By Soumya Singh Chauhan, UILS, Chandigarh
“Editor’s Note: This paper deals with the issue of reproductive rights of women, an issue that remains a distant dream. It analyses the abortion laws in India to highlight loopholes like inadequate protection to mentally unstable women and consent of spouse being required at different clinics, even though the law does not so prescribe. It further dwells on the alarming maternal mortality rate in the country, which is one of the highest in the world. The paper studies the forced sterilisation that is carried by clinics in order to meet their targets. It also analyses how judicial decisions can both, strengthen and weaken the reproductive rights of women.”
One only needs to switch on the television to know the state of reproductive rights in India. The increasing death toll of newborn babies in west Bengal is a reminder of the theoretic impotence of these rights. In spite of having an array of acts and codes that make the claim of ensuring these rights, women across India still die at childbirth or lose their babies, are denied contraceptives or the knowledge of them, are forced to abort or not allowed to do so.
The reproductive rights of women have seen a history of vain, half-hearted efforts on the international front. From the Proclamation of Teheran (1945) to the proposal of the Yogyakarta Principles (2006), the international organisations have failed to come up with a binding international instrument. It is only the organisations like the Amnesty International, the United Nations Population Fund and the World Health Organisation (WHO) that are advocating the reproductive rights of women, but without any written law or binding instrument.
However, recently, there have been developments in the issue of reproductive rights. From the High Court of Punjab and Haryana at Chandigarh ordering the government of Haryana to respond to a petition alleging that its reproductive health policy and programs discriminate against women by limiting information and access to a full range of modern contraceptives to the Delhi High Court’s stand against cruel treatment towards pregnant women, a change can be seen taking place. It is slow, but it is there.
The Cairo Program (International Conference on Population and Development) is the first international policy document to define reproductive rights and reproductive health, stating:
Embrace certain human rights that are already recognized in national laws, international human rights documents and other consensus documents. These rights rest on the recognition of the basic rights for all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to the highest attainable standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.[i]
Reproductive health is a state of complete physical, mental and social well being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed about and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods for regulation of fertility which are not against the law, and the right of access to appropriate health-care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant.[ii]
An analysis of the definitions and the various proclamations that followed gives the basic constituents of reproductive rights. However, several authors state that reproductive rights include some or all of the following rights:
- Right to legal or safe abortion.
- Right to control ones reproductive functions.
- Right to information in order to make reproductive choices free of coercion, discrimination and violence.
- Right to education about contraception and sexually transmitted diseases and freedom from coerced sterilization and contraception.
- Right to be protected from gender based practices such as female genital cutting and male genital mutilation.[iii]
As per India’s abortion laws, only qualified doctors under stipulated conditions can perform abortion on a woman in an approved clinic or hospital. The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971. The Medical Termination of Pregnancy (MTP) Act of India clearly states the conditions under which a pregnancy can be ended or aborted, the persons who are qualified to conduct the abortion and the place of implementation. Some of these qualifications are as follows:
- Women whose physical and/or mental health were endangered by the pregnancy.
- Women facing the birth of a potentially handicapped or malformed child.
- Pregnancies in unmarried girls under the age of eighteen with the consent of a guardian.
- Pregnancies in lunatics with the consent of a guardian.
- Pregnancies that are a result of failure in sterilisation.
The length of the pregnancy must not exceed twenty weeks in order to qualify for an abortion.
However, there isn’t an absolute right even in the case of these exceptions.
The right to make free and informed decisions about health care and medical treatment, including decisions about one’s own fertility and sexuality, is enshrined in Articles 12 and 16 of the Convention on the Elimination of all Forms of Discrimination Against Women (1978). Autonomy, the right to informed consent and confidentiality are considered the fundamental ethical principles in providing reproductive health services. Autonomy would also mean that when a mentally competent adult seeks a health service, there is no need for an authorization from a third party. Contrary to this Supreme Court judgment when hearing an appeal in the Ghosh vs. Ghosh divorce case, the court ruled on March 26, 2007: “If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy (read tubectomy) or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.” Considering the circumstances of the case, the court granted a divorce. The judgment has serious implications for reproductive health services in India, because it mandates spousal consent for induced abortion and sterilization. [iv] According to a report published by CEHAT, in the experience of 60 per cent of married women, doctors providing abortions insisted on the husband’s permission prior to the procedure, and 28 per cent said this was true in government and private hospitals. It should be clear that this is not a mandate under the MTP Act.[v]
The judgement conflicts with the existing guidelines for medical practice, and it is likely to confuse those who are seeking as well as offering these services. It implies that when a woman seeks abortion or sterilization on her own and if her husband is not informed or does not consent, the very act of the woman could be cited by her husband as mental cruelty and act as a ground for seeking a divorce. The judgement thus hits at the very core of reproductive rights: taking a decision and seeking a service without fear of coercion or violence.
Another stance that needs to change is in relation to the reproductive rights of mentally retarded women. In India, a disabled girl-child is usually at the receiving end of a lot of contempt and neglect. Women with disabilities have been consistently denied their rights. A nineteen year-old mentally challenged orphan girl at Nari Niketan, Chandigarh, a government institution for destitute women, was raped sometime in March 2009 on the premises by the security guards. In May 2009, a pregnancy was detected. A multi disciplinary Medical Board, which included a psychiatrist, recommended that woman “has adequate physical capacity to bear and raise the child but that her mental health can be further affected by the stress of bearing and raising her child.” Based on these recommendations, the Punjab and Haryana High Court ruling ordered medical termination of pregnancy (MTP). On appeal by an NGO against the High court’s order, the Supreme Court of India gave a landmark decision allowing a 19-year-old mentally challenged orphan girl to carry on with a pregnancy resulting from a sexual assault. This case was not about abortion per se, it was about whether the law of this country recognizes and protects the agency of a woman to take decisions for her life and body, especially when the woman is a person with mental retardation (MR) or any other disability.
Legally, Medical Termination of Pregnancy (MTP) Act does not deal with abortion of women with MR, and that it wrongly distinguishes between women with mental retardation and mental illness, leaving the former out totally. Also the Act does not understand that both these kinds of women are more likely than not to be destitute, in which case guardianship is not that simple. The SC failed to address issues of support mechanisms and state’s accountability for creating and sustaining comprehensive and reliable support systems for the woman within a rights framework- an obligation under Article 12 of the UN Rights of Persons with Disabilities Convention. This case indicates eloquently that the Indian legal framework has to be strengthened a great deal to bring it in line with international legislation. It also raises the question whether our government institutions are safe enough to protect women and more so people with disabilities.[vi]
Now even though there is a right to abortion in India, the right to safe abortion is a far reality. In India, a woman dies every two hours because she’s had an unsafe abortion, according to estimates by IPAS, an international organisation that works with the National Rural Health Mission to reduce maternal deaths due to unsafe abortions.
Although the Act permits abortion if the doctor believes in good faith that “…the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped,” the onus still lies on the woman to explain or prove how it will harm her physically or mentally. The MTP Act fails to define terms like “abortion”, “miscarriage”, “termination of pregnancy”, “health”, “substantial risk”, and “seriously handicapped”, making the doctor’s opinion sacrosanct.
The government of India introduced family planning in 1952, and passed the MTP Act in 1972. It’s been 60 years since family planning was introduced, and 40 years since abortions were made accessible for women on many conditions, excepting on demand. MTP centres were opened in several government hospitals or independently to make abortion accessible to women who met the criteria. Yet these centres are often inaccessible and dismissed as an option. The MTP centres originated with the understanding that they would contribute to family planning. Many operate under the assumption that the women who come to these centres are married. Often, abortion services are provided in exchange for promises to use contraceptives; in several cases, contraceptives like Copper-T are inserted into the women’s vaginas immediately after abortion. Moreover, most MTP centres are in urban areas, unavailable to rural women whose minds are in any case clouded with myths about abortion. The stigma around abortion also makes things doubly difficult for Indian women.[vii]
Approximately 117,000 women and girls die each year in India due to pregnancy related causes. This accounts for 25% of all maternal deaths globally. For every maternal death there are estimated to be between 30-50 temporary or chronic cases of maternal morbidity. The majority of these maternal deaths and pregnancy related illnesses and disabilities are preventable.[viii]
According to the latest Government statistics (2004-2006), India has a Maternal Mortality Ratio (MMR) of 254, i.e. the number of maternal deaths per 100,000 live births. However, the World Health Organisation (WHO) calculated a MMR of 450 for 2005. Even relying upon the conservative Government figure, India has one of the highest MMRs in the world, higher than in 120 countries including India’s neighbouring states of Bangladesh, China, Nepal and Sri Lanka. This is because, in addition to factors such as poverty, poor nutrition, gender discrimination, caste discrimination, unhygienic living conditions, lack of access to education and low literacy rates, and lack of access to contraception and family planning, the public health system in India fails in its legal obligations to provide adequate maternal health care, basic and comprehensive emergency obstetric care and access to safe medical termination of pregnancy.[ix]
In a historic decision the Delhi High Court ordered compensation for violation of constitutional and reproductive rights of two impoverished women. In the case of Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors[x] Justice Muralidhar instructed the State of Haryana to pay compensation of Rs 2.4 lakhs to the family of Shanti Devi who passed away during childbirth. The Court found the respondents in violation of Shanti Devi’s right to life and health, reiterating that her death was preventable. Drawing on international law Justice Muralidhar underlined that women have the right to control their body and decide when they wish to conceive. The Court also pointed out that women carry the burden of poverty in that they have to prove their BPL status when trying to access health facilities and accordingly ordered that “no pregnant women be denied access to medical treatment regardless of her social economical status.”[xi]
In the case of Jaitun v Maternity Home, MCD, Jangpura & Ors[xii] High Court directed the Municipal Corporation of Delhi and Government of National Capital Territory of Delhi to pay Rs. 50,000 compensation to Fatima for the violation of her fundamental rights by being compelled to give birth to her daughter Alisha under a tree, on account of the denial of basic medical services. The Court underlined that the case demonstrated a complete failure of the public health system and a failure in implementation of Government Schemes, including the National Maternity Benefit Scheme (NMBS), Integrated Child Development Scheme (ICDS) and Janani Soraksha Yojana (JSY) – a scheme designed to reduce maternal and neo-natal mortality by encouraging institutional delivery for poor pregnant women. The judgment further directed the respondents to make the payment of Rs 500, eight to twelve weeks prior to delivery to all Below Poverty Line (BPL) pregnant women, to ensure their proper nutrition under the NMBS, irrespective of age and number of previous births in all states in India.
In India, there is alarming evidence of a resurgence of coercive population measures being introduced at the state level in an effort to discourage fertility. These measures are being levied against both men and women, for example through the use of social and economic incentives and disincentives, but have an especially devastating impact on women. The two-child norm policy for example is linked to gender-based violence and female infanticide.[xiii]
India carries out about 37 per cent of the world’s female sterilizations. Quotas set by state governments and financial incentives for doctors contributed to 4.6 million women being sterilized last year, many for cash and in unsanitary conditions. Vasectomies accounted for just 4 per cent of all sterilizations. Only about half of Indian couples of childbearing age practice modern birth control methods, United Nations data shows. The government doesn’t pursue the costly option of teaching often-illiterate women how to use contraceptives. One in five babies born worldwide is Indian, straining supplies of land, food, and water.[xiv]
India’s state of emergency between 1975-1977 included a family planning initiative that began in April 1976 through which the government hoped to lower India’s ever-increasing population. This program used propaganda and monetary incentives to convince citizens to get sterilized. People who agreed to get sterilized would receive land, housing, and money or loans. Because of this program, thousands of men received vasectomies and even more women received tubal ligations. However, the program focused more on sterilizing women than men. Despite the fact that sterilizing men is a more simple procedure, the government still chose to focus on sterilizing women instead. Sanjay Gandhi was largely blamed for what turned out to be a failed program. A strong backlash against any initiative associated with family planning followed the highly controversial program, which continues into the 21st century.
In the case of Ramakant Rai v. Union of India[xv], the Socio-Legal Information Centre (SLIC) prepared a legal memorandum on the illegality of coercive sterilization under international human rights law, and an analysis of possible remedial measures to address such abuses using comparative examples from other countries that have confronted such abuses. Human Rights Law Network (HRLN) submitted the memorandum in support of its petition to the Supreme Court, alleging coercion and abusive practices resulting from poor quality of care in government-run sterilization camps and failure to comply with national guidelines on the performance of sterilization, which establish mandatory procedures for obtaining informed consent. In March 2005, the Supreme Court ordered state governments to take immediate steps to regulate health-care providers who perform sterilization procedures, and to compensate women who suffer complications due to sub-standard practices and the relatives of victims who may die from botched operations.[xvi]
But March 2013 saw raw video footage of unconscious women in saris being unloaded from a filthy plastic stretcher and lined up like butchers’ carcasses on the ground to recover from surgeries at a “mass sterilization camp” in Malda district of West Bengal. 103 women were sterilized by two doctors in a single day at the Manikchak Rural Health Center in the Malda district of West Bengal, before being dumped in a nearby field without any medical follow-up. Their relatives are massaging their feet, and that’s about all the after-care they seem to be getting after the sterilization operation. Adequate after-care and hygiene following the routine operation has been an on-going issue in the country for years. While the U.K. pledged £166 million (about $260 million) to fund sterilization programs, the aid has been used to cover the costs of forced sterilizations of the poor.[xvii] It was reported that the camps were happening non-stop throughout the country because the end of the financial year was approaching and there was pressure on health workers to meet their sterilization quotas. In 2011, for example, officials in the district of Rajasthan determined to sterilize 1% of the population. To meet this target, they offered mobile phones to men undergoing vasectomies and lottery tickets for cars, motorcycles and refrigerators to anyone who agreed to be sterilized.[xviii] Health workers in Gujarat were threatened with salary cuts or dismissal if they failed to meet targets, Human Rights Watch reported. Women were pressured to undergo sterilization surgery without being told they will never again be able to have children. [xix]
Most of these sterilizations aren’t “forced” in the sense of being against a woman’s will. But the lack of information given by health workers and the “incentives” offered to women who undergo surgery make the practice coercive.[xx]
Suggestions and Conclusion
The move forward in the direction of reproductive rights becoming a reality is very slow in India. There is a lot that needs to be done to make use of all that has already been done. In other words, one cannot deny that there are policies and schemes in place to help women; the thing that needs to be done is the proper implementation of it.
The abortion laws are in favour of women who aren’t adept in raising a child, but there is no use of such a law if it is overturned by judgments. Safe abortion is also the need of the hour, which begs the question that if abortion is legal then why it isn’t regulated. There should be guidelines for not just the women seeking abortion but also the hospitals and doctors rendering medical help. This will not only make sure that there is legal abortion, but also that there isn’t sex selective abortion and that the services rendered are safe to the women and that all options are made available to them.
The same holds true for reducing the maternal mortality rate in India. Also, there need to be more infrastructural facilities and medical hands to keep up with the population. If the government realises the need to sterilize women because of the population, it must acknowledge the needs of the population already present. Also, there needs to be awareness about the various schemes, such as National Maternity Benefit Scheme (NMBS), Integrated Child Development Scheme (ICDS) and Janani Soraksha Yojana (JSY), that are designed to reduce maternal and neo-natal mortality by encouraging institutional delivery for poor pregnant women.
As far as sterilization goes, the government needs to back down on coercion and start awareness programs relating to all types of birth control methods, only then will there be informed decision making on the part of the woman who has the right to decide.
Edited by Kudrat Agrawal
[ii] Cook, Rebecca J.; Mahmoud F. Fathalla (September 1996). “Advancing Reproductive Rights Beyond Cairo and Beijing”. International Family Planning Perspectives (International Family Planning Perspectives, Vol. 22, No. 3, 115–121.
[iii] Kosgi S, Hegde VN, Rao S, Bhat US, Pai N. Women Reproductive Rights in India: Prospective Future. Online J Health Allied Scs. 2011; 10(1), 9.
[vi] Supra note iv.
[x] W.P. 8853/2008.
[xii] W.P. No. 10700/2009.
[xv] Writ Petition (C) No. 56 of 2004.