Sexual and Reproductive Rights as a Key Dimension of Women’s Health

I. Introduction

Now we have an idea about the determinants of health and its intersection with the gender components. In this module we shall explore the concepts namely reproductive rights, sexual rights, reproductive and sexual health. Primarily, every right of the human being to enjoy the maximum standard of physical and mental health structure on the basis for the sexual and reproductive health and rights as enshrined under Article 12 of the International Covenant on Economic, Social and Cultural Rights (1966). This implies that countries that have ratified this covenant have to take necessary measures in their respective countries towards full realization of the right to health. The right includes both health care and the right to have equal opportunities or access to resources and conditions necessary for being healthy. Within this framework, let’s understand the concepts of sexual and reproductive health and rights.

II. History of Sexual and Reproductive Health and Rights in India

Given that, our Indian constitution does not guarantee Right to Health, it is interpreted within constitutionally guaranteed Right to Life in the Indian context. With the surge in population and determination for development, India was the first country to implement a population stabilization program in the year 1952. The push for population stabilization was targeted through the family planning program that mostly targeted the women of the country, particularly the poor. Further the nature of the program being compulsive and coercive made it an unpopular program during 1970’s. Following the International Conference on Population and Development in 1994, many governments including the Indian government took forward in action, the vision of ICPD’s Program of Action. The National Rural Health Mission, a Government of India initiative that began in 2005, provided scope to incorporate a ‘reproductive health approach’ to achieve the goals of the National Population Policy (2000). Thus the Family Planning Program was integrated into the Reproductive and Child Health (RCH) Program and a target free reproductive and child care approach was adopted since 1996-97 onwards. As far as sexuality and sexual rights/health is concerned, predominantly the sexual health discourse and interventions remain within the larger pretext of reproductive health. In India, even the human rights movements have to a great extent remained out of the sexuality discourse and focused on the civil and political rights, except a few NGO’s, civil society organizations and the rights activists who have been engaged with the issues of sexuality.

III. Sexual and Reproductive Health in India: situation and response

Young people (10–24 years) constitute about one-third of India’s population1. Compared to earlier generations, the situation of young people has improved significantly in the country: they are healthier and better educated. However, many problems still exist including early marriage, early childbearing, HIV and sexually transmitted infections (STIs), gender-based violence, lack of information and choices, and lack of access to services.

Early marriage is a particularly important cause of poor health of girls in India, and despite being illegal before the age of 18 years indicates that nearly 50 percent of currently married women, aged 20–24 were married on or before the age of 18 years.³ Adolescent pregnancies are common as a result of early marriage: one in five young women aged 20–24 years have given birth at or before 18 years of age.

In addition to early marriage, lack of knowledge about sexual and reproductive health also undermines young people’s sexual and reproductive health. A national study carried out in 2016-2017 indicated that only 15 percent of young men and women in the 15–24 age groups had received family life or sex education, although the vast majority expressed the need for such education.

Many other factors contribute to poor reproductive health outcomes in adolescence. For example, findings from NFHS–4 indicated that as many as 56 percent of girls and 30 percent of boys in the 15–19 age group were anemic. This has implications for morbidity and mortality rates of both mother and child, not to mention negatively affecting performance in school that keeps girls locked in a cycle of poverty.

Furthermore, other important health problems may be linked to poor sexual and reproductive health in terms of cause and effect, mental health problems for example. A review of deaths in India between 2011 and 2013 showed that 13 percent of suicide deaths in the country occurred in 15–29 year olds and a more recent study reported that almost 14 percent of young men and women reported symptoms or behaviors indicative of mental health disorders5.

An important proximal determinant affecting adolescent sexual and reproductive health and rights (ASRHR) is the policy environment. It was only in the late 1990’s, when greater attention was directed to young people because of concerns about the transmission of HIV among this segment of the population, that there was greater openness about addressing issues relating to sex among young people6. Of particular importance for ASRHR was the incorporation by Ministry of Health and Family Welfare (MoHFW) of a focus on adolescent friendly health services into the Reproductive and Child Health Programme (RCH2).

In addition, NACO⁴ developed an Adolescent Education Program that included modules for implementation in schools across the country. Despite these positive developments, a review of adolescent programs in 2017 showed that there remains a considerable gap between the commitments made in policies, the implementation of these commitments and the reality of young people’s lives in India.

IV. Reproductive Rights of Women

Reproductive Health was given an international consensus definition at the International Conference on Population and Development (ICPD) in 1994.⁵ 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 focused 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 sterilization camp in Bilaspur district of Chhattisgarh in November, 2014 highlighted systematic failures at multiple levels when it comes to executing official family planning policy. What happened at Bilaspur sterilization 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, sterilization camps are often conducted in schools, abandoned buildings, make-shift camps with poor quality services leading to high morbidity rates including mortality.

In 2005 the Hon’ble Supreme Court decision in Ramakant Rai (I) & Anr. v. Union of India & Ors. (Ramakant Rai)⁶, in adherence to which the Government had published multiple manuals establishing procedural and substantive guidelines for female and male sterilization under family planning or public health programs, including regarding quality assurance and standard operating procedures.

V. ICPD Program of Action

Reproductive Health was given an international consensus definition at ICPD⁷. 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.

(A) Its two important clauses which ensure reproductive rights of 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”.

VI. 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 Sterilization. Non-Scalpel Vasectomy, though a part of the basket of choice remains under-utilized.
• In the Financial Year 2018-2019, India spent Rs 20 lakh crore for Family Planning. Female sterilization constituted 85% of the total Family Planning expenditure (for a total of 39, 23,945 female sterilizations).
• As per the National Family Health Survey IV - 2015-2016 (NFHS-IV), nearly 27% 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 280 per 100,000 live births (2018) 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 sterilization, men are given more compensation than women.
• Laws such as the MTP Act⁸ 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 authorizes 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.3⁹: When pregnancies may be terminated by registered medical practitioner.

• 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:

• The continuance of the pregnancy would involve a risk to the life of the pregnant woman, or
• A risk of grave injury to the her physical or mental health; or
• If the pregnancy is caused by rape; or
• 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
• Failure of any device or method used by the married couple for the purpose of limiting the number of children; or
• 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 off course 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

• When 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)¹⁰.

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 equality¹¹.

Now, with advanced technology, there is no harm in women going for abortion at any stage. Even committees 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.¹²For years, the National Commission for Women, Federation of Obstetric and the Gynecological 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.

VII. Women’s Sexual Rights in India

Sexuality is a core dimension of being human. For sustainable development, women and girls must have the freedom, the power, and the support to demand and access their sexual and reproductive rights. They must be able to take and give consent to decisions around their bodies and lives, such as choose when and whom to have sex with; decide if and with whom to get married; choose when and if to have children; and determine when and what health and other information and services they require and access them. They must not face violence, discrimination, or exclusion because of the choices they make.

Statistics released by various surveys carried out nationally as well internationally reveal that:-

• Around 40% of women aged 18–24 reported having had sex by the age of 18. This proportion was higher in rural areas than in urban areas (48% vs. 24%) and in the poorest households than in the wealthiest (64% vs. 14%).
• Some 39% of 15–24-year-old women were aware that condom use reduces HIV risk, and 49% knew that having an uninfected partner also reduces risk.
• However, just 20% had comprehensive knowledge of HIV/AIDS, defined as knowing these two HIV-prevention methods, in addition to knowing that a healthy person can be HIV positive and being able to reject two common misconceptions about HIV transmission.
• Some 57% of the nation’s 20–24-year-old women were married before the legal age of 18.¹³
• Fourteen percent of births among women younger than 20 were reported as wanted later (mistimed) or not at all (unwanted). Etc.

These statistics make it very important for people to advocate for the sexual rights of women and spread sex and reproduction related information amongst young girls.Let’s first and foremost understand what women’s sexual rights are all about? Women’s Rights are the rights and entitlements that are claimed for women and girls worldwide.

And, sexual rights include and largely focus on – sexual pleasure and emotional sexual expression. The most prominent platform that has seen the struggle for sexual rights has been WAS Declaration of Sexual Rights.

(B) The 1995 Beijing Conference on Women established that human rights include the right of women to be able to freely and without any coercion, violence or discrimination, have full control over and make decisions concerning their own sexuality and their own sexual and reproductive health. Many countries have interpreted this to be as the applicable definition of women’s sexual rights.¹⁴

The UN Commission on Human Rights has established that if women had more power, their ability to protect themselves against violence would be strengthened.¹⁵

(C) At the 14th World Congress of Sexology¹⁶, the WAS adopted the Universal Declaration of Sexual Rights, which includes 11 sexual rights:

1. The right to sexual freedom.

2. The right to sexual autonomy, sexual integrity, and safety of the sexual body.

3. The right to sexual privacy.

4. The right to sexual equity.

5. The right to sexual pleasure.

6. The right to emotional sexual expression.

7. The right to sexually associate freely.

8. The right to make free and responsible reproductive choices.

9. The right to sexual information based upon scientific inquiry.

10. The right to comprehensive sexuality education.

11. The right to sexual health care.

This Declaration gave an influence on The Yogyakarta principles¹⁷ especially on the idea of each person’s integrity, and right to sexual and reproductive health.

In 2015 the U.S. government said it would begin using the term “sexual rights” in discussions of human rights and global development.

(D) When it comes to India, it is very important for every woman to know these 10 important rights related to their sexuality:-

1. RIGHT TO FREE LEGAL AID According to a Delhi HC ruling, whenever rape is reported, the senior house officer has to bring this to the notice of the Delhi Legal Services Authority, who then arranges a lawyer for the women. This protects the women from being misquoted and harassed.

2. RIGHT TO PRIVACY Women who have been raped have the right to record their statement in private, in front of the magistrate, and if they want, in the presence of a lady constable, where no one else can hear. Under sec. 164 of the Criminal Procedure Code, the police will have to ensure the victim’s privacy without pressurizing her to report in front of a bigger crowd.

3. RIGHT TO UNTIMELY REGISTRATION There are many reasons as to why women would postpone going to the police to lodge a complaint and the police cannot refuse to lodge the complaint no matter how late it is because a women’s dignity comes before everything else.

4. RIGHT TO VIRTUAL COMPLAINTS According to the guidelines issued by the Delhi Police, women have the privilege to lodge a complaint via email or a registered post. If, for some reason, they cannot go to the police station, they can lodge their complaint by sending an email/registered post addressed to a senior officer of the level of Commissioner of Police. The police officer then directs the SHO(Station House Officer, whose ranking is above the sub inspector and below DSP) of the police station to the location where the incident occurred to verify the complainant and subsequently lodge a FIR.

5. RIGHT TO ZERO FIR Many a times, the SHO of a police station sends away the rape victims away because they don’t want to take any responsibility. Seeing this problem becoming very prominent, SC took cognizance of it and in its ruling specified that a rape victim can get her FIR registered in any of the police stations in the city under the ZERO FIR ruling.

6. RIGHT TO NO ARREST There are many cases of women being harassed by the police at the wee hours of the night. However, this can be avoided if women exercise their right to no arrest after sunset and before sunrise even if there is a woman constable accompanying the police officers. This right has been clearly stated in a Supreme Court ruling.

7. RIGHT TO NOT BEING CALLED TO THE POLICE STATION Under section 160 of the CrPC¹⁸ women can refuse to go the police station for interrogation as the police can interrogate her at her residence in presence of a woman constable and her family and her friends.

8. RIGHT TO CONFIDENTIALITY In no circumstances can the identity of the rape victim be revealed, neither by the police nor the media. In fact, section 228-A of IPC¹⁹ the disclosure of a victim’s identity is a punishable offence. This is done to prevent victimization or ostracism of the victim.

9. RIGHT TOWARDS CRIME AND NOT A MEDICAL CONDITION A victim of rape needs to be examined by section 164-A of the CrPC²⁰ and only the report can act as a proof. However, a case of rape cannot be dismissed even if the doctors say that rape has not taken place because rape is not a medical condition but a legal term.

10. RIGHT TO NO SEXUAL HARASSMENT Supreme Court had specified in one of its rulings that it is mandatory for every firm (public or private) to set up Sexual Harassment Complaints Committee to resolve matters of sexual harassment. Thus, with these rights and various Supreme Court and High court guidelines being in place the women have definitely been empowered and it’s now time for women to empower their own selves.

VIII. Implementation: sexual and reproductive health policy and programming

The ICPD has also had major impacts on international development policies. The Global Strategy on Women, Children and Adolescent Health and the Sustainable Development Goals, most notably Goal 5.6, are key examples of initiatives that incorporate human rights into sexual and reproductive health programming and implementation. At all levels, these initiatives have shed light on the processes and practices underpinning policy-making and programming.

Across the spectrum of sexual and reproductive health services, an emphasis can now be seen on the need for programmes to recognise the legal and policy environment where they are situated; not violate rights but consciously seek to contribute to their fulfilment; work towards the inclusion of those affected and most marginalised; and effectively operationalise the concepts of non-discrimination, participation and accountability. when services are provided in this way, affected populations are more receptive to using them.²¹ Similarly, vital to improving monitoring of maternal deaths and promoting accountability, African Ministries of Health in Eastern and Southern Africa have worked towards institutionalisation of Maternal Death Reviews which have helped government better plan interventions.

IX. Role of NGOs

Monitoring Committees, such as The convention on the Elimination of All Forms of Discrimination against Women(CEDAW) must vigilantly scrutinise states' reports on the implementation of rights under the particular convention. They are assisted in this by alternative or shadow reports submitted by national and international NGOs, who are often invaluable in providing information on the underlying conditions causing poor reproductive and sexual health and may include medical, public health, or social science research. These shadow reports frequently provide useful information and data on state failures to protect and promote women's reproductive and sexual health rights. Moreover, when Committees receive evidence from NGOs that contradicts claims in governmental reports, it allows the Committee to question state credibility and compliance.²²

NGOs can have a significant impact if they are successful in urging treaty bodies to direct states to comply with their obligations relating to the protection and promotion of reproductive rights under IHR treaties. Key areas on which NGOs can urge treaty bodies to focus include:

• a ensuring that domestic legislation conforms with the relevant human rights provisions;
• a ensuring that states enact laws, polices, and programmes to ensure universal affordable
• access to a full range of high quality healthcare, including reproductive and sexual health services;
• a examining state implementation of a gender perspective in all policies and programmes affecting women's health;
• questioning whether states have involved women and NGOs in the implementation and monitoring of such policies and programmes
• examining whether states have allocated the overall budgetary, human, and administrative health resources to women's health in a manner comparable with resources allocated to men, taking into account the particular health needs of various groups of women including the most vulnerable such as refugee, disabled, or aboriginal women, and women from minority groups.

X. Conclusion

Sexual and reproductive health services include maternal health and preventing maternal mortality and morbidity, prevention and treatment of sexually transmitted infections, HIV and AIDS, Family planning and safe, legal abortion; prevention and treatment of reproductive cancers, infertility prevention and treatment, and comprehensive sexuality and relationships education for youth. Further sex and sexuality are contested spaces and therefore silences the sexual rights aspects. There is a growing evidence towards threat for legal safe abortion services. Universal access to safe abortion rights remains an ongoing struggle, which reflects, “gross asymmetry within and across rights related to sexuality and reproduction”.

The unacceptability of safe abortion actually concerns the sexual freedom of women, disconnecting sex from reproduction and challenging the beliefs. Thus, control of women’s sexuality accompanied by lack of respect for their autonomy and self-determination over their bodies pose detrimental consequences. These play a role in the midst of multiple levels of power hierarchy accompanied with the gender norms and roles and responsibilities. It is very important to recognise that women’s health is more than reproductive health. While reproductive health is a critical component for women, being a woman has implications for health.

Performance monitoring has gained increasing attention as a toll for evaluating the delivery of personal health care services and for examining population based activities addressing the health of public. Although many performance monitoring activities are focused on specific health care organization, there is a growing appreciation of their importance from a population based perspective. Only at the population level is it possible to examine whether the needs of all segments of the community are being addressed.

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Footnotes

1. Author is a student at KIIT Law School, India.

2. Co-Author is a student at KIIT Law School, India.

3. The National Family Health Survey (NFHS-3) ↩

4. The National AIDS Control Programme (NACO) ↩

5. On the needs of individuals and on the empowerment of women, see N. Sadik, Foreword, Programme of Action of the International Conference on Population and Development, Report of the International Conference on Population and Development, 5-13 September 1994, UN Doc. A/CONF.171/13 ↩

6. MANU/SC/0999/2016 ↩

7. The International Conference on Population and Development (ICPD) in 1994 ↩

8. Medical Termination of Pregnancy (MTP) ↩

9. Section 3 of MTP Act ↩

10. Sudha Sandeep Devgirkr vs Union Of India on 3 April, 2019 ↩

11. Sonali Sandeep Jadhav & Anr. V. Union of India & Ors, W.P.(C) 551 of 2017 ↩

12. Sarmishta Chakrabortty and anr vs. Union of India and ors - (2018) 13 SCC 339 ↩

13. (as per Indian Ministry of Law and Justice report 2018.) ↩

14. (According to “Sweden’s international policy on Sexual and Reproductive Health and Rights”) ↩

15. as per – E/CN.4/RES/2005/41 and E/CN.4/RES/2005/84) ↩

16. (Hong Kong, 1999), ↩

17. (which were launched as a set of international principles relating to sexual orientation and gender identity on 26 March 2007) ↩

18. Code of Criminal Procedure ↩

19. Indian Penal Code ↩

20. Supra 16 ↩

21. Global Programme to Enhance Reproductive Health Commodity Security. UNFPA. ↩

22. Health for All women and men: a gender perspective, held in Geneva in October 1997. ↩