23 Reproductive rights in India

Thiabaut Weigelt

epgp books

Learning aims:

By the end of this chapter, the reader will be able to:

  • Identify major reproductive rights issues in India from a woman’s perspective.
  • Identify and engage with the key provisions of existing laws, regulations, and schemes with regard to different reproductive rights issues.
  • Have knowledge of and understand major judgements by the Indian courts in the field of reproductive rights.

Introduction

In 2015, the final year for achieving the targets set in the UN’s millennium development goals (MDGs), India accounted for 45,000 maternal deaths, second only to Nigeria. Though India’s maternal mortality rate (MMR) has decreased over the years, today 5 women still die every hour from largely preventable causes . Causes that contribute to preventable deaths can be attributed to nutrition, a lack of public healthcare infrastructure (e.g. for institutional deliveries and obstetric care), and unhygienic conditions in hospitals. While maternal mortality is one of the primary developmental concerns in India, reproductive rights issues are not limited to the prevention of maternal deaths and securing a right to survive the pregnancy.

Beyond maternal death, India’s healthcare system and public healthcare officials routinely deny women control over their bodies. Since 2010 India has witnessed numerous scandals involving mass hysterectomies and forced sterilizations through coercive measures. Active control over reproductive choices is denied to women across the country through restrictive abortion laws, barriers to accessing contraceptives as well as the prevalence of female sterilization, child marriage and lack of effective maternity leave for women in the informal sectors.

The Cairo International Conference on Population and Development (hereinafter ICPD) 1994 issued a comprehensive definition of reproductive rights, which this module will be relying upon:

“Reproductive rights rest on the recognition of the basic right of 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 attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion and violence.”

This definition of reproductive rights places emphasis on the woman’s capacity, alone or with her partner, to make reproductive choices. In doing so, it also emphasizes the role law can and has played to enable women’s reproductive autonomy as a right. The role of law in the area of reproductive rights becomes evident when we consider the plethora of judgments and legal actions exercised by women to claim their rights from the state or to seek redress for alleged violations. Law has led the Supreme Court of India to hold that the right to life and personal liberty under article 21 of the Constitution contained reproductive rights as part of the concept of personal liberty, the right to health as well as the right to dignity .

This module will focus on 2 areas that constitute major reproductive rights issues in India and where judgements by the Courts have made progress with regard to the ability of women to actively make reproductive choices. Section 1 will focus on population control and sterilization in India. The participant will learn about the Supreme Court’s guidelines regarding sterilization, indemnity schemes for women having undergone a sterilization procedure as well as a brief historical background of sterilization policies in India. Section 2 will focus on an area that is closely related to population control: access to contraceptives. Here, we will identify current trends in contraceptive use in India through the National Family Health Survey (NFHS) and examine India’s policy regarding access to contraceptive services from a rights-based perspective.

This section gives a brief overview of the history of population control in India before examining judgements by the Supreme Court of India regarding sterilizations. This section will also give an overview of the family planning indemnity scheme.

A brief history of family planning and sterilization policies:

India was the first country in the world to have an official policy on family planning. The first five-year plan in 1952 was aimed at improving maternal and child health and over time became centred on demographic control and bringing down birth rates. While initially, the policy did not create any targets, it was during the Emergency Period (1975-1976) that the first target figures were introduced into the National Planning Policy of 1976. The same policy also allowed State legislatures to pass laws requiring compulsory sterilizations. As a result, an estimated 8 million people were forcibly sterilized in the period from 1967-1977. This led to a backlash against the government who was forced to assure the public that these programs were voluntary.

The target-based approach was abandoned in favour of a rights-based approach during the 1990’s as a result of the Cairo ICPD and the Beijing Women’s conference’s programmes of action to which India is a signatory. While the ICPD Despite the change in official policy on the ground, targets are still a reality and public health officials and State governments implicitly still favour sterilizations over other forms of birth control. During the NFHS-3, 84% of women were sterilized in a government hospital while most forms contraceptive methods to regulate the spacing of children are being given by private sector hospitals.

Case laws on sterilization procedures:

Unhygienic conditions during medical interventions such as sterilization has led to the preventable deaths of many women. This led the Supreme Court, in 2003, to pass guidelines regarding sterilization as part of the judgment in the Ramakant Rai vs Union of India case. In this case, the facts brought to the notice of the court indicated that public health officials in Government-run sterilization centres across India failed to treat women in a dignified way. Officials in these centres failed to counsel women on other forms of birth control, and women often were coerced into undergoing a tubectomy through false promises and monetary incentives. Moreover, the findings of the petitioners showed that a lack hygiene in sterilization centres led to infections and the deaths of women after treatment.

The Supreme Court held that State governments, before and while conducting sterilization procedures, must:

  • Introduce a system of empanelled of doctors with at least 5 years of gynaecological training who are allowed to perform sterilization procedures.
  • Circulate a checklist among doctors containing at the very least age, health, number of children of the patient.
  •  Consent pro formas.
  • Institute quality assurance committees.
  • Maintain a statistical record.
  • Lead an enquiry into every breach of the guidelines.
  • Enact an insurance policy until the Centre prescribes a uniform format for all States.

Despite these guidelines, sterilizations were carried out across India in blatant disregard of the order of the Apex Court. In Devika Biswas v. Union of India, 9 years after the Supreme Court issued the guidelines in Ramakant Rai, the ground realities for poor and marginalized women remain the same.

In this case, sterilizations were carried out at night under a torchlight in a government middle school in Bihar by untrained NGO volunteers.

The facts of the Devika Biswas case highlight a blatant disregard by State governments of sterilization guidelines and led the Supreme Court to order that:

  • Each State government and the Centre should ensure that no targets exist with regard to family planning policies.
  • State governments should discontinue sterilization camps at the earliest and in any case within 3 years.
  • Strengthen primary healthcare infrastructure.

Both the Ramakant Rai and Devika Biswas cases make extensive use of Indian Constitutional Law, especially articles 14, 15, 21 and 51 of the Constitution and judgments of the Supreme Court on the right to health. These articles guarantee the right to equality (14), prohibits discrimination on the basis of sex and other statuses and provide for substantive equality (15), protects the right to life and personal liberty (21) and obligates the State to respect international law (51). Article 21 of the Constitution is certainly the most important article as it protects the right to life, personal liberty and dignity of the individual.

The right to life in conjunction with article 14 is at the centre of both cases with the Supreme Court. With regard to the right to health of women, the Court recalled its decision in Bandhua Mukti Morcha where it was held that “the obligation of the State is to ensure that the fundamental rights of weaker sections of society are not exploited owing to their position in society.” Invoking Article 21 together with article 51 of the Constitution, which provides that the State shall foster respect for international law and treaty obligations, permits the Supreme Court to interpret the right to life and personal liberty in the light of recommendations of Treaty bodies and international court decisions. In Devika Biswas, for example, the Apex Court relied on the recommendations made by the CEDAW Committee in AS v. Hungary to hold that the time given to women to consider their decision to undergo a sterilization procedure was insufficient and that, moreover, the idea of targets and incentives for doctors are incompatible with the idea of free and informed consent.

Governmental schemes:

The Family Planning Indemnity Scheme , like its precursor the National Population Policy 2000, aims to improve the quality of services with regard to family planning. The scheme incorporates the guidelines laid down by the Supreme Court in Ramakant Rai , and its main purpose is to compensate women who undergo sterilization procedures, as well as doctors, in public and private healthcare institutions.

The methodology followed by the scheme is to divide states into high focus and non-high focus states and fix compensation rates according to the type of procedure and the nature of the state (high or non-high focus state). Compensation for death following a sterilization is categorized into two categories, depending on the time passed between the sterilization and death :

  • 100,000 INR for death following the procedure
  • 30,000 INR for death within 8-30 days of the procedure
  • 20,000 INR each for the failure of, or complication arising, from the sterilization

Compliance with the scheme is monitored by Central and State monitoring committees on a monthly and quarterly basis. A State Nodal Officer of the State Ministry of Health is charged with reviewing all pending matters regarding pending claims. The scheme is monitored by a National Nodal Officer who reviews matters relating to scheme on a half-yearly basis.

The Family Planning Indemnity scheme has however been criticized for a number of reasons, and fact-findings by civil society organizations have shown that there is a gap between the theoretical setup of the scheme and its implementation . In practice, sterilizations have been denied to women who only had girls and public health officials deem a family complete only if at least one child is a boy. As a result, the choice of the woman is disregarded, and the use of a Post-placental intrauterine contraceptive device is recommended.

Access to contraception and information:

This section will first examine statistics and schemes on access to contraception before detailing the rules and regulations regarding access to contraception.

Statistics and schemes on access to contraception:

Access to contraceptive methods is closely linked to the problem of coercive sterilization policies. In order to fully make use of their right to reproductive choices, access to contraception, information about the different types of contraception and related medical care must be available to women.

The NFHS-3, however, shows that the policies of the Indian government are ineffective as only 56% of married women in the age group of 15-49 years currently use any contraception. The NFHS-4 indicates that over a time period of 10 years the percentage of married women in the same age group who use contraception has decreased by 3.2%. Sterilizations are by far the most common form of contraception and over the 10-year period from the NFHS-3 to the NFHS-4 marginally decreased by 1.3% for female sterilizations while male sterilization saw a decrease by 0.7% to 0.3% overall. Condom and contraceptive pill usage have made small increments to 5.6% and 4.1%, respectively. The decrease in contraceptive use is occurring despite modern contraceptive methods being listed in the National List of Essential Medicines (NLEM) which lists those medicines that the National Rural Health Mission has to have in stock.

Moreover, contraception and counselling on the various types available to women is an integral part of the National Rural Health which provides two schemes that women can avail: “Delivery of Contraceptives by ASHA at doorstep” and “Utilizing Services of ASHAs for Ensuring Spacing in Birth”. Research and fact-finding by civil society has shown however that:

  • The quality of government contraceptive services is poor, and that
  • Women have limited access to contraceptive information and education, resulting in serious misconceptions about contraceptives and depriving women of the ability to make fully informed decisions about contraceptive methods.

Legal actions to improve access to contraceptives by civil society have been met with reluctance by the Courts. The Punjab High Court in Himmat Mahila Samooh v. Union of India refused to issue an order stating that the various steps taken by the government were sufficient since the fertility rate had decreased over the years. This order came despite evidence to the contrary by the petitioners. Among many things, the fact-finding conducted by the petitioners revealed that the State of Haryana emphasized sterilizations over contraception that the access to contraceptive methods and services was of poor quality and limited. For example, the study showed that only “Two out of ninety-one pharmacies (2 percent) had stocked diaphragms and female condoms in the past” and, moreover, that ASHA workers were insufficiently trained with 5 out of 17 interviewees indicating that they had received training on contraceptives methods . Moreover, the finding of the Court is inconsistent with recent statistical data that shows that contraceptive use among married women in the age group 15-49 years has only marginally increased from 63.4% in 2005-2006 to 63.7% in 2015-2016 . Further, the lack of contraceptive access has repeatedly been criticized by international bodies such as the CEDAW committee. The Committee in this regard noted, during the considerations of India’s fifth and sixth periodic report, that it is concerned about “the limited availability and accessibility of modern forms of contraception, including emergency contraception to prevent unwanted pregnancy, the lack of information and education on reproductive and sexual health”.

The problems for women in accessing contraceptives have resulted in a panoply of undesirable public health outcomes. First of all, barriers in accessing contraceptives as well as the non-use of male condoms result in a high use of emergency contraceptive pills among unmarried women who are sexually active. Emergency contraception is not intended to be used in lieu of regular contraceptive methods and, unlike male condoms, do not protect the user from sexually transmitted infections. Secondly, inability to access contraceptive methods results in higher abortion figures and, more importantly, higher unsafe abortions. India’s legal framework and public health policy regarding medical abortions will be discussed in the following chapter.

Conclusion

Reproductive rights that empower women by giving them control over their bodies and the ability to make informed choices are today, much clearer than at the beginning of reproductive rights litigation and advocacy in the early 2000s. Judicial interventions and advocacy efforts have led courts and the government alike, to a certain extent, to enforce fundamental rights that dignify women amend existing policies as can be seen through the two issues examined above. However, there’s a lot of ground that remains to be covered, as can be seen from Section 2 of this module, in ensuring that women have better access to contraceptive methods and birth control. Barriers in the access to contraception are two-fold, and only the legal side of the issues has been explored here. Another barrier is societal acceptance of female contraceptive use; a view that necessarily needs to be changed as much as the legal framework if women are ever to enjoy the full spectrum of rights inherent to and afforded to them by the Indian Constitution and International Human Right law.

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Reference

  • S. Chandrasekhar(Ed.), Infant Mortality, Population Growth and Family Planning in India: An Essay on Population Problems and International Tensions, Routledge, 2011
  • LEONE, TIZIANA, and SABU S. PADMADAS. “The Proliferation of Female Sterilization in Brazil and India: A Comparative Analysis of the Cohort and Parity Effects.” Genus, vol. 63, no. 3/4, 2007, pp. 77–97
  • “Standards for Female and Male Sterilization services”, Ministry of Health and Family Welfare
  • Ministry of Health and Family Welfare, Family Planning Division, Manual for Family Planning Indemnity Scheme, October 2013 https://www.reproductiverights.org/ar/feature/spotlight-on-india-sterilization-camps On access to contraception and information:
  • Ahluwalia, Sanjam. Reproductive Restraints: Birth Control in India, 1877-1947. Urbana; Chicago, University of Illinois Press, 2008
  • Narayanan, Harini. “Women’s Health, Population Control and Collective Action.” Economic and Political Weekly, vol. 46, no. 8, 2011, pp. 39–47
  • National Health Policy 2016:
  • Standards and Quality Assurance in Sterilization Services, 2016
  • Hardee, Karen, et al. “Achieving the Goal of the London Summit on Family Planning by Adhering to Voluntary, Rights-Based Family Planning: What Can We Learn from Past Experiences with Coercion?” International Perspectives on Sexual and Reproductive Health, vol. 40, no. 4, 2014, pp. 206–214
  • Center for Reproductive Rights & United Nations Population Fund, the right to contraceptive information and services for women and adolescents On abortion:
  • Parliament of India, Medical Termination of Pregnancy Act, 1971
  • Visaria, Leela, et al. “Medical Abortion in India: Role of Chemists and Providers.” Economic and Political Weekly, vol. 43, no. 36, 2008, pp. 35–40
  • Dalvie, Suchitra S. “Second Trimester Abortions in India.” Reproductive Health Matters, vol. 16, no. 31, 2008
  • Centre for Health Law, Ethics and Technology O.P. Jindal Global University, IPAS Development Foundation, Abortion Laws in India: A Review of Court Cases, Report, Nov. 2016