OJHAS Vol. 10, Issue 1:
in India: Prospective Future
of Psychiatry, KS Hegde
Medical Academy, Deralakatte, Mangalore - 575018,
Vaishali Hegde N, Senior
of Psychiatry, Yenepoya
Medical College, Deralakatte, Mangalore - 575018,
Satheesh Rao, Professor
and Head, Department
of Psychiatry, KS Hegde
Medical Academy, Deralakatte, Mangalore - 575018,
Shrinivasa Bhat Undaru, Associate
of Psychiatry, KS Hegde
Medical Academy, Derelakatte, Mangalore - 575018,
Nagesh Pai, Professor
of Psychiatry, Graduate
School of Medicine, University of
Suite – Block C, Level 8, Crown Street, Wollongong NSW 2500.
Address for Correspondence
Mangalore - 575018, India
Kosgi S, Hegde VN, Rao S, Bhat US, Pai N. Women Reproductive Rights
in India: Prospective Future. Online J Health Allied Scs.
Submitted: Dec 18,
2010 Accepted: Dec 31, 2010; Published: April 15, 2011
rights were established as a subset of the human rights. Parents have
a basic human right to determine freely and responsibly the number and
the spacing of their children. Issues regarding the reproductive rights
are vigorously contested, regardless of the population’s socioeconomic
level, religion or culture. Following review article discusses reproductive
rights with respect to Indian context focusing on socio economic and
cultural aspects. Also discusses sensitization of government and judicial
agencies in protecting the reproductive rights with special focus on
the protecting the reproductive rights of people with disability (mental
illness and mental retardation).
Reproductive rights; Mental retardation; Abortion
is always difficult, particularly when the basic relations between men
and women in families and society are involved. There has been
a growing recognition of how the rules governing men and women's opportunities,
social endowments and behaviors affect the prospect for accelerated
development and justice. In the era
of globalization, and urbanization, societies need their own solutions,
grounded in a vision of justice and gender equality and consistent with
their cultures and conditions, to provide a better life for both women
A series of
human rights treaties and international conference agreements forged
over several decades by governments — increasingly influenced by a
growing global movement for women's rights — provides a legal foundation
for ending gender discrimination and gender-based rights violations.
These agreements affirm that women and men have equal rights, and oblige
states to take action against discriminatory practices. The Vienna
Declaration and Programme of Action, the Programme of Action of the
International Conference on Population and Development (ICPD) and the
Platform for Action adopted at the Fourth World Conference on Women
(FWCW) are international consensus agreements that strongly support
gender equality and women's empowerment. In particular,
the ICPD and FWCW documents, drawing on human rights agreements, clearly
articulate the concepts of sexual and reproductive rights.
Thus the reproductive
rights were established as a subset of the human rights at the United
Nations 1968 international conference on human rights.(1)
Parents have a basic human right to determine freely and responsibly
the number and the spacing of their children.(1,2)
The WHO defines
reproductive rights as follows:
“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 information to do so, and 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.” (3)
the reproductive rights are vigorously contested, regardless of the
population’s socioeconomic level, religion or culture.
rights include some or all of the following rights:(3-7)
Right to legal
or safe abortion.
Right to control ones reproductive functions.
Right to access in order to make reproductive choices free of coercion,
discrimination and violence.
Right to access
education about contraception and sexually transmitted diseases and freedom from
coerced sterilization and contraception.
protect from gender based practices such as female genital cutting and male
Reproductive Rights in Indian Context
India, as a
signatory to the International Conference on Population and Development,
1994, has committed itself to ethical and professional standards in
family planning services, including the right to personal reproductive
autonomy and collective gender equality.(8) Indian policies and laws
so far seem to reflect this understanding, at least on paper. The National
Population Policy, 2000, affirms the right to voluntary and informed
choice in matters related to contraception.(9)
The issue of
right to reproductive health especially abortion, takes on special significance
in the Indian context as various national and international stakeholders
struggle to bring meaning to the important concepts of women empowerment,
rights and choices as articulated in the Cairo Agenda at
the 1994 international conference on population and development
setting combines a number of apparent contradictions in how family
planning and abortion policy is set; how services are delivered; how
demographic trends and desires about family size and composition
shape the demand for contraception and abortion; and the social
context defines the pressures, constraints and options for women’s
in implementation of reproductive rights and
The policies and
Nineteen ninety eight analysis of seven states
shows that implementation of the target – free approach varies
considerably across states, with some states unwilling or unable to
abandon targets.(11) Field level assessment indicate that entrenched
attitudes among policy makers and service providers have been
difficult to change as illustrated by the following quote from
physician at the community health centre: The government says that
family planning should be left to free choice, but I don’t understand
why it is wrong to put pressure on women from poor families”.(12)
Although the policy
goal is to provide greater choice in family planning methods, the promotion
and availability of spacing methods continues to be limited. Data from
1990s document shows that it is only within limited number of highly
urbanized centers that Indian women have range of contraceptive options
available. In poor, rural areas especially, contraceptive supplies primary
health centers and sub centers are frequently inadequate or lacking
altogether.(13) The choices
for contraception are very limited at rural centers. For e.g. either
you have option to undergo tubectomy or laparoscopic sterilization based
on the proximity of the rural center to the district head quarter. Specialists
who conduct sterilization prefer to move to nearest center for conducting
camps than remote areas. This has forced the people to accept only available
option and not to choose method of their choice. In true sense it has
curtailed the reproductive rights of the individuals.(14) Even when official
policy encourages the provision of options to women, service providers
often do not practice principles of informed choice. Data from national
family health survey (NFHS 2) indicate only 40 % of women remember ever
discussing family planning with a health worker, only 10 % had ever discussed
the pill, and even fewer have other temporary methods. Only 15% of those who
use modern contraceptive were informed about an alternative method.(15)
The Medical termination
of pregnancy (MTP) act made abortion legal in India in 1972, but vast
majority of women gets abortions outside this legal frame work. In part,
this is due to the inherent restrictions regarding registered facilities
and doctor consent built into by providers and even poorer understanding
among women regarding their legal rights. While official records indicate
that somewhere between 550,000-600,000 induced abortions take place
in the country per year, recent publications suggest estimates close
to 7 million induced abortions per year.(16)
Demography and fertility
In the last decade,
India has experienced declining fertility levels. The total fertility
rate fell from 3.4 to 2.9 between 1992 and 1998.The mean ideal number
of children also fell – from 2.9 to 2.7.(17)This trend is accompanied
by a rising demand for contraception, including spacing methods; however,
use of spacing methods continues to be limited and permanent methods,
more specifically female sterilization, continue to predominate. In
1998, 34 % of currently married women were sterilized (Accounting for
71 % of contraceptive use), but only 7 % were using a spacing method
– levels virtually unchanged since 1992.(17)
Unmet needs for
family planning is substantially greater than is obvious at first glance.
The NFHS-2 calculates unmet need at 15.8% in India using a limited definition
of currently married, fecund women who either want no additional children,
or want no additional children for at least two years. An ICRW study
in Uttar Pradesh calculated unmet need at 31.7% in sitapur using this
same definition. But unmet need rose to 54.8% using an expand definition
that took into account dissatisfaction with contraceptive methods, more
accurate assessment of the protective effect of post partum amenorrhea
and incorrect use of traditional methods.(18)
a vibrant women’s movement and strong presence of grass root NGOs
committed to bringing rights and choice to women. At the same time,
large proportions of women continue to face social and domestic pressures
and constraints that limit their ability to formulate and act on reproductive
decisions. In particular, the continued strength of son preference is
well documented (19); 33% of women would like to have more sons than
daughters with 85% of women wanting at least one son.(15) My personal
experience of working with people in rural area as medical officer.
There was a lady having five children with ongoing sixth pregnancy,
my self and my health workers motivated this lady and her husband to
undergo laparoscopic sterilization from 6th month of pregnancy onwards.
On the day of sterilization when our health workers went to meet her,
the voice of old lady from inside spoke there is no need for my daughter
in law to undergo sterilization, births are god gifts. Later we learnt
that she is the main decision making for five families which stayed
together in the same house.(14) What we need to understand from this is, though
reproductive right is very much specific to the couples, but in Indian context
it is the collective decision of the family. Extrapolation of such rights to
Indian social context needs careful examination.
Spousal consent for
abortion and sterilization
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).(20)
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.(21) According to recent ethics
guidelines in reproductive health research, even use of the term “consent” has
been restricted only to the person who is directly concerned; in circumstances
where partners are involved it is termed a “partner agreement” 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.”(22) The court also
ruled that a refusal to have sex with one’s spouse and a unilateral
decision to not have a child would also amount to mental cruelty. Considering
the circumstances of the case, the court granted a divorce. The judgement
has serious implications for reproductive health services in India,
because it mandates spousal consent for induced abortion and sterilization.
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 grounds to seek 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. It is likely
to set a wrong precedent and put many providers on guard, because they
would not want to be involved in legal tangles. Many clinics may start
using this ruling to impose a requirement of spousal consent. Even providers
in the public sector may insist on a spouse’s signature to avoid legal
problems. The highest
judiciary in the nation has to demonstrate a better understanding and
commitment to human rights, especially women’s rights.(23)
in 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. Nineteen year-old
mentally challenged orphan girl at Nari Niketan, Chandigarh, a government
institution for destitute women, was raped some time in March 2009 on
the premises by the security guards. In May 2009, the pregnancy was
detected. (24) Four-doctor
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 the NGO
appeal against the High courts order, the Supreme Court (SC) 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 thus raised fundamental
issues relating to consent and to the support required while assessing
consent. 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 all its nuances 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 access to abortion of women
with MR, and that it wrongly distinguishes between women with mental
retardation and mental illness, leaving the former out totally. Also
that 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. Since SC has gone ahead to continue pregnancy but has
failed to address support mechanism and state's accountability
for creating and sustaining comprehensive and reliable support systems
for her 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.
What needs to be
done to empower women’s rights to reproductive health?
reproductive health care for women results in high rates of unwanted
pregnancy, unsafe abortion, and preventable death and injury as a result
of pregnancy and childbirth. Violence against women, including harmful
traditional practices like female genocide, takes a steep toll on women's
health, well-being and social participation. Violence in various forms
also reinforces inequality and prevents women from realizing their reproductive
goals. Men also have reproductive
health needs, and the involvement of men is an essential part of protecting
women's reproductive health.
Providing quality reproductive
health services enables women to balance safe childbearing with other
aspects of their lives. It also helps protect them from health risks,
facilitates their social participation, including employment.(25)
Reproductive health does not
affect women alone; it is a family health and social issue as well.
Gender-sensitive programmes can address the dynamics of knowledge, power
and decision-making in sexual relationships, between service providers
and clients, and between community leaders and citizens.(26)
A gender perspective implies
also that institutions and communities adopt more equitable and inclusive
As the primary users of reproductive
health services, women have to be involved at all levels of policy-making
and programme implementation. Policy makers need to consider the impacts
of their decisions on men and women and how gender roles aid or inhibit
programmes and progress towards gender equality.
Reproductive health care should
include following components;
Family planning which
involves strong government support, service providers who are well trained,
sensitive to cultural conditions, listen to clients' needs, and are
friendly and sympathetic, Services are affordable and a choice of contraceptive
methods is available, Counseling ensuring informed consent in contraceptive
choice, ensuring privacy and confidentiality, comfortable and clean
facilities and prompt service.(28)
Safe motherhood programme
should provide access to emergency obstetric care, including treatment
of hemorrhage, infection, hypertension and obstructed labour. Life-saving
interventions, like referring to medical centers. A community-based
system for ensuring rapid transport to an equipped medical facility.
Training Community health workers to detect and treat post-partum problems,
as well as to counsel on breastfeeding, infant care, hygiene, immunizations,
family planning, and maintaining good health.(29)
Abortion and Post-abortion
Care; Abortion is an important public health issue. Family planning
services ensure reduction in unwanted pregnancies and prevent abortions.
In circumstances where abortion is not against the law, quality health
services should ensure safe abortion practices and effective post-abortion
care would significantly reduce maternal mortality rates.
Prevention and treatment
of sexually transmitted diseases (STDs and HIV/AIDS); Because of culture as
well as biology, women are more vulnerable to STDs than men.(31) The integration
of family planning and STD/HIV/AIDS services within reproductive health services
can reduce levels of STDs, including HIV/AIDS, by providing information and
counseling on critical issues such as sexuality, gender roles, power imbalances
between women and men, gender-based violence and its link to HIV transmission,
and mother-to-child transmission of HIV; distributing female and male condoms;
diagnosing and treating STDs; developing strategies for contact tracing; and
referring people infected with HIV for further services.(32-33)
Involvement of men in reproductive
health programme: Greater involvement of men in reproductive health
decisions will give more power to women, not less. The common aim is
the well-being of all family members. Men can advance gender equality
and improve their family's welfare by;
Protecting their partners' health and supporting their choices (E.g.
adopting sexually responsible behavior; communicating about sexual and
reproductive health concerns and working together to solve problems;
considering adopting male methods of contraception), Confronting their
own reproductive health risks (learning how to prevent or treat
sexually transmitted infection, impotence infertility, sexual dysfunction
and violent or abusive tendencies)
Refraining from gender violence;
Practising responsible fatherhood; Promoting gender equality, health
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Reproductive health and right
to reproductive health is not only women issue it is a family health
and social issue. The ultimate aim of the right to reproduction is well
being of the family and individuals. At the same time it becomes the
responsibility of the governments to give quality reproductive health
care and protect the individual reproductive rights while being sensitive
to local and cultural issues. There is increased need for sensitization
of the judicial and government while protecting the reproductive rights
of people with disability especially mental retardation and mental illness.
There is also increased need for sensitization of juidical system on
process of consent to abortion. To ensure quality reproductive health
services, there is need for active community participation and involvement
of men (spouse).
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