Governments are required under international human rights law to encourage, safeguard and respect the right to health, including maternal and reproductive health. Governments safeguard people’s health with well-being by initiatives such as universal health insurance policies, disease prevention systems, state support for preventive and curative healthcare services, and introducing legislation and regulations as a basis for programs and facilities. Laws are not only used to encourage healthily but also play a disciplinary role by offering punishments for acts that might endanger human health, For example, by imposing fines, denying licenses and imprisonment for medical malpractice, or by criminalising crimes such as domestic abuse, rape and incest. The purpose of such legislation is to dissuade people from engaging in such conduct, rehabilitate criminals, or offer compensation to victims.
Many health-related policies encourage, support and value human rights. However, other legislation infringes basic rights when it criminalises, prohibits or hinders access to evidence-based health services and procedures. This is especially the case in relation to pregnancy, following growing international and national awareness of the need for gender equality, empowerment of women and the capacity of women to control their reproductive health. These policies are of serious concern because they can increase and further weaken the vulnerability of women to harassment, violence and safety. Several of these laws have been implemented or sponsored by conservative organisations who do not accept women’s reproductive autonomy. Taking into account the need to safeguard female reproductive health and liberties, the Human Rights Council has specifically pointed for a human rights-based approach to programs and policies to reduce maternal and neonatal mortality. This paper explains how certain pregnancy-related laws and regulations prohibit women from practising many of their constitutional rights. First, we are considering a commonly used tactic to create a context in which it is easier to criminalize and monitor acts in relation to pregnancy: the advancement of legislation and constitutional amendments to protect life before conception.Second; we explain how the laws and regulations on contraceptives, the conduct of pregnant women and abortion can affect women and put women and health care providers at risk of legal penalties.We end with a summary of how laws and regulations that criminalize and regulate women’s pregnancy-related practices and hinder their access to health care breach their basic human rights.
Establishing a framework to maintain life
Laws and democratic reforms at national and sub-national level have also been proposed and implemented in many countries intending to protect all life before conception, making it necessary, in some conditions, for the rights of the zygote, embryo or foetus to prevail over those of the pregnant woman.
Some of the certain laws concentrate on ‘protecting life from conception’ or ‘protecting the unborn’ but lack of judicial clarification regarding ‘conception,’ with some legislative proponents providing no meaning, some comparing it with fertilisation, and others referring to the implantation of the fertilised ovum in the uterine wall which can typically be confirmed just three weeks after implantation.
The uncertainty of these bills concerns not only the meaning of words but also the potential implications of the enactment. For illustration, in 2010, the governor of the U.S. state of Idaho vetoed a bill which would have allowed the prosecution of women who had lost their pregnancy because of some of their own actions (for example, to engage in vigorous exercise, which could be called negligence or criminal negligence). In 2011, a parallel bill was introduced in the state of Georgia with a potential death penalty for a woman who just can not show that she had no “involvement” in miscarriage. Considering that up to 25% of pregnancies end in miscarriage, a significant number of women may be prosecuted under such legislation.
In other cases, the proposed legislation aims to extend human and civil rights to offspring of birth by granting them the legal status of “human beings” with rights equal to that of persons who have been born (for example, the laws introduced in Brazil, the Philippines and the United States). States have not granted pre-birth protection in the context of universal human rights treaties. One example is the Convention on the Rights of the Child, which in Article 1 refers to children as human beings younger than 18 years of age. Article 4.1 of the American human rights legislation provides that “each citizen has the ability to have his or her living treated with dignity and respect. This right shall be protected under the law and, in general, from the moment of creation.Nevertheless, in a case brought before the Inter-American Commission on Human Rights (IACHR) in 1981, the IACHR claimed that this provision would not prohibit governments from allowing legal abortion. They alluded to the past of the discussions in the Convention’s composition, in which the language expressly imbuing rights on the “unborn” was refused.
Prohibiting women from obtaining contraceptives or requiring a contraceptive system
Defenders of reproductive self-determination say that modern forms of contraception are “abortive” because they discourage the ovulation and implantation of fertilized eggs. Opponents use this claim to impose bans or limitations on modern contraception methods as part of their lobbying campaigns to ban abortion.Research has also shown that contraception, such as emergency contraception with hormonal pills and artificial insemination, slows or prevents ovulation, does not inhibit the fertilization of fertilized eggs and does not disrupt established pregnancy.Such initiatives do not, however, rely on scientific evidence; contraceptives, by definition, prevent abortion and bar women from obtaining it would constitute a breach of women’s right to reproductive self-determination.
In a few cases, conservative lawmakers oppose all methods of contraception, as in the Philippines, where the municipal has only approved the purchasing of contraceptives — including condoms — with medical prescription and prohibited the dissemination of contraceptive details.Furthermore, emergency contraception has also been directed for restriction or legal constraints in Latin American countries such as Chile, Ecuador , and Peru.Legal limitations that can make access difficult or impossible for certain women, such as teenagers and disadvantaged and rural women, include: restricted delivery within the public sector, medical prescription requirements, parental consent, and a minimum age for access.
In Namibia, HIV-positive women have been coercively sterilized as they were advised that sterilization was a necessity for a mandatory Caesarean section; in other cases, they were asked to sign consent forms while working.During the final analysis, the High Court found that this had taken place without their informed consent. The case in Chile, submitted to the IACHR, involved a woman living with HIV who had undergone a Cesarean section and was subsequently sterilized without her consent.In the Czech Republic and Slovakia, Roma women have been forcefully sterilized, and the European Court of Human Rights ruled in 2009 and 2011 that Slovakia would seek restitution to one woman for violating her rights to respect for private and family liberty and happiness from cruel or degrading treatment.
When women are prohibited from obtaining modern contraceptives, they are vulnerable to unintended pregnancies; in these situations, they may end the pregnancy unsafely or delay in pursuing prenatal and maternal treatment, which may compromise their health.
Birth Control, Health & Human Rights
Contraception has evident health benefits, since the avoidance of unwanted pregnancies outcomes in a substantial reduction in infant and maternal mortality and morbidity. Allowing access to all women in developing countries who presently have an unaddressed need for contemporary forms of contraception would prevent 54 million unplanned pregnancies, 26 million abortions (of which 16 million would be hazardous) and 7 million miscarriages; this would also help stop 79 000 maternal mortality and 1.1 million infant deaths. This scenario would benefit significantly adolescent girls, who are at elevated risk for health complications related to pregnancy and who are frequently compelled to accept compromises in education and employment which might lead to homelessness and lower academic achievement.
In additament to a significant decrease in maternal and neonatal morbidity and mortality, availability to and use of contraception also leads to individual people being able to regain control over their sexual identity, wellbeing and procreation, thereby helping them to achieve a pleasurable sexual life.
Human rights are enshrined in universal and regional treaties, as well as in national constitutions and legislation. They include the right to non-discrimination, the right to life , survival and development, the right to the highest attainable standard of health, and the rights to education and to information. These liberties have been implemented by international , regional and national authoritative human rights bodies – such as UN treaty-monitoring bodies, global and regional courts, legislative and supreme courts – to a diverse variety of sexual and reproductive health issues, including the access and availability of contraceptive information and services. All privileges are interdependent and indivisible. The liberty to the highest attainable standard of health, for instance, which incorporates access to healthcare services and health-related information, could not be satisfied without advancement and protection of the rights to education and information, since people must realize about health commodities and services to be eligible to use them.
All nations throughout the globe have approved at least one human rights and peace agreement, and 80% have ratified at least four. When government agencies validate international human rights treaties, they are legally obliged to guarantee that their federal laws, policies and procedures do not resonate, and are consistent, with their international legal obligations.
The primary way authorities do this is via respect, safeguards and satisfaction of rights. Respect of rights requires abstaining from meddling with the enjoyment of rights, such as not prohibiting strategies for preventing unwanted pregnancy. Preservation of rights requires enforcing laws that forbid infringements of liberties by state officials or by non-state actors and guaranteeing that some method of redress mechanism is accessible; ensuring assurances against forced abortions would be an exemplar of this. Fulfilment of liberties includes taking effective steps to put in place institutions and protocols that facilitate people to enjoy their protected rights through, for example, appropriate training for health-care providers, cultivating the participation of the people in the design, implementation and evaluation of services, or ensuring fair geographic advocacy to the populace.
Among the Millennium Development Goals (MDGs) consented by nations in 2001, target 5b calls for universal access to reproductive health by 2015, with one measure being the ultimate conclusion to which the necessity for contraception has been fulfilled. Evidence indicates that in many states, regulations, policies and practices may contravene human rights principles and this can portray obstacles to achieving the MDGs and the highest achievable norm of sexual and reproductive health. Via their regulations, practices and policies, some state actors reduce the availability of specific contraceptive options, such as emergency contraception, or they may not absolutely guarantee standard stocks and dispersion of contraceptives at a reasonable price throughout the nation. States and the international donor society may not have decided to invest sufficient resources to put in place decent quality family planning and contraceptive facilities, which should include qualified staff offering a comprehensive range of methodologies within easy reach of the overall population.
States have a duty to test and reassess any associated laws, policies and practices to ensure that they encourage all human rights obligations and development objectives related to sexual and reproductive health. Systematic integration of human rights into law, policy and programme development to facilitate timely provision of exemplary quality services involves addressing the underlying mechanisms of wellness, such as sexism, and the institutionalisation of participatory, transparent and flexible processes.
Human Rights within Contraception Programme
Evidence shows that respect for, protection and respect for human rights corresponds to strong sexual health outcomes. Incorporating sexual education, for example, leads to the healthy growth of teenagers and to responsible sexual and reproductive health behaviour, which in effect results in positive healthcare outcomes such as delayed sexual activity, reduction in the number of unintended pregnancies and decreased rates of sexual risk-taking. The clause of contraceptive information and services that respect individual privacy, confidentiality and informed decision, together with a broad spectrum of secure contraceptive methods, boost people’s enjoyment and consequent use of contraception. For example, eradication of third-party authorisation requirements for female embraces women’s rights to independence and confidentiality, and is likely to result in increased availability to sexual and reproductive health services. Likewise, deregulation of abortion laws aims to remove unsafe abortion and therefore leads to reduced maternal morbidity and mortality. Explicitly disciplining contraceptive programs and policies in a framework of human rights improves people’s access to information. It also ensures the effective participation of the people in the activities that shape them and calls for the eradication of any current regulation or programmatic barricades and for the establishment of obvious accountability mechanisms.
To satisfy the immediate need for contraception, address disparities in access to the information and services, and make sure that human rights are not violated, this help concentrates on recommendations related to promotion and protection of human rights in implementing contraceptive information and services. It acknowledges that contraceptive information and services are only one part of the wider continuum of sexual and reproductive health information and services to which they entitle all citizens. In specific, this supervision identifies that no contraceptive method is 100% effective in reducing pregnancy, and that other factors – such as oppressive sexual relations, and social and economic or political circumstances – may make it impossible for females to use contraception; thus contraception itself can not completely eradicate women’s need for availability of safe abortion services.
Over the last decade, Indian courts have released a series of significant decisions acknowledging women’s reproductive rights as part of the “inalienable survival rights” expressly secured under the universal right to life.In other pioneering decisions, for the first time, the courts have accepted abortion rights as important to women’s equality and called for Respect for the dignity and decision-making rights of women in relation to pregnancy. In cases affecting maternal wellbeing, Contraception, abortion and child marriage, Indian courts have adopted robust definitions of ‘reproductive rights’ that reflect human rights standards.
Fundamental and Human Rights in India
Reproductive rights are necessary for the realisation of all human rights. These cover several legal, political, economic and social rights, from both the right to health and life, to the right to non – discrimination and equality, to privacy, to information, and to be free from torture or ill-treatment. The responsibilities of States to guarantee these rights allow women and girls not only to have access to reliable information and services on reproductive health but also to experience positive reproductive health outcomes, such as lower levels of illegal abortion and maternal mortality and the ability to make fully informed decisions — free from abuse, bigotry and coercion. Breaches of reproductive rights overwhelmingly affect women because of their desire to become pregnant and legal the defence of such civil rights as human rights are essential to ensuring gender justice and equality for women.
The Constitution of India acknowledges many of these same rights as constitutional rights that the State has a duty to uphold, including the right to equality and non-discrimination (Articles 14 and 15) and the right to life (Article 21), which is interpreted by case law to include rights to health; Dignity, freedom from violence and ill-treatment and privacy. (2nd Reference) India is also a member state to several international treaties, such as the convention for the suppression of All forms of discrimination (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC), all of which recognise reproductive rights. Article 51(c) of the Indian Constitution and the judiciary have formed that the government has a legislative obligation to comply with international law and treaty obligations. The Government of India also has a statutory duty to include legal redress for violations of civil rights and human rights. Article 39(a) allows the Government to facilitate fair access to justice and free legal help as a way of ensuring” Opportunities for justice shall not be denied to any person because of economic or other disabilities”.
The Supreme Court of India and several state high courts have taken significant steps to recognize the disapproval of reproductive rights as a violation of fundamental and human rights for women and girls. This section highlights important decisions that have broken ground in making it clear that the legal rights of women and girls to reproductive health and autonomy give rise to a number of factors. Government responsibilities, including offering affordable, prompt and assured access to a full range of contraceptive methods in a non-coercive, reliable and non-target manner.
- Contraceptive Access
In 2016, the Supreme Court handed down a judgment in the case of “Devika Biswas v. Union of India &Ors.” That has moved beyond the framework for reproductive health to also recognize women’s democracy and gender equality as essential elements of constitutionally guaranteed reproductive rights for women. Claims for infringements of reproductive rights resulting from forced and non-standard sterilization and lack of access to a full range of contraceptive methods have been brought before the Supreme Court of India and the High Courts for more than a decade. In Devika Biswas, the Supreme Court found that state policies and programs resulting in sterilization of rape violate women’s rights i.e., Fundamental and human rights, of course. This decision marks a major step forward in past Supreme Court cases which have warranted infringements of reproductive autonomy led to worries about population expansion. In its opinion, the Supreme Court claimed unequivocally that Article 21 contains the “reproductive rights of a individual.” The supreme court determined reproductive rights as part of the conservative to health as well as the aspect of personal liberty referred to in Article 21, and defined those rights to include the right to ‘access to a range of reproductive rights. Evidence on health, goods, facilities and services to enable patients to make informed, free and informed choices about their reproductive behavior. The Supreme Court ruled that “the freedom to exercise such reproductive rights shall include the proper to settle on contraception on the idea of affirmative consent and no matter any form of coercion”
2. Relevant Case Laws
On 14 November, a new case under the South Asian Reproductive Justice and Accountability Initiative (SARJAI) Center for Reproductive Rights was brought before the High Court of Punjab and Haryana in Chandigarh. The Human Rights Law Network (HRLN), the Center ‘s partner in India, has filed a case of public interest calling on the Government to protect women’s reproductive health by providing access to a wide range of contraceptive methods, information and services and, as a result, to end infringements of women ‘s fundamental and human rights as a result of lack of access.
a. About the Petition
The complainant in this case is Dr. Jagmati Sangwan, a leading women’s rights activist, through her women’s empowerment non-governmental organization, HimmatMahilaSamooh. Government studies note that despite relevant policy commitments to improve contraceptive access, the unmet need for contraceptives in Haryana has actually increased since 2004. Without access to birth control, women face unplanned pregnancy with higher risk of maternal death and injury: lead to unsafe abortions, cause emotional distress, and compromise ones ability to make vital decisions about their health and lives. Similar risks are especially acute for women in Haryana, where government research shows that maternal mortality has increased in the last decade.
b. Remedies Sought
The resolutions sought by the petitioners also include following acts by the Government of Haryana:
- Instantly make available to all health facilities the full range of contraceptive methods and all relevant knowledge and advice;
- Employ a male health worker at every main health clinic to ensure male involvement and awareness in contraception;
- Monitoring the standard of contraception through randomized research and the creation of an impartial committee of medical officers, community leaders and social activists;
- Develop a systematic program to tackle social and cultural obstacles to access to contraceptives, including monthly awareness campaigns.
The above cases highlight the important and changing role that the judiciary can play in India in overcoming legal and functional barriers.They are trying to deprive women and girls their human rights.While litigation has its challenges, including long timeframes and difficulties in implementing decisions, robust recognition of reproductive rights as fundamental rights emerges from India. Courts have mandated the government to move away from population control approaches, confront discriminatory stereotypes that limit women ‘s authority, and instead focus on women’s rights to dignity, autonomy and dignity of the body in sexual health regulations and policies. In addition, the judiciary has a key role to play in monitoring the implementation of current decisions.The legal guarantees set out in the judgments discussed above give rise to a strong call for change by the judiciary to keep defending and uphold women’s reproductive rights — Described to include reproductive health and autonomy — as well as for marginalized populations in upcoming litigation.
Frequently Asked Questions (FAQs)
- What is Maintenance of life prior to actual birth?
- How are Birth Control, Health and Human Right related ?
- How can be Human Right maintained with Contraception Program?
- What is the Indian Scenario in Contraception?
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