the donor: you donate one kidney and the other one compensates for the one that you donated. But the implication is that a pre-menopausal woman isn’t allowed to donate her uterus because her body cannot compensate the functions of the donated organ. There is no second uterus which can carry a pregnancy to term, for example.
Nevertheless, note that a post-menopausal woman is allowed to donate her uterus. In this case, there is no function that the uterus is carrying out that needs to be compensated for. This finding is important, since as Veroux and colleagues maintain: “[u]terus living donors are usually in postmenopausal age”.
Let me now elaborate on the right of Mexican women to uterus transplants. Article 4 of the Mexican Constitution establishes that:
Article 4.- (…) Every person has a right to the protection of their health. (…)
And Article 1 Bis and Article 2 of the General Health Law assert:
Article 1. Bis.- Health is understood as a state of complete physical, mental and social well-being, and not just the absence of affections or diseases.
Article 2.- The right to health protection has the following purposes:
I. The physical and mental well-being of the person, to contribute to the full exercise of their capacities;
II. The prolongation and improvement of the quality of human life; (…).52
Additionally, it is important to note that Mexico has adopted the WHO’s definition of infertility as “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected intercourse”.
With these precisions in place, we can formulate the argument:
Women have a right to the protection of their health by the Mexican state, which covers both their physical and mental well-being. Furthermore, the scope of this protection extends to their complete physical and mental well-being. In pre-menopausal women, infertility negatively impacts their physical and mental well-being insofar as it is a disease. Therefore, infertile pre-menopausal women have a right against the Mexican state for it to protect their reproductive health through combating their infertility, and this protection encompasses their complete physical and mental well-being. If infertility impacts women’s physical well-being insofar as it is a disease, when it is caused by the lack of a functioning uterus, the lack of a functioning uterus can be considered as the cause of the disease. Uterus transplantation, at present, is the only way in which the Mexican state could protect the reproductive health, in the sense of acquiring the ability to gestate, of women without a functioning uterus.
From all the former we are now entitled to conclude that pre-menopausal women without a functioning uterus have a right to the protection of their health by the Mexican state via a uterus transplant.
With the support of OPEN and TORCH, I have been engaged directly with policymakers in Mexico, organized workshops, published dissemination pieces, and facilitated public debates on this topic. After I presented my work before members of the Mexican Congress, a law amendment to Article 333 was proposed to allow for uterus live donation. I have also been invited to talk about reproductive rights at the lower house of Mexico’s Congress of the Union; and I have discussed my position with the head of Mexico’s National Transplant Centre. I hope that the uptake of this area of research might pave the road for women to have access to a uterus transplant and for them to fulfil their parental projects.