The statewide ban on emergency contraceptive pills, now in its tenth year, is a violation of constitutional principles
Among the many human rights denied to them, Indian women continue to struggle to realise their sexual rights and rights over their own bodies. A case in point :Tamil Nadu’s long-standing ban on the sale of over-the-counter emergency contraceptive pills (ECP) in a bid to discourage pre-marital sexual intercourse.
In 2006, fearing a ‘loss of morality’ in society, the Chennai-based Responsible Parents Forum and the Satvika Samuga Sevakar Sangam vehemently protested the sale of an ECP called Mistake. This led the state Directorate of Drug Control (DDC) to seize the entire ECP stock and ban the sale of such formulations in the state. N. Selvaraju, the director of the DDC at the time, said the drug’s advertising would encourage women to think they could do anything and not get pregnant. “We can’t allow such an attitude. We are not against women’s rights, but this is a moral concern,” he said at that time.
As a direct consequence of this, women in Tamil Nadu are being forced to use abortion pills, available without prescription. Reckless use of such medication may result in a septic abortion and may endanger a woman’s overall reproductive health. An increasing number of women are visiting government facilities (some 30,000 of the 46,000 in 2015) for surgical abortions where the foetus is extracted using the ‘vacuum method’. Unsafe abortions must not become another contributing factor to morbidity or maternal mortality; nearly 8% of maternal deaths in India happen due to unsafe abortions. Apart from the physical trauma the body goes through during an abortion, the process may even leave an adverse psychological impact.
Ban on ECP ads
In 2007, the DDC sent a notice to Tamil magazine Ananda Vikatan for publishing advertisements of Cipla’s i-pill. B.S. Ajeetha, advocate for the protesters, said the advertisement promoted “free sex,” took away responsibility from the act of sexual intercourse and subtly implied that premarital sex is right. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 prohibits any advertisement of a drug that suggests or which is calculated to lead to the use of that drug for
a) the procurement of miscarriage in women or prevention of conception in women; or
b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or
c) the correction of menstrual disorder in women.
The penalty for contravening any of the provisions of the Act or rules under it is imprisonment for six months and a fine for the first conviction, and imprisonment up to a year with a fine if convicted again.
However, the same sets of restrictions is not applied to condoms. They are freely advertised, sold and endorsed by celebrities. Can women always count on men to practice safe sex? Most will answer in the negative.
Present guidelines on ECPs
The Drug Controller General of India (DCGI) approved Levonorgestrel (LNG), a progestin-only pill, as a dedicated product for emergency contraception in 2001. The Indian government introduced ECPs in the National Family Welfare Program in 2003 as one of the strategies to prevent unwanted pregnancies. Under the National Reproductive and Child Health Program too, the DCGI has approved LNG 0.75mg tablets. However, its use has been limited due to the lack of awareness among users and providers.
Under the Guidelines for Administration of Emergency Contraceptive Pills by Health Care Providers released by the Union Ministry of Health and Family Welfare (MoH) in November 2008, ECPs can be provided safely and effectively by any well informed healthcare providers, such as doctors, nurses, midwives, pharmacists, paramedics, family welfare assistants, health assistants and community based health workers. It also clarifies that ECPs should not be denied to clients within the reproductive years irrespective of their age and marital status, and that healthcare providers must inform and provide women with ECPs.
Under the Strategic Approach To Reproductive, Maternal, Newborn, Child And Adolescent Health (Rmnch+A) In India approach released by the MoH in January, 2013, accredited social health activists (ASHAs) are supposed to deliver ECPs to the doorstep of people who want family planning options. One of the targets of RMNCH+A intervention for 2017 is to reduce the unmet need for family planning methods among eligible couples, married and unmarried women. It estimates that if the current unmet need for family planning could be fulfilled within the next five years, India can avert 35,000 maternal deaths and 12 lakh infant deaths, while saving more than Rs 4,450 crore. If safe abortion services are coupled with an increase in family planning services, the savings made to the country could be to the tune of Rs 6,500 crore. Despite these efforts by the Centre to increase awareness about reproductive and sexual health, a substantial proportion of unmarried boys and girls lack contraceptive knowledge.
Ironically, the safe abortion policy under Tamil Nadu’s National Health Mission mandates the availability of safe abortion services and emergency contraception at all levels of healthcare. Their strategy for achieving this objective is by making available services for early confirmation of pregnancy and emergency contraception, and social marketing of condoms, oral contraceptive pills and ECPs by ASHAs, anganwadi workers and nurses.
The ban on the sale of ECPs in the state, however, flouts these legal requirements.
Embracing women’s sexual rights as part of human rights
In response to the demands of the women’s movement, the state has laws to ensure that the bodily and mental sexual integrity of women is not violated by men. The amendments in the Indian Penal Code and the law relating to sexual harassment at the workplace have legally ensured this. However, violating women’s sexual rights on the grounds of maintaining public morality persists. Pre-marital sex remains a taboo and the inter-mingling of the sexes is also often discouraged. But marriage should not be a requirement for women to get the same sexual rights as men.
By being complacent or passively supporting and not speaking out against the ban on ECPs in Tamil Nadu, India is violating the Convention on the Elimination of All Forms of Discrimination against Women, to which it is a party. As a nation committed to women empowerment, we need to make sure that the state grants its women the respect and the right to be more in control of their sexual health, and ensure the elimination of all acts of discrimination against women by persons, organisations or enterprises.
We need to acknowledge that human rights also comprise of sexual rights. It should be the duty of every just society to ensure that women are able to freely exercise their right to make choices with respect to their sexuality, and reproductive and sexual health unencumbered by any external control, discrimination or coercion. The UN’s Beijing Platform for Action conforms to this view and says, the “prevention of unwanted pregnancies must always be given the highest priority and every attempt should be made to eliminate the need for abortion.”
The right to make decisions autonomously on matters of sexual or reproductive health is part of the fundamental right to liberty. By restricting women’s sexual rights, the state of Tamil Nadu is acting against constitutional principles.
Karuna Maharaj completed her Masters in Public Law from the National Law University, Delhi specializing in Human Rights. She is currently practicing indirect taxation law at Corporate India Advisers L.L.P. She can be reached at firstname.lastname@example.org