A Step Towards Gender Justice: Women’s Access to Birth Control

Aditya Pratap, lawyer in Bombay High Court

With the fourth wave of feminism rising there has been renewed talks over women’s bodily autonomy and many laws and customs that were considered a norm or even claimed to be essential religious practices are being struck down by the court of law as discriminatory and even penalties are being introduced to discourage such practices. 

Recent examples being lifting the ban on entry of menstruating women in Sabarimala Temple or Triple Talaq being made a cognizable offence.

Access to Contraceptives:

India recognises intercourse not only as a tool for procreation but as a right which is needed for a better life. India signed and ratified the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) which recognises Reproductive Health as a basic right which is fundamental to women’s health and equality.

The primary provider of contraceptives remain government hospitals and the Primary Health Care centres but with no robust sex education policy in place and overburdened healthcare sector in addition the societal stigmatization of the issues especially when it comes to pre-marital sex makes access to these contraceptives harder than it has to be.

Types of Contraception:

Oral Contraceptive Pill (Mala-N) and IUDs are procured centrally and distributed to various States/Union Territories (UTs), Railways and Defense establishments under free distribution scheme.

Under the free distribution scheme, condoms under the brand name ‘Nirodh’ are made available to acceptors free of charge through Primary Health Centers and subcenters in rural areas and through hospitals, dispensaries, MCH centers and post-mortem centers in urban areas.

Pills are sold in pharmacies on prescription only according to the schedule of Drugs and Cosmetics Act of 1940 and distributed free through all urban Family Welfare Centers and through such Primary Health Centers as can monitor the oral pills programs. They can also be ordered online. There is no age restriction.

Sterilization:

In India women bear the burden of Family Planning though they act under the aegis of their husband and lack say in the matter. Female sterilization remains the most widely used family planning method.

The requirement for a women to seek sterilization are:

  1. Clients should be married (including ever-married).
  2. Female clients should be below the age of 49 years and above the age of 22 years.
  3. The couple should have at least one child whose age is above one year unless the sterilization is medically indicated.
  4. Clients or their spouses/partners must not have undergone sterilization in the past (not applicable in cases of failure of previous sterilization). 
  5. Clients must be in a sound state of mind so as to understand the full implications of sterilization.
  6. Mentally ill clients must be certified by a psychiatrist, and a statement should be given by the legal guardian/spouse regarding the soundness of the client’s state of mind.

The sterilization can be performed in a government hospital or a government recognised NGO for this purpose. The surgery needs to be performed either by a trained M.B.B.S doctor(in case of a MInilap) or a Gynecologist/Surgeon(in case of Laparoscopy).

The consent of the spouse is not required. An informed consent form is required to be signed by the patient. You can access it here

In Devika Biswas v. Union of India, the Supreme Court directed the central government to stop mass sterilization camps. The judgement that came in 2016 directed the government to stop all camp based sterilization within three years.

 Medical Termination of Pregnancy Act, 2020

One of the progressive law that was introduced by the legislature in the year 2020 was the Medical Termination of Pregnancy Act,2020 which ameded the Medical Termination of Pregnancy Act,1971 and allowed a wider(and previously made vulnerable due to exclusion) section to seek abortion as a method of birth control.The act was passed on 17 March,2020.

 Under the Indian Penal Code, 1860, voluntarily terminating a pregnancy is a criminal offence under section 312.  The Medical Termination of Pregnancy Act, 1971 allowed for aborting the pregnancy by medical doctors (with specified specialisation) on certain grounds and acted as exception and which will now stands amended by the 2020 Act.

Changed for terming a pregnancy at different gestational periods:

Time since ConceptionRequirement for terminating pregnancy

MTP Act,1971MTP Act,2020
Up to 12 weeksAdvice of one doctorAdvice of one doctor
12-20 weeksAdvice of two doctorsAdvice of one doctor
20-24 weeksNot allowedTwo doctors for special category of pregnant women
More than 24 weeksNot allowedMedical Board in case of substantial foetal abnormality
Any time during the pregnancyOne doctor, if immediately necessary to save a pregnant woman’s life.

Doctor refers to a registered medical practitioner with experience/training in gynaecology or obstetrics.

The ground for termination are:

  1. the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health
  2. there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

What will be considered a grave injury to mental health:

  1. Failure of a contraceptive device
  2. where any pregnancy is alleged by the pregnant woman to have been caused by rape

Now any women who has attained the age of majority can seek abortion citing faliure of contraceptive which was previously only available to married women.

A minor can seek abortion with the written consent of their guardian.

The new  act is not without criticism as the Medical Board which is proposed to be set up by the act is alleged to be an operational nightmare given in cases of abortion time is of essence. 

Conclusion:

India has some of the most progressive laws in terms of women’s rights. Recently there has been an increased effort from both the legislature and the Judiciary for upliftment of women.

Though there are still changes that need to be enacted to give women back the control they deserve on their body.

With rising average age for marriage and delayed conception of first pregnancy among women of fertile age in India it has become essential to provide education and easy access to methods of birth control to all women who seek it. 

Abortions happen even when it is not allowed, not allowing it risks the health of women who need it. Unsafe abortion is the second leading cause of death among pregnant women. 

 Introduction of a robust sex education policy is the  need of the hour and so is educating women on their reproductive rights so they can make informed decision for themselves and claim autonomy over themselves. It is an important step in reaching the Constitutional goal of equality.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Aditi Dixit.

Cases argued by Aditya Pratap can be viewed here.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.

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