by Aarushi Gupta and Hardeep Singh
Introduction
Due to the restrictions of the Covid-19 pandemic, sexual and reproductive rights are at peril. As women are left without access to basic and necessary medical services such as contraception and abortion care, HIV testing, reproductive cancer screenings, and respectful maternal healthcare, giving birth during a global health crisis is challenging and stressful.
Women have to face challenges such as overloaded hospitals, travel bans, lockdowns and border closures, which makes access to services difficult. Increased financial hardships during the pandemic has boded ill for marginalized women where they do not have means to access the health services. United Nations sexual and reproductive health agency has warned that the pandemic has “severely disrupted access to life-saving sexual and reproductive health services”.
In India, during the nationwide lockdown, there has been an increase in cases of sexual and reproductive violence, which the UN calls a “shadow pandemic”. This issue cannot take a back seat as India is already not able to ensure family planning with 30 million women wanting contraception or abortion and this could skyrocket due to the crisis. 70% of health and social workers are women, operating in infection prone zones, however their protection is not prioritised.
The article puts forth that during the pandemic, there has been serious abuse of reproductive and sexual rights of women. The latter part of the piece deals with the ways to ensure a secure society for women.
Image credit: Stasia Clancy for actionsforchoice
Legal framework
- Right to health
Indian Ministry of Health and Family Welfare has mandated guidelines that pregnant women must be provided with all essential maternal health services. A plethora of states like Uttar Pradesh, Bihar and Kerala have halted programmes like vaccinations, door to door services and even prenatal check-ups for women. Healthcare workers and assistant nurse midwives engaged in reproductive healthcare department are now looking after COVID-19 patients. It is estimated that there will be at least 1,400 to 2,000 maternal deaths due to the lockdown because of poor access to family planning and healthcare services.
The landmark judgment Laxmi Mandal v. Deen Dayal highlighted women’s right to survive pregnancy and childbirth as well as the right to guaranteed access to reproductive health services. The obligations of the state have been well described under Article 12 of the Committee on the Elimination of Discrimination against Women (CEDAW). It recognizes availability of health care services, goods and facilities without discrimination. It should be largely accessible physically and economically, and be of good quality. CEDAW has been severely undermined as healthcare facilities are not available due to the reluctance of state authorities. The consequences include shortages of Personal Protective Equipment or deterring women from getting health check-ups. Disruptions in pharmaceutical supply chains have impacted the availability of contraceptive methods and medical abortion drugs. This makes services inaccessible and women are forced to take drugs without supervision or seek help from people who lack training.
- Right to bodily autonomy
Supreme Court in Javed and Others v. State of Haryana recognized reproductive rights as both part of the right to health as well as a woman’s right to make informed, free, and responsible decisions. The right over reproductive behaviour/choices is also a dimension of Article 21 (Right to life) which guarantees ‘personal liberty’ and ‘to live with dignity’. However, the status quo has restricted the bodily autonomy for reproductive behaviour.
On April 14, the central government declared abortion an essential service for survivors of rape where statutory authorities will facilitate health and travel pass. Excluding rape survivors, abortion is more or less inaccessible. Not categorizing it as an essential service, women will have to face movement restrictions, increased economic costs, no priority by the health infrastructure and issues in supply of drugs. The unprecedented outcome will be an exponential increase in undesirable pregnancies. It also limits the freedom and autonomy which is the ability of the individual to control vital aspects of her life.[1] Furthermore, Dr. Mangla Dogra & Others v. Anil Kumar Malhotra & Others judgment shows that nobody can interfere in a woman’s decision to carry on or abort her pregnancy as that would naturally affect the mental health of the pregnant women. The apex court has also observed the freedom to exercise reproductive rights includes the right to make a decision regarding sterilization/contraception. However, women’s autonomy has been severely undermined in this regard as it is not even classified under essential services which may result in a loss of 6.9 lac sterilisation services.
Since bodily autonomy speaks to the regulation and control over women’s sexuality and reproductive capabilities, it also implies the right to freedom from sexual violence. The confinement of women to households during lockdown has made them more susceptible to sexual violence. Even though the apex court has recognized dignified life free from physical violence, sexual and emotional abuse[2], the government has failed to take required measures. In India, the Protection of Women from Domestic Violence Act, 2005 was introduced as a safeguard for women due to exponential increase in domestic violence. Under Section 8 and 9, police and protection officers are appointed to provide relief and inform women about their legal rights. This has failed miserably during the pandemic. As mandated under Section 7, the government has not facilitated medical aid, which is quite evident from the lack of access to sanitary napkins, contraceptives and several other hygiene products.
- Right to meaningful choice
Another aspect to consider is the government’s duty, not limited to categorizing abortion or maternal health care as essential service, but also to facilitate safe and quality services. Women are not able to access contraceptive/abortion services due to existing superstitious believes, stereotypes, myths in the society. In such exacerbating circumstances, support from government is required. Nonetheless, states have withdrawn their assistance by not stirring up any provisions for reproductive services, as well as moving reproductive healthcare workers to COVID-19 relief. This has hampered antenatal care, interpartum, immunization, safety in abortion services, etc. Moreover, more than 70% of private hospitals are closed. Due to such exacerbating circumstances, it is estimated that 25.6 million couples would not be able to access contraception and abortion services. This violates a woman’s right to ‘meaningful choice’ over her reproductive organs. The concept evaluated in Navtej Johar, Puttaswamy judgment, which described that full exercise of autonomy requires that choices be meaningful, not limited by lack of opportunities where the state and social structures should provide women with the practical ability to access these rights and exercise this freedom.
The way ahead
The government should proactively promote rights of women through online education, social media, etc. Electronic medical consultation, home visits by midwives, psychosocial support, and ample screening should be facilitated in India as done in England, Scotland and Wales to bridge the gap between health practitioners and patients. The government should facilitate required medical tools and services in rural areas where more than 48% of Indian women reside.
The government should monitor medical supply chains and have sufficient stock to avoid shortages. The central government should mandate all states to provide reproductive services. There should be adequate supply of essential products such as sanitary napkins, contraceptives, family planning kits and other hygiene products.
During the pandemic, victims of sexual violence are locked up at home with their abuser. This calls for strategic plans which ensure swift redressals for the grievances suffered. Facilities such as counselling, shelter homes, temporary employment, etc. should be provided. Governments in Canada, US and Spain have appropriated funds and provided accommodation to women during COVID-19.
In the long run, it is essential that the government creates a dynamic and uniform platform for receiving and redressing the sexual and reproductive grievances of women. Along with this the platform, feedback and accountability mechanisms need to be established to ensure effective functioning.
Conclusion
Women’s rights have always been in jeopardy and historical events show that intervening situations like the pandemic, effect women’s rights negatively. Willy-nilly, along with the health pandemic, COVID-19 has numerous other far-reaching implications too. These implications include a myriad of problems for women which should be brought to the table by the government.
This article has shed light on the existing legal rights for women in India, and argues that these rights are not upheld under the pandemic.
Aarushi Gupta is a student at National Law University, Lucknow. She is interested in international human rights law and environment law.
Hardeep Singh is a student at National Law University, Lucknow. He has interests in the field of constitutional law and criminal law.
[1] K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1.
[2] Ahemdabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors., (1977) 11 S.C.C. 121.
