The Right to Health and Access to Healthcare for Women

By Sahiba Vyas, National Law University, Odisha, and Shubhi Jadoun, Lloyd Law College

Abstract

India is still fighting to establish gender equity. This discrimination had taken a toll on women with respect to their health in terms of access to quality healthcare and health education. The Pandemic has worsened this problem. Through this article, the authors attempt to analyse how the Right to Life enshrined under Indian Constitution has been overlooked in the case of women’s health in India and also discuss the vulnerabilities faced by Women when it comes to accessing healthcare as compared to men who have been dominating the Indian society for ages now.

Introduction

The World Health Organization defines health as, “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, and political belief, economic or social condition”.[1] It has been almost 70 years since this statement was made by the WHO and this propounding statement has become the most essential for fundamental and human rights.

As human beings, health and the health of those we care about is a matter of daily concern. Ill health does not only come with the repercussions of physical pain but also of economic as well as mental burden.

Violation of the right to health as a human right can have devastating consequences such as exacerbating poor health which ultimately makes people vulnerable to disabilities and further results in poverty, drug abuse, coercive and forceful treatment procedures etc. Thus, for a country to be able to attain a sustainable healthcare scenario, the rights-based approach becomes noteworthy. This approach includes amending health policies and strategies in a manner which focuses on “furthest behind first”.[2]

Due to the bolstering industrialisation and urbanisation, social patterns are continuously evolving. With this evolution, the law should also strengthen its edges to protect the people. The impact of globalisation and urbanisation is sustained by the healthcare system and thus health care must have all the advantages associated with all other Fundamental Rights.

Though the world has drastically evolved and Women’s rights are now widely acknowledged, the injustices in the context of women and their health still persists.

Gender Discrimination And Access to Healthcare

Patriarchal norms and values are deeply engraved in the Indian Society which determines the life spheres and life choices of a woman, both, in public and private spaces. The kingship of patriarchy in India is highly detrimental towards equality as well as equity in Women’s access to healthcare. A recent study conducted by the researchers at the All India Institute of Medical Sciences (AIIMS), the Indian Statistical Institute (ISI), the Prime Minister’s Economic Advisory Council, and Harvard University has determined that gender-based discrimination is leaving a harsh impact on women’s health in India. The research examined the records of 2,377,028 outpatients who visited the AIIMS medical facility from January to December 2016. The experts found only 37% of women got access to health care, as compared to 67% of men.[3]

Though there are various laws in India that protect the reproductive health of women and girls, the existence of these laws have not been able to extinguish the barriers they have put up in context of healthcare. The Laws and Governmental Policies in India primarily focus on demographic targets instead of focusing on the deteriorating healthcare for women. The Government has also been largely focusing on promoting sterilization policies which in turn leads to sterilisation through coercion and risky substandard sterilization procedures.[4]

The framework for gender equality has been enshrined largely in Articles 14 and 15 of the Indian constitution. Further, Article 21 has the right to health entangled within its meaning of right to life.[5]

Further, non-discrimination and equality are the foremost principles of Human Rights Law, which has been enshrined both, in the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Moreover, the Indian Constitution and the Judiciary have created a constitutional obligation in respect of following the obligations created by International Conventions and Treaty. Still, the discrimination against women persists. According to the 4th World Conference on Women, “many women face additional barriers to the enjoyment of their human rights because of such factors as their race, language, ethnicity, culture, religion, disability or socioeconomic class or because they are indigenous people, migrants, including women migrant workers, displaced women or refugees”.[6] Another reason for same is the dismal investment in the improvement of healthcare which has turned it into a privilege for many.[7]

The Right to Reproductive Health is another matter of grave concern in India. The Programme of Action by the International Conference on Population and Development has defined reproductive health as “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”. Further, the Supreme Court of India ruled that Article 21 of the Indian Constitution includes the “reproductive rights of a person”, and also that such right includes “access to a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free, and responsible decisions about their reproductive behaviour”.[8] Moreover, in 2009, the Apex Court recognised women’s reproductive autonomy as a Fundamental Right and included it in the definition of personal liberty.[9]

But even after the huge significance of these constitutional guarantees, nearly two million women reportedly faced restricted access to abortion services and 26 million couples faced limited access to contraceptives due to the disruptions caused by the lockdown.[10] There were around 834,042 unsafe abortions during this period which strengthens the fact that unsafe abortions are the third leading cause of maternal deaths in India.[11] A historical step has been taken through the amendment of the Medical Termination of Pregnancy (MTP) Act, 1971, by increasing the abortion period to 20-24 weeks for special categories of women; however, the implementation of the same remains to be a matter of great concern.

Menstrual Hygiene Management is another significant concern pertaining to women healthcare. There are various cultural notions and taboos related to menstruation in Indian society which is not just exacerbating the condition of women’s menstrual hygiene but is also violating their human rights associated with menstrual health. Menstrual healthcare has always been an undermined topic and nothing much has been done in form of any policy or law concerning the removal of the taboos surrounding it. All of these activities are detrimental to the education of adolescent girls, as around 23 million girls in India drop out of school annually due to the lack of menstrual hygiene management facilities in schools.[12] The stringency in the application of tax (GST) on sanitary pads makes what is supposed to be a basic necessity a luxury for many downtrodden women.[13] The Pandemic made the purchase and even the access to sanitary pads very difficult and it wasn’t initially listed in the list of essential goods.[14]

Due to the lack of education and awareness, girls and women are more vulnerable to HIV as compared to men. Many families constrain the women of their family from obtaining information about sex and reproduction as their ignorance to such things are considered as a sign of purity.[15]

All of these in totality is violative of Articles 14 and 21 of the Indian Constitution. Though there are several policies like the ‘Rashtriya Kishor Swasthya Karyakram‘ and ‘Janaushadhi Sugam’, these policies are unable to touch the grassroots of the Society. Thus, stringent laws and policies should come into being in order to remove all such vulnerabilities. More importantly, the implementation of all such laws and policies should be ensured by the State.

Indian Policies And Legislations For Women’s Health

Well-being is a significant factor that contributes to human prosperity and monetary development. The steady debasement of the nature of wellbeing because of the absence of resources and investments has made this a significant concern.

At present, women in India need to confront various medical problems – be it an actual disease or mental sickness like lack of healthy sustenance, poor maternal wellbeing, uneasiness, depression due to an expanded pace of domestic violence amongst other causes.[16]

India, time and again, has made laws related to women healthcare which are as follows:-

  • Pre-conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of misuse) Act, 1994

This act aimed at prohibiting pre-natal diagnostic techniques to stop sex selection and female foeticide but on the other hand allow and regulate pre-natal techniques only in exceptional cases where, detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders,[17] is of utmost importance to the health of the woman and the child. It lists out the abnormalities where the technique can be used,[18] and other than those listed, it is a prohibited practice.[19]

  • The Medical Termination of Pregnancy Act, 1971

Before the act, abortion was illegal in India and was a punishable act under the IPC. However, through this act, it was made legal in cases where it is pertinent to do so. This was done to reduce maternal morbidity and mortality resulting from illegal abortions. Section 3 lists out the circumstances when pregnancy can be terminated and that should only be done by a registered medical practitioner at approved hospitals only. The most recent amendments have been made to this Act, which inserted a confidentiality clause; increased the gestation period from 20 to 24 weeks; and much more which is a boon to the maternal healthcare facilities to women in India.[20]

  • Maternity Benefits Act 1961

This act was made to secure the employment and related benefits of women before, during and after pregnancy.

Women are also entitled to maternity benefits concerning their wages as the act itself states,  “every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day”.[21] It also provides for facilities of work from home and crèche.[22]

Conclusion

Wellbeing is a vital part of life, yet, ensuing segments of society like ladies, kids, individuals with disability need admittance to assets or solid living which occurs because of different reasons as analysed in the article.

Women wellbeing should not be limited to maternity,[23] and it should be recognized that their concerns are a lot more extensive than that. Women’s occupational health and degrading mental health due to violence and other factors should also be considered. Additionally, the gender disparity that is found in the proficient field of healthcare is likewise something that should be tended to.  Women ought not to be discriminated against based on their standing, religion, conjugal status, HIV status, fertility status and much more with respect to their Right of Health as well as access to healthcare.

Women ought to have sole autonomy concerning their conceptive and sexual rights. Time and again laws have been enforced, however, they seem to be inefficient or to be more precise, their implementation seems to be inefficient. In the case of Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors., the court held,  “no woman, more so a pregnant woman should be denied the treatment at any stage irrespective of her social and economic background…. This is where the inalienable right to health which is so inherent in the right to life gets enforced.”

Possible Solutions

  1. Education program to inform people regarding the laws prohibiting pre-natal diagnostic techniques to stop sex selection and female foeticide.
  2. Provide free contraceptives to women to avoid unwanted pregnancies.
  3. Establish a separate commission or committee to monitor the grievances, supervision of pregnant women with regard to employment benefits or any healthcare issue
  4. Impose stricter punishment for violation of any laws concerning women’s health care.
  5. Promote and aware masses of women’s right to abortion and circumstances when pregnancy can be terminated.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[1]Health is a fundamental human right, WHO (Dec. 10, 2017),https://www.who.int/news-room/commentaries/detail/health-is-a-fundamental-human-right

[2]Human rights and health, WHO (Dec. 29, 2017),https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health

[3]Richa Jain Kalra, Access to health care a distant dream for most Indian women,Made for Minds (Aug. 21, 2019), https://www.dw.com/en/access-to-health-care-a-distant-dream-for-most-indian-women/a-50108512

[4]Devika Biswas v. Union of India & Others, W.P. (C) 81/2012 (India).

[5]Parmanand Katara v. Union of India, (1989) 3 S.C.R.997 (India).

[6]United Nations, Women’s Rights are Human Rights (2014).

[7]Kailash Satyarthi, Why access to healthcare needs to be a fundamental right, The Indian Express (Jun. 20, 2021),  https://indianexpress.com/article/opinion/why-access-to-healthcare-needs-to-be-a-fundamental-right-7367734/

[8]Devika Biswas v. Union of India & Others, W.P. (C) 81/2012 (India).

[9]Suchita Srivastava &Anr v. Chandigarh Administration, (2009) 11 S.C.C. 409 (India).

[10]Tarun Bhardwaj, World Population Day 2021: Need to work on women’s access to health services, says Divya Santhanam, Population Foundation of India,Financial Express (Jul. 11, 2021), https://www.financialexpress.com/lifestyle/health/world-population-day-2021-need-to-work-on-womens-access-to-health-services-says-divya-santhanam-population-foundation-of-india/2287937/

[11]Neha Thirani Bagri, ‘Women always take the brunt’: India sees surge in unsafe abortion, The Guardian (Jul. 13, 2020), https://www.theguardian.com/global-development/2020/jul/13/women-always-take-the-brunt-india-sees-surge-in-unsafe-abortion.

[12]Aishwarya Upadhyay, Menstrual Hygiene Day Facts: Only 36 Percent Of The Women In India Use Sanitary Pads During Periods, NDTV (May 29, 2019), https://swachhindia.ndtv.com/menstrual-hygiene-day-facts-26-percent-use-sanitary-pads-periods-34309/.

[13]Karan Babbar, Deepika Saluja and Sugandha S. Parmar, Menstrual Hygiene Day: Why Menstrual Health Belongs on India’s Political Agenda,The Wire (May 28, 2020),https://thewire.in/rights/menstrual-hygiene-day-why-menstrual-health-belongs-on-indias-political-agenda.

[14]Id.

[15]Gender and HIV/AIDS: Taking stock of research and programmes, UNAIDS (March 1999) http://www.unaids.org/en/in+focus/topic+areas/gender+and+hiv-aids.asp?StartRow=60.s

[16]What are the common issues faced by the women?’, Women’s Health, National Health Portal, available athttps://www.nhp.gov.in/healthlyliving/women-s-health.

[17]Pre-conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of misuse) Act, 1994, Preamble.

[18]Pre-conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of misuse) Act, 1994, § 4 (2).

[19]Id., § 3A.

[20]India’s amended law makes abortion safer and more accessible’, World Health organization, 13 Apr. 2021, available at https://www.who.int/india/news/detail/13-04-2021-india-s-amended-law-makes-abortion-safer-and-more-accessible.

[21]Maternity benefit Act, 1961, § 5.

[22]CS Nishvitha, ‘An overview on the Maternity Benefit (Amendment) Act, 2017’, available at https://www.icsi.edu/media/portals/22/Article%20on%20MBA%20Act,%202017.pdf.

[23]Declaration,The Indian Women’s  Health Charter, March 8 2007, pg-6, available at http://www.phmindia.org/wp-content/uploads/2015/09/Indian_Womens_Health_Charter.pdf.

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