Status of human rights in the context of sexual health and reproductive health rights in India

The report states that the ambit of sexual health rights includes the availability of age-appropriate and accurate education about sexuality, health facilities and information on the prevention and treatment of sexually transmitted infections (STIs). The rights also cover protection from gender and sexuality-based violence and the specific needs of people with disabilities.

In international law, the legality or criminality of sexual contact between adults hinges on “freely given consent”.  Following this, the report argues that sexual assault of a woman by her husband must be covered under Section 498A of the Indian Penal Code (IPC). Moreover, it urges for the removal of ‘Exception 2’ to Section 375 of the IPC and to classify marital rape as a crime.

The existing Adolescence Education Program in India (implemented by the Government of India) does not comprehensively cover topics related to sexuality and is not made available to students below Class 9, the report notes. This, combined with inadequate teacher training and the unwillingness to talk about sexual health issues, denies young people crucial information on things including contraception, STIs and the dangers of early pregnancy.

Citing 2015-16 data from the National AIDS Control Organisation, New Delhi, the report states that the prevalence of HIV among the transgender population in the country was around 8.82 per cent in 2010-11 – the second-highest figure among the various ‘high-risk’ groups. The stigma and discrimination transgenders face while accessing health services in the country contribute to this.

The report notes that the Protection of Children from Sexual Offences Act, 2012 (POSCO) criminalises all sexual contact for persons under 18 years and provisions for mandatory reporting of any sexual activity involving minors to the police. This hinders outreach efforts to educate adolescents about sexuality and keeps those in need from approaching healthcare personnel and social workers. Amending the POSCO Act to remove the mandatory reporting clause will provide teachers, health service providers and counsellors the confidentiality to handle such cases with empathy and provide better aid.

Public health programmes in India relating to sexual health focus on vaginal sex and specifically, family planning. As per NFHS-5, female sterilisation is the most common method of family planning in the country which, while preventing pregnancies, does not help in preventing STIs or HIV. The report advocates for substantial and better allocation of resources to promote awareness and provide services, especially in vulnerable communities.

The National Family Health Survey (NFHS-4) 2015-16 found that only 21 per cent of women in the country had received full antenatal care. Moreover, the average out of pocket expenditure at a public health facility was recorded as Rs. 3,198 per delivery. The report notes that despite the increasing number of institutional deliveries in recent years, women from marginalised communities still find it difficult to access public health programmes.

The report points out shortcomings in the government’s implementation of reproductive health schemes. One of the flaws is the ‘non-portability’ of schemes across states, which especially affects the healthcare needs of inter-state migrants.

The Maternity Benefit Act, 1961 was amended in 2017 to expand the duration of maternity leave from 12 weeks to 26 weeks. However, the Act fails to account for approximately 95 per cent of the total women workers in India who are employed in the informal sector.

The report suggests that all international standards and conventions related to reproductive rights that have been poorly implemented must be revisited and reviewed. It further advocates for the amendment of discriminatory and gender-biased laws, policies and their implementation to guarantee people comprehensive care. The report further recommends that the government limit the requirement of an Aadhar card for accessing health services.

Focus and Factoids by Krishna Priya Choragudi.

PARI Library’s health archive project is part of an initiative supported by the Azim Premji University to develop a free-access repository of health-related reports relevant to rural India.