Can a minor girl get an abortion in India?

A lot of young children have been asking whether they can get access to sexual and reproductive health services.

There were several schemes in the country which provides young adolescents with scope of getting information and services In the adolescent friendly healthy clinics in their city.

Can a minor get abortion?

Things that often get confusing is that even though young people can get abortion, it would be seen a criminal case and often young people get scared of this.

Things that minors should keep in mind :

A minor girl is someone who is below the age of 18 years old.

Under the Medical Termination of Pregnancy (MTP) Act 1971, a minor girl needs written permission from her guardian to get an abortion

The MTP Act defines guardian as a person “having the care” of the minor person. Thus an adult, someone over 18 years of age who accompanies a minor girl to a clinic would be De facto guardian and could consent to an abortion on the girl’s behalf.

Things that providers should keep in mind: 

If the girl’s age and/or marital status are uncertain, the providers can proceed with the termination of pregnancy in line with the provisions of the MTP Act after maintaining complete and detailed records of the case.

It is advised to report the pregnancy as per the legal requirement under  Protection of Children from Sexual Offences (POCSO) Act 2012 and allow the authorities to decide what actions to take.

Can minor rape survivor access medical treatment before justice?

On 18th July, 2017 Chandigarh District Court refused to let a 10 year-old, minor rape survivor access abortion services. She was 26 weeks pregnant. Medical Termination of Pregnancy Act,2017 does not allow women to abort foetuses beyond 20 weeks of pregnancy. The Supreme Court directed the PGI Hospital in Chandigarh to set up a medical board to examine if it was safe to terminate the pregnancy. The 10 year minor rape survivor has entered the 27th week of pregnancy. The medical board is directed to deliver the decision by  28th July,2017.

FACTS

Let us re-look at the facts here: A 10 year-old young girl has been raped. She has been dragged from one court to another court, one hospital to another hospital and finally she is lying in PGI hospital with a medical board of 8 members who will decide if her pelvis is strong enough to deliver a child. Her body is up for examination and her narrative is up for evidence checking. Sources reveal that both abortion or pregnancy can lead to drastic consequences.

LAWS & POLICIES

Several pieces of legislations actually came in to monitor the child but they failed to provide any respite to the survivor. The MTP Act 1971, says that after 20 weeks seeks medical opinion of 2 registered practitioners to access abortion. Here is a young girl who is raped and is totally dependent on her parents and relatives to access services. Section 357 C of Criminal Amendment Act,2013 clearly provides that the hospitals shall immediately provide the free medical treatment to the victim.

These are some of legislations in place that provides for relief for rape survivors, but in such a scenario where there is a young girl who has been allegedly raped by her relative, how is one supposed to engage with these legislations? Most of these legislations look at punishing the perpetrator but what about the young girl in this case who might have to undergo severe complications and might require a much more holistic approach to justice and healing?

What could have been done better for the young girl, so that she could have approached an institutional set up and actually access better services? Can our public health system make the process easier for her? Who gets to decide if 10 year-old girl could abort a fetus which was a result of a rape? Could she actually go ahead and just get the medical treatment without engaging with the legal system?

Inspite of a public health sector which provides for provisions at different levels, we are still not able to handle the cases of minors getting raped or minors trying to access abortion services. In the Chandigarh case, it was requested to in the Supreme Court to lay down appropriate guidelines to set up a permanent medical board in each district of India for expedient termination of pregnancies in exceptional cases involving child rape survivors. But the issue is, we already have existing mechanisms at the institutional level that have been set up for helping the rape survivors. But have they really been useful or have they been utilised by the survivors?

What could have helped the girl better? 

One Stop Crisis Centers were specifically created for rape survivors so that they could access all the services. All services including abortion should have been provided to her. 2 years post Nirbhaya fund, and various studies by organisations later, we are yet to find effective One Stop Crisis centres that provide relief to the survivors. One Stop Crisis Centers in her district could have been one of the possible places she could have gone to access abortion. Could she go there alone?  It has been alleged that one of her relative had raped her, in such a scenario how would a One Stop Crisis Centre be useful for her? How many of us even know about One Stop Crisis Centers in our own districts?

If the family had brought her to the health system for help, she could have availed the medical treatment in a speedy manner under  Section 27 of POSCO Act, 2013.  But again she needed the help of a guardian. As she is a 10 year old she could have approached the Adolescent Friendly Health Clinic, which provides gynaecological services in cases of crisis in her Community Health Clinic in her district. She could have been referred to a gynaecologist and she could have suggested an abortion.  AFHCs are still not being used by adolescents.

Will one more board help?

Why are we still seeking for more institutional mechanisms when we are not able to ensure that young people are able to use the existing mechanisms without the help of adults? The 10 year-old had to run from one institution to another before she was finally placed at one of the biggest hospitals in Chandigarh. Most of the debate around this 10 year-old is about the number of weeks of her pregnancy. The courts, the hospitals, the police and the family have made her into a case study. The 10 year-old needed help and should have been able to access these existing mechanism provided in the system, if there was information, if she and her people around her knew of some of the existing mechanisms that could help her. We should have ensured that she gets medical treatment and then we could have followed up with the legal case. In our thirst to get her justice, we have been so entangled with the procedures that today in between 27th and 28th week, her life and her well beings depends on the opinions of experts.

What does Indian law say about abortion? In conversation with Anubha Rastogi

CREA, a feminist human rights organisation, organised a workshop on law and abortion on June 23 & 24, 2017 facilitated by lawyer Anubha Rastogi. Specialising in human rights law, Rastogi has extensive experience of working with women’s rights issues including illegal trafficking, abortion, sexual harassment,   among others. In conversation with Hidden Pockets, Rastogi spoke about right to our body as a fundamental right, laws around abortion, abortion as a right, among others.

Right to our body

How does the constitution define our right to our body?

The (Indian) constitution in the chapter on fundamental rights guarantees that each person has a right to life. Right to life has been interpreted to mean a lot of things including your personal liberty, your bodily integrity and your right to health. So that’s where the constitution actually brings in the fact that each person in this country has a right over his or her own body.

What are the rights that women enjoy with respect to their sexual and reproductive health?

If I look at laws, we have the Medical Termination of Pregnancy (MTP) Act from 1971 where the language is not in a rights based format but it has been providing access to women who want to terminate pregnancies and then there’s the Maternity Benefit Act which now has recently been amended to expand its own scope. Then there are legislations that have come in as a result of offences against women like the Domestic Violence Act, the Protection of Children from Sexual Offenses etc. But having said that, the Constitution treats each person as an equal and with that also provides the space for the state to make any special provisions for women and children and within that there are a lot of progressive policies and legislations which have been made for women.

Abortion as a right

How does the Medical Termination of Pregnancy (MTP) Act view getting an abortion? Does the act confer the right to abort on women?

The MTP Act is worded in a way in which the medical termination of pregnancy is based on medical opinion. So there is no on demand abortion in this country. And the MTP Act also lays down the conditions under which the pregnancy can be terminated. A registered medical practitioner can go ahead and terminate the pregnancy only based on medical opinion in the existence of any of these conditions. So in a sense even though since 1971 there is official legal access to termination of pregnancies, it’s not a right. It’s only one judgment of the Bombay High Court that has viewed the existing law from the lens of the woman and has termed it as a right. But the legislature is still not looking at it as a right.

What are the rights conferred by the Act on an unmarried women? is it illegal for an unmarried woman to get an abortion in India?

See the law is saying that where a woman is pregnant and it is an unwanted pregnancy and in the opinion of the doctor, the unwanted pregnancy will impact or have a grave injury on the woman’s physical body or her mental makeup then definitely the pregnancy can be terminated. Where the reason is contraception failure that is available only for married women. Where the pregnancy is as a result of rape and the woman is a major, there the woman can definitely seek termination of pregnancy and that can be provided to her irrespective of her marital status.

What are the amendments that have been proposed under the MTP act?

The amendments that have been proposed in the MTP Act are definitely to look at on demand abortion at least up to 12 weeks. There has been a proposal of increasing the 20-week limit to 24 weeks or 26 weeks. I think that stand keeps changing. One of the things that they are asking for is to increase the provider base because it’s with the appropriate training. So it’s not necessary that it’s only a MBBS doctor who can provide the MTP service. If legally, the law accepts it, with appropriate training even other service providers can provide this service safely. There has been a move to increase some other reasons for which an MTP can be provided. Those are some of the key amendments that are being sought.

Will abortion become a right if the on-demand abortion up to 12 weeks gets passed as an amendment?

Yes

Terms of the abortion as per MTP Act

What are the circumstances under which abortion can be done as you say under the MTP Act?

The MTP Act determines the length of the pregnancy as one of the factors. With respect to the length of the pregnancy (within which pregnancy can be terminated), the Act mentions 12 weeks and then there’s 20 weeks. If the pregnancy is as a result of sexual abuse or rape, she can get an abortion. It also allows for abortion where it’s a married woman and there is a contraception failure and therefore the pregnancy is unwanted. It also gives two instances as illustrations of what can be considered as a circumstance which will have a grave injury on the woman’s either physical condition or her mental setup. That is definitely one of the main reasons why many MTPs are done and can be done. The pregnancy may be terminated where there is any abnormality in the fetus, a history of disability in the family and a substantial risk that the fetus when comes to term and the child when born would suffer from some serious disability or would be handicapped, a term which the law uses. Apart from that it also provides for a registered medical practitioner to terminate a pregnancy at any point in time of the pregnancy irrespective of what the law otherwise says where it is to save the life of the woman.

Which is a place where someone can get an abortion? Is anything defined in the MTP act?

The MTP Act says that any government hospital is already a place that is approved where an MTP can be provided. For private setups, the MTP Act provides for a committee to be set up at every district level that will take applications and do an inspection of the place that has applied to become an MTP centre. Once it’s approved, the committee will give them a certificate and will continue inspecting it and keep an eye ensuring that quality is maintained. So these are the two kinds of places where officially legally an MPT can be done.

PCPNDT Act and MTP Act: The conflict

What has been the effect of PCPNDT Act on MTP Act? Does PCPNDT make it illegal to get an abortion?

PCPNDT Act and the MTP Act, both acts have their scopes very clearly defined and they do not in any way merge or overlap with each other or hit each other. The PCPNDT Act only talks specifically about the regulation of clinics or technology that can provide sex determination (and selection) services. So the PCPNDT act makes it illegal for selecting the sex of the foetus and makes determining the sex and communicating the sex of the foetus an offense. And that’s where it stops. It does not say anything about what happens once a person knows the sex of the foetus. The offender under the PCPNDT Act in most cases is the expert, the radiologist or the technical expert who is able to understand and use the technology or misuse it. The MTP Act in its scope very clearly provides for situations when a pregnancy can be terminated and that’s all it says. If a woman is falling within any of those categories and on medical opinion, a registered medical practitioner is terminating the pregnancy there is no offense that has occurred under the MTP Act or under the PCPNDT Act at least by the provider who has provided the service. There may be an offence committed by someone under the PCPNDT Act. The person may have communicated the sex of the foetus but nothing else in this whole chain of events. The scope of the PCPNDT and the MTP Act has actually affected women in accessing MTP services in a large way. From what I hear, many doctors are now afraid or are reluctant to provide MTP services because of which there is a possibility of some kind of restriction or inspection that they will have to face.

How has the sex ratio in India been affected by the PCPNDT and MTP Act considering that a certain association is constantly made in this conversation with respect to these Acts?

The gap between the number of girls born per 1000 male children born was increasing. Because of the declining child sex ratio, it was understood that this is happening simply because there is gender based sex selection that is taking place.

This gave the PCPNDT Act lot more teeth. When the Act was amended in 2003, several new technological developments were brought into the fold of the law. But very clearly the PCPNDT talked about the fact that the offense is the determination of the sex of the foetus and its communication. Without that information even if a woman or a family is seeking a MTP, it doesn’t really make a difference. The problem has been that the focus has completely moved from the service provider or the expert to the woman, her pregnancy and what is she doing with the pregnancy while that, in the domain of law is not really an offense. What has now happened is that states are being asked to provide child sex ratio numbers on a monthly basis. Districts have been asked to provide these on a monthly basis. I’m not a statistician so I’m not very clear but I’m told that it takes about at least 3-4 years to determine child sex ratio or sex ratio of the adult population. It’s obvious that those numbers are not accurate where we are asking districts to provide these numbers on a monthly basis. But those numbers are being quoted and this is having its impact on access to MTP centres and people are refusing to provide MTPs as a service. Obviously, then it has its impact. There is a lot of push to implement the PCPNDT Act in different ways because of these numbers.

What was the PIL related abortion that you had worked on, in the state of Chattisgarh?

This was a writ petition filed as a Public Interest Litigation before the Bilaspur High Court in the state of Chhattisgarh. Before filing the petition, there were a lot of Right to Information applications that I had filed to know whether the District Level Committees have been actually set up in every district in the state of Chhattisgarh and what is the number, how many times in the past year did they meet, how many centres and how many applications have they decided upon. In Chhattisgarh, out of the almost 27 districts, some of them did not respond (to the RTI request) and 10 of them responded back saying that they had never set up a District Level Committee.

National Alliance for Maternal Health and Human Rights became the petitioners. They also have members from the state of Chhattisgarh. This petition was basically filed to ask for district level committees to be set up and to also ask for government hospitals to ensure that MTP services are provided and that they are as per law. We used the RTI data, the data that was available in the public domain about the condition of access to Medical Termination of Pregnancy services in Chhattisgarh and with individual stories of other woman and some clinics in Chhattisgarh (to file the PIL).

The case was decided in January 2017. When the petition was filed in 2014, I think there were only 30 registered centers that were available and at the end of the petition, there were 150 centers that were available.

Data that the state gave showed that they had actually done a fabulous job. Even though this was on paper, we still wanted an opportunity to be able to counter what the state is saying on paper but we were unfortunately not given that opportunity. But even then an increase from 30 to 150 is quite high even if it is only above 50 percent accurate. That is still some access that has been created because of this petition. It also enumerated the number of professionals who have been trained under the MTP Act to be able to provide MTP services. That had also drastically increased. We had also asked for other things in the petition where we said that not only should a government hospital or a private clinic be prepared to provide for MTP but it should also be prepared to deal with any eventuality. There should be access to blood banks, clean water, electricity etc. but all of those things were not really dealt with by the court and the matter was disposed off.

Abortion in Bengaluru Urban: Part 1

*This article is a part of a series exploring the abortion services in 4 districts of Karnataka.

COVID-19 pandemic has tectonically shifted many things in everyone’s lives. When the nationwide lockdown was all about highly restricted movement and access, only essentials being available, and night curfews; then the nationwide unlock stages were all about “are we there yet questions” on getting back the pre lockdown normal life. 

When Hidden Pockets Collective started its tele-audits of service providers for abortion, we were in the cusp of the country moving from the lockdown to unlock. The month of June saw us glued to our phone, making calls after calls to every listed government-run Maternity Homes (MH), Referral Hospitals (RH), General Hospitals (GH) and Tertiary Hospitals (TH) in Bengaluru Urban district. This was just the start to an extensive project where we were to audit three more districts viz Mysore, Shimoga and Ballari in the state of Karnataka. 

To know more about this  SAAF (Safe Abortion Action Fund) project “Abortion is Care”, do read:

With unlock in full swing at various stages, we were very hopeful that Bengaluru Urban will soon be back on its buzzing feet. On that note, when we started making calls to the 30 plus listed abortion service providers that fall under the categories of MH, GH, RH, and TH, we were rushing against time to put together all the collected information for young women. Abortion is a time-sensitive matter and with lockdown cutting off SRHR access to numerous women, we were sure that we will be the SOS call for many women. But we were in for a rude shock from Bengaluru Urban!

Let’s not answer. Let them die or whatever?

Of the 30 plus listed service providers, many did not answer our calls! Mind you, these are listed landline numbers that the public is expected to use when they need information, clarification on healthcare services from the hospital. The inquiry desk of the hospitals is literally the ones who should be at the beck and call through this number. However, during the month of June, many of these hospitals chose to do a “Marie Antoniette” at the public by absolutely refusing to pick any calls. We were quick to dismiss these “refusals” by justifications such as probably busy hour, probably busy day, probably staff break hour. And day after day, hours after hours, we kept trying, again and again, to have someone from the helpdesk talk to us. Nothing worked! We just could not fathom how people in distress, say due to a miscarriage or labour pains can breakthrough this “refusal” to get help during the unlock, when the public had no clue how things are getting back to normal during the unlock. Forget about getting information on abortion, when in fact there is nobody to pick the call even to answer the most important question of that time: “I think I have Corona. What do I do? Where do I go?”

Yes, speak to us!

It was always a “hallelujah” moment when the calls were answered. When the audits for Bengaluru Urban were done, the total number of hospitals that answered our calls could be counted in fingers. However, it was not all rosy either when our calls were attended.

Volleyball the call:

One Referral Hospital had the staff unwilling to give us any answers to our inquiries on termination of pregnancy. Our call was volleyed from one staff to the other. They all came across as extremely uncomfortable to disclose any information on abortion over the call and kept dismissing us by stating that we need to come in person to the hospital, meet the doctor and get a check-up done. In spite of our repeated stand that we were currently not in a position to physically travel to the hospital due to the pandemic and that we just need some basic information regarding the cost such that we come prepared for the termination later when we make the trip to the hospital,  the staff reiterated to their tone-deaf words “come to the hospital, get the OPD ticket, meet the doctor.”

Doctors wanted:

A few hospital help desk staff were able to give us preliminary information. However, for details on gestation limits and type of abortion recommended, they were unable to help us as they openly admitted that they don’t know anything about such matters. They suggested we speak to the doctor and connected us to the department landline. Often the doctor on duty was unavailable to attend the call, as they were either in O.T or doing the ward rounds. There were also doctors who were unavailable as they were on leave or were away attending a district-level meeting with health department officials to manage the district’s response to the COVID-19 pandemic.

Only Corona please:

A leading government hospital answered our calls with promptness and professionalism. We were almost on the brink of relief thinking that this hospital will finally be the go-to-place for safe and legal abortion for all, irrespective of the marital status. All hopes were dashed when they told us that the entire hospital has been converted into a COVID-19 hospital and they can take in only COVID-19 cases! Our question on where else can a patient go to get OBG consultation, now that hospital X is COVID-19 one, were met with apologies from their end: they did not know where the patients were to go!

Conditional abortion only:

Of the two hospitals that gave us a positive response for medical termination of pregnancy, one came across as too eager to get rid of us using scare tactics. The doctor of this hospital who spoke to us said that we need to get permission from the Medical Superintendent to get an abortion! She said this is needed because the abortion is for unmarried women. 

The second hospital whose doctor was very understanding of the predicament of any women-married or otherwise- to get an abortion, did offer abortion services according to the provisions of the MTP Act, 1971. However, the doctor did put forward the suggestion that it is always best that there is a patient bystander who can help and support the patient during the abortion. She said that they have had cases in the past when the patient was abandoned by the bystander when any complication such as excessive bleeding occurred. Hence, she was of the opinion that a person who has the legal obligation to the patient be the patient bystander. 

Pre pandemic and post pandemic:

Our field trips were severely curtailed by the pandemic. Had it not been for the pandemic, we would have been stalking the corridors of all these hospitals, talking to the patients and doctors there, trying to assess and evaluate on the ground, such that we have concrete data on safe spaces for women to seek a legal abortion. With the country gradually settling into the “new normal” of post lockdown months, we are looking forward to being on the ground.

Writer:

Dr. Nishitha Aysha Ashraf is Programme Associate for SAAF Project at Hidden Pockets Collective. She completed her B.A. Journalism & Communication (2010) and Bachelor of Dental Surgery (2015) from Manipal, Karnataka. She has covered the Nipah outbreak in Kerala during her stint as Health Reporter with The News Minute (2018). The reportage furthered her interest to be a key player in public health/ community health. Her internship and work at SOCHARA – Society for Community Health Awareness, Research and Action (2019) was instrumental to learn more about the People’s Health Movement. She is keen on exploring the SRHR issues of Kerala, especially those amongst the Muslim and Christian communities.

Abortion in Mysore: Part 1

Sex, pregnancy, babies: taboo subjects? Absolutely not! Not if you are married. The Indian cultures and societies validate, sanction and many even celebrate these when you are married. But, what if you are not married? All it takes is the unmarried status to make these matters into – “mooh kala kardi”- shame, dishonour and guilt. 

India has its largest ever adolescent and youth population. According to UNFPA projections, India will continue to have one of the youngest populations in the world until 2030. The Guardian reports 600 million people are under 25 years of age. That is more than half of India’s population. Do you think they all wait to get married to have sex, get pregnant and have babies? Sexuality is being explored by the youth. However, cultural and societal taboos continue to exist in many parts of India. And no surprises, it is always the unmarried women who bear the brunt of it all, especially if she is pregnant. 

Ironically, India has one of the most liberal laws in the world when it comes to termination of pregnancy. However, it is no relief when you realize the barriers that women have to overcome in accessing safe and legal abortion in India. According to reports, 56% of abortion performed in India is estimated to be unsafe. That is more than half of the estimated 6.4 million abortions that happen in India every year. If that does not worry you, then perhaps this can: unsafe abortion is the third leading cause of maternal deaths in India.

The Hidden Pockets Collective way

The collective is using technology to increase awareness of sexual and reproductive rights amongst the youth. Using multiple platforms in social media, it has been striving to increase both awareness and access for youth to address their concerns on sexual and reproductive health & well being. Collective is the first organization in India to have a real time Whatsapp Careline service where the youth can reach out for help.

SAAF (Safe Abortion Action Fund) project “Abortion is Care”

Focusing exclusively on 4 districts in Karnataka (Bengaluru, Mysore, Shimoga and Ballari) Hidden Pockets Collective has been working on SAAF (Safe Abortion Action Fund) project “Abortion is Care”.

Safe and legal abortion should no longer be a matter which is out of reach for the youth in these districts and the project is making it happen. 

Hidden Pockets Collective launched an extensive mapping and auditing of hospitals, clinics and doctors, in these four districts, who are authorized to give abortion according to the mandates of the MTP Act, 1971. 

The challenges were numerous to carry out an in-person audit during the weeks of lockdown when the country had come to a stand still. Hidden Pockets adapted to the lockdown by launching the preliminary call audits, at the same time anticipating ease in access to these 4 districts to do the in-person audits, during the lag phase of the pandemic, The call audits findings were a mixed bag. Many doctors from all the four districts, outrightly said no to take up cases of unmarried women. Some doctors, however, gave us the hope that not all roads are closed. 

Read: Abortion in the Steel City Ballari: Part 1

Read: Abortion in Shimoga: Part 1

Mysore: not a bleak picture after all!

Mysore, apart from its fame for being a sought after tourist destination in India, is an emerging hub for techies. Many youngsters from all over the country throng the place for launching their career in the Information & Technology industry. You could even say Mysore is a youthful district! When we started our call audits, we were wondering what will happen to the youth during the pandemic when they want to avail SRHR services, especially abortion services. 

Doctor A, who is a consultant OBG doctor at a few private hospitals in Mysore, revealed that in one of the private hospitals where she works, they get numerous cases of young unmarried women who want termination of pregnancy. This, of course, was in the pre-pandemic times. The hospital which provides both medical and surgical termination of pregnancy has had cases where young unmarried women have approached them and were hesitant to provide ID proofs. Doctor A revealed that some of the doctors, including her, have helped even such cases. However, she insisted to us that it is always better that women provide ID proofs.  

Doctor A came across as a person who is not very judgemental. When speaking about abortion for unmarried women, she was direct and had no qualms about giving them an abortion. This came as a surprise to us because many doctors we spoke to in Mysore were very uncomfortable about helping unmarried women.

We were impressed when Doctor A said that, for women to get the termination of pregnancy, there is no need for parents’ or partner’s signature. Doctor A added that as long as the woman is an adult, she can give her signatures wherever needed for the abortion. 

But of course, Doctor A did not open up to us so quickly to reveal all these. In the earlier part of the phone call with her, she spoke to us in a matter of fact manner as a doctor would speak to a patient. But when we went on to ask many a question, she got defensive and wanted to know who we are, what exactly we are looking for, why we are asking her so many questions. And we had to reveal to her about Hidden Pockets Collective. It was only after a lengthy disclosure which she patiently listened to, did she open up to us and gave us the needed information. 

Mysore did the unthinkable!

When we made our calls to a top private hospital in Mysore, which is part of the hospital chain spread all over India, we were very sure that there won’t be any hassle for unmarried women to get termination of pregnancy at this hospital. After all, this hospital brand stands for corporate and profit culture when it comes to healthcare delivery. But our audit calls shocked the lights out of us!

Doctor B, who works at this hospital told us that for procedures were signatures are needed, it was not enough for an adult woman to sign. The hospital wants the signatures of either the husband or the parent or any first degree relative to give consent as well. Doctor B, went onto stress that for unmarried women, her partner can give the signature and if he is not physically present with her, then the consent can be sent through fax to the hospital! We were flummoxed! “Fax? They want fax from the partner stating consent? What if the partner is nonexistent? What if the fax can be faked?” we were left wondering! We did not ask her for clarification because it was very loud and clear that the hospital was not at all helpful to unmarried women. 

Field work amidst the pandemic

As the weeks go by and we all are starting to let it sink in: the virus is here to stay, we also are looking forward to having safe access to Mysore. Our preliminary search, so far, has given us the narratives from doctors. We are eager to meet the communities and youth of Mysore and hear what they have to say when it comes to accessing sexual and reproductive health services. We are sure that having the youth with us will help us see Mysore through another lens.

Writer :

Dr. Nishitha Aysha Ashraf is Programme Associate for SAAF Project at Hidden Pockets Collective. She completed her B.A. Journalism & Communication (2010) and Bachelor of Dental Surgery (2015) from Manipal, Karnataka. She has covered the Nipah outbreak in Kerala during her stint as Health Reporter with The News Minute (2018). The reportage furthered her interest to be a key player in public health/ community health. Her internship and work at SOCHARA – Society for Community Health Awareness, Research and Action (2019) was instrumental to learn more about the People’s Health Movement. She is keen on exploring the SRHR issues of Kerala, especially those amongst the Muslim and Christian communities.

Abortion in Shimoga: Part 1

*This article is a part of a series exploring the abortion services in 4 districts of Karnataka. 

To read on Ballari, the first article in the series, please click here. 

Shimoga is a place that might not ring a bell to many. But Jog Falls for sure is that buzz word which brings adventure kicks and nature highs. Not many know that the famous Jog Falls is located in Shimoga district. Often Jog Falls gets synonymous with Karnataka. Home to many more waterfalls and splendors of green nature, Shimoga district is in the central part of Karnataka, a South Indian state. Heggodu, a tiny village in Shimoga has global standing in the world of theater. Heggodu’s pride NINASAM is a one of a kind organization that brings a communitarian approach to enrich theater, films and publishing. 

Introduction to the SAAF project: 

As part of the SAAF (Safe Abortion Action Fund) project “Abortion is Care”, we charted out a plan to travel to Shimoga, assess and map out service providers who can give safe and legal termination of pregnancy in accordance with the guidelines of the Medical Termination of Pregnancy Act, 1971. What should otherwise have been meticulous fieldwork of weeks, ended up getting shrunk to a series of telephone calls to service providers during the COVID-19 pandemic. We had to adapt as there were no other means to reach Shimoga. 

Search engines and medical termination of pregnancy

In the online spaces, Shimoga had no dearth in furnishing a list of doctors, hospitals and nursing homes which offer OBG services. For a person in distress, to find the right service providers to terminate a pregnancy, this surely comes as a quick initial relief. However, when you scratch beneath the surface, you will realize the information provided is not as accurate as it ought to be. 

When Hidden Pockets Collective reached out to the listed hospitals and nursing homes, it was found that many of them did not have OBG departments. Some of these healthcare facilities are the leading and well-reputed ones in Shimoga’s private sector. However, when it comes to OBG services they do not offer OBG consultation services and yet their organization is listed in the networld for the services. One can choose to quickly dismiss these as carelessness of the online portals/ aggregators in verifying the information and thus the wrong representation of these organizations in the public domain. But for a person, especially a young unmarried woman, who opts to use the net to find trusted, safe and legal means to access abortion services, such carelessness can prove costly when she runs from door to door of these healthcare providers, only to be told that “we don’t have OBG department here.”

Empowering abortion choices. But for whom?

In all our works at Hidden Pockets Collective, rarely have we come across doctors who trust the women to take ownership of their bodies during an abortion. Hence, it was a bit of surprise when we learned of the empowering choices doctor A gave to her patients.

Medically Managed Abortion (MMA) at home is yet to be recieved well by both medical communities and laypeople as the usual norm is to have MMA in a clinical setup. Doctor A said that she is always in support of monitored MMA at home and she offers it to her clients when possible. The hospital she works for has differently priced packages for abortion and monitored MMA at home is the cheapest. 

Doctor A is associated with a top private hospital in Shimoga. The hospital provides MTP for both the first and second trimester. Doctor A said that upto 90% of cases they handle are MMA. For clients whose pregnancies are under 7 weeks of gestation, they offer MMA. From 7 to 12 weeks, depending on the individual case, they will opt for surgical termination. Occasionally they also get cases above 12 weeks of gestation which inevitably will be terminated through surgical procedures. The costs of termination are all presented as “packages” and monitored MMA at home is the cheapest option. As much refreshing it was to hear this, amidst the notoriety of many private hospitals wanting to fleece off the patients, we hit a wall when it came to ensuring that all options are available for unmarried women. Doctor A refused to give the cost details of the various “packages” and closed the queries on costs with a statement that everything is reasonably priced and at par with the standard market costs. 

When asked about the access for unmarried women, doctor A said that the hospital holds no difference and the services are open to all. However, she highlighted that when signatures are needed for some surgical procedures, it is mandatory that a responsible bystander, preferably a first degree relative such as a mother, be present. This, of course, is not a legal prerequisite but an individual preference. She also added that male involvement such as a brother, father is discouraged as they have had cases in the past wherein ruckus were created and directed at the patients by the male relatives.   

Parents have a say?

Many doctors who spoke to Hidden Pockets Collective said that they can provide an abortion for unmarried women. However, they insisted that parental involvement be there. It did not matter whether the woman who needed the service is a financially independent adult who has her trusted circle of people to take care of the patient bystander responsibilities. For the doctors, all that mattered is the presence of parents. According to the doctors, in events where complications can arise in certain cases of termination, it is best that parents are present to take up the responsibility of the woman and hence they insist on having parents involved. Such conditional access to termination for unmarried women is highly unhelpful, as most unmarried women will not dare to approach their parents. Premarital sex, pregnancy out of wedlock continue to be taboo subjects for most families and invariably continue to be tied to shame and guilt. It is unthinkable for many young women to bring their parents on board for their abortion. Hence the doctors’ “openness” for providing abortion services to unmarried women is null and void. 

Authorities and approval

Doctor B was above and beyond all the fuss for parental involvement. She works in a leading private hospital in Shimoga and said the hospital has both MMA and surgical abortion. According to doctor B it is usually married couples who have approached the hospital for termination and personally she dissuades them from getting a termination if it is their first pregnancy. When asked whether she will refuse abortion for unmarried women, doctor B said that the hospital does provide termination for them and that she, as a doctor, has to respect the women’s decision to get an abortion. She reasoned that it is not easy in our culture to be unwed and pregnant and that she would rather have the unwed pregnant women get a safe and legal abortion than have them go elsewhere to get an illegal and risky abortion. Doctor B was unruffled by the “parental clause” which many other doctors in Shimoga had put forward to Hidden Pockets Collective. All doctor B was concerned about is that the woman is an adult and giving consent out of her own volition. However, there were challenges to navigate as the doctor said that from the organization’s point of view, the ultimate decision to provide the abortion services for unmarried women, rests on the hospital administration. She said she can vouch for the patient’s case to the hospital administration, but she can only proceed with their approval. Doctor B was hesitant to disclose the standard costs of MMA and surgical abortion and said she can do so only after the approval from hospital authority. 

Field work amidst the pandemic

As the weeks go by and we all are starting to let it sink in: the virus is here to stay, we also are looking forward to having safe access to Shimoga. Our preliminary search, so far, has given us the narratives from doctors. We are eager to meet the communities and youth of Shimoga and hear what they have to say when it comes to accessing sexual and reproductive health services. We are sure that having the youth with us will help us see Shimoga through another lens.

Writer: 

Dr. Nishitha Aysha Ashraf is Programme Associate for SAAF Project at Hidden Pockets Collective. She completed her B.A. Journalism & Communication (2010) and Bachelor of Dental Surgery (2015) from Manipal, Karnataka. She has covered the Nipah outbreak in Kerala during her stint as Health Reporter with The News Minute (2018). The reportage furthered her interest to be a key player in public health/ community health. Her internship and work at SOCHARA – Society for Community Health Awareness, Research and Action (2019) was instrumental to learn more about the People’s Health Movement. She is keen on exploring the SRHR issues of Kerala, especially those amongst the Muslim and Christian communities.

Age of Marriage vis-à-vis Age of Motherhood in India

History of the legal age of marriage

In India, marriage as an institution plays a major role in the development of an individual. Marriage is considered to be a sacred ceremony in some religions, and a spiritual contract in other religions. After independence, the Indian Constitution laid down in its preamble the core principle of secularism. As a result, to provide autonomy to all the religions, marriages were governed by the personal laws like the uncodified Islamic Sharia law, The Hindu Marriage Act, 1955, The Christian Marriage Act, 1872 etc and till date they do so, except that the legislature has also been taking steps to curb the societal evils like child marriages, female infanticide, and so on. Needless to say, there is much more effort to be put in,  so that there are equality and well-being in the country. 

Last year, BJP spokesperson and lawyer Ashwini Kumar Upadhyay moved the Delhi High Court filing a Public Interest Litigation claiming that the difference in the minimum age of marriage for men and women was based on patriarchal stereotypes and has no scientific backing. According to the erstwhile Sharda Act, 1929, the legal age to get married for a male is 21 and female is 18. The petition seeks to challenge the ongoing discrimination on women regarding the same. The petition further states that it is a social reality that a wife is considered to be playing a subordinate role than her husband and the said age difference deeply aggravates this power imbalance. 

In pursuance to that, the Finance Minister Nirmala Sitharaman in her speech for Budget 2020 said they will set up a task force which will dwell into the discussion of the age of marriage vis-à-vis the age of motherhood of women and look from the point of reducing maternal mortality rate which remains high in our country and increase the nutrition levels of women overall.

The Sarda Act, also known as the Child Marriage Restraint Act, 1929, was sponsored by Harbilas Sarda which mandates the legal age of marriage. This Act was introduced by the Imperial Legislative Council of India with the aim to curb the social evil of child marriages. More importantly, young daughters were married to much older males, as females were considered to be a ‘burden’ and no education was granted to them. Initially, the age of marriage was fixed at 14 and 18 years for girls and boys respectively. Later, the act was amended in 1978 to increase it to 18 and 21 for girls and boys respectively.  The provisions of the Sarda Act were enacted in continuation with the law relating to the age of consent under the Indian Penal Code, 1860. At the time of the 1949 Amendment of the Sarda Act, which raised the lowest age of marriages for girls to 15, there was also an amendment to another law, the section 375 exception 2 of the Indian Penal Code, 1860, which increased the age of cohabitation to 15. Since then the provision of Indian Penal Code didn’t change even though the Sarda Act raised the age of marriage to 18 years in later years. After a long battle, only by the Criminal Law Amendment Act, 2019, has the age of consent been at par with the age of marriage. Yet again, now there is a need to raise the age of marriage of girls to 21 to be at par with boys and establish the yearned equality in the society. This brings to notice that not only the Sarda Act should be amended but also the other penal laws regarding the age of consent so that there is no inconsistency left as it was left in section 375 exceptions 2 from 1978 to 2019. 

Child Rights

The new task force aims to raise the age of marriage of women to 21 with the aim to reduce the years of motherhood which is believed to have an indirect impact on the population. However, the government fails to understand marriages are still governed by the personal laws which support the marriage of girls at a tender age. The codification of the Hindu and Muslim laws may have granted few reliefs to the minor females, such as in the Dissolution of Muslim Marriages Act, 1939, where there are provisions for seeking a divorce in which a young girl, having been given in marriage by her father or other guardians, can repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not beenconsummated. However, the practices of marrying girls as soon as they reach puberty still persist. 

The different judicial interpretations of what happens after an underage marriage have created a lot of chaos. As of today, underage marriage is not invalid, meaning the marriage still exists in the eyes of law in some states. It is considered to be voidable at the option of the minor that is not ready for the marriage to continue after they reach the age of majority. It means that once the minor reaches majority she can go to the appropriate court and request to nullify the marriage on the grounds as provided under the Act in which the marriage was solemnized. The real question remains, how many of the women have access to legal remedies so that they can divorce their current partners they forcefully were being married off. Since parents play a major role in setting up these marriages there would be no support from them and to make matters worse, the label of a divorced female is still detested in most Indian society. All these factors make a woman vulnerable and thus can socially restrict her. 

The government plans to raise the age of marriage but they should also look into the social-economic opportunities which women can avail so that the age-old belief of them being a burden does not stand true anymore. One more reason provided to increase the age of marriage is that women can attain their graduation without being pressurized to get married. However, the legal changes won’t change anything until there is an internalization of these laws as the social norms of the society. As a minor, getting married at a tender age can take away her fundamental right to education and her right to live with dignity. 

Access to Reproductive Health & Women’s Rights

One of the major reasons marriages are performed is that a couple can reproduce children and provide the children with legitimacy. This leads to the added pressure women face who have already married as early as 18 years i.e. as soon as they achieve the age of majority or sometimes even earlier. Hence, teenage pregnancies of the age 15-19 pose greater health risks and result in premature babies.  With the government raising the age of marriage to 21 for women, it aims to reduce the mortality rates as the motherhood span reduces to three years. It has been constantly observed that as soon as a couple is married they are forced to reproduce a child for the sake of in-laws or with the hope to continue their family name. The age of 15 to 19 years is most vulnerable for women in terms of their reproductive health. The societal pressure of bearing a child as soon as women get married combined with child marriages results in adolescent pregnancies. To delay the age of marriage to 21 will serve an appropriate age for women to bear the child even in the first year of marriage.  In a society, where pre-marital sex is a taboo and sex education is not provided properly in schools, young couples fall prey to peer knowledge and pornography which raise expectations of their sexual experience. The lack of knowledge of contraceptives and its use results in teen pregnancies. The trauma of uncalled pregnancies, miscarriages and stillbirth are high amongst women who marry at a young age. 

From the 1970s up to 2016, there had been a spur in sterilization camps due to the government’s family planning policies. After mass deaths of women due to unhygienic environments in 2014, the Supreme Court passed a landmark judgment on the ban of sterilization camps.  Even in the sterilisation procedure, more women participation was seen than men due to social stigma such as vasectomy reducing the strength of men and making them less ‘manly’. Moreover, women’s sterilisation procedure is more complicated and riskier than men’s. The stigma to bear all the pain is a woman’s job should be removed. The responsibility should be equally shared by both the partners while seeking the right medical health. 

Conclusion

Marriage is an institution which is formed to re-create bonds and let the evolution of humankind continue. A marriage can be considered as a sacred ceremony as well as a spiritual contract as per personal religious beliefs. However, certain humanitarian values should be upheld. The age of marriage is a crucial issue as it further sends a message of what kind of society we aim to achieve. It is observed that the age of marriage should be equal for both the genders for the power imbalance to extinguish and thus remove the patriarchal stereotypes which still exist. We should aim at a society where marriage is performed between consenting adults who feel ready to take new responsibilities rather than follow a centuries-old made up path. Be it 21 or 45, marriage should be performed freely and build healthy relationships. 

About the Author: Vidhi Gada

She is a 4th-year law student from ILS Law College, Pune, who firmly believes the law can be used as a weapon of change in our country and thus began her journey in the field of law. Apart from trying her best to be updated with all the legislations, her interests lie in Human Rights & Intellectual Property Rights. The best way to connect with her is to suggest a song that sets her mood and also, dogs. No! Kidding, she loves all the animals! She really likes dancing, writing and making puns! 

Soar: Two-Child-Policy! Shrug: ICPD 1994…

On 7 February 2020, a bill on the Two-Child-Policy was introduced as a private member bill in the Rajya Sabha by the Member of Parliament Anil Desai. This is a Constitution (Amendment) Bill and seeks to bring amendments to article 47. The short title of the bill is ‘Duty of the State to promote small family norm’. The main objective of the amendment is to enforce punitive measures for those families who have more than two children. The new article is suggested to be inserted at the end of article 47 and is as follows:

“The State shall promote small family norms by offering incentives in taxes, employment, education etc to its people who keep their family limited to two children and shall withdraw every concession from and deprive such incentives to those not adhering to small family norm, to keep the growing population under control.”

The bill elaborates further in the statement of objects and reasons about the need to control population explosion and where India currently stands in the global ranking in relation to the rate of population growth, population density. The details stated further in the bill with respect to Two-Child –Policy is as follows:

‘Today, there is also a need to encourage the people to keep small family by offering tax concessions, priority in social benefit schemes and school admissions etc. And at the same time discourage them from producing more children by withdrawing tax concessions, imposing heavy taxes and by making other punitive provisions for violations.”

This is not the first time such a bill has been introduced in the Parliament.

Earlier it was the Population Regulation Bill 2019 that stirred up controversy with its draconian approach to enforce the Two-Child-Policy.  It had strong punitive measures such as people being disqualified to contest in elections to either Houses of Parliament or state legislative assembly or even bodies of the local self-government. The bill also proposed that every serving government employee ought to give an undertaking that they shall not have more than two children. The penalties for anyone who contravenes the policy will be a reduction in subsidies on loans, lower interest rates on savings schemes in banks and investments, higher interest rates for availing loans from banks and financial institutions, reduction in benefits of Public Distribution System.  Also, incentives are placed for employees of Central Government and Public Sector Enterprises under the Central Government if they or their spouses undergo sterilization.

Matters even reached the President Ram Nath Kovind way before it should have taken the defined course of bills and the Parliament. In an unprecedented move, 125 members of the Parliament (1) signed a petition for the Two-Child-Policy and had it submitted to the President, even though the President has no role in suggesting, introducing or implementing public policy in India (2). In response to the petition, the Population Foundation of India put out a statement (3) from the Advocating Reproductive Choices (ARC) – a coalition of 165 civil society organizations and individuals- and denounced the Two-Child-Policy as going against the national interest, violating basic tenets of fundamental human rights and the Indian Constitution.

A matter to be noted is the heated up interest in the Two-Child-Policy from various quarters outside the Parliament. In a span of two years, five-plus PILs (4)have been filed in the Supreme Court seeking a directive to the Centre to enforce population control through a punitive Two-Child-Policy. The Court, however, dismissed all the PILs.

Unlike all the past moves to push the Two-Child-Policy, this recent 2020 bill garnered no media attention whatsoever. One can say the introduction of this bill went off the media radar. If this bill becomes an Act it will be the unprecedented law in India that will mete out punishments for having more than two children. It can bring serious setbacks to the sexual & reproductive health and rights of women, especially those from marginalized and poor communities. 

India being a signatory to the Programme of Actions of the International Conference on Population and Development (ICPD) 1994, cannot enforce a law that prevents a couple or an individual to decide freely and responsibly the number and spacing of their children. Post ICPD 1994, India’s National Population Policy had incorporated the PoA and stated its commitment towards “voluntary and informed choice and consent of citizens while availing reproductive healthcare services and continuation of the target – free approach in administering family planning services.”  However, with the turn of events happening towards the Two-Child-Policy, it seems that India will flout the PoA of ICPD (1994) if the bill becomes a law. 

Sources:

1^ “125 MPs appeal to President Ram Nath Kovind, demand strict two-child law; Opposition suspects ‘agenda’.” Times Now, 13 Aug 2018, https://www.timesnownews.com/india/article/population-in-india-125-mps-president-ram-nath-kovind-two-child-law-bjp-congress-explosion-2-child-law-petition/269006

2^ “125 MPs Petition President, Who Has No Role in Public Policy, to Implement Two-Child Norm.” The Wire, 21 Aug 2018, https://thewire.in/government/parliamentarians-president-petition-two-child-norm

3^ “Proposed two-child policy is against human rights.” Population Foundation of India, 31 Aug 2018, https://www.populationfoundation.in/NewsEvents/view/18/106

4^ “Fresh plea in SC on population control.” The Times of India, 21 Feb 2018, https://timesofindia.indiatimes.com/india/fresh-plea-in-sc-on-population-control/articleshow/63018969.cms

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Writer

Dr Nishitha Aysha Ashraf is Programme Associate for SAAF Project at Hidden Pockets Collective. She completed her B.A. Journalism & Communication (2010) and Bachelor of Dental Surgery (2015) from Manipal, Karnataka. She has covered the Nipah outbreak in Kerala during her stint as Health Reporter with The News Minute (2018). The reportage furthered her interest to be a key player in public health/ community health. Her internship and work at SOCHARA – Society for Community Health Awareness, Research and Action (2019) was instrumental to learn more about the People’s Health Movement.  She is keen on exploring the SRHR issues of Kerala, especially those amongst the Muslim and Christian communities.

Population is Exploding? Punishment Works!

In the last few decades when movies ‘Yours, Mine and Ours’’, ‘Khatta Meetha’ and shows like ‘Hum Paanch’  played out in cinemas and TVs, the amused viewers lived through the ups and downs of the reel families in laughter, joy, tears and sighs. Maybe we must have pontificated a bit on the cost and stress of running large families then. But surely we did not sound the death knell for the environment, employment and equilibrium while we enjoyed these feel-good movies. However, now with the Two-Child Policy bill on population, we might want to pooh pooh these movies and shows. Well, will we?

The chupke chupke (hush hush) act: 

The first week of February saw the Constitution (Amendment) Bill 2020 being introduced as a private member bill in the Rajya Sabha. There was not much fuss or attention. One can say it went unnoticed in the public like a hush-hush matter. If the bill ever becomes an Act, it will be the unprecedented law in India to punish families for having more than two children.  

The bill proposes that “there is also a need to encourage the people to keep small family by offering tax concessions, priority in social benefit schemes and school admissions etc. and at the same time discourage them from producing more children by withdrawing tax concessions, imposing heavy taxes and by making other punitive provisions for violations.” 

Population explosion, when? Now! Before implosion!

India currently stands at rank 2 in the global list of countries by population (1). China is first and the USA is third. With the list or without the list there is always the common comment that India is overpopulated, too crowded and “certain” religious communities are breeding as if procreation seems to be their main recreation. And when leaders, be it political or religious, continue to stress that India indeed is overpopulated, it does not need much persuasion for most Indians to fervently agree with them. But the critical questioning and critical dissection we need to do here is: is India really overpopulated? Is the Two-Child Policy needed to address the overpopulation?

Facts met myths and burst its bubbles:

Total Fertility Rate (TFR) is the rooting word to understand overpopulation and under population. TFR is the average number of children which a woman will have in her childbearing years (age 15 to age 49) according to the current birth trends. A population in an area is considered stable when the TFR is 2.1 such that no immigration or emigration has happened. The latest data shows us that most of the states in India have a TFR below 2.1 and only a few states are still above 2.1 TFR. Also, India will have an end to population growth (2) after going through ‘population momentum’ (3) following which there will be a ‘peak child’ and later ‘peak population’. So why this Kolaveri da on India being overpopulated? 

China, One-Child Policy and lessons: 

Population control and country’s development came together and weaved dreams of a better future for everyone who looked at China and wah wahed at their One-Child Policy. As China grew into one of the largest economies in the world, wielding a forceful control on her population, everyone had songs of praise for the One-Child Policy.  However, it took China 36 years to see the far-reaching consequences of the policy. 

Under population is a grave concern in China now where a high percentage of the population is elderly and non-working. The state uses its funds to give pensions while the state is having a shrinking working population. Also, the family structure takes an immense toll on the individuals, an effect appropriately termed as 4:2:1 wherein an individual has to take care of his/her parents as well as two sets of his/her grandparents in their old age. Thus the coinage 4 grandparents: 2 parents: 1 person. These family structures, where siblings are unheard of, thus cause immense financial and emotional pressure on the individual. China is a traditional society which still expects the adult children to provide for and support the ageing family members and have laws also to ensure the same. 

Patriarchal preference for a boy child added to the urgency of having that one child for a couple as a boy. Thus sex determination, even though is illegal, became rampant in China and so did sex-selective abortion. All these have resulted in a severely skewed gender ratio. 

China removed the One-Child Policy in 2015 and introduced the Two-Child Policy. However, not much hope is there for China to have a stable population even with the new policy (4).

Followers of religion & population control: wink wink?

Much anxiety looms in the country about Muslims causing the population explosion. Just going by the stereotypes of ‘hum do hamare panch’ (*us two ours five), people are quick to be stirred up by the populist view that Muslims will indeed overtake the Hindu population in the country and the WhatsApp University also does its share of spreading the “information”. What is conveniently left out is the fact that Muslims have been having a steep decline in their population growth. An article in a leading Indian newspaper (5) explains, “The 2011 Census puts the Muslim population at 17.22 crore or 14.22 per cent. The Hindu population grew in the decade of 1991-2011 at the rate of 1.55 per cent, while the Muslim population growth rate was 2.2 per cent. The fear about Hindus becoming a minority in India has the basis in this statistics. However, in the decade from 1991-2001, the growth rate of the Hindu population was 1.8 per cent and that of Muslims was 2.6 per cent. The decline in the growth rate for Hindus was 0.25 per cent and that for Muslims was 0.4 per cent. This is because of increasing literacy among all groups.” When it is easier to stir up the cauldron of hatred and fear to mobilize people why acknowledge facts that dispel the anxieties? 

Two-Child Policy: a peep into the future

Apart from the fact that policy is completely unnecessary, given how in the existing conditions India is heading to a stabilized population, enforcing this policy as a draconian law will push the poor people into a vicious cycle of poverty. Even with the law and dire consequences in place, there will be people who will have more than two children. While the rich can afford the consequences, will the poor be able to?  The limited access and knowledge to contraceptives and safe abortions, also the belief that having more children can ensure a better old age as their adult children will take care of them, will all make a poor man and a woman circumvent the policy and in all likelihood, they will have more than two children. With policy preventing them from availing benefits and schemes, they will be pushed further into poverty and thus they will end up in a vicious cycle from which they can never get out to have a better life. 

Guilty for pregnant: Blame anyone but partner and state

Women will walk on a tightrope if the Two-Child Policy becomes a law. In the currently existing conditions, it is the women who bear the brunt of (1) wanting to use contraceptives when her partner is against it (2) wanting to terminate an unwanted pregnancy when her partner is against it. Matters will be made all the grimmer for women with the Two-Child Policy as a law especially when they are victims of domestic violence. 

Contraceptives & Sterilization: We need to reflect on whether all women have access to contraceptives, whether these contraceptives are affordable and within their purchasing power, whether they are aware of all the choices they have in contraception and know how to make an informed choice on what suits them best, whether they have the negotiation power with their partners if they want their partner to wear a condom. We also need to reflect on the access and affordability they have for safe abortion, the robust public healthcare system and the legal system that will ensure that no women will be judged, discriminated or harassed for wanting to have a safe abortion. It is a valid fear that most women, especially from marginalized communities, will be forced to have sterilization after having two children. There is always the risk of giving selective information and insufficient support to enforce the law. 

Health: At the Hidden Pockets we have alarmingly seen an increase in the careless consumption of emergency contraceptive pills, commonly called as I-Pill. Many young women have one pill every week and this can be hazardous to health in the long term as the hormone balance will go for a toss and body consequently will have its reactions. Most of these women have confided to us that their partners refuse to use condoms as it interferes with pleasure. The onus for prevention of pregnancy thus falls on the women. When access and availability of oral contraceptive pills are a challenge, so also maintaining and completing the drug cycle, then emergency contraceptive pills become the quick fix.

Same story again and again:

Since decades experts have been shouting themselves hoarse that socio-economic conditions play an important role in population control. It has been ascertained census after census, how education and healthcare (6) are the factors that contribute significantly to help people decide, out of their own volition, that having a small family is indeed a good choice. What is highly problematic is the policy’s enthusiasm to make sweeping statements on the population without making any provisions to identify challenges in education and healthcare across the country and address them. Nor are there sincere efforts to address the lack of awareness on sexual & reproductive health and rights.  Experts always vouch that it is the development that can be the ultimate tool for population control and not punitive measures. We need to steer our policies towards those directions. Perhaps then we will be able to win again the nostalgia for those aforesaid movies. 

Sources:

1^ “2019 Revision of World Population Prospects.” United Nations Population Division, https://population.un.org/wpp/

2^ Ritchie, Hannah. “India’s population growth will come to an end: the number of children has already peaked.” Our World in Data, 15 January 2019, https://ourworldindata.org/indias-population-growth-will-come-to-an-end

3^ “The Inevitable Fill-Up.” Gapminder, 18 April 2018, https://www.gapminder.org/topics/population/fill-up/

4^ Kuo, Lily and Wang, Xueying. “Can China recover from its disastrous one-child policy?” The Guardian International Edition, 2 March 2019, https://www.theguardian.com/world/2019/mar/02/china-population-control-two-child-policy

5^Neelakantan, Anand. “The demographic change hoax.” The New Indian Express, 19 January 2020, https://www.newindianexpress.com/magazine/voices/2020/jan/19/the-demographic-change-hoax-2090213.html

6^Tripathi, Rahul. “Literacy leaves its mark as fertility rate goes south.” The Economic Times, 15 July 2019, https://economictimes.indiatimes.com/news/politics-and-nation/literacy-leaves-its-mark-as-fertility-rate-goes-south/articleshow/70220785.cms?from=mdr

Connect with us on our social media pages to get updated about Sexual and Reproductive Health and Rights.

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Dr Nishitha Aysha Ashraf is Programme Associate for SAAF Project at Hidden Pockets Collective. She completed her B.A. Journalism & Communication (2010) and Bachelor of Dental Surgery (2015) from Manipal, Karnataka. She has covered the Nipah outbreak in Kerala during her stint as Health Reporter with The News Minute (2018). The reportage furthered her interest to be a key player in public health/ community health. Her internship and work at SOCHARA – Society for Community Health Awareness, Research and Action (2019) was instrumental to learn more about the People’s Health Movement.  She is keen on exploring the SRHR issues of Kerala, especially those amongst the Muslim and Christian communities.

Condoms: Are they adolescent-friendly under Indian law?

A country’s laws regarding sex, sexual orientation, sexual consent, sexual and reproductive health, access to abortion services and access to different types of contraceptives can often become autonomy-snatchers in the name of protecting children and adolescents.

Even though Indian law does not explicitly prescribe any minimum age for accessing or buying condoms, there are indirect legal barriers which might make condoms less accessible for people belonging to a certain age group. Additionally, social and cultural mentalities also make the practice of accessing condoms difficult and stressful, so much so that those affected by these often indulge in unsafe sexual activities at the cost of their physical wellbeing. 

As per the Population Council’s 2016 report, out of the 10,400 adolescents who were part of the survey from Bihar, 14.1% of unmarried boys and 6.3% of unmarried girls had engaged in sexual activity. Out of these, 28.5% girls and 22% boys had had sex before they were 15 years old. Further, condoms were regularly used only by 20.3% of unmarried boys and 8.2% of unmarried girls. The same report also revealed that adolescents, 17.2% of adolescent boys and 6.2% of adolescent girls, in Uttar Pradesh are also sexually active (1).

Age of consent 

In India, the legal age of consent is 18 years. This implies that anyone who engages in sexual intercourse before they are 18 years old is doing something that the law does not permit. This legal nuance can create barriers to access. Many of the adolescents who want to engage in sexual activities but are less than 18 years of age might feel intimidated by the fact that they cannot legally consent to sexual activities that they willfully wish to engage in.

While this legal barrier may stop some from having sex until they are 18, it will force many others to have unsafe sex. They might be afraid to go to a pharmacy or other stores selling condoms for a lack of certainty as to whether the pharmacist or shop-owner would sell the condoms to them. Often, the pharmacist or shop-owner might try to estimate the age of those who come to purchase condoms and if they feel, as would be the case with many people below the age of 18, that the person is a ‘child’ (WHO defines a child as any person less than 18 years old), they might refuse to sell condoms to them. 

Does the law interfere with our sexual and reproductive rights?

Although access to contraception (and to safe sex) is a basic sexual and reproductive right, our legal framework on consensual and non-consensual sex creates problems in ensuring that this right is available to people of all ages. Even though the law does not see those below 18 as capable of consenting to sexual activity, many adolescents, particularly those between 16-17 years of age, are sexually active (1).

Given that India has the largest number of adolescents in the world (2) this puts a large number of people at the risk of getting Sexually Transmitted Infections (STIs) and a large number of girls at the risk of having unwanted pregnancies and unsafe abortions.   

Law – a mirror of social and cultural beliefs?

The attitudes of healthcare providers who sell condoms might be influenced by long-standing social norms and cultural beliefs. Although we have come a long way in destigmatizing pre-marital sex, we still have the limited perceptions that sex before people enter adulthood, and sexual experiences which are not to procreate, are reserved only for adults and/or married couples.

The sexual and reproductive health of adolescents below the age of 18 thus takes a backseat. People who can make contraceptives such as condoms easily available to adolescents almost always have judgmental attitudes.  Legal barriers like the minimum age for consent could be reinforced by such social and cultural mindsets. Ultimately, several of those below the age of 18 will still have sex but would be discouraged from buying condoms for a safe sexual experience. 

Public Health Programmes to improve access to condoms 

In India, the National Aids Control Programme(NACP) which is run by the National Aids Control Organization(NACO), a division of the Ministry of Health and Family Welfare, ended its phase IV in March, 2020. The programme aims to reduce and prevent the incidence of HIV transmission in the country.

As a part of its Targeted Interventions(TIs) among those who have a high risk of acquiring HIV, it focuses on “the promotion and provision of condoms to HRG(High Risk Groups) to promote their use in each sexual encounter”. Under its strategy of condom promotion, focus is on increasing demand and availability of condoms . Free condoms, called Nirodh, are procured by the Ministry and then distributed by NACO through NGOs, Anti-Retroviral Treatment(ART) centres and Integrated Counselling and Testing Centres(ICTC).

Condoms are also distributed through Social Marketing Organizations which use promotional campaigns to sell condoms at subsidized prices. Under the NACP, condoms are also marketed as private brands and sold commercially at full prices. 

The Reproductive, Maternal, Newborn Child plus Adolescent Health (RMNCH+A) programme focuses on improving maternal and child health by using a holistic approach and covering health throughout the lifecycle. Under its family planning services, free condoms are available at government health centres and are also distributed in rural areas by Accredited Social Health Activists(ASHAs). 

Shifting approaches:

We need to adopt a balanced approach when it comes to legislation that might directly or indirectly affect young people’s access to contraceptives such as condoms. Although the age of consent in India is set at 18 years with an alleged view to protect children and teenagers from sexual exploitation and abuse, such a blanket law takes away their sexual and reproductive rights. The age of consent must not be too high since that leads to many below the age of consent to have unsafe sex or to not engage in sexual exploration at all. It should also not be too low because that increases the risk of children and young people being subjected to sexual abuse and thus other physical, emotional and social complications can arise from such abuse.

Increased access to condoms:

Condoms can be made to be more within the reach of those below 18 years of age through the setting up of  Adolescent Friendly Health Clinics (AFHCs) by health professionals who are part of the private medical factor. These clinics would have a role similar to that of the AFHCs that are set up as a part of the Rashtriya Kishor Swasthya Karyakram (RKSK), a programme led by the Ministry of Health and Family Welfare to improve the health of India’s adolescents. Since these would not be controlled by the Government, they would have the autonomy needed to provide effective and non-judgmental sexual and reproductive health services. More adolescents would be able to go to these clinics and get contraceptives like condoms and the clinics would maintain their confidentiality.

Sexuality education:

No matter where we stand as a society in terms of openness towards and acceptance of sex among adolescents, meaningful sex education in schools will always be of paramount importance. This education should be far from instructing those between 16-18 years of age to not have sex or to not engage in any kind of sexual activity. Rather, it should educate them on the ways in which they can have safe sex and why safe sex is important for their sexual and reproductive health.

Role of social media:

To be able to cultivate healthier attitudes towards adolescents having sex, more of us need to come out on social media and talk about why it is important to put an end to the ways in which society often tries to portray sex as wrong. However, in these present times when pedophiles are lurking in cyberspaces to groom minors, it is highly important that minors are also given the education to discern sexual exploitation as well.  Social media is a powerful tool that can be harnessed well to inform, educate and empower the teenagers such that they can make informed choices about their sexual activity. This way more teenagers might be encouraged to overcome any hesitation or fear and buy condoms. Importantly, more and more healthcare providers (pharmacists, doctors at govt. health centres) would develop friendly and non-judgmental attitudes towards teenagers having sex.

Conclusion

Although there are public health programmes in place to make condoms increasingly accessible to the people in this country, legal interventions in the form of a minimum age for consent to sexual activity might make many adolescents below the age of 18 reluctant to buy condoms before having sex. Further, for those who do go to buy condoms, service providers might not sell condoms to them based on their age. The scary part is that all this would not stop those below 18 years of age from having sex. It would only make many of them indulge in unsafe sex. 

About the Author: Navya Dawar

She is a second-year student pursuing BBA LLB Honours at Jindal Global Law School, Sonipat, Haryana. She aspires to, one day, be a part of something that helps people believe in themselves and cherish themselves for who they are while simultaneously becoming aware of their own potential for personal growth and exploiting this potential to become better versions of themselves. She loves drinking tea, playing tennis and is fond of working out. She likes to sing and read and aspires to go on long-distance solo hikes at some point in the future.

Sources:

1^ Population Council. “UDAYA-Understanding the lives of adolescents and young adults:Bihar Factsheet 2016.” popcouncil.org, https://www.popcouncil.org/uploads/pdfs/2017PGY_UDAYA-BiharFactsheet.pdf

2^ UNICEF. “Adolescent development and participation.” unicef.org, 3 June 2019. www.unicef.org/india/what-we-do/adolescent-development-participation