SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS: AN OVERVIEW OF INDIA
INTRODUCTION:
“The connection between women’s human rights, gender equality, socioeconomic development, and peace is increasingly apparent.”
– Mahnaz Afkhami, Iranian-American human rights activist
Right from the time of the inception of this world, women irrespective of religion, race, or religion have been the most affected victims of social differentiation and discrimination. Women and Men are supposedly considered different. They are different physiologically and biologically. While the biological differences between males and females are fairly straightforward, the social and cultural aspects of being a man or woman can be complicated. Men always oppose women having equal status to them and consider them inferior. Women are certainly more soft-spoken, gentle, kind, emotional, and different but not in a way that they are not able to defend themselves against men in the work they do.
Women are gentle, affectionate, warm, etc, and are considered fragile in terms of health. Women’s health is so much more than a medical issue, it is cultural, political, economic, and more than that it is a social issue. Improving women’s health and advancing the status of women is often seen as a powerful means to solve economic problems rather than as a path toward social justice. All aspects of a woman’s life are involved with her health, especially if we define “health” broadly, as does the World Health Organization (WHO), as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”[1]
Due to the rise of science and technology, there has been an increase in the rate of literacy. The growing awareness of women’s status has led to the measure of protection of women’s rights. These days, the idea that “women’s rights are human rights” seems obvious, but it was not until 1993, when the UN held a conference on human rights in Vienna, that the member states began to talk about abuses such as rape and domestic violence as “human rights” violations.[2] Sexual and reproductive health rights have been progressively enshrined under various international covenants and policy instruments. There are still many places in the world that still do not acknowledge them and a lot of progressive countries recognize them.
SEXUAL HEALTH AND RIGHTS
Sexual health is: “a state of physical, emotional, mental and social well-being about sexuality; it is not merely the absence of disease, dysfunction or infirmity. Sexual health requires a positive and respectful approach to sexuality and sexual relationships and the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination, and violence. For sexual health to be attained and maintained, the sexual rights of all persons must be respected, protected, and fulfilled.”[3] The realization of sexual health has been recognized as an integral part of the 2030 Sustainable Development Goals (SDGs) relating to health, [4]education,[5] and gender equality[6]
Sexual health is an aspect of the right to health, the enjoyment of which is interdependent on and indivisibly linked to the fulfillment of other human rights. The understanding of sexual health evolved significantly through linkages with HIV/ AIDS, marginalization, and discrimination, particularly of sexual minorities. Sexual health is an important part of a woman’s life. Sex is a natural thing and yet the things that are connected with it are generally neglected. It should be also noted that sexual health also consists sexual rights of a person.
The first part of sexual health comes through sex education. Sexuality education is not about biological reproduction as is commonly understood through terms like ‘sex education’, but about gender relations, roles, identities, body and relationship of the self with the body, positive and negative sexual contact, harm and pleasure, disease prevention, amongst others. Sex ed. as it is called is usually done in schools where children are taught about safe sex practices, contraceptives, sexually transmitted infections (STIs), etc. It is an awareness given to teenagers and it generalizes the concept of sex. The right to education and information also includes guaranteed access to reproductive and sex education.[7] This education and information must be “comprehensive, non-discriminatory, evidence-based, scientifically accurate and age-appropriate”.[8]Many people are not aware of a lot of things relating to sex. Sex is indeed a forbidden word or taboo even in several places, the attitude of people towards it or to knowing about it is atrocious. People tend to hide these kinds of things from their kids. Moreover, sex is not just about having babies and they miss the main concepts like pleasure. People living in marginalized areas have little or zero knowledge about sex or sexual health. The use of contraceptives or the existence of different contraceptives is not known to them. They are pregnant not by choice but by the pressure of their spouses and their in-laws. There are various kinds of birth control methods in today’s world. The most common and effective method is the use of condoms. There are many other such contraceptives like implants, IUDs, vaginal rings, contraceptive patches, birth control pills, etc. People are not aware of the different kinds of contraceptives. Both males and females must be given awareness of its usage and its effects. They must also be taught the different kinds of STIs and how it is transmitted.
Prostitution/Sex work is considered one of the oldest professions in the world. It is a billion-dollar industry. Yet, several countries still have not legalized prostitution. Sex workers have the right to profession and hence are not violating any laws. Sex workers are given no importance in society in general. They are generally refused from giving the medical help they require. Sex workers in particular must know all about contraceptives, abortion, and the various STIs they can get from unprotected sex. They must obligate themselves to regular check-ups of STIs and it must be generalized. They must also be saved from any abuse or violence if they are subjected to it. They face discrimination by service providers and are often forced to go to quacks and fraudsters to get treated. There are other health issues of sex workers, which are rarely addressed. For example, sex workers are more prone to cervical cancer because of engaging in sexual activities more often than other women.
Sexual and Reproductive health and rights are also applicable to trans people as well as members of the LGBTQIA+ community. Most doctors don’t know how to treat trans bodies having received medical training that is based on the binary sex-gender system.
Sex Reassignment Surgery (SRS) and other gender-affirming procedures such as endocrine therapy are other under-addressed issues that concern the trans community and which are important for the overall well-being of trans people. They are shunned away from any medical help required and often stigmatized. This is the same case for the people in the LGBTQIA+ community as they face stigma and discrimination in accessing sexual health services. Living in the 21st century, it is way past time to recognize the different genders present, and yet doctors are still to be progressive regarding it.
Sexual violence is a grave violation of the sexual rights of a woman. Sexual violence against girls and women has been recognized as a violent manifestation of gender-based discrimination in international human rights law,[9] which has a profound impact on physical, emotional, mental health, and social consequences. They are usually done against will by force, deception, intimidation, manipulation, etc. It mainly incorporates abuse, harassment, trafficking, rape, and female genital mutilation. International law calls for securing legal protection for all persons against rape and sexual violence in all its forms and manifestations. It imposes the obligation of recognising a wider definition of rape that encompasses all forms of non-consensual penetrative sex, that is anal/vaginal/ penetration with penis/object/finger, and oral sex with penis/ vagina. [10] Laws against sexual violence are recognized as necessary for correcting sexual and gender inequalities in society, and for the fulfillment of the Constitutional guarantees of life and equality. Sexual violence against women has been recognized as a violent manifestation of gender-based discrimination in international human rights law,[11]which has a profound impact on physical, emotional, mental health, and social consequences[12]
Female Genital Mutilation (FGM) is a procedure that violates the sexual rights of girls. The term female genital cutting can describe all procedures which involve partial or total removal of the external female genitalia or other injuries to the female genital organs whether for cultural or any non-therapeutic reasons. The procedure is usually carried out in the family home or the home of a relative. In many cases, female genital cutting is performed by an older woman in the family or an elderly woman in the village who has been specially designated for this task. The procedure is usually done by razors or blades without any caution and with no reliance on doctors or medicine. This procedure is still conducted in places like Sierra Leone and is continued as a tradition. It is indeed a very dangerous and gruesome removal done to girls to prevent them from the pleasure of having sex. It is a major human rights issue and health issue for girls. They may have trouble urinating, or have scars left or it might even lead to death.
Non-discrimination in access to health services, and access to education and information is crucial for the realization of sexual health rights of all persons including adolescents, persons living with HIV/ AIDS, persons living with disability, women, and children, has been recognized in international law[13] It also includes protection from gender-based violence, respectful of the evolving capacities of adolescents, and the needs of persons with disability[14]
Hence it can be inferred that sexual health is to be recognized as an aspect of women’s rights and gender equality.
REPRODUCTIVE HEALTH AND RIGHTS
The right to reproductive health is an integral and inextricable part of human rights, all of which are universal, inalienable, indivisible, and interdependent. Reproductive health and rights allow women to be in control of their bodies and decide if, when, with whom, and how often to bear children. [15]The earliest reference to reproductive health was in the International Conference on Population and Development (ICPD) Programme for Action (Cairo, 1994), which stated that reproductive health, “also includes sexual health, the purpose of which is the enhancement of life and personal relations, and not merely counselling and care related to reproduction and sexually transmitted diseases.”
Reproductive health is a part of sexual health and it is to be given more importance than sexual health. It begins with being pregnant and can even go up to postpartum care. Reproductive rights are a woman’s right to control her fertility. Several rights intersect with reproductive rights like the right to life, liberty, equality, health, and against discrimination. A woman’s right to choose her partner is integral to the fulfillment of her right to life, dignity, and reproductive rights, and the State must protect and enforce her right to choose if, when, and whom to marry.[16]
A woman has the right to get pregnant at her own will and volition. Family planning is not done in many households and even in many countries. They are forced into getting pregnant and it mostly occurs after marriage. Husbands try to control the life of their wives by forcing them into conceiving and it also happens due to the inability to refuse sex. Sexual and reproductive coercion is real. There is undue pressure from society as well to get pregnant after a while after marriage. Requiring the husband’s permission for the sterilization of the wife, imposing conditions for the sterilization of women (such as having a given number of children or the children being of a certain age), and imposing legal duties on health personnel to report women who have undergone abortions are all violations of women’s right to privacy[17] States have an obligation to respect, protect, and fulfill women’s right to choose the number and spacing of children. Due to women’s reproductive functions and the gendered division of work, women bear an unfair burden of childbearing, childcare, and related domestic work.
Marital rape is a grave offense taking place in today’s world. Married women are forced to have sex without their consent by their own husbands. This is happening just because of the reason they are married. They are raped and viewed as mere commodities. Nowadays, a new concern about stealthing is happening in relationships when a partner secretly removes their condoms during sexual intercourse. It is considered a form of rape. Healthcare officials must make it their duty to check if the woman is subjected to any intimate partner violence or rape to get the person pregnant.
Pregnant women are not allowed to abort the child in many places. Abortion is considered a sin and is still illegal in countries like Laos, the Philippines, Egypt, and even the very developed country of the United States of America. The overturning of the decision in Roe v. Wade was a controversy in 2022. It removed the constitutional right to terminate pregnancy and gives the power to regulate or prohibit abortion subject to a rational basis review. There is a conflict between the Christ believers and pregnancy as the bible shows disapproval of pregnancy in general. Mixing religion with morals and law is not the right solution. Sex-selective abortion should also be outlawed as it is a clear gender equality issue and causes a disproportion of sex ratios. In most households, women are not given space and power to control their pregnancy.
The next part comes when the woman decides to keep the child. If the person is unmarried, it is generally frowned upon. In most countries, having sex outside marriage is considered a bad thing. Moreover, having a kid out of marriage is considered a sin and the girl is usually kicked out of her home. Good care and nutritious, healthy food must be given to pregnant women whether they are married or unmarried. They must be given more priority because even the slightest mishap can bring some issues to the child. The health care officials must ensure frequent and regular check-ups, even if not the family members. If a mother is undernourished, often because she is poor, her baby is likely to be underweight and may even be born with a smaller brain. Maternal mortality, another measure of women’s poverty, persists: complications of pregnancy and childbirth, when met with inadequate medical care at the time of delivery, can be deadly. States must eliminate discrimination against women in their access to health care services throughout their life cycle, particularly in the areas of family planning, pregnancy, and confinement during the post-birth and postnatal periods[18]
Maternal leave must be given to mothers who are working in offices and must be given paid leave. All women are entitled to such benefits and must not be kept away from them.
“Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period, working mothers should be accorded paid leave or leave with adequate social security benefits.”[19]
Timely transportation must be ensured to avail all healthcare facilities for a pregnant woman. Many marginalized areas lack sufficient hospitals or birth clinics, they must travel a long way to conceive a child. It is very dangerous as the pregnant woman will be in pain and cannot suffer much, they need medications to reduce it. The hospitals must ensure good postnatal and postpartum care. The child must be given vaccinations after birth. Postpartum depression is a kind of depression that the mother faces after childbirth. Hence, mothers must be given sufficient care regarding it and awareness of the same must be given. Maternal mortality is something that is still happening in a lot of countries due to insufficient healthcare facilities or no healthcare facilities.
Reproductive rights also include tubectomies. It is also called the typing of tubes. It is the procedure done to women usually after their pregnancies. It is a non-reversible procedure in which the fallopian tube is tied up so that the egg does not reach the uterus. It is considered a permanent contraceptive process. Vasectomy is a permanent contraceptive procedure done on men. It is done to sterilize men by cutting off their vas deferens so that the sperm does not reach the semen. It is a reversible process, unlike tubectomy. Women are forced to do tubectomies and men do not try to get vasectomies. Women go through a lot physically and mentally in connection with reproduction and sexual activities.
STATUS IN INDIA
Sexual and reproductive health are two distinct but partially overlapping concerns. Although the two overlap to some extent, particularly concerning information and services relating to contraceptives, abortion, and sexually transmitted diseases; yet, the scope of sexual health is more extensive.[20]
International Human rights standards demand that Sexual and Reproductive Health (SRH) services should be available, accessible, acceptable and of good quality (AAAQ).[21]India has demonstrated its commitment to improving the sexual and reproductive health of its population. Its policy and program environment have shifted from a narrow focus on family planning to a broader orientation that stresses sexual and reproductive health and the exercise of rights.[22] In 1951, India became the world’s first nation to launch a family planning program. Governments have committed to investment in SRHR through international standards and accords. However, progress has been impeded by a lack of political will, insufficient resources, continued discrimination against women and girls, and a refusal to address sexuality issues openly and thoroughly.
Comprehensive Sexuality Education (CSE) as per international standards has not yet been implemented anywhere in India. Age-appropriate sex education for adolescents has often faced considerable resistance in the country, for instance, the backlash against sex education for being ‘immoral and inappropriate’ to certain people. Another serious gap in this area is the inadequate teacher training and unwillingness amongst teachers to talk about sexual health issues, especially related to safe sex practice and contraception. They also tend to focus only on menstrual hygiene and biological development, advocating abstinence rather than information as a means of protecting adolescents. The resistance by teachers is based on social misconceptions and prejudice. In Indian schools, Sex ed is mostly given to only girls, and boys are completely left out of the picture. Hence, they try getting to know about sex and other activities through porn at such a young age.
Abortion is legal in India under the Medical Termination of Pregnancies Act, 1971 (MTP Act. Hence, women in general irrespective of their marital status are entitled to a safe and legal abortion. India has the third largest HIV epidemic in the world with 2.1 million people in the country living with the infection as of 2016[23] Lack of information about safe sex practices has led to the burden of HIV/ AIDS and other STDs falling on children and young adults. Research has shown that one in four cases of HIV transmission in India is amongst younger individuals due to unsafe sex practices.[24] A Study amongst adolescent girls in Maharashtra showed that 54% of them did not know the modes of transmission of HIV. This is especially disconcerting because Maharashtra has one of the highest rates of HIV transmission in India, despite which the state does not have provision for sex education in schools. [25]Trans women and sex workers must be given importance in the topic of HIV and AIDS as it affects them more. Sex work is considered to be in a grey area and running a brothel is considered illegal under the Immoral Traffic (Prevention) Act,1956. Some states in India have been progressive in the case of trans people. States such as Tamil Nadu have made provisions to provide free SRS services to trans women, but there is no comprehensive national policy on the same, nor availability of these services to transgender men in the states where trans women have the provision of free services.
The recognition of sexual and reproductive rights of women in the country remains negligible. Reproductive rights in India are understood only in the context of selective issues like child marriage, female foeticide, sex selection, and menstrual health and hygiene issues.
Reproductive rights are enshrined in the United Nations (UN) human rights treaties and in the consensus conference documents to which India is a party, and are protected by the Constitution of India In India, there is an unmet demand for safe abortion services due to high rates of unwanted fertility and maternal death. Every day, 13 women in the country die as a result of unsafe abortion-related causes, making it the third leading cause of maternal death[26]
In India there is about 15% population lives in poor or slum areas. They lack facilities and the right awareness. There is always a delay in the timely transportation to such proper facilities. Pregnant women do not reach in time for childbirth, which is why India has a high maternal mortality rate. India provides for about 8 weeks of maternity leave before childbirth and 26 weeks after the child is born. Paternity leave is not a common topic in India and has never been.
Yet there is a long way to go. Notwithstanding improvements, pregnancy-related outcomes, both in terms of maternal and neonatal mortality and morbidity, remain extremely high. Postpartum care is kept away from many women. Contraceptive practice patterns reflect a continued focus on female sterilization, limited use of male methods, limited use of non-terminal methods, and persisting unmet needs an overwhelming majority of abortions take place outside of legally sanctioned providers and facilities structures. Many people avoid telling their parents or friends about their pregnancy due to their judgments. Over one-quarter of young women continue to marry in childhood. Comprehensive sex education reaches a few adolescents, and in general, sexual and reproductive health are poorly met. Access to and quality of services, as an exercise of informed choice are far from optimal.
CONCLUSION
“The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination, and violence.”
Women are considered prey to various human right violation, coercion, abuse, violence, etc. Women and men are supposed to co-exist in this world and they must not be set aside. The patriarchal society has made women mere baby-reproducing machines and is given the least consideration in terms of their rights and free will. The recognition of women’s rights is a step toward the welfare of the country. India is a developing country not only in terms of infrastructure but also in terms of its progressive laws. India can be considered developed in the terms of the many rights it gives its citizens. Over the years, women have made great strides in many areas with notable progress in reducing gender gaps. Sexual and reproductive health and rights are recognized in India and they should be improved as it is an aspect of women’s rights and gender equality.
[1] <https://www.who.int/data/gho/data/major-themes/health-and-well-being#:~:text=The%20WHO%20constitution%20states%3A%20%22Health,of%20mental%20disorders%20or%20disabilities.> last accessed on 7/1/2023 6:57pm
[2] 1993 UN Conference on Human Rights in Vienna
[3]< https://www.who.int/teams/sexual-and-reproductive-health-and-research/key-areas-of-work/sexual-health/defining-sexual-health> Accessed on 10-1-2023
[4] UN High Commissioner for Refugees (UNHCR), The Sustainable Development Goals and Addressing Statelessness, March 2017. Target 3.7, Goal 3
[5] UN High Commissioner for Refugees (UNHCR), The Sustainable Development Goals and Addressing Statelessness, March 2017. Target 4.7, Goal 4.
[6] UN High Commissioner for Refugees (UNHCR), The Sustainable Development Goals and Addressing Statelessness, March 2017. Target 5.6, Goal 5.
[7] UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations.1994. Para. 22.
[8] UN Committee on Economic, Social and Cultural Rights, General Comment No. 22 on the right to sexual and reproductive health (Article 12 of the International Covenant on Economic, Social and Cultural Rights). Doc. E/C.12/GC/22. 2016. Para. 9.
[9] UN Committee on the Elimination of Discrimination against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, 1992; UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 35: Gender-based violence against women, 14 July 2017, CEDAW/C/GC/35
[10] International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2
[11] UN Committee on the Elimination of Discrimination against Women (CEDAW), CEDAW General Recommendation No. 19: Violence against women, 1992; UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 35: Gender-based violence against women, 14 July 2017, CEDAW/C/GC/35
[12] General Recommendation No. 19, Ibid.
[13] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4.
[14] UN Committee on the Rights of Persons with Disabilities (CRPD), General comment No. 4 (2016), Article 24: Right to inclusive education, 2 September 2016, CRPD/C/GC/4. Para 38-46.
[15] https://www.un.org/en/chronicle/article/sexual-and-reproductive-health-and-rights-cornerstone-sustainable-development
[16] UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations, 1994, Para. 16.
[17] UN Human Rights Committee (HRC), CCPR General Comment No. 28: Article 3 (The Equality of Rights between Men and Women). CCPR/C/21/Rev.1/Add.10. 2000. Para. 20
[18] UN Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), Doc. A/54/38/Rev.1. 1999. Para. 2
[19] Article 25(2) of UDHR
[20]https://nhrc.nic.in/sites/default/files/sexual_health_reproductive_health_rights_SAMA_PLD_2018_01012019_1.pdf9 (last accessed on 14th January 2023) (last accessed on 14th January 2023)
[21] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, available at: http://www.refworld.org/docid/4538838d0.html [accessed 10 October 2017].
[22]https://nhrc.nic.in/sites/default/files/sexual_health_reproductive_health_rights_SAMA_PLD_2018_01012019_1.pdf(last accessed on 12th January 2023)
[23] “The Gap Report”.2014. UNAIDS. http://files.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2014/UNAIDS_Gap _report_en.pdf.
[24] Khubchandani, Jagdish, Raman Kumar, and Jeffrey Clark. 2014. “Beyond Controversies: Sexuality Education for Adolescents in India”. Journal Of Family Medicine And Primary Care 3 (3): 175. doi:10.4103/2249-4863.141588.
[25] ibid
[26] <https://india.unfpa.org/en/topics/sexual-reproductive-health-10> accessed on 14-1-2023
This article is written by Roshni S, 4th year Ba.LLB,Kerala Law Academy Law College, Trivandrum.