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GS Mains Foundation 2018
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Reproductive Rights of Women

Reproductive Health was given an international consensus definition at the International Conference on Population and Development (ICPD) in 1994.  Despite being a signatory to the ICPD, the family planning programme in India has yet to conform to the principles agreed to under ICPD, especially in terms of doing away with targets and incentives.

The Family Planning Programme is one of the oldest components of India’s health care system and has received focused attention over the last five decades. However, it has remained primarily a programme of controlling numbers rather than focussed on reproductive and human rights that India had affirmed at the International Conference on Population and Development (ICPD) in 1994 and in its National Population Policy 2000. As signatory of the ICPD Program Of Action India committed to the principle of informed free choice as essential to the long-term success of family-planning programmes where any form of coercion has no part to play.

The tragic death of 15 women at the sterilisation camp in Bilaspur district of Chattisgarh in November, 2014 highlighted systematic failures at multiple levels when it comes to executing official family planning policy. What happened at Bilaspur sterilisation camp was not an isolated incident, targeted family welfare programmes continue in different states across the country driven by an obsession to bring down the Total Fertility Rate. In states like Madhya Pradesh, Bihar, Chhattisgarh, Rajasthan and Uttar Pradesh, sterilisation camps are often conducted in schools, abandoned buildings, make-shift camps with poor quality services leading to high morbidity rates including mortality.

ICPD Program of Action


Reproductive Health was given an international consensus definition at the International Conference on Population and Development (ICPD) in 1994.  At its core is promotion of reproductive health, voluntary and safe sexual and reproductive choices for individuals and couples, including decisions on family size and timing of marriage.  Sexuality and reproduction are vital aspects of personal identity and are fundamental to human well being fulfilling   relationship within diverse cultural contexts.

As chair of Partners in Population and Development, India recently reaffirmed the commitment to the 1994 ICPD Programme of Action in the Delhi Declaration following the ‘International Inter-ministerial Conference on Investing in Demographic Dividend’ on November 26, 2014.

Its two important clauses which ensure reproductive rights o women are:

• Clause 7.12 Informed free choice being essential to the long-term success of family-planning programmes. Any form of coercion has no part to play. [...] Governmental goals for family planning should be defined in terms of unmet needs for information and services. Demographic goals, while legitimately the subject of government development strategies, should not be imposed on family-planning providers in the form of targets or quotas for the recruitment of clients
• Clause 7.13 highlighted how investing in quality of family-planning programmes is often directly related to the level and continuity of contraceptive use and to the growth in demand for services. “Family-planning programmes work best when they are part of or linked to broader reproductive health programmes that address closely related health needs and when women are fully involved in the design, provision, management and evaluate on of services”.

How India’s Family Planning Programme Goes against the Spirit of ICPD

With around 1.25 billion people, the country has the second-largest population in the world after China. It is also true that the burden of constant pregnancy, infant mortality and poverty lies heaviest on women but so too does the ‘solution’.
Despite being a signatory to the ICPD, the family planning programme in India has yet to conform to the principles agreed to under ICPD, especially in terms of doing away with targets and incentives.

• The contraceptive choices available in the public sector have remained static over two decades. The choices available through the national programme are limited to: Oral Pills, Condoms, the Intra Uterine Contraceptive Device (IUCD) and Female Sterilisation. Non-Scalpel Vasectomy, though a part of the basket of choice remains under-utilized.
• In the Financial Year 2013-2014, India spent Rs 396.97 crore for Family Planning. Female sterilisation constituted 85% of the total Family Planning expenditure (for a total of 39,23,945 female sterilisations).
• Approximately 1.45% (Rs 5.76 crore) was spent on spacing methods, leaving the remaining 13% for other family planning related activities (like equipment, transportation, IEC, staff expenses, etc.)
• As per the National Family Health Survey III - 2005-2006 (NFHS-III), nearly 21% pregnancies are either unwanted or mistimed.
• Unmet need for family planning is an important indicator for assessing potential demand for family planning in India There is a high unmet need for family planning, with 6.2% for spacing and 6.6% for limiting methods among currently married women.  Unmet need is also high amongst the illiterate and in the lowest wealth quintile.
• India’s maternal mortality ratio is unacceptably high at 230 per 100,000 live births (2008) as per UN estimates.  Nearly 63,000 Indian women, accounting for almost 18% of estimated global maternal deaths, die every year due to causes related to pregnancy and childbirth. 
• Despite some legislative protection of reproductive rights in India, reproductive self-determination is not yet a reality for many Indian women. Low levels of access to contraception and lack of control over reproductive choices and health decision-making often mean that Indian women give birth too early in life and too frequently.
• Vasectomies are considered infinitely less risky than tubectomies, but men, wary of “losing” their maleness, remain a minuscule proportion of the adults coming to sterilization camps. The burden for limiting births all over India falls on women. Though, when they do undergo sterilisation, men are given more compensation than women.
• Laws such as the Medical Termination of Pregnancy (MTP) Act restrict women's choice. Abortion is not really a right in India. A woman cannot go to a doctor and ask to terminate a pregnancy. Safe legal abortions are allowed only if a physician authorises it. The MTP Act came out as a family control measure where abortion was seen as a secondary method of population control.

Does Medical Termination of Pregnancy Act (1971) Violates Reproductive Rights of Women?

The Medical Termination Of Pregnancy Act, 1971, which is based on Shanilal Shah committee (1964), defines certain grounds on which termination of pregnancy could be allowed. These grounds are:

Sec.3: When pregnancies may be terminated by registered medical practitioner.


(i) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act"
   
This makes it clear that the provisions of the MTP Act, so far as abortion is concerned suppresses the provisions of the Indian Penal Code. Sub-sec. (2) of Sec.3: "Subject to the provisions of sub-sec (4), a pregnancy, may be terminated by a registered medical practitioner.

(a) Where the length of the pregnancy does not exceed 12 weeks if such medical practitioner is, or
(b) Where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than 2 registered medical practitioners are of opinion, formed in good faith that:

1. The continuance of the pregnancy would involve a risk to the life of the pregnant woman, or
2. A risk of grave injury to the her physical or mental health; or
3. If the pregnancy is caused by rape; or
4. There exist a substantial risk that, if the child were born it would suffer from some physical or mental abnormalities so as to be seriously handicapped; or
5. Failure of any device or method used by the married couple for the purpose of limiting the number of children; or
6. Risk to the health of the pregnant woman by the reason of her actual or reasonably foreseeable environment. The Act does not permit termination of pregnancy after 20 weeks. The medical opinion must offcourse be given in "good faith". The term good faith has not been defined in the Act but sec. 52 if the IPC defines good faith to mean as act done with 'due care and caution'.

Explanations


• Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
• Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for purpose of limiting the number of children they anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Consent for Abortion

Section 3(4) of MTPA clarifies as to whose consent would be necessary for termination of pregnancy.
(a) No pregnancy of a woman, who has not attained the age of 18 years, or who having attained the age of 18 years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

Does the Act Violate Women’s Reproductive Rights?

On 21 April 2014, the Supreme Court ordered the Union of India and the State of Maharashtra to respond to fundamental rights violations resulting from implementation of The Medical Termination of Pregnancy Act (1971).

A Writ Petition filed by the Human Rights Law Network (HRLN) argues that the outdated and arbitrary 20-week limit on medical termination of pregnancy violates women’s fundamental rights to life, health, dignity, and equality.

Now, with advanced technology, there is no harm in women going for abortion at any stage. Even a committee of experts have suggested that extension will cause no mental or physical harm, the petition argued.

Why 20-week Limit is Considered Outdated and Arbitrary:

• Out of the 26 million births that occur in India every year, approximately 2-3% of the foetuses have a severe congenital or chromosomal abnormality. With new technology, many abnormalities can be detected only after 20 weeks.
• Most countries with legal abortion allow termination post 20 weeks in the case of severe foetal abnormalities or to protect the mental or physical health of the pregnant woman.

For years, the National Commission for Women, Federation of Obstetric and the Gynaecological Societies of India (FOGSI), and prominent doctors have advocated for amendments to the MTP Act that would ensure protections of women’s mental and physical health throughout their pregnancies. Without such an exception to ensure the health of pregnant women, the MTP Act violates fundamental and human rights guaranteed by the Constitution of India and international law.
 

Landmarks in the Evolution of India’s Population Policy 

• 1951: The draft outline of the First Five Year Plan recognized ‘population policy’ as ‘essential to planning’ and ‘family planning’ as a ‘step towards improvement in health of mothers and children’.
• 1952: The final First Five Year Plan document noted the ‘urgency of the problems of family planning and population control’ and advocated a reduction in the birth rate to stabilize population at a level consistent with the needs of the economy.
• 1956: The Second Five Year Plan proposed expansion of family planning clinics in both rural and urban areas and recommended a more or less autonomous Central Family Planning Board, with similar state level boards.
• 1959: The Government of Madras (now Tamil Nadu) began to pay small cash grants to poor persons undergoing sterilization as compensation for lost earnings and transport costs and also to canvassers and tutors in family planning.
• 1961: The Third Five Year Plan envisaged the provision of sterilization facilities in district hospitals, sub-divisional hospitals and primary health centres as a part of the family planning programme. Maharashtra state organized ‘sterilization camps’ in rural areas.
• 1963: The Director of Family Planning proposed a shift from the clinic approach to a community extension approach to be implemented by auxiliary nurse midwives (one per 10,000 population) located in PHCs. Other proposals included: (a) a goal of lowering the birth rate from an estimated 40 to 25 by 1973; and (b) a cafeteria approach to the provision of contraceptive methods, with an emphasis on free choice.
• 1965: The intrauterine device was introduced in the Indian family planning programme.
• 1966: A full-fledged Department of Family Planning was set up in the Ministry of Health. Condoms began to be distributed through the established channels of leading distributors of consumer goods.
• 1972: A liberal law permitting abortions on grounds of health and humanitarian and eugenic considerations came into force.
• 1976: The Constitution was amended to freeze the representation of different states in the lower house of Parliament according to the size of population in the 1971 Census. The states were permitted to enact legislation providing for compulsory sterilization.
• 1977: A revised population policy statement was tabled in Parliament by a government formed by the former opposition parties. It emphasized the voluntary nature of the family planning programme. The term ‘family welfare’ replaced ‘family planning’.
• 2000: National Population Policy was adopted by the cabinet and announced on February 2000. The National Population Policy, 2000, had strongly advocated doing away with “targets” and emphasized voluntary and informed choice in family planning.
 

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