Women oftheWorld: Laws and Policies Affecting Their Reproductive Lives
South Asia
Edited by The Center for Reproductive Rights
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WOMEN OF THE WORLD:
WOMEN OF THE WORLD: LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES
Published by: The Center for Reproductive Rights 120 Wall Street New York, NY 10005 U.S.A. ©2004 All rights reserved ©2004 Center for Reproductive Rights, Legal Aid and Consultancy Centre (LACC),Lawyers Collective, and the Institute of Human Rights. Any part of this report may be copied, translated or adapted with permission from the authors, provided that the parts copied are distributed free or at cost (not for profit) and the Center for Reproductive Rights and the co-authoring organization of a particular country chapter are acknowledged as the authors. Any commercial reproduction requires prior permission from the Center. The Center would appreciate receiving a copy of any materials in which information from the publication is used. ISBN 1-890671-10-x ISBN 1-890671-00-2
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Acknowledgments This report was coordinated by Melissa Upreti, Legal Adviser for Asia in the International Legal Program of the Center for Reproductive Rights. The report is the product of a collaborative effort with several nongovernmental organizations in the region. Research and preliminary drafting of the corresponding country chapters (excluding the statistical profiles and the Legal and Political Framework sections) were undertaken by the following individuals and their organizations: Indira Jaising, Leena Prasad, Jayna Kothari,Anuja Mirchandaney, and Asmita Basu, all with the Lawyer’s Collective (India);Pratima Chhetri Prasai and Rakesh Chhetri, both with the Legal Aid and Consultancy Centre (Nepal); Seema Sharif and Fauzia Rauf, who at the time were with Shirkat Gah (Pakistan); and Shyamala Gomez with the Institute of Human Rights (Sri Lanka),with the helpful assistance of Lakmini Seneviratne, Shahina Zahir and Chatura Randeniya, all law students at the University of Colombo. Representatives of Naripokkho (Bangladesh) and INFORM (Sri Lanka) made initial contributions to the Bangladesh and Sri Lanka country chapters, respectively. This report was edited and updated by Melissa Upreti,and by Pardiss Kebriaei, International Legal Fellow. Nile Park, International Legal Program Assistant, fact-checked drafts and provided invaluable editorial assistance and administrative support. Katherine Hall-Martinez, Director of the International Legal Program,and Anaga Dalal,Managing Editor,provided helpful input and guidance during the final editing process. Deborah Dudley,Art Director, managed the design and layout with the assistance of Shauna Cagan, Production Associate. Lilian Sepúlveda-Oliva,International Legal Fellow, assisted in editing portions of drafts and reviewed the report during the final stages of production. Katherine Kasameyer, International Legal Program Assistant,also provided generous support by fact-checking drafts. The Center is also grateful to the following people who contributed to various steps in the coordination, development and production of this report during their time at the Center: Anika Rahman, former Director of the International Legal Program; Sneha Barot and Sarah Wells, former International Legal Fellows, and Purvi Mehta, Ghazal Keshavarzian, Shannon Kowalski-Morton, and Andrea Lipps, former program assistants. The Center would like to thank Donna Axel, consultant, and Monica Bileris, Sophia Piliouras, Sucheta Sharma,
and Joanna Erdman, legal interns, who contributed to various country chapters of the report through research and writing. We are also grateful to Syirin Junisiya, of the AsianPacific Resource & Research Centre for Women (ARROW), in Malaysia;Anand Tamang, of the Center for Research on Environment Health and Population Activities (CREHPA), in Nepal; Rea Chiongson, of the International Women's Rights Action Watch (IWRAW–Asia Pacific), in Malaysia; Shabnam Shahnaz, of Marie Stopes International;Azeema Faizunnisa, of the Population Council, in Pakistan; and Abhijit Das, of Sahayog, in India, for providing us with documents and other resources that were indispensable to the completion of this work. Finally, we would like to thank the lawyers and health experts who peer-reviewed some of the country chapters for this report. They are Salma Sobhan (Bangladesh), Dr. Jaya Sagade (India), Dr. Laxmi Nath Thakur (Nepal), Sonali Regmi (Nepal),Dr.Dula de Silva (Sri Lanka),Camena Guneratne (Sri Lanka),and Shyamala Gomez (Sri Lanka). We also appreciate the helpful assistance provided by Faustina Pereira during the peer review process, with input from Kowsar Ahmed (Bangladesh). The overview chapter was drafted by Melissa Upreti. Katherine Hall-Martinez and Anaga Dalal reviewed drafts and provided valuable editorial feedback and guidance throughout the process. Pardiss Kebriaei provided helpful feedback and research assistance at various stages. Nile Park provided generous editorial and administrative support. Lilian Sepúlveda-Oliva reviewed the chapter during the final stages of production. The Center for Reproductive Rights would like to thank the following foundations for their generous support of our International Legal Program’s work, including this report: The Ford Foundation The Wallace Alexander Gerbode Foundation The William and Flora Hewlett Foundation The John D. and Catherine T. MacArthur Foundation The David and Lucile Packard Foundation The Sigrid Rausing Trust Design: © Emerson,Wajdowicz Sudios, New York, N.Y. Production: Center for Reproductive Rights
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WOMEN OF THE WORLD:
Table of Contents
II. Examining Reproductive Health and Rights A. General Health Laws and Policies Objectives
36 36 36
Infrastructure of health-care services
39
ACKNOWLEDGMENTS
3
Financing and cost of health-care services
40
FOREWORD
9
Regulation of health-care providers
40
Regulation of reproductive health technologies
40
Patients’ rights
40
OVERVIEW I. Introduction
10 10
II. Reproductive Rights in South Asia: Critical Issues and Possible Interventions
11
A. Fertility
11
Family Planning
12
Population Policies
13
B. Pregnancy and Childbirth
15
Maternal Death and Morbidity
15
Unsafe Abortion
16
C. Sexual Violence
18
Rape
18
Sex Trafficking
20
D. Emerging Concerns
21
HIV/AIDS
21
Essential Aspects of Health Care
22
E. Vulnerable Groups
24
Adolescents
24
Refugees
25
1. BANGLADESH
29
I. Setting the Stage: The Legal and Political Framework of Bangladesh
32
A. The Structure of National Government
33
Executive branch
33
Legislative branch
33
B. The Structure of Local Governments
33
Executive branch
33
Legislative branch
34
C. The Judicial Branch Customary forms of alternative dispute resolution
34 34
D. The Role of Civil Society and Non-Governmental Organizations (NGOs)
35
E. Sources of Law and Policy
35
Domestic sources
35
International sources
36
B. Reproductive Health Laws and Policies
41
Family Planning
42
Maternal Health
43
Abortion and menstrual regulation
44
Sexually Transmissible Infections (STIs) and HIV/AIDS C. Population Population policy III. Legal Status of Women A. Rights to Gender Equality and Nondiscrimination Formal institutions and policies
45 47 47 48 48 48
B. Citizenship
49
C. Rights within Marriage
50
Marriage laws
50
Divorce laws
51
Judicial separation
52
Maintenance and support laws
52
Custody and adoption laws
53
D. Economic and Social Rights
53
Property laws
53
Women’s exclusive property
54
Labor and employment
54
Access to credit
55
Education
55
E. Right to Physical Integrity
56
Rape
56
Incest
57
Domestic violence
57
Sexual harassment
57
Commercial sex work
57
Sex-trafficking
57
Customary forms of violence
58
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IV. Focusing on the Rights of a Special Group:
C. Rights within Marriage
92
Adolescents
58
Marriage laws
92
A. Reproductive Health
58
Divorce laws
93
B. Marriage
58
Judicial separation
94
Laws governing Muslims
59
Maintenance and support laws
95
Laws governing Hindus
59
Custody and adoption laws
96
Laws governing Christians
59
D. Economic and Social Rights
97
C. Education
59
Property laws
D. Sexual Offenses Against Minors
60
Women’s exclusive property
98
Labor and employment
98
2. INDIA
69
Access to credit
99
Education
99
E. Right to Physical Integrity
I. Setting the Stage: The Legal and Political
97
100
Framework of India
72
Rape
A. The Structure of National Government
72
Incest
101
72
Domestic violence
101 102
Executive branch
100
73
Sexual harassment
73
Commercial sex work
102
Executive branch
73
Sex-trafficking
102
Legislative branch
73
C. The Judicial Branch
74
Legislative branch B. The Structure of Local Governments
Customary forms of alternative dispute resolution
IV. Focusing on the Rights of a Special Group: Adolescents
74
D. The Role of Civil Society and Non-Governmental
103
A. Reproductive Health
103
B. Marriage
104
Organizations (NGOs)
75
E. Sources of Law and Policy
75
Laws governing Hindus
104
75
Laws governing Muslims
104
76
Laws governing Christians
104
Domestic sources International sources II. Examining Reproductive Health and Rights A. General Health Laws and Policies
76
Objectives
77
Infrastructure of health-care services
77
Financing and costs of health-care services
78
Regulation of health-care providers
80
Regulation of reproductive health technologies
80
Patients’ rights
81
B. Reproductive Health Laws and Policies
82
Family Planning
82
Maternal Health
84
Abortion
85
Sexually Transmissible Infections (STIs) and HIV/AIDS
87
C. Population Population Policy III. Legal Status of Women A. Rights to Gender Equality and Non-Discrimination Formal institutions and policies B. Citizenship
Laws governing Parsis
76
89 89 90
104
D. Sexual Offences Against Minors
105
3. NEPAL I
104
C. Education
115
Setting the Stage: The Legal and Political Framework of Nepal
118
A. The Structure of National Government
118
Executive branch
118
Legislative branch
119
B. The Structure of Local Governments
119
Executive branch
119
Legislative branch
120
C. The Judicial Branch
120
Customary forms of alternative dispute resolution
121
D. The Role of Civil Society and Non-Governmental
91
Organizations (NGOs)
121
91
E. Sources of Law and Policy
121
92
Domestic sources
121
International sources
122
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WOMEN OF THE WORLD:
II. Examining Reproductive Health and Rights A. General Health Laws and Policies
122 122
Objectives
122
Infrastructure of health-care services
124
Financing and costs of health-care services
125
Regulation of health-care providers
125
Regulation of reproductive health technologies
126
Patients’ rights
126
B. Reproductive Health Laws and Policies
126
Family Planning
128
Maternal Health
129
Abortion
131
Sexually Transmissible Infections (STIs) and HIV/AIDS 132 C. Population Population Policy III. Legal Status of Women A. Rights to Gender Equality and Nondiscrimination Formal institutions and policies
133 133
I. Setting the Stage: The Legal and Political Framework of Pakistan A. The Structure of National Government
156 156
Executive branch
156
Legislative branch
157
Permanent Advisory Council of Islamic Ideology
158
B. The Structure of Local Governments
158
Executive branch
158
Legislative branch
158
C. The Judicial Branch
158
Customary forms of alternative dispute resolution
160
D. The Role of Civil Society and Non-Governmental Organizations (NGOs) E. Sources of Law and Policy
160 160
Domestic sources
160
133
International sources
161
134 135
C. Rights within Marriage
135
Marriage laws
135
Divorce laws
135
Judicial separation
136
Maintenance and support laws
136
Custody and adoption laws
136
D. Economic and Social Rights
136 136
Women’s exclusive property
137
Labor and employment
137
Access to credit
138
Education
138
E. Right to Physical Integrity
153
133
B. Citizenship
Property laws
4. PAKISTAN
139
Rape
139
Incest
140
Domestic violence
140
Sexual harassment
141
II. Examining Reproductive Health and Rights A. General Health Laws and Policies
161 161
Objectives
162
Infrastructure of health-care services
162
Financing and costs of health-care services
164
Regulation of health-care providers
165
Regulation of reproductive health technologies
165
Patients’ rights
165
B. Reproductive Health Laws and Policies
166
Family planning
167
Maternal Health
169
Abortion
170
Sexually Transmissible Infections (STIs) and HIV/AIDS 172 C. Population Population Policy III. Legal Status of Women A. Rights to Gender Equality and Nondiscrimination Formal institutions and policies
173 173 174 174 175
Commercial sex work
141
B. Citizenship
175
Sex-trafficking
141
C. Rights within Marriage
175
Customary forms of violence
142
IV. Focusing on the Rights of a Special Group: Adolescents
142
A. Reproductive Health
142
B. Marriage
143
C. Education
144
D. Sexual Offenses against Minors
144
Marriage laws
175
Divorce laws
178
Judicial separation
179
Maintenance and support laws
180
Custody and adoption laws
180
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LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES
D. Economic and Social Rights
PAGE 7
181
Regulation of health-care providers
209
Property laws
181
Regulation of reproductive health technologies
210
Women’s exclusive property
182
Patients’ rights
210
Labor and employment
182
Access to credit
183
Family Planning
212
Education
183
Maternal Health
215
184
Abortion
216
E. Right to Physical Integrity Rape
185
Incest
185
Domestic violence
185
Sexual harassment
186
Commercial sex work
186
Sex-trafficking
186
Customary forms of violence
186
B. Reproductive Health Laws and Policies
Sexually Transmissible Infections (STIs) and HIV/AIDS 217 C. Population Population policy III. Legal Status of Women A. Rights to Gender Equality and Nondiscrimination Formal institutions and policies B. Citizenship
IV. Focusing on the rights of a Special Group: Adolescents
211
C. Rights within Marriage
219 219 219 220 220 220 220
187
Marriage laws
A. Reproductive Health
187
Divorce laws
222
B. Marriage
187
Judicial separation
223
Laws governing Muslims
187
Maintenance and support laws
224
Laws governing Hindus
187
Custody and adoption laws
224
Laws governing Christians
188
D. Economic and Social Rights
225
Laws governing Parsis
188
Property laws
225
C. Education
188
Women’s exclusive property
226
D. Sexual Offenses Against Minors
188
Labor and employment
226
Access to credit
228
Education
228
5. SRI LANKA
199
E. Right to Physical Integrity Rape
I. Setting the Stage: The Legal and Political
221
229 229
202
Incest
230
203
Domestic violence
230
203
Sexual harassment
230
203
Commercial sex work
230
203
Sex-trafficking
231
Executive branch
204
Customary forms of violence
231
Legislative branch
204
C. The Judicial Branch
204
Framework of Sri Lanka A. The Structure of National Government Executive branch Legislative branch B. The Structure of Local Governments
Customary forms of alternative dispute resolution
205
D. The Role of Civil Society and Non-Governmental Organizations (NGOs)
205
E. Sources of Law and Policy
205
Domestic sources
205
International sources
206
II. Examining Reproductive Health and Rights A. General Health Laws and Policies
206 206
Objectives
207
Infrastructure of health-care services
208
Financing and cost of health-care services
209
IV. Focusing on the Rights of a Special Group: Adolescents
231
A. Reproductive Health
231
B. Marriage
232
Laws governing Kandyan Sinhalese
233
Laws governing Muslims
233
Laws governing Tamils
233
C. Education
233
D. Sexual Offenses against Minors
234
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LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES
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Foreword Imagine a world in which the laws and policies of every country enabled women to fully enjoy their reproductive rights. While this is still a distant goal, a confluence of factors has enabled women’s health and rights advocates to bring this goal into focus. The 1994 International Conference on Population and Development (ICPD) and the 1995 Fourth World Conference on Women (FWCW) were groundbreaking for so many reasons. One of those is that governments agreed that everyone has reproductive rights, and that such rights are an inalienable part of established international human rights. This recognition that the "traditional" human rights framework applies to women’s unique human condition, including their reproductive and sexual lives, was overdue, yet inspiring to women around the world. The ICPD and the FWCW also recognized that an enabling legal and policy environment that ensures women’s equality is necessary to ensure positive reproductive and sexual health outcomes. But to reach the goal of a changed legal and policy environment, advocates and policymakers need more information to support their efforts. This series of reports,Women of the World:Laws and Policies Affecting their Reproductive Lives, is intended to give advocates and policymakers a fuller view of the laws and policies governing women’s lives to better enable legal and policy reform and the implementation of laws that will improve women’s health and lives. Initiated soon after the ICPD and the FWCW, the series to date has included reports covering Anglophone Africa, East Central Europe, Francophone Africa, and Latin America and the Caribbean. The Center for Reproductive Rights and our collaborating organizations have raised awareness in each of the 30 countries covered by the series to date, and in many cases have contributed to improvements in laws, policies and their implementation. We are very pleased to introduce the newest report in our series,Women of the World: Laws and Policies Affecting their Reproductive Lives–South Asia, covering Bangladesh, India, Nepal, Pakistan, and Sri Lanka. This report was a collaborative effort with non-governmental organizations in the region. The product of three years of work, the release of this report coincides with the ten-year anniversary of the ICPD. South Asia is illustrative of the situation in many regions: Despite some gains, the principles agreed to at the ICPD and the FWCW have not translated into adequate legislation and policy so as to begin to transform the lives of the vast majority of women.
We at the Center for Reproductive Rights want the law to work for women, ensuring their ability to exercise their reproductive rights and to enjoy full equality, no matter their country or community of origin. We hope our Women of the World publication will become a useful tool for transforming women’s reproductive lives in the South Asia region through legal advocacy and reform. Katherine Hall-Martinez, Director, International Legal Program Melissa Upreti, Legal Adviser for Asia, International Legal Program Center for Reproductive Rights March, 2004
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Overview
WOMEN OF THE WORLD:
*
Gender-based discrimination constitutes one of the greatest threats to women’s health and lives worldwide. The threat is particularly great in South Asia, where formal laws discriminate against women more than in other regions.1 Consequently, according to most indicators of human development, women in South Asia—specifically Bangladesh, India, Nepal, Pakistan, and some parts of Sri Lanka—are among the worst off in the world.2 A closer look at the state of women’s reproductive health in the region tells the story clearly. South Asia has some of the world’s highest rates of unplanned pregnancies,maternal deaths,unsafe abortions,child marriages,and sexual trafficking and violence; furthermore, current rates of HIV infection among South Asian women are soaring. Although governments have tried to address these problems by establishing reproductive health–care services, such attempts have been undermined by a lack of coordinated efforts to promote women’s reproductive autonomy. Clearly, there is a pressing need for a fresh, human rights-based approach to women’s reproductive health.
I. Introduction** A reproductive rights framework offers a powerful tool for advancing women’s reproductive health and empowering women to address the social conditions that jeopardize their health and lives. Reproductive rights are founded on principles of human dignity and well-being. They encompass a broad range of internationally and nationally recognized political,economic,social,and cultural rights. Broadly speaking, they include two key principles: that all persons have the right to reproductive health care, and the right to make their own decisions about their reproductive lives. To local and international advocates, the reproductive rights framework offers significant benefits. Governmental commitments—at major international conferences such as the Fourth World Conference on Women (Beijing,1995),the International Conference on Population and Development (ICPD), Cairo, 1994) and the World Conference on Human Rights (Vienna, 1993)—have set the stage for transforming declarations of reproductive rights into a reality for women. More recently, with the adoption of the Millennium Development Goals (2000), governments have agreed that addressing women’s reproductive health is key to promoting gender equality and the right to development. This wave of commitment to women’s reproductive
health and rights marks a distinct shift from the development trends of the 1970s and 1980s, which were dominated by population concerns and structural adjustment programs that led to drastic cuts in government spending on health and education. Women’s health and rights are now clearly etched on the international political agenda. What remains is for governments to transform these commitments into meaningful change by introducing gender-sensitive laws and policies that respect, protect and fulfill women’s reproductive rights. It is crucial that advocates hold governments to their commitments and seek accountability for violations of reproductive rights. Violations of reproductive rights may be expressed in a number of different outcomes: unplanned and forced pregnancies, coercive family planning measures, deaths during pregnancy and childbirth, deaths or complications due to unsafe abortions, early marriages, and forced, unsafe sex. These experiences are widely tolerated and accepted as either natural and inevitable (maternal mortality), or customary and necessary (child marriage). A reproductive rights analysis, however, identifies each of these experiences as fundamental violations of human rights for which governments are legally accountable.
*The Overview reflects the Center for Reproductive Rights’ institutional views, not those of the partners. **Unless otherwise noted, statistical information and references to legislation and policies are more fully referenced in the relevant country chapter.
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In South Asia, the perpetuation of these violations is rooted Nepal. However, the results are mixed. Women’s access to in the following barriers to women’s power and state resources remains reproductive freedom: extremely limited in South Asia. As a REPRODUCTIVE RIGHTS INCLUDE Social barriers result, women’s reproductive health ■ The Right to Life, Liberty and Security Discrimination against women is problems continue to be ignored ■ The Right to Health, Reproductive widespread in South Asia. Social throughout the region. Health and Family Planning and religious norms largely essenThe remainder of this overview ■ The Right to Decide the Number and tialize women as inferior to men. discusses issues of concern and offers Spacing of Children The most glaring manifestation of a series of recommendations for gov■ The Right to Consent to Marriage and to this discrimination is the distinct ernments and advocates in the folEquality in Marriage preference for sons among all seglowing five key reproductive rights ■ The Right to Privacy ments of society, regardless of class, areas: fertility, including family plan■ The Right to be Free From Discriminacaste and ethnicity. This cultural ning and population policies; pregtion on Specified Grounds undervaluing of women’s fundanancy and childbirth, including ■ The Right to be Free From Practices that mental existence translates into maternal death and morbidity and Harm Women and Girls inadequate respect for women’s unsafe abortion; sexual violence, ■ The Right to Not be Subjected to Torinherent dignity and freedom in all including rape and sex trafficking; ture or Other Cruel, Inhuman, or aspects of their lives. Family memthe emerging concerns of Degrading Treatment or Punishment bers routinely make the most HIV/AIDS and essential aspects of ■ The Right to be Free from Sexual Vioimportant decisions relating to health care; and the especially vullence women’s health,education,access to nerable groups of adolescents and ■ The Right to Enjoy Scientific Progress property and marriageability. refugees. and to Consent to Experimentation Women are arbitrarily deprived of the right to make their own choices on the most fundamental aspects of their lives simply because of their sex, resulting in a denial of their personhood and autonomy, especially in the private sphere. Legal barriers Social discrimination against women is also reflected in laws and policies throughout the region. Regional agreements protect fundamental rights to life,equality and nondisThe following sections describe some of the key issues of crimination for all. However, religion-based personal laws concern for women in the five countries surveyed in the governing marriage, divorce and inheritance institutionalize region. inequality within marriage and undermine women’s ability to exercise their constitutional rights to equality. Personal laws A. FERTILITY legitimize discriminatory and often violent practices within In South Asia, fertility rates have fallen significantly over the the home by giving such practices an aura of sanctity and last few decades as access to modern forms of contraception exempting them from public scrutiny. In addition, most perhas grown.3 However, the ability of women to make indesonal laws do not grant women equal rights to property or pendent decisions about their own fertility remains severely guardianship. And in the public sphere,few laws in the region constrained by discriminatory social practices and restrictive protect women from sexual violence or discrimination in the population policies. An influx of family planning funds to the workplace. region has increased the availability of contraceptives, but Political barriers most women lack the agency to use them as they see fit. Participation in public life is key to influencing the politiSocial expectations regarding childbearing often trump cal agenda and the allocation of public resources. Quotas for women’s personal desires. Similarly, population policies dicwomen in local and sometimes national governing bodies tate women’s reproductive choices by imposing state-manrepresent positive,concrete steps that have increased women’s dated, small-family norms. In a culture that values sons over political involvement in parts of the region such as India and daughters, women are likely to find themselves caught
II. Reproductive Rights
in South Asia:Critical Issues and Possible Interventions
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between family pressure to bear male children and government pressure to bear no more than two children; women caught at the intersection of these agendas are essentially forced to abort female fetuses until they achieve the birth of a male child. 1. Family Planning Background and key facts Governments in South Asia have enjoyed considerable domestic and international support for family planning programs. As a result, the region has adopted a liberal approach to the legalization and importation of contraceptives, and countries have made significant advances in promoting access to contraception, particularly among married women. In Bangladesh, the contraceptive prevalence rate for use of any method has risen from 7.7% in 1954 to 54.3% in 2000.4 In Sri Lanka, where efforts to increase access to family planning have been combined with steps to educate women and increase the age at marriage,the current overall contraceptive prevalence rate is 70% and at par with the average level of use in more developed regions.5 The Sri Lankan case illustrates how women’s right to control their fertility cannot be realized without addressing a range of barriers to women’s equality. Although Sri Lanka’s level of contraceptive use is the highest in the region (and its level of fertility is the lowest), other South Asian countries have some of the lowest rates of contraceptive use in the world. In Pakistan, for example, only 28% of married women practice contraception, and the proportion using a modern method is even lower—20%. Overall,less than half of all married women in the region are using a modern form of contraception. Studies suggest that more than 30% of married women in Nepal and Pakistan have an unmet need for family planning; this measure does not take into account the needs of unmarried women of all ages and marginalized groups, such as adolescents and refugees. Areas of Concern Lack of autonomy in reproductive decision-making The family planning–related policies of most of the five countries covered in this report have embraced the key principles enshrined in the Programme of Action adopted by the Cairo Conference (“ICPD Programme of Action”) which includes the right of individuals to decide freely and responsibly the number and spacing of their children, and to have the information and means to do so. However, these commitments are not supported by robust strategies that focus on promoting women’s empowerment and reproductive self-determination. As a result,women succumb to social pressure to bear children. In many families, this means pressure on women to bear many children, preferably sons, and little control over the timing and spacing of children, with
WOMEN OF THE WORLD:
no concern for women’s health. Women in such situations are forced to silently endure the trauma of forced pregnancies that endanger their health, and to forgo opportunities such as education or employment. Denial of autonomy has particularly problematic consequences in South Asia, where son preference is prevalent and leads women to often coercively undergo sex-based abortions even in the face of legislation prohibiting the procedure. Discriminatory laws Discriminatory provisions relating to marriage and inheritance in the customary and personal laws of different ethnic and religious groups throughout the region, as well as in the secular laws of some countries, create inequality within marriage and deprive women of the ability to negotiate sex and childbearing on their own terms. Many of these laws permit marriage at a younger age for women than for men,and allow the marriage of minors with a guardian’s consent in lieu of individual consent. Most personal laws across the region fail to grant women equal rights to property, thereby increasing their economic dependency on male family members who assume a greater say in all aspects—including reproduction— of their lives. Labor and employment laws also influence fertility decisions. Although current labor laws generally provide for limited maternity leave, such laws only benefit women employed in the formal sector. The majority of working women in South Asia are employed in the informal sector where protections are virtually nonexistent. In Bangladesh, women are allowed a maximum of two three-month periods of maternity leave. In an environment where access to family planning is still not universal and the option of legal abortion for unplanned pregnancies is unavailable, these stringent limitations on maternity leave are unfairly restrictive. Limited focus of current policies and programs Current family planning–related policies largely ignore the needs of unmarried adult and adolescent women. Although some reproductive health policies of the countries surveyed in this report state that they aim to provide services based on women’s “life-cycle” needs, none of the policies specifically address the unique barriers unmarried women face in accessing family planning services and information. In all five countries surveyed, existing national-level data on women’s knowledge, use and unmet need for family planning focuses solely on married women. This reveals the lack of adequate information on the family planning needs of unmarried women. Refugees, internally displaced populations, migrant workers, victims of sexual violence, and commercial sex workers represent other extremely vulnerable groups that are often left out of family planning–related policies, or whose needs are marginally addressed. India, Bangladesh and Sri
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Lanka include some provisions in their policies relating to reproductive health and family planning services for displaced, migrant or “high-risk” populations. Women from these communities experience aggravated forms of discrimination or abuse and are most likely to experience unplanned and unwanted pregnancies. The failure to provide access to health care to these women is discriminatory.6 Lack of emphasis on female-controlled temporary methods of contraception The ability of women to control their fertility and to protect themselves from sexually transmissible infections (STIs) depends upon their ability to access and use contraceptives that offer dual protection, such as male and female condoms. Male condoms are widely available in the region, but women have little control over their use. On the other hand, modern female-controlled temporary methods, such as the female condom and emergency contraception,are still not easily accessible, although emergency contraception has been approved in all countries surveyed in this report except Nepal. With the exception of India and Sri Lanka, countries surveyed in the region do not have official statistics about the incidence of STIs. This is troubling, considering that STIs are the second leading cause after maternity-related conditions of morbidity among women aged 15–44 in low-income countries, according to a study by the World Health Organization.7 Most countries surveyed in the report have laws that criminalize the intentional spread of STIs as well as policies to prevent and treat them, but surveillance systems are generally poor and routine screening and treatment is still not widely available. Lack of access to infertility treatments In a cultural setting where marriage and procreation are fundamentally tied to one’s identity and social standing,infertility can have devastating consequences, especially for women. In Nepal and certain religious communities in Bangladesh,a wife’s sterility is a legally recognized ground for bigamy. The current array of modern reproductive technologies can be used for a variety of purposes. In South Asia,however, the debate has focused almost entirely on the use of technologies such as the sonogram to determine the sex of a fetus. There has been relatively little focus on the advantages that reproductive technologies confer to infertile women seeking to overcome the discrimination and stigma that result from infertility. Among the countries under study, not one has a comprehensive law that provides for the use of reproductive technologies to treat infertility. Recommendations for Action The right of individuals and couples to determine freely and responsibly the number, timing and spacing of their
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children and to have the information and means to do so is a basic human right.8 This principle has been affirmed in numerous international consensus documents and has been given legal force in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).9 This right gives rise to a governmental duty to ensure that men and women have equal access to a full range of contraceptive choices and reproductive health services and information. This right constitutes the core of reproductive rights, which also include the right to make decisions regarding reproduction free of discrimination, coercion and violence.10 In order to promote this right, governments in the region must take the following steps: 1. Formally recognize the right of couples and individuals to control their fertility as a fundamental human right. 2. Establish commissions to review laws that discriminate against women in marriage and employment, and introduce reforms that protect women from coercion, discrimination and violence in reproductive decision-making. 3. Expand current family planning programs to meet the needs of diverse populations, including unmarried adult women, unmarried adolescents, refugees, commercial sex workers, and victims of violence. 4. Expand the range of contraceptive choices for women and introduce methods that offer dual protection from unplanned pregnancy and STIs in all public health clinics. Female condoms, emergency contraception and, once they are deemed safe and effective, microbicides should be made available nationwide. 5. Introduce treatment for infertile couples in public health clinics. 2. Population Policies Background and key facts South Asia accounts for a significant proportion of the world’s population. Governments in the region have expressed their commitment to upholding the consensus reached at the ICPD Programme of Action that recognizes gender equality and women’s ability to control their own fertility as cornerstones of population and development programs. However, all governments in the region continue to use population policies primarily as instruments for controlling population growth and establishing a small-family or two-child norm without creating adequate protections for women’s reproductive rights. Bangladesh, India and Pakistan have so far relied heavily on sterilization programs to meet their demographic goals.
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Areas of Concern Imposition of a small family or two-child norm The countries surveyed in this report have population policies that articulate a holistic approach to addressing population issues; they include objectives and strategies that not only address various aspects of reproductive health and services, but aim to promote gender equality and women’s empowerment. However, all of these policies also have a heavy emphasis on curbing population growth and establishing a small family or a two-child norm. Through this emphasis, governments in the region are trying to determine and limit the number of children individuals can have. The international community has agreed that targets seeking to impose ceilings on birth rates without ensuring individuals the right to make their own decisions about the number, spacing and timing of their children violate their human rights. At their core, reproductive rights are founded upon this right. In the absence of a specific legal guarantee of this right and without the establishment of mechanisms to protect it from undue interference by state officials and private parties, the official goal of establishing a small family norm constitutes a genuine threat to women’s reproductive freedom. Influence of related laws The goals of population policies are often in conflict with existing laws;this tension is perhaps most clearly manifested in the areas of marriage and abortion. For example,the population policies of both India and Pakistan have the objective of promoting delayed marriage or childbearing, but religiousbased personal laws, which generally govern marriage, sanction the marriage of minors with parental consent. The population policies of Bangladesh and Sri Lanka aim to reduce maternal mortality, but abortion is illegal in both countries, which reduces the availability of safe abortion services and leads to maternal deaths from unsafe abortion. Unsafe abortion is a leading cause of maternal mortality in Sri Lanka,and is noted as the single most important reproductive health problem in the country. Impact of social norms such as son preference Population policies that seek to establish a small-family norm tend to have a negative impact on women’s reproductive rights. Owing to strong son preference in the region, women are under enormous pressure to bear male children. Yet with growing political pressure to have fewer children, more women find themselves caught between these two agendas. The move toward enforcing a two-child norm has not been accompanied by a change in the underlying social and economic pressures to have sons.11 Consequently, more women are pressured to use sex-selective abortion to meet their reproductive goals. Women’s right to reproductive self-
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determination is thus compromised when social and political norms limit their ability to exercise individual choice. This trend is most visible in India. Emphasis on sterilization and evidence of unethical practices Bangladesh, India and Pakistan have relied heavily on sterilization to meet their demographic goals.12 Female sterilization is the most common method of modern contraception adopted by women in South Asia. This is consistent with global trends. Rates of male sterilization,however, remain extremely low throughout the region. The provision of female sterilization in the South Asian context raises important human rights concerns. South Asian women tend to lack access to a wide range of choices and they tend to undergo the procedure at a young age (i.e., the median age at sterilization in Bangladesh is 27). Furthermore, studies in India indicate relatively high death and failure rates from the procedure; moreover, there are disturbing reports from India about failures to follow governmental guidelines in the provision of sterilization services.13 Lapses in fulfilling patients’ rights to free decision-making are of particular concern, since such failures may result in coercive and forced sterilization practices. Introduction of disincentives Several Indian states have formally introduced disincentives that deprive individuals with more than two children of various state benefits and other entitlements. These measures, which have proven to be ineffective at modifying fertility habits, directly contradict the country’s National Population Policy. Even more disturbing,however,is the Indian Supreme Court’s support for such measures on the pretext that they are necessary for meeting India’s development goals and are in the global interest.14 This approach sets a dangerous precedent in the region, where almost every country is struggling to contain population growth rates to ensure economic development. The imposition of a two-child norm through disincentives conflicts with two important overarching goals of enhancing women’s political participation and addressing the declining number of females to males. Studies have revealed that disqualifying individuals with more than two children from running in local elections has had a negative impact on women’s political participation in five Indian states.15 Studies by non-governmental organizations (NGOs) have revealed a high incidence of sex-selective abortion among current or aspiring leaders in local government.16 Recommendations for Action At the ICPD held in Cairo, the international community agreed in one of the consensus documents main principles that “advancing gender equality and equity and the empowerment of women, and the elimination of all kinds of vio-
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lence against women,and ensuring women’s ability to control their own fertility, are cornerstones of population and development-related programmes.”17 The ICPD Programme of Action encourages governments to meet their population goals through education and voluntary measures instead of incentives and disincentives.18 In accordance with the formal commitments made in Cairo, governments in the region must take the following steps: 1. Formally recognize the advancement of women’s reproductive health and autonomy as a central goal of official population policies. 2. Appoint commissions to review how population policies that strive to establish a small family or twochild norm interact with existing laws, such as matrimonial and employment laws, as well as customary practices, such as son preference; introduce reforms that promote reproductive self-determination. 3. Rigorously regulate and monitor the quality of contraceptive services and products being delivered in government clinics and in the private sector, and implement safeguards for efficacy, safety and the widest possible range of method choice. 4. Create mechanisms for lodging complaints about coercion or violence in public health facilities and private clinics. 5. Abandon the use of disincentives for enforcing a small-family norm. B. PREGNANCY AND CHILDBIRTH
In South Asia, more women of reproductive age die of complications from pregnancy and childbirth than from any other cause.19 The high maternal death rates across most of the region are attributable to a range of social,economic and legal factors. These include the practice of early marriage and childbearing, lack of access to health care and family planning, inequality within marriage, and gender-based violence. The death toll has been fueled by the illegality of abortion in most countries surveyed in the region and the general lack of access to services, even in the limited circumstances in which abortion is legal. 1. Maternal Death and Morbidity Background and key facts It is estimated that India accounts for the highest absolute number of maternal deaths in the world.20 India, Bangladesh and Pakistan rank among the dozen countries that account for 65% of all maternal deaths.21 Nepal also has a high maternal mortality ratio. One government study revealed a total of 4,478 maternal deaths per year, or one death every two hours.22 National government surveys in India reveal no sig-
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nificant declines in maternal mortality and no major change in its causes over the last decade.23 Many women throughout the region, especially those living in rural areas, lack access to pre- and postnatal care and trained assistance at delivery, which can contribute to maternal morbidity and mortality. In Bangladesh, for example, most women do not receive prenatal care and only 12% of births are assisted by trained personnel. The maternal mortality ratio is much lower in Sri Lanka than in the other countries in the region, although that ratio is three times higher in the conflict areas of Sri Lanka than in the country as a whole. Actions taken by different governments in the region to address maternal mortality include the following: ■ creation and expansion of pre- and postnatal services and emergency obstetric care, including the establishment of women-friendly hospitals; ■ recruitment of female voluntary health workers and training of local midwives and birth attendants to deliver maternal and other related reproductive health services and information to women’s doorsteps; ■ introduction of a compensation scheme under which pregnant women are reimbursed for the cost of their trip to a health center; ■ establishment of women’s health groups in villages as a forum for discussion of health concerns and issues; ■ adoption of policies to enhance the nutritional status of pregnant women; and ■ expansion of immunization programs to cover women of reproductive age. Areas of Concern The impact of discriminatory laws and practices The ability of women to survive pregnancy and childbirth is greatly determined by their social and legal status. Many instances of discrimination occur over a woman’s life cycle to contribute to an increased risk for poor maternal health. Girls who experience discrimination in nutrition and health care during childhood are physically less able as adults to withstand the stress and exertion of pregnancy. In Bangladesh, the prevalence of malnutrition among women of reproductive age is reported to be the highest in the world,24 and in India, malnutrition has been characterized as “a silent emergency.”25 Both countries have made the positive step of introducing national policies on nutrition. In addition, early marriage exposes young women to the risk of early pregnancy and limits their ability to complete their education, work and make independent decisions about their own health. Separately, many women are forced to carry pregnancies to term because of criminal abortion laws. The risk is greatest for women on the lowest socioeconomic rung of society.
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The government of Nepal took a positive step to address the negative impact of discriminatory laws on maternal health by making advocacy for legal reforms to reduce the incidence of maternal deaths from early marriage and unsafe abortion an objective of its Safe Motherhood Program. This commitment is consistent with human rights principles. Lack of accountability for failure to meet official targets National development plans and health policies adopted by governments throughout the region clearly recognize that the high rate of maternal deaths is a major health issue. Certain governments have even introduced official targets for addressing maternal mortality. India has established a target of reducing the maternal mortality ratio to 100 maternal deaths per 100,000 live births by 2010; Nepal aims to reduce its maternal mortality ratio to 400 per 100,000 by 2008. Bangladesh aims to increase the rate of receipt of prenatal care among pregnant women to 60% by 2006, and to increase the percentage of deliveries attended by skilled attendants to 35% by that year. Although these goals are noteworthy, there is no system for monitoring progress toward these targets and, more importantly, for establishing accountability for failing to meet them. Violence and pregnancy Current maternal health policies fail to address pregnancy in the context of violence. Many unplanned and unwanted pregnancies occur as a result of acts of sexual violence,including marital rape and incest. The “culture of silence” that enables sexual violence against women overshadows the health risks created by pregnancies resulting from rape. Such pregnancies are most likely to be mismanaged and lead to maternal death or harm. The stigma often associated with these pregnancies deters women from seeking pre- and postnatal care. A significant number of women also experience violence because of pregnancy. A growing body of research reveals that pregnancy makes women more vulnerable to violence and that women subjected to violence during pregnancy are more likely to miscarry. One study in Bangladesh has revealed that women aged 15-19 who were either pregnant or had recently given birth were three times more likely to die from violence inflicted by others than women who were not pregnant.26 Health-care systems are generally not equipped to detect and address violence during pregnancy. Furthermore, the pregnancy-related needs of women in conflict situations and those of refugees fleeing war have been largely neglected, which leads to even higher risks of death and complications during pregnancy among these vulnerable populations.27
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Recommendations for Action The right to survive pregnancy and childbirth is a human right.28 At the 1994 ICPD and later at the 1995 Beijing Conference, the international community agreed that “all countries, with the support of all sections of the international community, must expand the provision of maternal health services in the context of primary health care … The underlying causes of maternal morbidity and mortality should be identified and attention should be given to the development of strategies to overcome them.”29 Recognizing the injustice of maternal deaths,traditional civil and political human rights bodies have characterized maternal mortality as a violation of the right to life.30 In 2000,United Nations (UN) member states adopted the Millennium Development Goals toward eradicating poverty and promoting the right to development;improving maternal health was designated as one of the eight Millennium goals.31 In order to fulfill their obligations,governments in the region must take the following steps: 1. Formally assess the impact of discriminatory laws and practices on women’s ability to survive pregnancy and childbirth, and introduce legal reforms to eliminate those discriminatory practices against women that raise the risk of death during pregnancy and childbirth. 2. Increase access to maternal health services and support public education programs to increase awareness about the risks of pregnancy and the negative impact of discriminatory practices on pregnancy. 3. Set up systems for establishing accountability for the failure to meet maternal health–related targets. 4. Expand current safe motherhood programs to address the medical and social aspects of violence during pregnancy by training providers to detect symptoms of such violence and provide appropriate counseling and referrals. 2. Unsafe Abortion Background and key facts Unsafe abortion is a leading cause of death among women in South Asia. The region accounts for one-third of the world’s unsafe abortions32 and the largest annual number of abortion-related deaths worldwide.33 An estimated 29,000 women die every year in the region from unsafe abortion.34 This translates into approximately three deaths per hour.35 Official estimates of abortion-related deaths in countries with laws that criminalize abortion are generally not available. In Nepal, where abortion was illegal until September 2002, it is estimated that close to half of all maternal deaths were caused by unsafe abortion.36 In Bangladesh,where abortion is illegal on most grounds, the annual number of hospitalizations for
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abortion complications is an estimated 71,800, which is equivalent to an average of almost 200 cases per day. Areas of Concern Criminal abortion laws Bangladesh, Pakistan and Sri Lanka have not reformed their restrictive abortion laws. This lack of reform is inconsistent with recent global liberalizing trends that recognize the right to abortion as a basic human right and a public health imperative.37 Evidence from around the world shows that rather than lessen the incidence of abortion, prohibitive and restrictive abortion laws pressure women to resort to clandestine, unsafe providers or to perform risky, self-induced abortions.38 Criminal abortion laws pose the greatest danger to low-income women, who are more likely to experience unplanned pregnancies because they lack access to family planning services and information. In Nepal, women arrested and prosecuted under the now defunct abortion ban were almost without exception low-income, rural women.39 Lack of accessible abortion services Abortion has been legal in India for more than 30 years, yet women still die from unsafe abortions in huge numbers. Bangladesh, Pakistan and Sri Lanka have restrictive laws, but abortion services are generally unavailable on the few grounds on which it is legal. Nepal legalized abortion in September 2002,but the government waited more than one year to establish the parameters of service provision.The failure of governments to make abortion widely available, accessible and affordable reflects a lack of understanding of the health risks posed by unsafe abortions and amounts to a serious breach of duty to protect women from a leading cause of death. Lifesaving services, such as postabortion care, are generally neglected in government policies. The governments of India and Bangladesh have recognized the need for postabortion care services. However, no specific policies on postabortion care exist in Pakistan, even though NGOs provide such services there. The Sri Lankan government has not made any provisions for postabortion care, despite having officially recognized abortion as a “crucial emerging reproductive health issue” and a matter to be addressed with “increasing vigor.” Sex-selective abortion A unique and troubling aspect of the abortion debate in the region is the issue of sex-selective abortion. A strong social, cultural and religious preference for sons combined with access to modern technology has led to the proliferation of sex-selective abortion,particularly in India. Regardless of the government’s attempt to curb the practice by outlawing prenatal testing for the purpose of sex determination in 1994, the sex ratio among children aged 0–6
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ACTIVISM IN THE REGION BUILDS FOR BROADER RECOGNITION OF SEXUAL CRIMES
Various aspects of domestic violence and sexual harassment are criminalized by penal laws in the region. However, these provisions are limited in scope and fail to capture the diverse and insidious nature of many common crimes that occur in the private and public spheres.Certain criminal acts are permitted in the name of custom. For example, in Nepal, incest is generally considered illegal, but it is allowed within marriage if permitted by customary practice. In recent years, NGOs in the region have successfully advocated for the adoption of laws that address domestic violence and sexual harassment. In some cases, these legal gains have been supported by judicial activism. In India in 2003, for example, the government introduced the Sexual Harassment of Women at their Work Place (Prevention) Bill subsequent to a decision by the supreme court that recognized sexual harassment as a violation of the rights to life, dignity and the freedom to practice any profession. In Sri Lanka, although there is no separate law that addresses sexual harassment in the workplace, the Prohibition of Ragging and other Forms ofViolence in Educational Institutions Act of 1998 recognizes sexual harassment in educational institutions and provides remedies for victims of such acts. NGOs are currently advocating for the introduction of specific domestic violence legislation in India, Nepal and Sri Lanka. In Bangladesh and Pakistan,the respective National Commissions for Women have recommended the introduction of domestic violence legislation. Governments in the region should enact laws that recognize sexual harassment and various acts of domestic violence, including crimes specific to women’s reproductive health,such as denial of the use of contraceptives,forced pregnancy in order to have a male child and forced sexselective abortion. Such laws should be comprehensive and prescribe appropriate punishments and remedies, and create mechanisms for redress. declined steadily over the past decade, from 945 girls per 1,000 boys in 1991 to 927 girls per 1,000 boys in 2001.40 The practice of sex-selective abortion cannot be eliminated through criminalization alone. Bans on the practice must be accompanied by a sustained campaign to undo the cultural preference for sons. Attempts to restrict access to abortion without directly addressing and discouraging son preference
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are only likely to result in more deaths from unsafe abortion and a higher incidence of forced pregnancies. Recommendations for Action The right to safe and legal abortion finds support in every major human rights treaty.41 Legal prohibitions on abortion have been recognized as a violation of women’s right to life.42 The Programme of Action adopted at the ICPD called upon governments to consider the consequences of unsafe abortion on women's health.43 It states that governments should “deal with the health impact of unsafe abortion as a major public health concern.”44 This consensus was reiterated at the 1995 Fourth World Conference on Women,where the international community urged governments worldwide to “consider reviewing laws containing punitive measures against women who have undergone illegal abortions.”45 In addition, the international community has urged governments to undertake research “to understand and better address the determinants and consequences of unsafe abortion.”46 Governments in the South Asian region are obligated to protect and promote women’s right to safe and legal abortion by taking the following steps: 1. Abolish criminal abortion laws where they exist and enact laws that permit abortion on broad grounds. 2. Create universal access to safe and affordable abortion services by expanding abortion services to the level of primary health care. Ensure that safe, affordable and high-quality abortion services are available widely on the grounds currently recognized under the law. 3. Introduce options to surgical abortion, such as the use of mifepristone, in government programs. 4. Provide for the humane treatment and counseling of women who have undergone abortion procedures, whether legal or illegal. Post abortion treatment, counseling and family planning services should be offered promptly and without bias. 5. Introduce comprehensive policies to address the underlying causes of sex-selective abortion, in addition to enacting laws that prohibit the practice. C. SEXUAL VIOLENCE
Sexual violence represents one of the greatest threats to women’s health and security in South Asia.47 Studies reveal alarmingly high rates of sexual crimes against women,such as rape, sexual harassment, incest, sexual abuse, and sex trafficking. Formal laws criminalize a range of sexually motivated crimes. Yet their implementation is weakened by commonly accepted stereotypes about female sexuality and the patriarchal mind-set of perpetrators of violence, which is often
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shared by law enforcement agents and,to some extent,is institutionalized by formal laws. The trauma of those who experience violence is further compounded by a general lack of access to emergency health care for the survivors of violence. Formal health systems are generally not equipped to address the medical and social impact of sexual crimes. 1. Rape Background and key facts Rape is one of the most common forms of sexual violence against women and is criminalized by penal codes across the region. However, in all instances, the legal definition of rape is limited to sexual intercourse involving penetration and is generally not recognized among married couples. The enforcement of existing remedies remains weak and the high level of underreporting of rape crimes testifies to that fact. A study on female victims of violence in Bangladesh revealed that 68% of the women never told anyone about their experience and thus failed to initiate criminal proceedings.48 Burdensome evidentiary requirements are particularly harmful, as they protect perpetrators of violence by validating stereotypical notions of female sexuality and adversely influencing the outcomes of rape cases. Areas of Concern The legitimization of rape within marriage The legal approach to marital rape in the region mirrors social perceptions of marriage and female sexuality, and ranges from complete nonrecognition in the law, such as in Nepal and Pakistan, to partial recognition when the woman is below a certain age or under other limited conditions. For example, in Sri Lanka, Bangladesh and India, the wife must be under the age of 12, 13 or 15, respectively, for an act of nonconsensual sex in a marital relationship to be considered rape. In Sri Lanka and India, marital rape is also recognized as a crime if the couple is judicially separated. This trend is at odds with international legal developments that recognize marital rape as a crime regardless of a woman’s age; it is considered a crime against a woman’s bodily integrity and autonomy.49 In a recent landmark case, the Supreme Court of Nepal recognized that the law’s failure to criminalize marital rape solely because of the relationship between the parties constitutes discrimination and violates Nepal’s commitments under CEDAW. Burdensome evidentiary requirements and discriminatory provisions Burdensome evidentiary requirements and discriminatory punishments based on stereotypical notions of women serve to perpetuate a culture of violence against women by erecting barriers that often defeat women’s claims for justice. Governments are obligated to eliminate such stereotypes.50 Yet, with some exceptions, few of the countries surveyed in this
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report have taken proactive steps to reverse these biases. In Bangladesh, for example, a rape victim must provide physical evidence of struggle or resistance to show that the sexual intercourse was, in fact, nonconsensual. In India, a woman’s past sexual history can be used as evidence against her in a trial. In Pakistan, a woman who fails to prove an allegation of rape may be prosecuted for the crime of zina, or adultery,and be sentenced to prison. To seek the maximum punishment for rape, the victim must produce four male witnesses. In Nepal,the punishment for raping a woman older than age 16 is five to seven years in prison, while the maximum punishment for raping a woman engaged in commercial sex work is one year or a fine of Rs 500 (less than USD 10). These biased criminal law provisions deter women from seeking justice and allow perpetrators of such crimes to go unpunished. Failure to address the immediate health needs of rape victims Victims of sexual violence suffer serious physical and psychological health problems, which often go unaddressed.51 Laws that criminalize rape tend to focus on the “crime”rather than on the “person” who experiences the crime, leading to a major policy gap in addressing the short- and long-term health needs of victims of rape. For example, Bangladesh’s Prevention of Oppression against Women and Children Act, which passed in 2000, is one of few laws among countries surveyed in this report that was formulated to specifically address crimes of violence against women and children. Although the act broadens the definition of crimes and increases penal sanctions against perpetrators,it does not make provision for services that address the physical and mental health needs of victims, such as counseling or reproductive health services. The medical community is ethically obligated to respond to violence against women.52 However,health systems are generally not equipped to recognize and treat common conditions resulting from rape, such as psychological trauma; trauma associated with unplanned, unwanted or forced pregnancies; complications from unsafe abortions; and infection with STIs, including HIV/AIDS. There is inadequate access to services that could significantly mitigate the adverse impact of these conditions,such as trauma counseling, emergency contraception, legal abortion, nondiscriminatory pre- and postnatal care, and voluntary testing for STIs. Recommendations for Action The right of women to be free from gender-based violence, including rape and other forms of sexual violence, has been recognized by the international community as a human right.55 International law formally recognizes gender-based violence as a “form of discrimination which seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.”56 The Rome Treaty of 1998 explicitly
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PERCEIVED SEXUAL TRANSGRESSIONS RESULT IN EXTRA JUDICIAL KILLINGS
Honor crimes, which occur most frequently in Pakistan, involve the killing of a woman or girl who has allegedly shamed her family through a social transgression, such as choosing her own life partner or attempting to obtain a divorce. What violates family honor is more a matter of perception than fact. A mere suspicion of an illicit relationship may result in an honor killing. Victims of sexual violence such as rape have been murdered with impunity for allegedly violating family honor. Although honor killings do not find direct support in Pakistani law, two ordinances lend moral support to the culture of honor killing. The Qisas and Diyat Ordinance, passed in 1979, allows private individuals who are related to a victim to prescribe punishments for perpetrators of crimes, including murder. The Zina Ordinance, passed in 1979, renders rape victims liable for adultery if they are unable to prove that a crime was committed. The general recognition of “grave and sudden provocation” as a basis for reducing a charge of murder to the lesser crime of manslaughter has provided a great degree of legitimacy to the practice of honor killings. The practice has also been reinforced by corruption among law enforcement agents,who do not treat the perpetrators of honor crimes the same as other major offenders.53 The government of Pakistan has vigorously condemned the practice of honor killing, stating that such acts do not find a place in Pakistan’s religion or law, and that killing in the name of honor is murder and will be treated as such.54 However, this strong statement has not been accompanied by adequate law enforcement efforts. In one recent case,however, the exception of “grave and sudden provocation” was formally denounced by a court of law and considered inapplicable in the case of an honor crime. The government of Pakistan should enact a law that bans outright all killings in the name of family honor, and prescribe appropriate punishments and compensation for the families of victims. includes rape under certain circumstances as a crime against humanity. In order to protect women and girls against violations of human rights as a result of sexual violence, governments in the region are obligated to take the following steps: 1. Enact and rigorously enforce legislation with severe penalties against perpetrators of sexual violence against women.
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2. Create effective mechanisms for reporting incidents of violence and remove burdensome evidentiary and procedural requirements and discriminatory provisions by amending relevant legal provisions and creating awareness about the changes. 3. Establish family courts and women-friendly police stations or cells nationwide to make the legal system more accessible for women. Where these entities already exist, determine their accessibility and identify barriers to access. 4. Launch programs to sensitize and train health care providers to deal effectively with crimes involving sexual violence at various stages of medical treatment, and educate law enforcement and judicial personnel about investigating and prosecuting such crimes and facilitating access to immediate medical assistance and counseling. 5. Strengthen responses to sexual violence by offering emergency contraception to victims of rape and voluntary testing for STIs. 2. Sex Trafficking Background and key facts Sex trafficking in South Asia has become a billion dollar industry and is considered to be the fastest growing criminal enterprise in the world.57 India has begun to gain notoriety as one of the world’s biggest “slave bazaars” especially for minor girls.58 As the main receiving country in the region, India accounts for up to one million women and children involved in commercial sex work, according to UN estimates, although NGO estimates are much higher. 59 Bangladesh and Nepal are the main countries of origin for foreign women trafficked to India. According to NGO estimates,the typical age at recruitment is often between 10 and 14 years.60 The growth in internal and cross-border migration by women in search of legitimate employment has added a new channel of movement that is being exploited by traffickers.61 All countries have national-level anti-trafficking laws and policies, but enforcement is weak and prosecutions are rare.62 Additional challenges are created by the fact that the problem is regional in scope and a high level of regional cooperation is needed to address it. Areas of Concern Lack of attention to health-care needs of sex trafficking victims Despite the series of sexual crimes experienced by victims of trafficking, no government in the region has laws or policies that establish and ensure access to health care after victims are rescued or once they become engaged in commercial sex work. Due to frequent exposure to sex,women who are trafficked and eventually forced to become commercial sex
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workers are constantly exposed to the risks of unplanned pregnancies and STIs, including HIV/AIDS. They have no access to reproductive health information and services, and are unable to negotiate the use of condoms with their customers. Among commercial sex workers in Bangladesh,condom use is as low as 4%.63 Women who do get pregnant are often forced to have abortions. Discrimination against commercial sex workers The phenomenon of sex trafficking has given rise to a vulnerable population of commercial sex workers. Most countries in the region have long-standing laws that criminalize prostitution, although one country has recently passed an act that grants legal protection to those engaged in prostitution. As a result, commercial sex workers are mainly viewed as criminals,and their ability to seek legal protections against abuse and exploitation is severely curtailed by their lack of social standing and the stigma associated with their profession. The exception is a recent case in Bangladesh in which the rights of commercial sex workers were granted some recognition; those who engage in commercial sex work must now obtain a license to do so, after proving that they have no other means of livelihood. Commercial sex workers trafficked from foreign countries are particularly marginalized and unable to seek legal recourse against their exploiters or demand basic health services. The vulnerability of sex workers to discrimination has been enhanced by the onset of HIV/AIDS. Sex workers in India have been subjected to mandatory HIV testing by courts of law.64 In one particular case, a woman’s HIV status was used as a ground for denying bail. Recommendations for Action A number of international instruments explicitly address sex trafficking in women and girls. In addition to the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others and the Protocol to Prevent,Suppress and Punish Trafficking in Persons,CEDAW requires states parties to “suppress all forms of traffic in women and exploitation of prostitution of women.”65 The Convention on the Rights of the Child (Children’s Rights Convention) also contains a provision preventing the “abduction, sale or traffic of children,”66 as well as other provisions pertaining to protection against sexual abuse and exploitation,67 and prohibition of torture and other cruel or inhuman treatment.68 The International Covenant on Civil and Political Rights (Civil and Political Rights Covenant) provides that no one shall be held in slavery or servitude, tortured, or subjected to cruel,inhuman or degrading treatment.69 TheVienna Programme of Action adopted by the World Conference on Human Rights in 1993 and the ICPD Programme of
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Action of 1994 specifically address and strongly condemn trafficking as a form of gender-based violence that violates women’s human rights.70 Based on these international standards,governments in the region are obligated to take the following steps: 1. Strictly enforce laws that criminalize the trafficking of women and children for forced prostitution, and introduce strict penalties for men who procure sex from commercial sex workers, especially minors. 2. Allocate resources for the establishment of rehabilitation homes for young girls and women rescued from traffickers and brothel owners and provide a full range of emergency and routine reproductive health care services and information. 3. Introduce policies for the establishment of reproductive health–care services for commercial sex workers. 4. Enact laws prohibiting discrimination against commercial sex workers solely on the basis of their profession or their status as aliens. D. EMERGING CONCERNS
Efforts to promote women’s reproductive health in South Asia have traditionally been advanced through family planning and maternal and child health programs. Two more recent concerns taken on by policymakers in the South Asia region are the HIV/AIDS pandemic and concerns about the acceptability and quality of health care. The deadly spread of HIV/AIDS is slowly forcing governments to confront taboo subjects such as sex, and to frame policies that address the broader health implications of the pandemic without encroaching upon individual human rights. Inefficient health-care systems have begun to sharpen concerns about the acceptability and quality of care and the influence of gender-based discrimination and stigma on women’s reproductive health–related choices. Both these issues are compelling governments to address reproductive health more broadly. Efforts to integrate various aspects of reproductive health care and concerns about patients’ rights are gaining momentum. 1. HIV/AIDS Background and key facts South Asia accounts for 4.2 million of the total number of people living with HIV worldwide.71 India has the second largest population of persons infected with HIV. Estimates of people living with HIV/AIDS within each country vary enormously depending upon the source of information, since most governments have not gathered reliable official data and the opportunity for measuring HIV prevalence through voluntary testing continues to be very limited. Nonetheless, all countries surveyed in the region have intro-
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duced official policies or strategies within broader policies that focus on the prevention of HIV/AIDS. None of the countries, however, have enacted laws that protect the rights of persons with HIV/AIDS. The strongest statement in favor of their rights is made in the Bangladeshi policy, which specifically prohibits restrictions on the rights and freedoms of individuals based on their HIV status. Areas of Concern Women’s vulnerability to infection The physiological vulnerability of women to HIV/AIDS is significantly compounded by the pervasive gender discrimination in the region. Current policies tend to focus mainly on disease prevention and control activities, such as providing HIV testing services, distributing and promoting the use of condoms, and screening blood donations; however, these policies have yet to introduce comprehensive and concrete strategies that address women’s unique social vulnerability to the disease caused by gender-insensitive, discriminatory laws and practices, and the lack of access to services. India’s National AIDS Prevention and Control Policy is an exception to the general trend;the policy recognizes that women’s low legal status, poor economic opportunities and lack of access to health information and education make them particularly vulnerable to the disease,and aims to make improvements in each of these areas. Lack of protection against discrimination among HIV-positive women Women’s vulnerability to discrimination and violence in both the private and public spheres significantly increases once they become infected with HIV. While both women and men need protections against discrimination in health care, education, employment and other public spheres of life, women need additional protections from discrimination and violence in the private sphere. Research shows that if a woman is infected with HIV by her husband, her likelihood of being abused, abandoned or even killed increases.72 Matrimonial laws applicable in Bangladesh, India, Pakistan and Nepal recognize infection with venereal disease as a ground for divorce. Considering women’s unequal status within marriage, inadequate legal provisions for alimony and the widespread practice of child marriage,the consequences of divorce can be particularly devastating for women. Alternatively, in Sri Lanka, where a man cannot divorce his wife because she is infected with a venereal disease, the legal pressure to live with an HIV-positive spouse may ultimately constitute a threat to a woman’s life. The rights of HIV-positive pregnant women Policies in the region are extremely limited in terms of their reference to mother-to-child transmission of HIV/AIDS. Only Sri Lanka has set a clear target for making
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antiretroviral therapy available to pregnant women for the prevention of mother-to-child transmission. In India, there are reports of an increasing number of women seeking prenatal care who test positive for HIV. However,voluntary testing for HIV, counseling and treatment are still generally unavailable in government hospitals. Since the majority of births in the region take place at home and a significant number of pregnant women have no contact with the formal health system during their pregnancies,the ability of pregnant women to determine their HIV status is very limited. Criminal abortion laws and lack of access to services, even in circumstances in which abortion is legal, pose major barriers to HIV-infected women who opt to terminate their pregnancies. Recommendations for Action CEDAW recognizes the special vulnerability of women to HIV/AIDS and requires governments to “give special attention to the rights and needs of women and children, and to the factors relating to the reproductive role of women and their subordinate position in some societies which make them especially vulnerable to HIV infection.”73 The Beijing Platform further recognizes that women’s social subordination and unequal power relations to men are key determinants in their vulnerability to HIV/AIDS.74 At the UN Special Session on HIV/AIDS, the General Assembly declared that “Gender equality and the empowerment of women are fundamental elements in the reduction of the vulnerability of women and girls to HIV/AIDS.”75 The Commission on Human Rights has urged governments to take all necessary measures to protect women and children from violence, stigmatization and other negative consequences resulting from HIV/AIDS.76 In light of their international obligations, governments in the region must take the following steps: 1. Review, amend and enforce laws, and develop targeted initiatives, to combat practices that contribute to women’s susceptibility to HIV infection and other STIs, particularly laws relating to rights within marriage and laws on sexual violence. Legislation should be introduced to prevent discrimination against women with HIV/AIDS by state agents and private parties. 2. Strengthen health programs by increasing efforts to prevent, detect and treat HIV/AIDS and STIs at the primary health-care level. All levels of health care should offer voluntary testing as well as counseling and affordable treatment. They also should guarantee that information about patients is kept confidential. 3. Recognize the rights of pregnant women infected with HIV and create access to services and treatment
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necessary for the prevention of mother-to-child transmission and the termination of pregnancies. 4. Work closely with the private sector to disseminate information about safe sex practices and the human rights of persons living with HIV/AIDS in order to create greater social tolerance and support for such people and their families. 2. Essential Aspects of Health Care Background and key facts Laws and protocols that establish basic standards of health care,guarantee patients’rights,create liability for medical negligence,and institute mechanisms for seeking redress in case of malfeasance by a health care provider are hallmarks of a system committed to advancing the right to health of citizens. All the countries included in the survey have established medical councils for regulating providers and taking disciplinary action. Cases of medical negligence can be brought against providers under existing criminal and civil laws in all five countries. India and Nepal also allow cases to be brought under consumer protection laws. Although no country in the region has a bill of patients’rights,Bangladesh has made a formal commitment to adopt a charter of rights for health care providers and patients. Areas of Concern Limited availability and accessibility of health care Public health-care systems in the region are generally constrained by inadequate human, technical and financial resources. Access to services is often inhibited by insufficient infrastructure, uneven distribution of existing services and lack of proximity. For example, in Pakistan, only 1,200 public family planning centers operate to serve a population of 138 million, most of which are rural and poor.77 Lack of proximity to services can become an insurmountable barrier in the absence of reliable and affordable modes of transportation and where social restrictions on women’s mobility are rigidly enforced, such as in certain parts of Pakistan. Additional barriers to health care, such as bias toward urban areas and high rate of absenteeism, are very common across the region. In Nepal,for example,most public and private health services are concentrated in the more developed parts of the country. In Pakistan, female practitioners are concentrated in the cities. In that country, where many women can only see female clinicians, one of the main reasons cited for seeking health care in the much costlier private sector is the general unavailability of doctors of either sex in the public health system. In Bangladesh, one study revealed that there were 21,785 doctors working in the private sector, compared with 1,717 doctors in the public health sector.
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Limited affordability and acceptability of health care Individuals are compelled to seek health care from the private sector with significant out-of-pocket expenses in all five countries surveyed in the report, and in Bangladesh, Nepal and India in particular. This creates significant hardship for women whose financial dependency compromises their ability to seek health care. User fees imposed by the public-sector health systems in Pakistan and India constitute an additional burden. Most low-income women in all the countries surveyed are not covered by health insurance schemes, which are either nonexistent or extremely limited in scope. Where services are available, the acceptability of care is a major issue. Women frequently choose not to use existing services because of disrespectful treatment in clinics, a lack of acceptable treatment options and the lack of appropriate follow-up. In Bangladesh, almost half of all women who begin using a contraceptive method discontinue during their first year of use,78 a trend that studies suggest is symptomatic of women’s lack of trust and confidence in family planning providers.79 In a study conducted in Pakistan, a significant number of respondents cited the uncooperative behavior of public health staff as the main reason why they did not use health services offered in the public sector. Quality of health care Standards of quality care require, among other things, the availability of skilled personnel and the use of scientifically approved drugs.80 The qualifications of medical practitioners in the region and their ability to provide services are regulated by law. However, the recognition of traditional, non-allopathic systems of medicine, limited access to appropriately staffed and well-equipped hospitals,high costs of services and lack of effective regulation in the private sector,and poor protections from medical negligence and exploitation in the name of health care have all led to the proliferation of non-licensed and incompetent practitioners commonly known as “quacks.”81 This trend has been extensively documented in India. Low-income women rely extensively on non-licensed practitioners for their health-care needs. This reliance on untrained personnel is most visible in the context of abortion, where criminal abortion laws have resulted in high death rates from unsafe abortion. Despite legalization, abortions performed by unskilled providers continue to contribute to the high maternal death rate in Nepal and India.82 Extensive studies reveal that in India, non-licensed practitioners have begun to exploit the health needs of people living with HIV/AIDS for whom treatment in the public health-care system is virtually nonexistent.83 Quality of care is also compromised when drugs provided to the public are not safe. While all countries have laws
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and formal bodies that regulate the quality and safety of drugs,major lapses have occurred,particularly with regard to contraceptives. In India, following questions about the safety of Depo Provera, the central drug administration issued an order banning its distribution in government clinics until the conclusion of further clinical trials, but it took five years for the order to be adopted.84 Clinical trials have been conducted in many parts of the region over the last few decades, with little regard for the procedures mandating informed consent and the health and bodily integrity of the women involved in such trials.85 Recommendations for Action The International Covenant on Economic, Social and Cultural Rights establishes the right to health as a human right.86 The right to health has been interpreted as encompassing certain essential elements of health care that include the availability,accessibility,acceptability,and quality of health care.87 Inadequate attention to any one of these elements constitutes a significant barrier to women’s ability to realize their reproductive health goals. In light of these standards, governments are obligated to take the following steps to advance the right to health of citizens: 1. Adopt a formal bill of patients’ rights based on human rights principles. 2. Introduce policies and guidelines aimed at improving provider-client interactions and creating health-care settings and procedures that are gender sensitive and client oriented. All women should be informed of their options for treatment and care, including the likely benefits and potential side effects by trained personnel. 3. Strengthen the enforcement of laws that penalize medical malpractice and negligence. Introduce and rigorously enforce penalties against unqualified providers. 4. Create complaint mechanisms for clients with the aim of protecting patients’ rights and monitoring and improving quality of care. 5. Improve the accessibility of public health services by addressing the concentration of services in urban areas, shortage of female practitioners, absenteeism, and proliferation of unskilled providers. 6. Work closely with medical and legal institutions and civil society to promote and monitor the quality of care in existing programs and develop standards for ensuring that principles of free and informed consent, noncoercion, confidentiality, privacy, nonviolence, and nondiscrimination are rigorously enforced in health-care settings.
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E. VULNERABLE GROUPS
The vulnerability of certain groups of individuals to human rights violations may be heightened by a variety of factors, including their age and nationality, and whether they live in areas that are politically unstable and marked by conflict. South Asia accounts for a significant proportion of the world’s adolescent population and a large number of refugees in camps in different parts of the region. 1. Adolescents Background and key facts Worldwide, South Asia has the largest concentration of young people in extreme poverty.88 The incidence of early marriage and childbearing is particularly high in Bangladesh, India and Nepal, where up to half of all adolescent girls aged 15–19 are married by age 18.89 Fewer than 10% of adolescents in India, Nepal and Pakistan use any method of contraception. HIV is also spreading rapidly in South Asia,where an estimated 1.1 million youth are infected (62% of whom are female).90 A range of factors that are widely prevalent in South Asia, such as narrow views on female sexuality and a general lack of laws and policies that specifically recognize and promote adolescents’ rights, have significantly enhanced the vulnerability of adolescents to reproductive rights violations. Areas of Concern Lack of a commitment to adolescents’ rights The human rights of children and adolescents have been articulated and affirmed through international treaties and consensus documents, and governments have pledged to respect the rights of adolescents through the adoption of appropriate laws and policies.91 Yet, only one country in the region, Nepal, has a policy devoted specifically to the reproductive health of adolescents. The remaining countries surveyed have policies that contain references to adolescents,but none formally recognizes or makes a clear commitment to protecting and promoting adolescents’human rights,particularly their right to health. Lack of information and access to age-appropriate services Studies show that women who are educated have more control over their reproductive lives than women who have little or no education.92 Most women in South Asia lack this potential, as the region continues to lag behind on girls’ education. Low levels of education among girls limit their ability to obtain and utilize important information about their health. Social taboos on sex contribute to a general lack of knowledge about sexual and reproductive health. Consequently, adolescents in the region, especially female adolescents, are exposed to a variety of health risks that leave them helpless to avoid unplanned pregnancies, complications relat-
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ed to pregnancy and childbirth,unsafe abortion,and infection with STIs, including HIV/AIDS. NGOs are playing an important role in providing some information and services to adolescents,but access is far from universal. The needs of married adolescents also remain significantly unfulfilled. In India, according to various studies,only 7.4% of married adolescents aged 15–19 use contraceptives; less than half of all married women aged 15–24 have heard of HIV/AIDS. Child marriage The practice of child marriage has grave implications for women’s reproductive health and security. In Bangladesh, up to 51% of all girls are married by age 19.93 In Nepal, 7% of girls marry before they are ten years old, 40% do so by age 15,94 and 60% by age18.95 The common health risks that married adolescents are exposed to include unplanned pregnancy,complications of early pregnancy and childbirth and,in some circumstances, unsafe abortion. Child brides are also exposed to unsafe sex and the risk of infection with STIs, including HIV/AIDS. Those who try to resist sex are likely to be subjected to violence that results in even further harm. The absence of compulsory birth registration across the region has compounded the problem by making it possible to fabricate a person’s age to avoid criminal liability for performing a child marriage. The complicity of government officials in the frequent performance of “mass child marriages” in different parts of India has been documented, revealing the government’s failure to implement its own law.96 In addition to exposing women to a range of health risks,early marriage has also facilitated the trafficking of young girls for forced prostitution. Child marriage has also been widely exploited by criminals who consider it to be one of the simplest ways to procure girls for prostitution.97 Unsafe abortion Unsafe abortion is a leading cause of death among young women worldwide.98 While official statistics on the incidence of unsafe abortion are unavailable for South Asia, the existence of restrictive abortion laws in most countries and poor accessibility to services where abortion is legal suggest that the incidence is very high. In India, up to half of all maternal deaths among adolescents aged 15–19 are reportedly due to unsafe abortion. Adolescents are generally more exposed to the danger of unsafe abortion than older women because of their relatively greater lack of access to and information about health services and higher risk of unplanned pregnancy, particularly among married adolescents. Social taboos about sex make it impossible for unmarried adolescents to seek information and services where there are no mechanisms for ensuring confidentiality. In Nepal, where abortion is legal on broad grounds, a
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minor needs to obtain the consent of a third party to have an abortion. It has been noted that parental consent requirements for abortion increase the rate of unsafe abortion among adolescents.99 Sexual violence Studies on sexual violence in South Asia reveal that “no age is a safe age,”100 and that a significant proportion of rape victims tend to be minors.101 Sexual intercourse with a girl under the age of 16 is considered statutory rape in India, Nepal and Sri Lanka. In Bangladesh,statutory rape is considered to occur only if the girl is under 14. In Pakistan, if a minor cannot prove an allegation of rape, she is liable to be tried as an adult for the crime of Zina or adultery. In certain situations, sexual violence takes the extreme form of sexual slavery. As mentioned earlier,studies show that the typical age at recruitment for sex work is between 10 and 14 years. 102 Girls between 9 and 15 years of age are reported to fetch a premium in the commercial sex market.103 A new dimension to this crisis of sexual violence against adolescents has emerged with the spread of HIV/AIDS. The belief that sex with a virgin can cure HIV/AIDS has enhanced the potential for further abuse of minors.104 Sexual abuse is also common, but the lack of a legal definition for many forms of sexual abuse has led to the underreporting of such crimes, so violations experienced by victims remain largely unaddressed.105 Recommendations for Action The Children’s Rights Convention contains key provisions relating to the rights of adolescents. The convention clearly establishes children’s right “to the enjoyment of the highest standard of health and to facilities for the treatment of illness and rehabilitation of health.”106 It requires states parties to take appropriate measures “to develop family planning education and services.”107 It also recognizes that in all matters relating to children, the best interests of the child should take precedence over all other considerations, including the personal will of parents and guardians.108 The Children’s Rights Convention was also the first international human rights treaty to explicitly recognize sexual violence and abuse, which constitute a major threat to adolescents’ reproductive and sexual health.109 In light of these obligations, governments in the region must take the following steps: 1. Introduce comprehensive policies that formally recognize the reproductive rights of adolescents and establish age-specific reproductive health programs for married and unmarried adolescents; programs should include information and services regarding safe and consensual sex, contraception, safe abortion, safe pregnancy, and prevention of STIs, including
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HIV/AIDS. 2. Adopt a uniform minimum age at marriage for both women and men, regardless of their religious affiliation and customary practices, and enforce existing laws that prohibit child marriage. 3. Introduce sex education and life-skills programs at all levels of education—primary, secondary and tertiary. Policies should also reflect the special needs of marginalized adolescents, such as street children, refugee and internally displaced children, and out-of-school youth. 4. Create programs to sensitize the community, including health-care providers and law enforcement officials, regarding the need to protect the girl child and female adolescents against all forms of sexual violence, including rape, incest, trafficking, and customary forms of gender-based violence. 2. Refugees Background and key facts Women and children constitute 80% of the world’s refugees.110 There are a significant number of refugees spread across South Asia. Two of the most visible, localized refugee populations are the Afghan refugees in Pakistan and the Bhutanese refugees in Nepal. The number of Afghan refugees in Pakistan peaked at three million in 2001. For over a decade, more than 100,000 Bhutanese of Nepalese origin have been living in camps administered by the UN High Commission for Refugees (UNHCR) in southeastern Nepal. The lack of adequate attention to women’s routine reproductive health–care needs in refugee camps and the failure to protect women from different forms of gender-based violence have resulted in sustained hardship for refugee women and major violations of their reproductive rights. Areas of Concern Lack of specific policies for refugees The governments of Nepal and Pakistan have hosted refugees for decades, yet neither has a clear policy devoted to the basic needs of refugee populations. These governments have relied heavily on international aid and support for their programs without making much effort to address the immediate needs of refugee women and children. Studies reveal that while family planning services are generally available in refugee camps in Pakistan, the services are not widely used and the rate of contraceptive discontinuation is high.111 Postabortion care and emergency contraception are also not available,and adequate precautions are not taken in the use of medical instruments to prevent the spread of infection, including HIV/AIDS.112 Due to the primary focus on maternal health needs, the needs of adolescents remain
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unattended. These shortcomings in services have clearly taken a toll on the lives of refugee women: a study of 12 Afghan refugee settlements conducted between January 1999 and August 2000 revealed that 41% of deaths among women of reproductive age were due to maternal causes, and 60% of infants were born dead or died soon after birth.113 Lack of protection from gender-based violence Women’s vulnerability to violence in refugee situations is exacerbated by their dependence on male authority figures, including male refugees, local relief officials and law enforcement agents.114 In Afghan refugee camps in Pakistan, the incidence of domestic violence, incest and honor killings is reported to be high. In 2002, Human Rights Watch investigated several cases of gender-based violence in Nepalese refugee camps. Their report found that UNHCR and the government of Nepal failed to take adequate steps to protect refugee women and children from gender-based violence.115 Rape,sexual harassment,child marriage,forced marriage,and domestic violence are some of the common forms of violence found in the camps in Nepal.116 Recommendations for Action The basic human rights of refugee women and children, including the rights to life, health and nondiscrimination, are recognized by major international treaties, such as the Civil and Political Rights Covenant, CEDAW and the Children’s Rights Convention.117 International human rights norms require governments to ensure that all individuals within their territories, regardless of citizenship, enjoy the equal protection of the law.118 The five-year review of ICPD recognized refugee concerns and called for greater reproductive health and family planning efforts for displaced adolescents and women.119 In addition, it emphasized training for health and relief workers in emergency situations in “sexual and reproductive health-care services and information.”120 At the fiveyear review of the Beijing Conference, the international community stressed the need for a “more holistic support for refugee and displaced women” that integrated a gender perspective into the design and implementation of assistance to victims of humanitarian emergencies and conflict situations.121 Based on their commitments under international law, governments hosting refugee populations are obligated to take the following steps: 1. Introduce formal policies that recognize the rights of refugees and establish comprehensive guidelines for their protection and care. 2. Provide refugee women with access to comprehensive reproductive health care, including the broadest possible range of contraceptives for women and men,
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voluntary testing and treatment for STIs, including HIV/AIDS, and access to safe abortion services. 3. Create complaint mechanisms and support groups for refugee victims of sexual and domestic violence, and provide counseling and emergency medical care for such victims. 4. Investigate and prosecute sexual crimes against refugee women, whether such crimes are perpetrated by private parties, relief officials or agents of the host state. The remaining chapters of this report presents a factual account of laws and policies that relate to specific reproductive health issues as well as to women’s rights more generally. It discusses each country separately, but uniformly organizes the information in four main sections that enable country comparisons. The first section of each chapter lays out the country’s basic legal and political structure. The next section details the laws and policies affecting the reproductive health and rights issues that have been recognized by the international community. A general discussion of women’s legal status follows and,finally,each chapter closes with a discussion of the reproductive health and rights of adolescents.
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ENDNOTES 1. The World Bank, Engendering Development:Through Gender Equality 4 (2001). 2. For the purpose of this report, the terms ‘South Asia’ and “the region” include the five countries surveyed in this report which are Bangladesh, India, Nepal, Pakistan and Sri Lanka.Afghanistan, Bhutan and Maldives have not been included as part of the survey. 3. Fertility Continues to Decline, Population Reports, Spring 2003, tbl. 2 at 4. 4. Susan Pasquariella, United Nations Population Fund (UNFPA), Population Program and Reproductive Health including Family Planning Program in Bangladesh, Fifth Asian and Pacific Population Conference 1 (2002), http://www.unescap.org/pop/5appc/papers/Bangladesh_country_report.doc (last visited Mar. 31, 2004). 5. Press Release, United Nations,World Contraceptive Use 2001 (May 20, 2002) (on file with Center for Reproductive Rights). Indicates level for developed regions as 70% (for married women and those in consensual unions). This is the same as that indicated in key findings in 1998 for married women. 6. Human Rights Committee, General Comment No. 28 on Equality of Rights Between Men and Women (article 3), 68th Sess., U.N. Doc. CCPR/C/21/Rev/1/Add/10 (2000); Center for Reproductive Rights & University of Toronto International Programme on Reproductive and Sexual Health Law, Bringing Rights to Bear:An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights 134 (2002) [hereinafter Bringing Rights to Bear]. 7. Rebecca J. Cook et al., Reproductive Health and Human Rights tbl. I.2.1, at 15 (2003). 8. Beijing Declaration and Platform for Action, Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, ¶ 95, U.N. Doc.A/CONF.177/20 (1995) [hereinafter Beijing Declaration and Platform for Action]; Center for Reproductive Rights, Reproductive Rights 2000: Moving Forward 7 (2000) [hereinafter Reproductive Rights 2000]. 9. Reproductive Rights 2000, supra note 8, at 9. 10. Beijing Declaration and Platform for Action, supra note 8, ¶ 95; Reproductive Rights 2000, supra note 8, at 9. 11. Rupsa Mallik,A Less Valued Life: Population Policy and Sex Selections in India 2 (2002) (citing S.M. George, Female Infantide in Tamil Nadu: From Recognition Back to Denial?, Repro. Health Matters, Nov. 1997, at 124–132). 12. United Nations Population Fund (UNFPA), Population Policies and Programmes: Lessons Learned from Two Decades of Experience 315 (Nafis Sadik ed., 1991). 13. Shri Ramakant Rai & Health Watch U.P and Bihar v. Union of India and Others (S.C. 2003), petition filed, (India Mar. 2003). 14. Javed and Others v. State of Haryana and Others, (2003) SOL 411(India). 15. Mahila Chetna Manch, PANCHAYATI RAJ and The ‘Two-Child Norm’: Implications and Consequences (A Summary of the Preliminary Findings of Exploratory Studies in Andhra Pradesh, Haryana, Madhya Pradesh, Orissa, and Rajasthan) 15, 17–18 (2003). 16. Id. 17. Programme of Action of the International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 1994, princ. 4, U.N. Doc.A/CONF.171/13/Rev.1 (1995) [hereinafter ICPD Programme of Action]. 18. Id. ¶ 7.22. 19. World Health Organization,Women’s Health in South-East Asia, Introduction to the ‘Making Pregnancy Safer’ Initiative, available at http://w3.whosea.org/pregnancy/introf.htm (last visited Mar. 30, 2004). 20. United Nations Children’s Fund (UNICEF), Maternal Mortality, Progress to Date, http://www.childinfo.org/eddb/mat_mortal/index.htm (last visited Mar. 30, 2004). 21. Id. 22. See Family Health Division, Ministry of Health (MOH), Maternal Mortality and Morbidity Study 75 (1998). 23. Department of Family Welfare, Ministry of Health and Family Welfare, Government of India, India Country Report 16 (2002) (presented at Fifth Asian and Pacific Population Conference, Bangkok,Thailand, Dec. 11-17, 2002). 24. The World Bank Group, South Asia Region, Country Brief - Bangladesh (2002), available at http://lnweb18.worldbank.org/lo%20web%20sites/bangladesh%20web.nsf/1382158c3 3bcc8dd4625667200239762/dc5134fc4dabb9b985256b05007c6629?OpenDocument (last visited Mar. 30, 2004). 25. The World Bank Group, South Asia Region, Country Brief - India (2002), available at http://lnweb18.worldbank.org/SAR/sa.nsf/Countries/India/4F3233D642E4BB39852 56B4A00706AA7?OpenDocument (last visited Mar. 30, 2004). 26. Ruth Finney Hayward, Breaking the Earthenware Jar, Lessons from South Asia to End Violence Against Women and Girls 42 (2000) [hereinafter Breaking the Earthenware Jar]. 27. See Deirdre Wulf, Refugee Women and Reproductive Health Care: Reassessing Priorities 3 (1994). 28. Center for Reproductive Rights & Association des Juristes Maliennes, Claiming Our Rights: Surviving Pregnancy and Childbirth in Mali 13 (2003). 29. ICPD Programme of Action, supra note 17, ¶ 8.22.
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30. Bringing Rights to Bear, supra note 6, at 115. See Universal Declaration of Human Rights, adopted Dec. 10, 1948, G.A. Res. 217A(III), at 71, art. 3, U.N. Doc.A/810 (1948) [hereinafter Universal Declaration of Human Rights]; see International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 9(1), U.N. Doc.A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter International Covenant on Civil and Political Rights]; see International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16, at 49, art. 12(1), U.N. Doc A/6316 (1966), 999 U.N.T.S. 3 (entered into force Mar. 23, 1976) [hereinafter International Covenant on Economic, Social and Cultural Rights]; see Convention on the Elimination of All Forms of Discrimination against Women, adopted Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, art. 1, U.N. Doc.A/34/46 (1979) (entered into force Sept. 3, 1981) [hereinafter CEDAW]; see Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 166, arts. 16(1), 16(2), U.N. Doc.A/44/49, (1989) (entered into force Sept. 2, 1990) [hereinafter CRC]; see ICPD Programme of Action, supra note 17, princ. 8; see Beijing Declaration and Platform for Action, supra note 8, ¶ 106(k). 31. Millenium Declaration, Millennium Assembly, New York, United States, Sept. 6–8, 2000, U.N. GAOR, 55th Sess., U.N. Doc.A/Res/55/2 (2000). 32. See World Health Organization (WHO), Unsafe Abortion: Global and Regional Estimates of Incidence of Mortality Due to Unsafe Abortion tbl. 2 (1997) [hereinafter WHO, Unsafe Abortion]. 33. Id. 34. Id. 35. See id. 36. Center for Research on Environment Health and Population Activities (CREHPA),Women in Prison in Nepal for Abortion:A Study on Implications of Restrictive Abortion Law on Women’s Social Status and Health, preface (2000). 37. Center for Reproductive Rights, International Factsheets, Nations Worldwide Support a Woman's Right to Choose Abortion (2000), available at http://www.reproductiverights.org/pub_fac_atkwwsup.html (last visited Mar. 31, 2004). 38. SeeWHO, Unsafe Abortion, supra note 32, Introduction. 39. S. Cohen, Nepal Reforms Abortion Law to Reduce Maternal Deaths, Promote Women's Status, The Guttmacher Rep. on Pub. Pol’y, May 2002, at 13. 40. Census of India: 2001, Provisional Population Totals: India, http://www.censusindia.net/ (last visited Mar. 31, 2004); Rupsa Malik, A Less Valued Life: Population Policy and Sex Selection in India, Center for Health and Gender Equity 1 (2002). 41. See Universal Declaration of Human Rights, supra note 30, arts. 2–3, 5; see International Covenant on Civil and Political Rights, supra note 30, arts. 6.1, 9.1, 7, 2.1, 17.1; see International Covenant on Economic, Social and Cultural Rights, supra note 30, arts. 2.2, 10.2, 12.1–12.2; see CEDAW, supra note 30, arts. 1–3, 5, 10, 11.2–11.3, 12.1, 14.2, 16.1; see CRC, supra note 30, arts. 6.1–6.2, 16.1–16.2, 24.1–24.3, 37; see ICPD Programme of Action, supra note 17, princs. 1, 4, 8, ¶¶ 5.5, 7.3, 7.17, 7.45, 8.34; see Beijing Declaration and Platform for Action, supra note 8, ¶¶ 89, 96, 106–108, 214, 223–224, 267; Vienna Declaration and Programme of Action,World Conference on Human Rights,Vienna,Austria, June 14–25, 1993, ¶¶ 18, 38, 41, 49, 56, U.N. Doc.A/CONF.157/23 (1993) [hereinafter Vienna Declaration and Programme of Action]. 42. Bringing Rights to Bear, supra note 6, n.629, at 116. 43. ICPD Programme of Action, supra note 17, ¶ 8.25. 44. Id. 45. Beijing Declaration and Platform for Action, supra note 8, ¶ 106(k). 46. Id. ¶ 109(l). 47. See Breaking the Earthenware Jar, supra note 26, ch. 2. 48. World Health Organization (WHO),World Report on Violence and Health, Summary, tbl. 3, at 15 (2002) [hereinafter World Report on Violence and Health]. 49. See Further actions and initiatives to implement the Beijing Declaration and Platform for Action (Annex, Draft Resolution II), Report of the Ad Hoc Committee of the Whole of the twenty-third special session of the General Assembly, New York, 5–9 June 2000, arts. 14, 69(d), U.N. Doc.A/S-23/10/Rev.1 [hereinafter Beijing +5 Review Document]; Radhika Coomaraswamy, Report of the Special Rapporteur on Violence against Women, Its causes and consequences,Addendum: Policies and Practices that Impact Women’s Reproductive Rights and Contribute to, Cause or Constitute Violence against Women ¶¶ 22, 82, U.N. Doc. E/CN.4/1999/68/Add.4 (1999) [hereinafter Report of the Special Rapporteur on Violence against Women]. 50. CEDAW, supra note 30, art. 5. 51. World Report on Violence and Health, supra note 48, at 8. 52. International Federation of Gynecology and Obstetrics (FIGO), Recommendations on Ethical Issues in Obstetrics and Gynecology by the FIGO Committee for the Ethical Aspects of Human Reproduction and Women’s Health 8 (2003), http://www.figo.org/content/PDF/ethics-guidelines-text_2003.pdf (last visited Mar. 31, 2004). 53. Roland-Pierre Paringaux, Pakistan: Cost of a Lie, Le Monde diplomatique, May 2001, http://mondediplo.com/2001/05/13pakistan (last visited Mar. 30, 2004). 54. Musharraf Pledge on Human Rights, BBC News (April 21, 2000), http://news.bbc.co.uk/1/hi/world/south_asia/721622.stm (last visited Mar. 30, 2004). 55. Reproductive Rights 2000, supra note 8, at 46. 56. Committee on the Elimination of Discrimination Against Women (CEDAW), General Recommendation No. 19 on Violence Against Women, 11th Sess., ¶ 1, U.N. Doc.
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PAGE 28
C/1992/L.1/Add.15 (1992). 57. Shefalee Vasudev, Girls for Sale:Trafficking in Girls, India Today, Oct. 13, 2003, at 14, 18 [hereinafter Shefalee Vasudev]. 58. Id. at 14. 59. Report of the Special Rapporteur on Violence against Women, supra note 49, ¶ 16. 60. Id. ¶ 17. 61. National Network Against Girl Trafficking (NNAGT),Women’s Voice (Situation Analysis on the problems faced by Nepalese women):A compilation of article on overall status of women in Nepal 18 (2000) [hereinafter Women’s Voice]. 62. Report of the Special Rapporteur on Violence against Women, supra note 49, ¶ 22. 63. The World Bank Group, South Asia Regional HIV/AIDS Overview & Strategy (2002) available at http://lnweb18.worldbank.org/sar/sa.nsf/0/c90c777d4c2db6af85256a9b0052cb64?Op enDocument (last visited Mar. 30, 2004) [hereinafter South Asia Regional HIV/AIDS Overview & Strategy]. 64. See Lawyers Collective, Legislating an Epidemic: HIV/AIDS in India 127 (2003) [hereinafter Legislating an Epidemic]. 65. CEDAW, supra note 30, art. 6. 66. CRC, supra note 30, art. 35. 67. Id. art. 34. 68. Id. art. 37. 69. International Covenant on Civil and Political Rights, supra note 30, arts. 7–8. 70. Vienna Declaration and Programme of Action, supra note 41 (cited in Eugenia McGill, Asian Development Bank, Regional Technical Assistance No. 5948, Combating Trafficking of Women and Children in South Asia: Supplemental Study on Legal Frameworks Relevant to Human Trafficking in South Asia (2002)). 71. South Asia Regional HIV/AIDS Overview & Strategy, supra note 63. 72. Cathi Albertyn, Prevention,Treatment and Care in the Context of Human Rights (2000), http://www.un.org/womenwatch/daw/csw/hivaids/albertyn.html (last visited Mar. 31, 2004). 73. Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), General Recommendation No. 15 on Avoidance of discrimination against women in national strategies for the prevention and control of acquired immunodeficiency syndrome (AIDS), 9th Sess., U.N. Doc. CEDAW/A/45/38 (1990). 74. Beijing Declaration and Platform for Action, supra note 8, ¶ 37. 75. Declaration of Commitment on HIV/AIDS, U.N.G.A. 26th Special Sess., art. 14, U.N. Doc.A/Res/S-26/2 (2001). 76. Commission on Human Rights,The Protection of Human Rights in the Context of human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS), Commission on Human Rights Res. 1999/49, art. 2, U.N. Doc. E/CN.4/RES/1999/49 (1999), http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.1999.49.En? Opendocument (last visited Mar. 31, 2004). 77. The World Bank Group, Data and Statistics, Regional Tables, South Asia, available at http://www.worldbank.org/data/databytopic/sas_wdi.pdf (last visited Mar. 30, 2004). 78. S. Mitra, Bangladesh Demographic and Health Survey 1999–2000 (2001). 79. Life Circumstances Influence Decisions, 21 Network: Sexual Health (2002), available at http://www.fhi.org/en/RH/Pubs/Network/v21_4/index.htm (last visited Apr. 1, 2004). 80. Committee on Economic, Social and Cultural Rights, General Comment No. 14 on The right to the highest attainable standard of health , 22nd Sess., U.N. Doc. E/C.12/2000/4 (2000) [hereinafter CESCR, General Comment No. 14]. 81. See Legislating an Epidemic, supra note 64, at 214. 82. See Hari Khanal, Reproductive Rights,The Kathmandu Post, Sept. 30, 2003, http://www.nepalnews.com.np/contents/englishdaily/ktmpost/2003/sep/sep30/features.htm (last visited Apr. 1, 2004). 83. See Legislating an Epidemic, supra note 64, at 214. 84. Sama– Resource Group for Women and Health, Unveiled Realities:A study on women’s experiences with Depo-Provera,An injectable contraceptive 5 (2003). 85. See Farida Akhter, Reproductive Rights:A Critique from the Realities of Bangladeshi Women, www.hsph.harvard.edu/Organizations/healthnet/ reprorights/docs/Farida.html (last visited Mar. 31, 2004); see also Mohan Rao, Surreptitious Sterilization:An Endangering Process, Health for Millions, July–Aug. 1997, 26–28. 86. International Covenant on Economic, Social, and Cultural Rights, adopted Dec. 16, 1966, 993 U.N.T.S. 3, art. 12 (entered into force Jan. 3, 1976). 87. CESCR, General Comment No. 14, supra note 80, art. 12. 88. United Nations Population Fund (UNFPA), Population Issues, Supporting Adolescents and Youth, Fast Facts, http://www.unfpa.org/adolescents/facts.htm (last visited Mar. 26, 2004) [hereinafter UNFPA, Population Issues]. 89. Saroj Pachauri & K.G. Santhya, Contraceptive behaviors of adolescents in Asia: Issues and Challenges, in Adolescent Sexual and Reproductive Health: Evidence and Programme Implications for South Asia 109 (In Bott S et al., eds., 2002), http://www.who.int/reproductive-health/publications/towards_adulthood/17.pdf (last visited Mar. 31, 2004). 90. United Nations Population Fund (UNFPA), State of World Population 2003, at 23 (2003). 91. Bringing Rights to Bear, supra note 6, at 197–204; ICPD Programme of Action, supra note 17; Beijing Declaration and Platform for Action, supra note 8.
WOMEN OF THE WORLD:
92. Reproductive Rights 2000, supra note 8, at 60. 93. Department of Economic and Social Affairs, Population Division, United Nations, World Marriage Patterns 2000, http://www.un.org/esa/population/publications/worldmarriage/worldmarriage.htm (last visited Apr. 1, 2004). 94. United Nations Educational, Scientific and Cultural Organization (UNESCO), Adolescent Sexual and Reproductive Health, Demographic Characteristics: Regional Profile,Age at Marriage, available at http://www.unescobkk.org/ips/arh-web/demographics/demosub1-1.cfm (last visited March 13, 2003). 95. UNFPA, Population Issues, supra note 88. 96. Forum for Fact Finding Documenation and Advocacy (A Regd. Society) v. Union of India & Others (S.C. 2003) petition filed, (India Apr. 25, 2003). 97. See Women’s Voice, supra note 61, at 18. 98. UNFPA, Population Issues, supra note 88. 99. Bringing Rights to Bear, supra note 6, n.826, at 149 (citing Consideration of Reports Submitted by States Parties under Article 44 of Convention on the Rights of the Child (CRC), Concluding Observations of the Committee on the Rights of the Child, Kyrgyzstan, CRC Committee, 24th Sess., ¶ 45, U.N. Doc. CRC/C/15/Add.127 (2000)). 100. Breaking the Earthenware Jar, supra note 26, at 85. 101. Id. 102. Report of the Special Rapporteur on Violence against Women, supra note 49. 103. Shefalee Vasudev, supra note 57, at 16. 104. Breaking the Earthenware Jar, supra note 26, at 86. 105. Id. 106. CRC, supra note 30, art. 24(f). 107. Id. 108. Id. arts. 3(1)–(2), 14(2), 18(1). 109. Id. arts. 19, 34. 110. Center for Reproductive Rights, Displaced and Disregarded: Refugees and their Reproductive Rights 1 (2001) [hereinafter Displaced and Disregarded]. See Women’s Commission for Refugee Women and Children Factsheet (Aug. 1996) (on file with the Center for Reproductive Rights). 111. See Women’s Commission for Refugee Women and Children, Still in Need: Reproductive Health Care for Afghan Refugees in Pakistan, Executive Summary (2003). 112. See id. 113. See id. at 4. 114. Displaced and Disregarded, supra note 110, at 3. See Lawyers Committee for Human Rights,African Exodus: Refugee Crisis, Human Rights and the 1963 OAU Convention 82 (1995). 115. See Human Rights Watch,Trapped by Inequality: Bhutanese Refugee Women in Nepal 9 (2003) [hereinafter Trapped by Inequality]. 116. See id. at 38–39. 117. Displaced and Disregarded, supra note 110, at 10–17. See International Covenant on Civil and Political Rights, supra note 30, art. 7; see CEDAW, supra note 30, arts. 5(a), 6, 10(h), 12.1–12.2, 14.2; see CRC, supra note 30, arts. 24.1–24.2, 19.1, 34, 37(a); see also Trapped by Inequality, supra note 115, at 64. 118. See International Covenant on Civil and Political Rights, supra note 30, arts. 2(1), 26. 119. Key Actions for the Further Implementation of the Programme of Action of the International Conference on Population and Development, U.N. GAOR, 21st Special Sess., New York, United States, June 30–July 2, 1999, ¶ 29, U.N. Doc.A/S-21/5/Add.1 (1999). 120. Id. ¶ 54. 121. See Beijing +5 Review Document, supra note 49, art. 15.
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LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES
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1. Bangladesh Statistics GENERAL
Population ■
Total population: 146,700,000.1
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Population by sex: 69,510,190 (female) and 73,854,260 (male).2
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Percentage of population aged 0–14: 37.0.3
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Percentage of population aged 15–24: 20.4.4
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Percentage of population in rural areas: 74.5
Economy ■ Annual percentage growth of gross domestic product (GDP): 4.9.6 ■
Gross national income per capita: USD 360.7
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Government expenditure on health: 1.4% of GDP.8
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Government expenditure on education: 1.3% of GDP.9
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Population below the poverty line: 33.7% (below national poverty line); 36.0% (below USD 1 a day poverty line); 82.8% (below USD 2 a day poverty line).10
WOMEN’S STATUS ■
Life expectancy: 61.8 (female) and 61.0 (male).11
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Average age at marriage: 18.0 (female) and 25.5 (male).12
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Labor force participation: 57.2% (female) and 89.8% (male).13
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Percentage of employed women in agricultural labor force: 77.4.14
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Percentage of women among administrative and managerial workers: 5.15
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Literacy rate among population aged 15 and older: 30.2% (female) and 49.4% (male).16
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Percentage of female-headed households: 9.17
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Percentage of seats held by women in national government: 2.18
CONTRACEPTION ■
Total fertility rate: 3.46 lifetime births per woman.19
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Contraceptive prevalence rate among married women aged 15–49: 54% (any method) and 43% (modern methods).20
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Prevalence of sterilization among couples: 8.7% (total); 7.6% (female); 1.1% (male).21
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Sterilization as a percentage of overall contraceptive prevalence: 17.7.22
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WOMEN OF THE WORLD:
MATERNAL HEALTH ■
Lifetime risk of maternal death: 1 in 42 women.23
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Maternal mortality ratio per 100,000 live births: 377.24
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Percentage of pregnant women with anemia: 53.25
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Percentage of births monitored by trained attendants: 13.26
ABORTION ■
Total number of abortions per year: 100,300.27
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Annual number of hospitalizations for abortion-related complications: 71,800.28
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Rate of abortion per 1,000 women aged 15–44: 3.8.29
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Breakdown by age of women obtaining abortions: 14.6% (under 20);25.6% (between 20–24);24.2% (between 25–29);20.6% (between 30–34); 11.1% (between 35–39); 3.9% (40 or older).30 Percentage of abortions that are obtained by married women: 96.7.31
SEXUALLY TRANSMISSIBLE INFECTIONS (STIs) AND HIV/AIDS ■
Number of people living with sexually transmissible infections: Information unavailable
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Number of people living with HIV/AIDS: 13,000.32
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Percentage of people aged 15–24 living with HIV/AIDS: 0.01 (female) and 0.01 (male).33
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Estimated number of deaths due to AIDS: 650.34
CHILDREN AND ADOLESCENTS ■
Infant mortality rate per 1,000 live births: 64.35
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Under five mortality rate per 1,000 live births: 97 (female) and 88 (male).36
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Gross primary school enrollment ratio: 101% (female) and 100% (male).37
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Primary school completion rate: 76% (female) and 68% (male).38
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Number of births per 1,000 women aged 15–19: 117.39
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Contraceptive prevalence rates among married female adolescents: 27.8% (modern methods); 4.9% (traditional methods); 32.9% (any method).40
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Percentage of abortions that are obtained by women younger than age 20: 14.6.41
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Number of children under the age of 15 living with HIV/AIDS: 310.42
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ENDNOTES 1. See United Nations Population Fund (UNFPA),The State of World Population 2003, at 75 (2003) [hereinafter The State of World Population 2003]. Estimates for 2003. 2. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003) [hereinafter UNFPA Country Profiles]. Estimates for 2001. 3. See The World Bank,World Development Indicators 2003, at 38 (2003) [hereinafter World Development Indicators 2003]. Estimates for 2001. 4. See UNFPA Country Profiles, supra note 2. 5. See The State of World Population 2003, supra note 1, at 75. Estimates for 2001. 6. See World Development Indicators 2003, supra note 3, at 186 (2003). Estimates for 1990-2001. 7. See The World Bank,World Development Indicators 2003, Data Query, available at http://devdata.worldbank.org/data-query/ (last visited Feb. 24, 2004). The statistical figure was obtained through the Atlas method. Estimates for 2002. 8. See The State of World Population 2003, supra note 1, at 75. 9. See United Nations, Infonation, Government Education Expenditure, available at http://www.un.org/Pubs/CyberSchoolBus/infonation/e_infonation.htm (last visited Dec. 18, 2003). Estimates for 1990-99. 10. See World Development Indicators 2003, supra note 3, at 58. The statistical figures were based on 2000. 11. See The State of World Population 2003, supra note 1, at 71. 12. See UNFPA Country Profiles, supra note 2. 13. See id. 14. See World Health Organization South-East Asia Region (WHOSEA),Women’s Health in South-East Asia,Women’s health and development indicators- Bangladesh, at http://w3.whosea.org/women/regtab_ban.htm (last visited Aug. 19, 2003). Estimates for 1995-96. 15. See United Nations,The World’s Women 2000, at 146 (2000) [hereinafter World’s Women 2000]. 16. See UNFPA Country Profiles, supra note 2. 17. See World’s Women 2000, supra note 15, at 48. Estimates for 1991/1997. 18. See Save the Children, State of World’s Mothers 2003, at 39 (2003) [hereinafter State of World’s Mothers 2003]. This indicator represents the percentage of seats in national legislatures or parliaments occupied by women. 19. SeeThe State of World Population 2003, supra note 1, at 75. 20. See id. 21. See EngenderHealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002). Estimates for 1996-97. 22. See id., tbl. 2.5, at 55. Estimates for 1996-97. 23. See WHO et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), UNFPA 42 (2000). Estimates for 1995. 24. See The State of World Population 2003, supra note 1, at 71. 25. See State of World’s Mothers 2003, supra note 18, at 39. 26. SeeThe State of World Population 2003, supra note 1, at 75. 27. See Stanley K. Henshaw et al., The Incidence of Abortion Worldwide, 25 Int’l Fam. Planning Persp. S30-S38 (Supp. 1999), available at http://www.agi-usa.org/pubs/journals/25s3099.html (last visited Aug. 19, 2003). Estimates for 1995-96. 28. See id. Number includes 19,400 women hospitalized due to complications resulting from a menstrual regulation procedure. Estimate for 1995-96. 29. See United Nations (UN), Population Division, Department of Economic and Social Affairs, United Nations World Abortion Policies 1999, U.N. Doc. ST/ESA/SER.A/178 (1999), available at http://www.un.org/esa/population/publications/abt/abt.htm (last visited Aug. 20, 2003). Estimates for 1995-96. 30. See Akinrinola Bankole et al., Characteristics of Women Who Obtain Induced Abortion:A Worldwide Review, 25 Int’l Fam. Planning Persp. 68-77 (1999) [hereinafter Akinrinola Bankole et al.], available at http://www.agi-usa.org/pubs/journals/2506899.html (last visited Aug. 21, 2003). The statistical figure was obtained through ad hoc surveys and hospital records. 31. See id. The statistical figures were obtained through ad hoc surveys and hospital records. Estimates for 1991. 32. See UNAIDS & World Health Organization (WHO), Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections Updated 18 August 2003: Bangladesh 2 (2003) [hereinafter UNAIDS], available at http://www.who.int/GlobalAtlas/home.asp (last visited Aug. 18, 2003). Estimates for 2001.
33. See The State of World Population 2003, supra note 1, at 71. 34. See UNAIDS, supra note 32, at 2. 35. See The State of World Population 2003, supra note 1, at 71. 36. See UNFPA Country Profiles, supra note 2. 37. See The State of World Population 2003, supra note 1, at 71. The ratios indicate the number of students enrolled per 100 individuals in the appropriate age-group. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts, interrupted schooling or grade repetition. 38. See id. 39. See id. 40. See Saroj Pachauri & K.G. Santhya, Reproductive Choices for Asian Adolescents:A Focus on Contraceptive Behavior, 28 Int’l Fam. Planning Persp. 186-195 (2002), available at http://www.agi-usa.org/pubs/journals/2818602t.html (last visited Aug. 21, 2003). Estimates for 1991. 41. See Akinrinola Bankole et al., supra note 30. The statistics were obtained through ad hoc surveys and hospital records. 42. See UNAIDS, supra note 32, at 2.
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B
angladesh was part of the Mauryan Empire, the first great indigenous empire on the Indian subcontinent, until the third century. The region passed into the control of Muslim princes in the thirteenth century and the territory comprising present-day Bangladesh was absorbed into the Moghul Empire three centuries later.1 By 1757, the British East India Company had gained total dominion over the Moghul Empire, and transferred sovereignty to the British Crown a century later.2 In 1947, the Indian subcontinent was partitioned along religious lines,resulting in the creation of largely Hindu India and Muslim East and West Pakistan.3 Frictions over ethnicity,language,economy,and class developed between East and West Pakistan, which were separated by 1,600 miles of Indian territory. The two regions grew further apart during the 1950s and 1960s.4 In 1963, Sheikh Mujibur Rahman (Mujib), who would later become Bangladesh’s first prime minister, took control of East Pakistan’s dominant political party, the Awami League (People’s League).5 Mujib, a strong proponent of East Pakistani autonomy, spearheaded the movement for independence in the 1960s.6 In 1970, the Awami League won control of the national assembly in Pakistan’s first direct elections, which promised the league control of the government with Mujib as prime minister.7 However, the convening of the assembly’s inaugural session was indefinitely postponed as Mujib called for a general strike and demanded that his government be given sovereign control of East Pakistan.8 Negotiations ensued between Pakistan’s West Pakistan–dominated national government and the Awami League; the negotiations eventually collapsed,leading to the government’s decision to resolve the “problem” of East Pakistan by repression.9 A bloody crackdown by the Pakistani army in East Pakistan on March 25, 1971, led to the first proclamation of an “independent, sovereign republic of Bangladesh”the very next day and the formation of an independent government in December of that year.10 The Constitution of the People’s Republic of Bangladesh was adopted on November 4, 1972.11 Power changed hands among several leaders during the remainder of the century. Mujib was assassinated in 1975 and was succeeded by Major General Zia Rahman in 1978, who introduced a multiparty presidential system of government.12 He was assassinated shortly thereafter.13 Lieutenant General Hossain Mohammad Ershad seized power in a 1982 coup and declared Bangladesh an Islamic Republic in 1988, but resigned in 1990 in the face of opposition.14 The Bangladesh Nationalist Party won parliamentary elections in 1990 and Begum Khaleda Zia, Rahman’s widow, became the first female prime minister of Bangladesh. A 1991 constitutional
WOMEN OF THE WORLD:
amendment returned Bangladesh to a parliamentary system of governance, with the prime minister serving as head of government and the president serving a largely ceremonial role.15 The Bangladesh Nationalist Party lost in the 1996 elections to the Awami League, but returned to power in 2001, with Khaleda Zia again leading the government as prime minister.16 There are an estimated 129 million people living in Bangladesh, the majority of whom are Bengali; a small percentage are non-Bengali Muslims or from tribal groups.17 Although the official language is Bangla, English is widely used as an unofficial second language.18 Islam is the predominant religion in Bangladesh (83% of the population), followed by Hinduism (16%) and Buddhism and Christianity (1% combined).19 Bangladesh has hosted large refugee populations over the past decade. Some 250,000 Muslim refugees fled to Bangladesh from Burma between 1991 and 1992 because of religious and other forms of persecution.20 Most of these refugees have since repatriated, although some 21,900 of this original group remain in Bangladesh and are recognized as refugees by the government.21 The government does not, however,recognize an estimated 100,000 additional Burmese who fled to Bangladesh since 1993; it considers them to be illegal immigrants.22 There are also some 60,000 internally displaced ethnic groups, mostly Chakma, and an unknown number of internally displaced Hindus and other religious minorities.23 Bangladesh has been a member of the United Nations (UN) since 1974.24 It is also a member of the Commonwealth of Nations, Organization of Islamic Conference, and South Asian Association for Regional Cooperation (SAARC).25
I. Setting the Stage:
The Legal and Political Framework of Bangladesh Fundamental rights are rooted in a nation’s legal and political framework, as established by its constitution. The principles and goals enshrined in a constitution along with the processes it prescribes for advancing them, determine the extent to which these basic rights are enjoyed and protected. A constitution that upholds equality, liberty and social justice can provide a sound basis for the realization of women’s human rights, including their reproductive rights. Likewise,a political system
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BANGLADESH
committed to democracy and the rule of law is critical to establishing an environment for advancing these rights. The following section outlines Bangladesh’s legal and political framework. A. THE STRUCTURE OF NATIONAL GOVERNMENT
The preamble to the constitution establishes the “high ideals of absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice…” as fundamental principles of the constitution.26 The constitution provides for a parliamentary system of government, and outlines the roles of the three branches of government: executive, legislative and judicial. Executive branch The president, who is largely a figurehead, serves as chief of state and is elected by the parliament.27 He or she is also commander in chief of the armed forces.28 The president makes the appointments of the prime minister and the Chief Justice of the Supreme Court independently; all other presidential powers are exercised with the advice of the prime minister.29 Such powers include the authority to appoint ministers of state,deputy ministers and other ministers,as well as judges for the Supreme Court and other courts throughout the country;summon,prorogue and dissolve parliament;grant pardons, reprieves and respites; and remit, suspend or commute any sentence passed by any court, tribunal or other authority.30 All international treaties must first be submitted to the president, who then presents them to parliament for ratification.31 The president may serve up to two five-year terms, which need not be consecutive.32 The Thirteenth Amendment to the Constitution, known as the Caretaker Government Amendment, significantly enhances the president’s role when, at presidential direction, parliament is dissolved and a caretaker government is installed to supervise new elections.33 Under such an interim government, the president’s powers are considerably increased: he or she has control over the Ministry of Defense;the authority to declare a state of emergency; and the power to appoint and dismiss a “chief advisor” and other members of the caretaker government.34 The caretaker government is collectively responsible to the president, and carries out routine government functions until a new parliament is elected and the president’s powers revert to their normal level.35 The prime minister, who serves as the head of government, holds most of the executive power in government.36 The president appoints as prime minister the parliamentarian who commands the support of the majority of members of parliament.37 The prime minister heads the cabinet, known as the Council of Ministers, which serves primarily to advise
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the president in the exercise of his or her duties.38 The council is collectively accountable to parliament.39 Legislative branch The constitution provides for a unicameral legislature, known as the House of the Nation.40 It consists of 300 members elected by popular vote every five years from single territorial constituencies.41 A constitutional amendment reserving an additional 30 seats for women expired in May 2001,however,the government recently approved a draft proposal to reserve 45 parliamentary seats for women.42 Parliament automatically dissolves five years from the date of its first meeting, unless the president dissolves it sooner.43 Parliament’s principal function is to create laws.44 Every proposed bill must be presented to the president for approval.45 The president then has 15 days to assent to the bill or remand it to parliament for reconsideration or amendment.46 If the president fails to respond to a bill, it is automatically considered to be approved.47 Bills concerning monetary issues may not be introduced in parliament without a recommendation by the president. Parliament may amend the constitution by a two-thirds majority vote.48 In addition to its legislative powers, parliament has the power to levy taxes.49 B. THE STRUCTURE OF LOCAL GOVERNMENTS
For administrative purposes, the country is divided into six divisions: Barisal, Chittagong, Dhaka (the capital), Khulna, Rajshahi, and Sylhet.50 Each division is further divided into 64 zilas (districts).51 Below zilas, there are further urban and rural subdivisions.52 In rural areas, zilas are subdivided into 507 thanas (subdistricts), below which are about 4,479 unions.53 Below unions are over 86,000 villages.54 In urban areas, the main subdivisions are 6 city corporations and more than 200 municipalities.55 These are further subdivided into a number of wards.56 The central government exerts a great deal of control over local government bodies in all aspects: it determines their structure, composition and functions; formulates detailed rules that govern the authority of elected members, the assessment of taxes and other important areas; and exercises wide authority in local financial and administrative matters.57 The central government must also approve all regulations made by local bodies.58 Executive branch Bangladesh’s six divisions are each governed by a divisional commissioner.59 The commissioner has only a supervisory role in relation to the division’s departments and agencies, which are directly linked to a correlate office at the central level.60 He or she also coordinates the administration of local
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bodies at the zila level.61 Zilas are the focal point of Bangladesh’s administrative system.62 Each zila within a division is headed by a deputy commissioner, who is assisted by a large number of officials and other personnel appointed by the central government.63 The responsibilities of zila administrations include preparation of annual and mid-term plans, physical infrastructure projects and administration of rural development programs.64 Legislative branch Local government consists of locally elected bodies. These bodies are called union parishads (union councils) in rural areas,and city corporations and pourashavas (municipalities) in urban areas.65 Seats are reserved for women in all local government bodies.66 Union parishads consist of a chairman and 12 members. Their main responsibilities include maintaining law and order;adopting and implementing development plans in agriculture, education, health, cottage industries, and other areas; promoting family planning; implementing assigned schemes; protecting and maintaining public property; reviewing the development activities of all union-level agencies; and registering births and deaths.67 Pourashavas and city corporations are headed by a chairperson and mayor, respectively, and are made up of other elected officials.68 These bodies are authorized to perform various socioeconomic and civic functions.69 Their responsibilities include constructing and maintaining physical infrastructure;overseeing refuse management;regulating the water supply;preventing infectious diseases and epidemics;and registering births, deaths and marriages.70 Members of urban local governments serve a five-year term.71 C. THE JUDICIAL BRANCH
The Supreme Court is made up of the Appellate Division (upper division, based in the capital), and the High Court Division (lower division,with seven regional benches).72 The law declared by the Appellate Division is binding on all courts below it, including courts comprising the High Court Division.73 The Appellate Division hears appeals from the High Court Division.74 Appeals are a matter of right in cases involving substantial questions of constitutional law; a sentence of death or life imprisonment; punishment for contempt of the High Court Division; or other cases as provided by acts of parliament.75 The Appellate Division also has discretion to grant appeals to cases that fall outside these categories.76 In addition, the president may refer any question of law that is of public importance to the Appellate Division.77 The High Court Division has original jurisdiction and may hear appeals from district courts.78 It may also withdraw a
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case from a lower court and hear the case itself if it involves a substantial question of constitutional law or is of general public importance.79 The president appoints a chief justice and other judges for the Appellate Division and the High Court Division.80 Judges may hold office until the age of 65.81 However, the president may remove a judge on grounds of “physical or mental incapacity” or “gross misconduct” upon the advice of the Supreme Judicial Council, a constitutionally mandated body that inquires into the conduct and capacity of tenured judges.82 There is a complex system of civil and criminal courts under the High Court Division, as well as courts and tribunals of special jurisdiction at the village level.83 Civil courts include the Court of the District and Additional District Judge,the Court of the Subordinate Judge,the Court of the Assistant Judge, and other lower courts.84 The ordinary criminal court system is made up of different levels of sessions and magistrates’ courts.85 The 1985 Family Court Ordinance established a system of family courts at the zila and thana levels.86 These courts have exclusive jurisdiction over all matters relating to the dissolution of marriage, restitution of conjugal rights, dower (a sum of money or property given to the bride by the groom in consideration of Muslim marriage), maintenance, guardianship, and custody of children.87 Special statutory tribunals have also been established to hear cases specifically involving offenses against women. The 1974 Special Powers Act provides for the establishment of “special tribunals” for the “speedy trial [and] effective punishment of certain grave offenses.”88 Such tribunals consist of one or more sessions judges or a magistrate.89 Offenses that are triable under the act include certain “prejudicial act[s]” and offenses related to violence against women, including rape.90 The 2000 Prevention of Oppression Against Women and Children Act similarly provides for the establishment of one or more tribunals in each zila to try offenses under the act.91 Such tribunals consist of one government-appointed district or sessions judge and additional district or sessions judges.92 In addition, administrative tribunals established by parliament exercise jurisdiction over certain issues, including the terms and conditions of public servants, and the acquisition, administration and disposal of personal property vested in or managed by the government.93 Customary forms of alternative dispute resolution Shalish are traditional, informal dispute-settling mechanisms at the village level.94 These bodies play a central role in rural life and retain popular support.95 Generally, any villager with a grievance may petition to
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have a shalish hear his or her case.96 A shalish is then formed, usually consisting of village elders or prominent leaders known as village matbars.97 The shalish may engage in mediation or, as is more often the case, arbitration, and issue binding verdicts on both parties.98 Typical cases involve family or land disputes, inheritances and petty theft.99 In recent years, shalish arbitration has been used by selfappointed village religious leaders to declare fatwas (religious edicts issued by Muslim clergy) that impose extrajudicial punishments, such as whipping or stoning to death, mostly against women for perceived moral transgressions.100 Islam dictates that fatwas may only be declared by Mufti (religious scholars) with expertise in Islamic law.101 In January 2001, a high court issued a landmark ruling declaring all fatwas illegal, intending to end the extrajudicial enforcement of fatwas such as those issued by shalish.102 However, in declaring all fatwas illegal, the court’s ruling sparked violent public protests, with Muslim groups calling the ruling an attack on their religious freedom.103 D.THE ROLE OF CIVIL SOCIETY AND NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
The NGO Affairs Bureau is the governmental body responsible for regulating NGOs in Bangladesh.104 The law requires that all NGOs register with the bureau and renew their registration every five years.105 The bureau must approve all NGO projects and foreign funding for projects.106 More than 950 NGOs operate in Bangladesh.107 Of these, about 780 are involved in microcredit, education, sanitation, and nutrition programs, and about 175 work in family planning, providing about one-fourth of the country’s overall family planning services.108 A large number of NGOs also focus on women’s issues.109 Development NGOs work in about 78% of villages, benefiting about 24 million people.110 The Family Planning Association of Bangladesh is the country’s oldest and largest NGO providing sexual and reproductive health services.111 The organization has 20 branches and 11 special work units throughout the country, and is supported by a wide network of professionals and some 3,000 volunteers.112 E. SOURCES OF LAW AND POLICY
Domestic sources The principal domestic sources of law in Bangladesh are the constitution and legislation. The constitution is the “supreme law” of the land and claims to represent the “solemn expression of the will of the people.”113 It enumerates the enforceable fundamental rights of all citizens, including the rights to equality before the law,the protection of the law and the prohibition of discrimination based on religion,race,caste,sex,or
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place of birth.114 Other enforceable rights include freedom of movement, assembly, association, thought and conscience, speech, and religion.115 The constitution also issues several broad directives to the state,called the Fundamental Principles of State Policy, that are not legally enforceable but provide guidance to the government in performing its functions.116 Legislation comprises laws made by or under the authority of parliament, orders, regulations made by a government ministry under the authority of a statute, and bylaws made by local government or other authorities exercising powers conferred upon them by the legislature.117 As a by-product of colonial rule, legislation modeled after English common law still governs many private and commercial spheres in Bangladesh.118 The main codifications of law include the 1860 Penal Code and the 1898 Code of Criminal Procedure. There is no comprehensive code of family law.119 Existing laws are reviewed periodically by the Law Commission, a statutory body constituted under the 1996 Law Commission Act.120 The commission’s primary functions include recommending amendments to discriminatory laws and enactments of new laws that protect women’s and children’s rights; identifying conflicts between existing laws and recommending the codification of laws on the same subject; and recommending the reform of laws that are inconsistent with fundamental rights.121 The religious personal laws of Bangladesh’s various religious communities govern matters within the private sphere, including marriage,divorce,custody,inheritance,and maintenance. With respect to the Muslim community in Bangladesh,certain provisions of Sharia (Islamic injunctions as laid down in the Quran and Sunnah) have been codified into legislation, such as the 1961 Muslim Family Laws Ordinance.122 There is also a significant non-Muslim population to whom Sharia is not applicable, and whose own religious laws govern matters related to private and family life.123 Government policies are formulated within the broad framework of the constitution and its Fundamental Principles of State Policy, and have traditionally been articulated and put into operation through successive five-year development plans. These plans are comprehensive policy documents that set forth the government’s main objectives in various areas of national development, including health, poverty reduction, education, and population. They include specific objectives and programmatic measures targeted toward marginalized groups, including women and children. The Fifth Five Year Plan, covering 1997–2002, was the most recent operative five-year plan.124 In 2003, the government announced the National
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Strategy for Economic Growth, Poverty Reduction and Declaration and Platform for Action; and the 2000 United Social Development, a three-year development plan preNations Millennium Declaration.135 Bangladesh is also a signatory to the SAARC Convention pared in consultation with various domestic stakeholders on Preventing and Combating Trafficking in Women and and development partners such as the World Bank and the Children for Prostitution, and the SAARC Convention on International Monetary Fund.125 The document provides broad national strategies for achieving Bangladesh’s develRegional Arrangements for the Promotion of Child Welfare opment goals in light of the country’s national priorities in South Asia.136 126 The and the UN Millennium Development Goals. strategy is to be finalized by December 2004.127 Although the government has not officially resigned the five-year plans, it has indicated that such three-year plans will form the basis of Bangladesh’s future development planning.128 International sources In general, reproductive health issues are addressed through a Bangladesh has ratified several UN treaties and convenvariety of complementary, and sometimes contradictory, laws tions including: the Convention on the Elimination of All and policies. The manner in which these issues are addressed Forms of Discrimination Against Women (CEDAW); the reflects a government’s commitment to advancing reproducConvention on the Rights of the Child (Children’s Rights tive health. The following section presents key legal and polConvention); the International Convention on the Eliminaicy provisions that together determine women’s reproductive tion of All Forms of Racial Discrimination (Racial Discrimrights and choices in Bangladesh. ination Convention); the International Covenant on Civil A. GENERAL HEALTH LAWS AND POLICIES and Political Rights (Civil and Political Rights Covenant); The constitution’s Fundamental Principles of State Policy and the International Covenant on Economic, Social and promise government provision of the “basic necessities of life, Cultural Rights (Economic, Social and Cultural Rights including … medical care” to citizens of Bangladesh.137 The 129 Covenant). Bangladesh has also ratified the Optional Proprinciples further proclaim that the “[s]tate shall regard the tocol to CEDAW.130 raising of the level of nutrition and the improvement of pubBangladesh ratified CEDAW with reservations to several lic health as moving its primary duties articles on the grounds that they …”138 The principles include a sepaconflict with Sharia law.131 These rate provision for the improvement of articles address methods to eliminate RELEVANT LAWS AND POLICIES public health in rural areas.139 discrimination against women;equal • National Health Policy, 2000 Since independence, the governrights to family benefits; and the • Health, Nutrition and Population ment has undertaken several initiaelimination of discrimination in Sector Programme, 2003–2006 tives to address the population’s health 132 marriage and the family. • National Strategy for Economic needs, particularly those of the rural Bangladesh withdrew its reservations Growth, Poverty Reduction and population.140 Currently,the Nationto the articles relating to equal rights Social Development al Health Policy, approved by the cabto family benefits and the elimina• Private Medical Service Act, 2003 inet in 2000, the Health, Nutrition tion of discrimination in the family and Population Sector Programme 133 in 1997. In 1996, the Ministry of for 2003–2006 and the National Strategy for Economic Women and Children’s Affairs instituted a committee to Growth, Poverty Reduction and Social Development proreview and make recommendations relating to the governvide the health policy framework.141 ment’s reservations to CEDAW.134 Objectives The government of Bangladesh has also participated in The government’s commitments under the constitution several key international conferences and endorsed the and various international conventions and consensus docudevelopment goals and human rights principles contained ments, including the ICPD Programme of Action and the in the resulting consensus documents. International conBeijing Declaration and Platform for Action, inform the sensus documents the government has adopted include the goals, policy principles and strategies of the National Health 1993 Vienna Declaration and Programme of Action; the Policy.142 The policy’s goals are the following: 1994 International Conference on Population and Devel■ develop the health and nutritional status of the opment (ICPD) Programme of Action; the 1995 Beijing
Examining Reproductive Health and Rights II.
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population and make necessary basic medical services available to all people; ■ develop a system to ensure easy and sustained availability of health services in both urban and rural areas; ■ ensure optimum quality, acceptability and availability of government primary health-care services at the thana and union levels; ■ reduce malnutrition, especially among mothers and children, and implement effective and integrated programs to improve the nutritional status of all segments of the population; ■ undertake programs to reduce the rates of maternal and child mortality over the next five years to an “acceptable level”; ■ adopt measures to ensure improved maternal and child health at the union level and institute facilities in each village for safe childbirth; ■ improve overall reproductive health resources and services; ■ ensure the presence of full-time doctors, nurses and other medical staff, and provide and maintain necessary medical equipment and supplies, at government health-care facilities at the thana and union levels; ■ devise ways for people to make optimum use of available government health-care facilities and services, and ensure quality of management and service delivery at government hospitals; ■ formulate specific laws and policies to regulate medical colleges and private health clinics; ■ strengthen and expedite the family planning program to achieve replacement level fertility; ■ explore ways improve the acceptability, accessibility and effectiveness of the family planning program among low-income communities; ■ arrange special health services for people with physical and mental disabilities and the elderly; ■ determine ways to make the family planning program and health management more accountable and cost-effective by using more skilled personnel; and ■ introduce systems for the treatment of all types of “complicated diseases” and reduce the need for foreign travel to obtain necessary medical treatment.143 Underlying the policy and its goals are several principles, which include the following: ■ to enable every citizen, especially women and children, to obtain health, nutrition and reproductive health services on the basis of social justice and equality and constitutional rights;
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to make essential primary health-care services available in all regions of the country; ■ to promote local participation in health planning, management, fundraising, and monitoring of service delivery with the aim of decentralizing health management and establishing people’s rights and responsibilities in the health system; ■ to encourage collaboration between the government and the NGO sector to ensure effective health-care delivery; ■ to ensure the availability of family planning methods through integrating, expanding and strengthening family planning activities; ■ to encourage adoption and application of effective and efficient technology, operational development and research activities to strengthen and increase the use of health, nutrition and reproductive health services; and ■ to provide legal support with respect to the rights and responsibilities of health-care providers and clients.144 The policy also enumerates an exhaustive list of strategies to implement its goals. Some highlights of the strategies are the following: ■ emphasize services for disease prevention and health promotion; ■ use cost-effective methods to maximize the availability of high-quality health services; ■ ensure the availability, efficacy and affordability of essential medicines in light of current needs; ■ integrate an epidemiological surveillance system with disease control programs and assign responsibility for the system to a specific institution; ■ implement a management information system and a computerized communication system nationwide to facilitate planning, implementation and monitoring of health services; ■ establish a National Training Institute to provide training and continuing medical education to public and private health personnel; ■ establish health and nutrition education units in each thana; ■ charge minimum user fees in public hospitals and clinics to maintain a safety net for low-income and disabled clients; ■ encourage NGOs to play a complementary role to the government in providing health services; ■ design and implement an effective referral system to link the various tiers of health services; ■
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provide client-centered general health and reproductive health services; and ■ adopt a strategy of providing a package of essential health services at a “one-stop center” and introduce it nationwide.145 The government developed the Health, Nutrition and Population Sector Programme to improve upon the Health and Population Sector Programme,which expired in 2003.146 The new program’s stated goals are in line with the country’s overall development policies and aim to achieve “sustainable improvement of the health, nutrition and family welfare” of the population, especially of low-income and vulnerable groups such as women, children and the elderly.147 Building upon the prior program’s goal of providing a package of core health-care services, called the Essential Services Package, the Health,Nutrition and Population Sector Programme aims to increase the availability and utilization of the package and include additional select services.148 It also strives to ensure that services are “user-centered, effective, efficient, equitable, affordable, and accessible.”149 The components of the Essential Services Package include the following: ■ reproductive health care, including maternal and adolescent nutrition; ■ child health care and nutrition; ■ communicable disease control; ■ limited curative care; and ■ behavior change communication.150 The program also proposes to upgrade physical healthcare facilities and improve staff deployment in the delivery of essential services.151 The program has the following priority objectives: ■ reduce the maternal mortality rate; ■ reduce the total fertility rate; and ■ reduce malnutrition; ■ reduce the mortality rates of infant and children under age five; and ■ reduce the burden of tuberculosis and other diseases.152 The program sets forth a series of detailed strategies and targets to help achieve each of the above objectives. (See “Reproductive Health Laws and Policies” for specific strategies related to reproductive health.) It additionally provides strategies in the following areas: ■ provision of essential health services through newly designated local facilities; ■ accessibility and quality of care of secondary and tertiary hospital services; ■ control and prevention of public health issues; and ■ prevention of injuries due to violence and accidents.153 ■
The goals and priorities of the Health,Nutrition and Population Sector Programme fit within the framework of the National Strategy for Economic Growth,Poverty Reduction and Social Development.154 In light of the “constitutional obligation of developing and sustaining a society in which the basic needs of all people are met,” the strategy aims to substantially reduce poverty in Bangladesh in the next generation.155 It hopes to achieve ten goals by 2015, several of which relate to improving the health status of the population. Vis-à-vis health, its goals are the following: ■ reduce mortality rates among infants and children under age five by 65% and eliminate gender disparity in child mortality; ■ reduce the proportion of malnourished children under age five by 50% and eliminate gender disparity in child malnutrition; ■ reduce the maternal mortality rate by 75%; and ■ ensure access to reproductive health services to all people.156 The strategy highlights several policy priorities in the health sector, which include the following: ■ address “pro-poor concerns” in the health sector; ■ control communicable diseases; ■ improve maternal and child health to reduce high child and maternal mortality rates; ■ ensure implementation and accessibility of a package of essential health services, with a focus on the health needs of low-income and vulnerable groups in both urban and rural areas; ■ include services for noncommunicable diseases in the package of essential health services; ■ provide subsidized family planning methods, especially to low-income women; ■ address emerging health problems such as arsenic and dengue; ■ enhance the health sector’s capacity to address HIV/AIDS and take measures to assess the prevalence of the problem; ■ enhance the public health sector’s ability to manage new threats to the health of the population; ■ mobilize resources from external sources in financing health services; ■ substantially improve the present level of health sector governance; ■ decentralize the delivery of health services; ■ increase local participation in the health sector, particularly of women and low-income groups; ■ improve accessibility to modern health services; and ■ strengthen nutrition programs at the institutional
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staffed by 10 doctors, 26 nurses and 33 other staff, and prolevel and provide a “nutrition-support package” to vides an average of 68,000 outpatient visits, 7,000 inpatient the lowest-income segment of the population and 157 admissions and 1,200 operations per year.171 There are about vulnerable groups through existing food programs. Infrastructure of health-care services 59 district hospitals in the country.172 Medical college hospitals are larger inpatient medical facilGovernment facilities ities that offer more sophisticated and differentiated services The Ministry of Health and Family Welfare is the main than lower-level facilities.173 Their bed size ranges from 540 governmental body responsible for the formulation and to 1,100, and each is staffed by 40–90 doctors and 140–370 implementation of national health policies, and the adminisnurses.174 No data is available on the number of medical tration,coordination and management of the health-care and 158 The ministry is college hospitals and the specific services and number of family planning service delivery system. made up of two separate directorates for health and family specialized hospitals. welfare, each of which is headed by a director general, who is The government health-care infrastructure also includes responsible to the minister.159 The Directorate of Health Serfacilities that focus on the provision of maternal and child vices, which employs more than 75,000 health personnel, is health and family planning services. At the zila and thana levresponsible for curative care and some aspects of public health, els, maternal and child welfare centers provide birth spacing such as immunization.160 The Directorate of Family Planmethods, perinatal health care to mothers, menstrual regulaning is responsible for family planning services and some tion services, and primary health care to children under age maternal and child health services, such as prenatal care.161 five.175 There are about 96 of these facilities.176 Below the Public health-care services are delivered through a hierarthana level, union health and family welfare centers are the chy of government hospitals and other focal point for family planning and facilities, which are categorized into health services.177 There are some RELEVANT LAWS AND POLICIES 3,000 of these facilities.178 (See “Famifour primary groups: • National Reproductive Health ■ thana health complexes; ly planning services”for more informaStrategy, 1997 ■ district and general hospitals; tion on government delivery of family • Health, Nutrition and Population ■ medical college hospitals; and planning services.) Sector Programme, 2003–2006 162 ■ specialized hospitals. While the government has concen• National Health Policy, 2000 Thana health complexes, which trated on expanding health services, the • Drugs Act, 1940; and Drugs exist at the thana level, are considered ratio of providers to patients is still high. (Control) Ordinance, 1982 primary-level facilities and provide According to 1997 data, the doctor to • Technical Information on Various only very basic medical services and population ratio was 1 to 5,506,and the Contraceptive Methods, Ministry operations (complicated cases are hospital bed to population ratio was 1 of Health and Family Welfare, referred to district hospitals).163 The to 3,231.179 1997 Privately run facilities typical facility has 31 beds and is • National Food and Nutrition Due to recent trends toward greater staffed by about 5 doctors,6 nurses and Policy, 1997 164 On average, one privatization and trade liberalization, 31 other staff. • Penal Code, 1860 facility provides 50,000 outpatient visprivately owned and managed hospitals, • Safe blood legislation, 2002 its, 2,300 inpatient admissions and 200 clinics and diagnostic laboratories have • National Policy on HIV/AIDS and 165 There are operations per year. become actively involved in the proviSTD Related Issues, 1997 about 402 of these facilities in the sion of health-care services.180 There • National Strategic Framework, 166 were 2,003 private health service estabcountry. A large proportion include 2002–2006 units that provide maternal and child lishments operating in the country in • Population policy 167 health services. 1996–97,87% of which were located in District and general hospitals are secondary-level facilities urban areas, and about 46% in Dhaka alone.181 Slightly more at the zila level.168 Like thana health complexes,they provide than half of all private health-care facilities are pathology labbasic medical services, but they have more inpatient facilities oratories.182 About 25% of all facilities are unregistered and unapproved by the government.183 According to 1996–97 and staff, and are equipped with more sophisticated basic data, there were 21,785 doctors in the private health sector, equipment (such as X-ray machines) and also perform major compared with only 1,717 doctors in the public health secsurgery.169 District and general hospitals typically have a bed 170 size of 50 or 100. A 100-bed district hospital is typically tor.184 In contrast, there was much less disparity between the
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two sectors in the total number of nurses and other healthrelated providers in the country.185 In an effort to improve the quality of care in the private health sector, the cabinet approved the Private Medical Service Act in 2003.186 The act, which aims to ensure standard service provision in private clinics, laboratories and diagnostic centers, is scheduled for parliamentary review.187 One of its main objectives is to remedy the ineffective regulation of private medical facilities under existing law.188 NGOs also fill a critical role in the provision of health-care services. Some 400 NGOs are involved in such activities.189 Financing and cost of health-care services Government financing Government expenditure on health constituted 36.4% of total expenditure on health and 7.1% of total general government expenditure,or Tk 293.75 (USD 5) per capita,in 2000.190 More than half of the Ministry of Health and Family Welfare’s budget in 2002–2003 went to the Directorate of Health Services, which spent almost one-fifth of its budget on drug license fees.191 Almost one-fourth of the ministry’s budget went to the Directorate of Family Planning,which spent most of its budget on health and family planning services.192 Reproductive health and child health represent, respectively, about 26% and 21% of total government spending on health.193 About three-fourths of the government’s health budget is allocated for health-care facilities at or below the zila level.194 Private and international financing Given the limited amount of government resources allocated to health, the private sector plays an important role in the financing of health services. According to 2000 estimates, private expenditure on health constituted 63.6% of total health expenditure.195 Most private expenditure is out-ofpocket spending by patients,with households spending about Tk 411.25 (USD 7) annually per capita for health care.196 Since 1975, an international consortium of development agencies has provided financial and technical assistance to the government of Bangladesh for the implementation of successive health projects,each lasting five to six years.197 While early investments from the consortium were largely focused on expenditures for infrastructure, including buildings, supplies, equipment, and staff salaries, there was a growing recognition leading up to the mid-1990s of the need for substantive reform of the public health system.198 The Health,Nutrition and Population Sector Programme is one such reform effort in which external donors are projected to invest approximately Tk 419,130.69 lakh (about USD 749 million).199 External aid to the health sector has focused largely on rural areas.200 However, there has been a growing awareness
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among donors of the need to improve urban health services.201 Aid-supported efforts in the urban primary healthcare sector have included projects by the World Bank, the United States Agency for International Development and the United Nations Children’s Fund (UNICEF).202 Other major donors to the health sector include the governments of Canada, Germany, Great Britain, the Netherlands, and Sweden, and the European Commission.203 Cost Government health services are officially free of charge.204 However, patients are often subject to hidden and incidental costs.205 Patients seeking health care in government hospitals must pay the cost of most drugs and medical supplies used in their treatment.206 In the private sector, fees for doctors and specialists are Tk 200–300 (USD 3.40–5.11) and fees for medical practitioners are Tk 50 (USD 0.85).207 Fees for Ayurvedic and homeopathic practitioners are Tk 25–30 (USD 0.43–0.51), and fees for midwives and nurses,Tk 20–30 (USD 0.34–0.51).208 Regulation of health-care providers The Bangladesh Medical and Dental Council, a statutory body constituted under the 1973 Medical Council Act,regulates medical practice in Bangladesh, including the standards of medical education and the registration of physicians. The council also has statutory authority to discipline members of the medical profession for professional misconduct.209 Punishment may include suspension or cancellation of a physician’s registration with the council. Similar regulatory bodies for other health-care providers include the Bangladesh Nursing Council and the Pharmacy Council.210 The National Health Policy aims to restructure and strengthen such bodies to ensure strict compliance with registration requirements and monitor the quality of care and ethical conduct of health-care providers.211 Regulation of reproductive health technologies No data is available on how reproductive health technologies are regulated in Bangladesh. Patients’ rights There is no specific legislation on patients’rights and remedies for medical malpractice.212 The Bangladesh Medical and Dental Council has statutory authority to hear malpractice claims of patients, but a court order suspended the council’s complaint mechanism several years ago.213 According to the council, only two doctors have had their licenses temporarily suspended for medical malpractice over the last 30 years.214 Under a proposed law to address the absence of patients’ rights in medical malpractice cases, health-care practitioners could face up to ten years’ imprisonment and a fine of
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Tk 1,000,000 for malpractice.215 The bill is pending parliamentary review.216 One of the proposed activities of the Health, Nutrition and Population Sector Programme is to develop and implement a Charter of Rights for health-care users and providers.217 B. REPRODUCTIVE HEALTH LAWS AND POLICIES
The National Reproductive Health Strategy and the Health, Nutrition and Population Sector Programme are the primary government policies and programs on reproductive health. The National Reproductive Health Strategy, adopted in 1997 and based upon the principles set forth in the ICPD Programme of Action, emphasizes a client-centered and lifecycle approach to reproductive health services. The strategy prioritizes the following reproductive health issues: ■ safe motherhood, including infant care; ■ family planning; ■ menstrual regulation and care of postabortion complications; and ■ management of reproductive tract infections and sexually transmissible infections (STIs); ■ infertility services; and ■ adolescent health care.218 The strategy is divided into nine points of action, which include the following: ■ improving the delivery of reproductive health services by reorganizing service delivery, linking the different tiers of service delivery and providing specialized services at peripheral levels of service delivery; ■ conducting further research on women’s reproductive health needs; ■ implementing appropriate activities to develop human resources in health-care services, including staff training and orientation; ■ implementing information, education and communication programs or behavior change communication programs to ensure the full implementation and maximization of reproductive health services; ■ strengthening health-care management through the restructuring, coordination, monitoring, and reprioritizing of the industry; ■ establishing a mechanism to review implementation of the policy from the national to community level; ■ empowering women to seek reproductive health services through financial incentives, legal and policy initiatives, and advocacy and community mobilization efforts;
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improving and reorganizing other sectors; and promoting infant and child survival, growth and development.219 The strategy also gives particular emphasis to instituting gender sensitization training and posting female medical officers at all levels of reproductive health services.220 ■ Reproductive health care is one of the primary components of the Health, Nutrition and Population Sector Programme’s Essential Services Package. The priority areas identified within reproductive health care are the following: ■ safe motherhood, including prenatal and postnatal care, safe delivery, emergency obstetric care, and maternal nutrition; ■ prevention of unsafe abortion through safe menstrual regulation services; ■ family planning, including infertility care; ■ adolescent health care; and ■ prevention of reproductive tract infections and HIV/AIDS.221 The program includes several goals and strategies that aim to improve the reproductive health status of the population and the delivery of related services. (See “Family Planning,” “Maternal Health” and “Sexually Transmissible Infections (STIs) and HIV/AIDS” for information on specific strategies.) The National Heath Policy and Bangladesh’s population policy also have specific objectives and strategies related to reproductive health. (See “General Health Laws and Policies” and “Family Planning” for National Health Policy provisions related to reproductive health.) Relevant strategies of the Bangladesh population policy are the following: ■ ensure the provision of comprehensive, clientcentered and high-quality reproductive health services, including family planning, at the thana and union levels; ■ ensure “one-stop” service provision of essential reproductive health care and ensure home visits; ■ ensure supplies of necessary equipment and medicines (including contraceptives) in all health-care facilities; ■ ensure access among high-risk groups to reproductive health information and services to raise awareness about and prevent reproductive tract infections, STIs and HIV/AIDS; and ■ ensure the opportunity and freedom to choose contraceptive methods according to individual needs and preferences.222 ■ ■
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Family Planning Although family planning was introduced through the voluntary efforts of social and medical workers as early as the 1950s, the establishment of the Directorate of Family Planning under the Ministry of Health and Family Welfare in 1965 marked the adoption of family planning as an official government-sector program.223 The Health,Nutrition and Population Sector Programme and the National Health Policy establish the government’s current family planning goals and provide the main framework for the delivery of family planning services. The primary objectives of the Health, Nutrition and Population Sector Programme with regard to family planning are to increase the contraceptive prevalence rate and lower the total fertility rate in Bangladesh.224 Specifically, the program aims to increase contraceptive use to 65% by the middle of 2006.225 To achieve this goal, the program proposes the following strategies: ■ promote a more effective contraceptive “method mix”; ■ increase male participation in family planning; and ■ reduce discontinuation of contraceptive use by providing proper counseling, follow-up services and services for the management of contraceptive side effects and complications.226 Other related strategies geared toward reducing the total fertility rate include the following: ■ improve the quality of family planning services through the revival of “doorstep services”; ■ increase social awareness of family planning services; ■ improve access to clinical family planning methods by offering high-quality services in hospitals and health-care facilities at the thana and union levels; ■ intensify efforts to provide client-centered family planning information and services.227 Several of the objectives and strategies of the National Health Policy relate to improving family planning services. (See “General Health Laws and Policies” for information on specific objectives related to family planning.) A specific policy strategy is to improve management of domestic sources of family planning methods and encourage domestic entrepreneurs to produce family planning supplies.228 Contraception Among currently married women aged 10–49, approximately 53.8% use a method of contraception, though 99.9% have knowledge of a method,according to national-level data from 1999–2000.229 The pill is the most commonly used method (23.0% of married women), followed by the injectable (7.2%) and female sterilization (6.7%).230 Use of any method increases with age; young women aged 10–14
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and 15–19 have the lowest rates of contraceptive use (25.7% and 38.1%, respectively), whereas 35–39-year-olds have the highest rate (67.7%).231 Current contraceptive use does not vary widely by area of residence; the prevalence of use of any method is approximately 52.3% in rural areas and 60.0% in urban areas.232 Contraception: legal status The 1940 Drugs Act, the 1982 Drugs (Control) Ordinance and the National Drug Policy are relevant laws and policies in the regulation of contraceptives.233 The Directorate of Family Planning is the lead agency responsible for implementing and monitoring laws and policies related to contraceptives, and it has the authority to approve, with clearance from the Ministry of Health and Family Welfare, the availability and distribution of contraceptives in Bangladesh.234 The Directorate of Drugs Administration within the Ministry of Health and Family Welfare also plays a regulatory role.235 Both agencies are a part of the National Technical Committee, a body formed by the ministry to deal with technical regulatory issues on contraceptives.236 In 1998, the National Technical Committee approved dedicated products for emergency contraception, specifically Postinor-2.237 Dedicated products are available in family planning clinics, from physicians and in the markets.238 The cost per packet is Tk 24 (USD 0.45).239 However, the government family planning program does not currently promote emergency contraception, and such products are relatively unknown by providers and potential users.240 The Directorate of Family Planning, in collaboration with several international NGOs,is conducting a feasibility study to develop, test and document operational details for introducing emergency contraception as a backup for existing family planning methods.241 Government policy prohibits the use of quinacrine as a method of contraception,including its use in clinical trials.242 Regulation of information on contraception The Health, Nutrition and Population Programme promotes the dissemination of information on family planning services.243 Government policy explicitly allows individuals to receive information on condoms.244 Information on family planning is disseminated through several media,including television,radio,billboards,and newspapers.245 According to national-level data from 1999–2000, television was the most commonly reported source of information on family planning among women.246 Sterilization Female sterilization is relied on by 6.7% of married women.247 Women deciding on sterilization generally undergo the procedure relatively early in their reproductive
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years.248 More than two-thirds of sterilized women had the operation before age 30, while nearly one-third were sterilized before age 25.249 The median age at sterilization is 27.250 Sterilization: legal status The technical guidelines on contraceptives issued by the Directorate of Family Planning specify the eligibility criteria for female and male sterilization.251 Applicants must be currently married with at least two living children.252 If the couple has only two children, the youngest child must be above the age of two.253 A couple may seek sterilization only “if the wife cannot use hormonal methods and the IUD.”254 The applicant seeking sterilization must voluntarily agree to the procedure.255 Sterilization is not available to individuals who are divorced,have no living spouse or have a mental illness.256 Sterilization policies The Health, Nutrition and Population Sector Programme aims to facilitate access to permanent methods of contraception by expanding selected union health and family welfare centers for the provision of voluntary contraceptive services.257 As of 2003, government policy provided for reimbursement for lost wages and transportation costs to individuals who obtained sterilization.258 Payments were also offered to providers as well as to some referrers.259 The recently expired Health and Population Sector Programme had proposed additional incentives to boost the acceptance of sterilization, including providing sterilized individuals with insurance coverage for five years against the death of up to two children.260 The program had also suggested giving individuals who choose sterilization a “Family Planning Acceptor Card” that would qualify them for “preferential treatment” when presented at any government hospital or outpatient health facility. Due to the pending status of a final plan to implement the Health,Nutrition and Population Sector Programme,no data is available on whether these policies will continue under the new program.261 Government delivery of family planning services The government delivers family planning services through numerous public health-care facilities,including maternal and child welfare centers and thana health complexes at the zila and thana levels, and union health and family welfare centers and temporary satellite clinics at lower administrative levels.262 Thousands of government fieldworkers and other health personnel such as family welfare visitors, family welfare assistants and health assistants also help implement the government’s family planning services.263 Family welfare visitors and assistants are specifically women.264 Fieldworkers and satellite clinics play especially crucial roles in the delivery of family planning services at the com-
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munity level.265 Fieldworkers supply basic family planning information and referrals and distribute condoms and pills.266 Government satellite clinics,which are staffed by visiting personnel from health and family welfare centers, give contraceptive injections and insert IUDs in selected villages.267 Overall,about 64% of current users of modern contraceptives obtain their method from the public sector—36% from public facilities, mostly from thana health complexes and union health and family welfare centers, and 28% from government fieldworkers.268 Fieldworkers are by far the most popular source for pills in either the public or private sector, supplying about 45% of current pill users.269 Fieldworkers are also the most common public-sector source for condoms.270 Union health and family welfare centers are the primary overall source for IUDs and injectables, while thana health complexes are the main providers of female and male sterilization.271 All public family planning services are delivered free of charge, though there is a nominal fee for pills and condoms.272 Despite the free provision of family planning services, ways to recover program costs and move clients who can afford to pay into private services are increasingly being emphasized to maximize the sustainability of the family planning program.273 Family planning services provided by NGOs and the private sector Family welfare services and contraceptives reach the population through private medical sources, non-governmental fieldworkers and clinics run by NGOs. The private medical sector, including clinics, doctors and pharmacies, serves approximately 22.3% of current users of modern contraceptive methods.274 Most users who rely on the private sector obtain their method from pharmacies.275 Pharmacies are the supply source for 30% of all contraceptive pill users and 52% of those who use condoms.276 NGO sector facilities, particularly static clinics, are the source for about 5.2% of users.277 Bangladesh has an active contraceptive social marketing program that distributes pills, condoms and oral rehydration salts through a system of thousands of retail outlets throughout the country, including pharmacies, small shops and kiosks.278 The proportion of pill users relying on social marketing brands increased from 14% in 1993–94 to 29% in 1999–2000.279 Maternal Health Estimates of the maternal mortality ratio in Bangladesh range from 320 to 400 maternal deaths per 100,000 live births.280 Most mothers do not receive prenatal care.281 The percentage of women who do receive such care is more than twice as high in urban areas (59%) than in rural areas (28%).282
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Prenatal care is also much more common for births to younger women and women who are experiencing their first pregnancy.283 Over 90% of deliveries take place in the home.284 Sixty-four percent are attended by traditional birth attendants.285 Only 12% are assisted by trained personnel.286 Policies One of the key objectives of the Health, Nutrition and Population Sector Programme is to reduce the maternal mortality rate in Bangladesh. In support of this goal, the government has formulated a Maternal Health Strategy. The strategy emphasizes several elements of maternal health care,including prenatal care,skilled birth attendants and emergency obstetric care.287 Specifically, it calls for the following: ■ provide prenatal care to all women; ■ expand emergency obstetric care in all thanas in phases; ■ improve accessibility of maternal health services; ■ raise awareness of maternal health care through information campaigns targeted to family members and communities; ■ conduct verbal autopsies and death reviews in large hospitals to improve the accountability of health-care providers; and ■ intensify behavior change communication activities.288 Specific target goals for 2006 are to increase the percentage of pregnant women who receive three prenatal care visits to 60% and deliveries assisted by skilled attendants to 35%.289 The National Health Policy also aims to reduce the maternal mortality rate and improve maternal health services. (See “General Health Laws and Policies” for specific objectives related to maternal health.) The government recently entered into an agreement with several UN agencies to implement a pilot project on safe motherhood in the Tangail district in central Bangladesh by September 2006. The project will aim to elevate the status of low-income women and adolescent girls; raise community awareness about and preparedness for safe motherhood; improve access to and utilization of skilled birth attendants, emergency obstetric care and family planning services; and increase collaboration and coordination among the government, NGOs and UN agencies.290 Nutrition About 45% of Bangladeshi mothers are considered acutely malnourished and 70% of pregnant women are anemic.291 More than a quarter of Bangladeshis consume fewer than 1,800 calories per day.292 Chronic malnutrition is especially severe among low-income segments of the population—virtually all low-income mothers in rural areas weigh fewer than 50 kilograms. Seventy percent of rural mothers in what are considered high-income households fall below this standard
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as well.293 Throughout all stages of their lives, women consume fewer calories than men.294 In an effort to improve the nutritional health of the population, the government formulated the National Food and Nutrition Policy in 1997.295 The policy stresses the needs of pregnant and nursing mothers in particular. Its objectives include the following: ■ increase production and availability of both staple and non-staple nutritious food; ■ improve the health and nutritional status of the population, especially children, women and the elderly; ■ arrange for proper disposal of waste and improve sanitation and environmental hygiene at the personal and community level to ensure safe drinking water; and ■ provide formal and nonformal education on nutrition to the population, especially women and children.296 Reducing malnutrition in Bangladesh is a priority objective of the Health,Nutrition and Population Sector Program. The program aims to provide maternal nutrition services such as weight gain monitoring during pregnancy,vitamin supplements to underweight pregnant women and lactating mothers, and nutrition education.297 It also calls for institutional support to the National Nutrition Program, which provides food supplements and counseling on nutrition and health to pregnant and lactating mothers and children under age two.298 The Health, Nutrition and Population Sector also aims to make links with other existing food programs such as theVulnerable Group Development Program,through which the government delivers a monthly ration of 31.25 kilograms of wheat per person to disadvantaged women in rural areas, including women of female-headed households who are lactating or have children.299 According to recent government data, the program has almost 400,000 beneficiaries.300 The National Health Policy also makes the reduction of malnutrition a primary objective. (See “General Health Laws and Policies”for information on specific objectives and strategies related to nutrition.) Abortion and menstrual regulation About 1.5% of pregnancies are reportedly terminated by abortion every year.301 Approximately 2.8% of women who suspect they may be pregnant obtain menstrual regulation, a legal procedure provided at government health facilities that is widely used by women to end possible first-trimester pregnancies,though there is no determination of pregnancy prior to the procedure.302 National-level data from 1999–2000 indicates that only about 5% of currently married women report that they have ever undergone menstrual regulation, though NGO studies consider this to be a substantial underestimate.303
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Abortion and menstrual regulation: legal status Abortion, except to save the life of the mother, is illegal under the penal code.304 Legal abortions must be performed by a qualified physician in a hospital.305 No data is available on the legal status of medical abortion in Bangladesh. The severity of punishment for illegal abortion under the penal code depends upon whether the woman consented to the abortion and the stage of pregnancy at which the procedure was performed. A sentence of up to three years’ imprisonment, fines or both may be imposed for causing an abortion with the woman’s consent; the sentence increases to up to seven years if the woman is “quick with child,” or past the fourth or fifth month (approximately) of pregnancy.306 This provision is equally applicable to a woman who induces her own abortion.307 Causing an abortion without the woman’s consent, regardless of the stage of pregnancy, is punishable with ten years’ imprisonment or a life sentence, fines or both.308 Despite the illegality of abortion,official government policy allows menstrual regulation as “a means of ensuring that a woman at risk of pregnancy is not actually pregnant.”309 Because the procedure is considered a method of establishing non-pregnancy, as opposed to terminating a pregnancy, it is unaffected by laws restricting abortion and is thereby removed from the purview of the penal code.310 The procedure has been available in government health facilities since 1979.311 According to official policy, menstrual regulation is allowed up to eight weeks from the last menstrual period by a trained family welfare visitor under the supervision of a physician, and up to the tenth week by a licensed medical practitioner trained in the procedure.312 The procedure is also often performed by paramedics in government clinics.313 Menstrual regulation providers cannot provide services to unmarried women requesting the procedure.314 Regulation of information on abortion and menstrual regulation No data is available on laws or policies relating to the regulation of information on abortion and menstrual regulation in Bangladesh. Abortion and menstrual regulation policies The National Reproductive Health Strategy identifies menstrual regulation and care of postabortion complications as priority service areas in reproductive health.315 A key reproductive health intervention in the Health,Nutrition and Population Sector Programme is the prevention of unsafe abortion through safe menstrual regulation services.316 Government delivery of abortion and menstrual regulation services Menstrual regulation is available in public health facilities at the zila level and below; these include maternal and child
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welfare centers,thana health complexes,and union health and family welfare centers.317 The procedure is not available in most district hospitals or in community clinics at the village level,though such clinics do provide information and referrals to higher-level facilities.318 Menstrual regulation is available in all thanas and about two-thirds of all unions.319 In addition, there are 18 menstrual regulation training programs throughout the country and, to date, some 6,200 doctors and 4,900 family welfare visitors have received formal training in the procedure.320 Treatment for complications from abortion is available at district hospitals.321 Thana health complexes have the capacity to perform some lifesaving interventions for abortion complications.322 Postabortion counseling on contraception has not yet been systematically incorporated into health services.323 However, post–menstrual regulation counseling on contraception has been emphasized in most health facilities that offer the procedure.324 Abortion and menstrual regulation services provided by NGOs and the private sector The NGO sector plays a prominent role in providing menstrual regulation services and training.325 There are several non-governmental programs that provide training to government health personnel in the procedure.326 Sexually Transmissible Infections (STIs) and HIV/AIDS Official data on the prevalence and nature of STIs in Bangladesh is very limited, due in large part to the lack of information systems to record the incidence of such infections and the inability of health-care workers at the grassroots level to diagnose STIs.327 Some studies indicate that there are 2.3 million individuals infected with STIs.328 Surveillance systems for HIV/AIDS are similarly weak. However, the government recognizes AIDS as an important health threat.329 As of 2001, 44 HIV-positive cases had been officially identified through surveys conducted among selected groups.330 The predominant mode of transmission of both HIV and STIs is sexual transmission.331 Relevant laws There are no specific national laws on STIs or HIV/AIDS. However, the penal code makes negligent or malicious acts likely to spread infection of life threatening disease punishable with imprisonment, fines or both. The prison terms range from up to six months for negligent acts to two years for malicious ones.332 In other legislation related to HIV/AIDS, the government enacted a law on safe handling of blood products in 2002.333 Under certain matrimonial laws, a woman can seek divorce on the basis of her husband’s infection with a venereal disease.334
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There are no laws per se that prohibit discrimination against persons living with STIs or HIV/AIDS. Policies for the prevention and treatment of STIs and HIV/AIDS All national policies and programs on HIV/AIDS and STIs are formulated in consultation with the National AIDS Committee, an advisory body to the Ministry of Health and Family Welfare that was established in 1985.335 The committee is charged with responsibility for major policy issues and strategies; coordination of various sectors, including the NGO sector; supervision of the implementation of programs; and mobilization of resources.336 The committee is made up of representatives from nine ministries and various NGOs and community organizations.337 In recognition of the unique impact of HIV/AIDS and STIs on women,a “women’s wing” of the committee was established to raise awareness on HIV/AIDS issues related to women.338 In addition,the committee has a technical sub-body made up of experts from various fields that supervises the technical aspects of the government’s HIV/AIDS and STI prevention and control activities.339 The National Policy on HIV/AIDS and STD Related Issues, approved by the cabinet in 1997, and the National AIDS/STD Programme provide the main policy framework for the government’s response to the threat of AIDS in Bangladesh. The government has also prepared a National Strategic Framework for 2002–2006 for the implementation of HIV/AIDS prevention and control activities.340 The National Policy on HIV/AIDS and STD Related Issues proclaims several “fundamental principles” as the framework for all national responses to STIs and HIV/AIDS. These principles protect several key human rights and freedoms of persons living with STIs and HIV/AIDS, including the rights to marriage and a family; employment; the highest possible standard of physical and mental health; information (including information about STI related issues and condoms); confidentiality; and nondiscrimination in health care.341 Specifically, the policy prohibits restrictions on the rights and freedoms of individuals based solely on their HIVpositive status.342 The policy has several broad aims, which include the following: ■ to prevent the transmission of STIs and HIV; ■ to provide services for the management of STIs; and ■ to reduce the impact of HIV/AIDS on individuals and the community.343 It also provides guidelines on several key areas, including: ■ HIV/AIDS epidemiological surveillance; ■ HIV testing; ■ management of HIV infection;
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counseling of HIV/AIDS patients and confidentiality issues; ■ national blood transfusion services; ■ information, education and communication on HIV/AIDS; ■ condom promotion and distribution; ■ HIV/AIDS issues as they relate to women, men, adolescents, children, and minority communities; ■ HIV/AIDS issues as they relate to the workplace, prisons and the media; ■ HIV/AIDS issues related to commercial sex and drug users; ■ policies on STIs; ■ social science and behavioral research on HIV/AIDS; ■ clinical vaccine trials for STIs and HIV/AIDS; ■ ethical aspects of HIV/AIDS research; and ■ legal aspects of HIV/AIDS.344 The policy’s specific goals for the prevention and treatment of STIs include the following: ■ promote accessible, effective and acceptable services for persons with STIs in the public and private health systems; ■ include STI services in maternal and child health, prenatal and family planning services to the extent possible with available human and financial resources; ■ target acceptable and effective STI services to highrisk populations; and ■ implement first-level preventive measures, such as promoting safe sex practices and providing condoms, in the National AIDS/STD Programme.345 The policy specifically calls for providing STI services in health-care facilities up to the thana level, and for more research on STIs.346 The National AIDS/STD Programme, which evolved from the government’s first national AIDS control and prevention program in 1996, calls for a number of specific interventions to deal with the reality of HIV/AIDS in Bangladesh, which include the following: ■ behavior change programs for commercial sex workers, intravenous drug users and truck drivers, including peer education and distribution of condoms; ■ training for medical personnel on STIs and HIV/AIDS counseling and care; ■ creation of a surveillance system for STIs and HIV/AIDS; and ■ procurement of condoms,HIV test kits,drugs for treating STIs,and disposable equipment for the safe handling of blood and other medical equipment to strengthen laboratory STI- and HIV-diagnostic capacity.347 ■
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In 2000,the government agreed to a plan for the expansion of the program’s activities for 2001–2005 with the support of the World Bank and the United Kingdom Department for International Development.348 The majority of these funds were intended for NGOs.349 As of May 2003,however,most of the funds had yet to be disbursed due to implementation difficulties.350 The priority action areas of the National Strategic Framework are the following: ■ target activities to vulnerable populations; ■ undertake advocacy and communication activities; ■ promote safe blood practices; ■ provide care and support to persons living with HIV/AIDS; and ■ strengthen management of programs and institutional support, including for research.351 In addition to specific national policies on STIs and HIV/AIDS, the Health, Nutrition and Population Sector Programme addresses HIV/AIDS in its goals and strategies. One of the program’s primary objectives is to control communicable diseases, including HIV/AIDS.352 In order to understand and address the true prevalence of such diseases, the strategy calls for improved data collection systems.353 In an attempt to combat the spread of HIV/AIDS and other STIs, the government has also adopted a national policy on safe blood transfusion.354 Among other things, the policy calls for a national committee to train medical personnel on blood screening and detection of STIs and HIV.355 Since 2000,97 public and private blood transfusion facilities at the zila level and below have been provided with blood screening capabilities.356 The government has also endorsed a Code of Ethics for Blood Donations andTransfusions.357 NGOs have been instrumental in HIV/AIDS prevention and control activities at both the policy and service delivery levels. In 1993, NGOs working on AIDS-related issues in Bangladesh joined forces to form an STD/AIDS network, a coalition of 72 NGOs and more than 100 individuals.358 Regulation of information on STIs and HIV/AIDS In conjunction with the government’s HIV/AIDS prevention efforts, the mass media play an important role in raising awareness about HIV/AIDS.359 Information on HIV/AIDS is disseminated through television,radio,newspapers, and magazines, with television serving as the most important source of information on the disease.360 C. POPULATION
The government identified population growth as the country’s biggest problem in 1976, and adopted a broad-based family planning program and official population policy to
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address the problem.361 Since the 1970s, this concern about population growth has been reflected in all successive fiveyear development plans and programs.362 Also around the mid-1970s,the government deployed full-time family welfare assistants to provide family planning information, education and services to communities and instituted a social marketing program to promote the sale of pills and condoms.363 Between the early 1970s and early 1990s, government efforts to curb population growth led to a drastic decline in the total fertility rate, from 6.3 lifetime births per woman to 3.4.364 The total fertility rate in Bangladesh is currently 3.3 and the annual growth rate in 2001 was 1.48%.365 Since 1980, the government’s population program has promoted integrated health and family planning programs.366 The current approach is to provide high-quality, client-centered family planning services as a means to curb population growth. Population policy Objectives Bangladesh’s population policy recognizes population stabilization as an “urgent national priority.”367 The government promises to uphold its commitments under international consensus documents such as the ICPD Programme of Action and the Beijing Declaration and Platform for Action throughout its efforts to achieve this goal.368 The policy broadly aims to elevate the overall living standards of the people of Bangladesh by improving their reproductive health status and reducing the population growth rate.369 It calls for special attention to underserved areas and vulnerable groups.370 The policy’s major objectives are the following: ■ achieve a net reproductive rate of one by 2010 to stabilize the population by 2060 by providing accessible, affordable and quality reproductive health and family welfare services to people at all levels of society; ■ address the causes of maternal mortality (including unsafe abortion) and reduce the infant mortality rate by providing adequate and quality pre- and post-natal care, emergency obstetric care and safe delivery services; ■ reduce child mortality, disability and blindness by providing immunization, vitamin A supplements and other micronutrients; ■ ensure the participation of different ministries in implementing population activities; ■ encourage adolescent girls to participate in population activities and delay pregnancy until at least age 20; ■ develop human resources by training officials
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involved in health and population activities; Services related to population activities are delivered take urgent steps to ensure that skilled health and through the existing health infrastructure.375 (See “Infrastrucfamily welfare workers assist up to 50% of deliveries ture of health-care services” and “Family planning services”.) by 2005 and all deliveries by 2010; ■ ensure the right to access information on reproductive health and services, and create a demand for services through awareness-raising campaigns; Women’s health and reproductive rights cannot be fully ■ ensure gender equality and women’s empowerment understood without taking into account the legal and social by creating and enhancing opportunities in educastatus of women. Laws relating to women’s legal status not tion and employment; only reflect societal attitudes that shape the landscape of ■ provide information on nutrition to prevent malnureproductive rights, they directly impact women’s ability to trition and ensure food to “destitute” women; exercise these rights. Issues such as the respect and dignity a ■ reduce the influx in urban areas of people migrating woman commands within marriage,her ability to own propfrom rural areas and encourage urban development erty and earn an independent income, her level of education, planning; and and her vulnerability to violence affect a woman’s ability to ■ ensure public health facilities and better living condimake decisions about her reproductive health-care needs and tions (including water free of arsenic) in communito access the appropriate services. The following section ties.371 details the nature of women’s legal status in Bangladesh. Policy strategies in support of these objectives are the folA. RIGHTS TO GENDER EQUALITY AND lowing: NONDISCRIMINATION ■ ensure the provision of client-centered and quality The constitution guarantees the equality of all citizens before reproductive health and family planning services; the law and equal protection of the law, and prohibits dis■ strengthen links between population and developcrimination against any citizen based on religion, race, caste, ment; sex, or place of birth.376 The prohibition of discrimination ■ reduce gender discrimination in the provision of serdoes not prevent the government from making special provivices sions for disadvantaged groups,particularly women.377 While ■ give priority to the needs of low-income groups, the constitution guarantees women equal rights with men in especially women and children, in providing services; “all spheres of the State and of public life,” it does not extend ■ incorporate population issues in public policies on this protection to the private sphere where various religious health, education, employment, the environment, laws govern personal matters.378 migration and urbanization, food and nutrition, Formal institutions and policies and other areas to raise awareness of populationThe government created the Minrelated problems and their istry of Women and Children’s Affairs implications for society and RELEVANT LAWS AND POLICIES in 1978 to focus on the development individuals; • National Policy on Women’s needs and concerns of women and ■ use all available means of comAdvancement, 1997; and National children.379 The ministry is the lead munication to promote the Policy on Women’s Advancement governmental agency for addressing small family norm; and Action Plan, 1998 women’s issues and realizing the coun■ introduce population and • National Strategy for Economic try’s development goals for women.380 reproductive health education Growth, Poverty Reduction and The ministry’s responsibilities include in the formal school system and 372 Social Development formulation of national policies on training institutions. • Citizenship Act, 1951 women;implementation of special pro(See “Reproductive Health Laws grams for women’s development;coorand Policies”for specific strategies relatdination of the women’s development-related aspects of ing to reproductive health.) different sectors; addressing with matters relating to women’s Implementing agencies legal and social rights; overseeing the control and registration The National Population Council is the highest advisory of women’s voluntary organizations;and engaging with interbody in the government on population policy issues.373 The 374 national organizations in the field of women’s developcouncil is chaired by the prime minister. ■
III. Legal Status ofWomen
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ment.381 At present, the ministry has three implementing agencies: the Department of Women’s Affairs, Jatiya Mohila Sangstha (National Women’s Council) and Shishu (Children’s) Academy.382 A Parliamentary Standing Committee on the Ministry of Women and Children’s Affairs has also been established to raise and discuss ministry-related issues.383 The ministry makes regular reports to the committee on the progress of government initiatives for women’s advancement.384 The National Council for Women’s Development, created in 1995,reviews and monitors the implementation of poliIts other cies related to women’s advancement.385 responsibilities include formulating laws, policies and regulations for ministries and other governmental bodies to advance women’s legal rights and participation in all spheres of life.386 The council is composed of ministers and secretaries from several line ministries, public representatives and individuals, and is headed by the prime minister.387 Women-in-Development Focal Points are additional institutional mechanisms that were designed to ensure that gender concerns are included in the policies, plans and programs of all ministries and agencies.388 Individual officers oversee the focal points in all the line ministries. This initiative has the following priorities: ■ formulation of sectoral plans that incorporate gender concerns; ■ preparation of lists of women’s programs for inclusion in annual development plans; ■ review and modification of existing programs with a view to incorporating gender concerns; ■ ensuring of gender-sensitive reporting; ■ collaboration with other sectors and central agencies in order to achieve women-in-development goals; and ■ monitoring and reporting on the progress toward achieving women-in-development goals.389 Issues related to women’s advancement and equality are addressed in specific national policies as well as integrated into broader national development policies. The National Policy on Women’s Advancement and its implementing action plan were adopted in 1997 and 1998, respectively.390 The policy’s goals include the following: ■ establish equality between men and women in all spheres; ■ eliminate all forms of discrimination against women and girls; ■ establish women’s human rights; ■ develop women as human resources; ■ recognize women’s contribution in social and economic spheres;
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eliminate poverty among women; establish equality between men and women in administration, politics, education, games, sports, and all other socioeconomic spheres; ■ eliminate all forms of oppression against women and girls; ■ ensure empowerment of women in the fields of politics, administration and the economy; ■ ensure adequate health and nutrition for women; ■ provide housing and shelter for women; ■ create positive images of women in the media; and ■ take special measures for women in disadvantaged situations.391 A Women’s Development Implementation and Evaluation Committee has been formed to monitor implementation of the policy’s action plan.392 Members of the committee include the joint secretaries and joint chiefs of various ministries, heads of implementing agencies of the Ministry of Women and Children’s Affairs, and representatives of civil society groups.393 Women’s advancement and gender equality are also key development goals in the National Strategy on Economic Growth, Poverty Reduction and Social Development. The strategy identifies gender equality as a “core development issue” and an overarching strategic goal.394 Its specific objectives in the area of women’s advancement and gender equality include the following: ■ combating continuing negative sex ratios; ■ eliminating violence against women; ■ reducing high maternal mortality; ■ removing restrictions on women’s employment and economic opportunities; ■ ensuring formal equality; ■ supporting quotas and affirmative action at all levels and in all spheres; ■ creating “women-friendly” institutional environments; and ■ generating sex-disaggregated statistics.395 (See “Labor and employment,”“Access to credit,”“Education,”and “Right to Physical Integrity”for specific strategies.) ■ ■
B. CITIZENSHIP
The constitution provides that Bangladeshi citizenship shall be determined and regulated by law.396 According to the 1951 Citizenship Act, women have equal rights with men to acquire, change or retain their nationality, and may obtain passports without the signature of their husbands or fathers.397 However, only Bangladeshi men can confer citizenship upon their children and spouses.398
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In exercising its authority to review and make recommendations to existing laws to protect the rights of women and ensure a law’s conformity with fundamental rights, the Law Commission had planned to review the Citizenship Act in its 2002–2003 agenda.399 No data is available on the outcome of the review. C. RIGHTS WITHIN MARRIAGE
Marriage laws The personal laws of the country’s religious communities govern most aspects of private life, including matters relating to marriage.400 There has been no reform of marriage and divorce laws governing religious minorities in Bangladesh.401 In addition to religious personal laws,some marriage-related laws apply to all Bangladeshis,irrespective of religious affiliation. The 1872 Special Marriage Act allows people of different faiths, except Muslims, or those who do not ascribe to a particular faith, to legally register their marriage. The requirements for a valid marriage under the act include the following: ■ at the time of marriage, neither party can have a living husband or wife; ■ the man must be at least 18 years of age and the woman at least 14 years of age; ■ parties under the age of 21 must obtain the consent of their father or guardian; ■ the parties must not be within prohibited degrees of relationship; and ■ the marriage must be registered.402 The act prohibits polygamy.403 Persons married under this act can seek to dissolve their marriage under the 1869 Divorce Act.404 The 1903 Foreign Marriage Act allows the legal registration of marriage between a foreign citizen and a Bangladeshi citizen.405 The 1929 Child Marriage Restraint Act establishes the legal marriage age at 18 for women and 21 for men.406 Although the act provides penal sanctions for marriages between underage individuals,it does not affect the validity of such marriages if they are solemnized under the purview of personal law.407 The 1980 Dowry Prohibition Act makes the giving, demanding or abetting of dowry from the bride or her family to the groom and his family an offense punishable with one year of prison,a fine or both.408 The act does not exempt the stridhan of a Hindu woman from its purview;stridhan refers to all property and gifts given to or acquired by a Hindu married woman during her lifetime over which she has exclusive con-
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trol.409 The act has led to a withholding of this settlement from women.410 Under the Prevention of Oppression Against Women and Children Act,any person who,on behalf of a woman’s husband, causes or attempts to cause death or hurt to any person in connection with a demand for dowry may be subject to life imprisonment or 5–14 years’imprisonment, as well as a fine.411 Laws governing Muslims Muslim Bangladeshis, in general, follow the Hanafi school of Muslim jurisprudence.412 Under Muslim personal law, marriage is a contract between two individuals. The Muslim Family Laws Ordinance, the 1974 Muslim Marriages and Divorces (Registration) Act and their respective accompanying rules regulate marriage between Muslims in Bangladesh.413 These laws are applicable to all Muslim citizens of the country, irrespective of their religious sect or country of residence. Under the Muslim Family Laws Ordinance, the legal age of marriage is 18 for women and 21 for men.414 The Muslim Marriages and Divorces (Registration) Act requires that all marriages be registered by a licensed individual called a nikah registrar.415 Any marriage not registered must be reported to a nikah registrar by the individual who solemnized the marriage; failure to report is punishable with imprisonment of up to three months,a fine or both. The failure to register, though punishable, does not invalidate the marriage.416 The law does not prohibit polygamy. The Muslim Family Laws Ordinance provides that a man may marry a second wife upon the written permission of an appointed arbitration council composed of the chairman of the union parishad (or other appointed official),and representatives for the man and his wife or wives.417 The man seeking to contract another marriage must submit an application to the council stating the reasons for the proposed marriage and obtain the consent of his existing wife or wives.418 The council may grant permission for the proposed marriage if it is satisfied that the marriage is “necessary and just” based on any of the following factors: ■ sterility; ■ physical infirmity; ■ physical unfitness for the conjugal relation; ■ willful avoidance of a decree for restitution of conjugal rights; or ■ insanity of the existing wife.419 A party to the decision has a right of appeal to the munsif (legal officer) concerned,whose decision is final and not subject to review in any court of law.420 A second marriage contracted without permission of the council is not void,though the existing wife or wives may pursue legal measures against
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constitute an arbitration council charged with the task of the man.421 The man may be required to pay the entire attempting reconciliation between the parties.434 If such amount of dower to the existing wife or wives, and may be 422 efforts fail, divorce is generally effective after iddat—a threepunished with imprisonment of up to one year and a fine. month period that must pass before the divorce becomes The law generally recognizes the marriage of a Muslim effective—or,if the wife is pregnant at the time of talaq,at the man to a non-Muslim woman if she is Jewish or Christian, end of her pregnancy, whichever occurs later.435 but the marriage of a Muslim woman to a non-Muslim man The parties may also contract at the time of marriage to is not valid.423 A marriage between a Muslim man and a Hindelegate the right of talaq to the du woman, and between a Muslim wife.436 In the absence of a delegated woman and a non-Muslim man must RELEVANT LAWS AND POLICIES right of talaq, the ordinance provides take place in a civil court with the • Special Marriage Act, 1872 two grounds upon which women spouses declaring that they do not • Foreign Marriage Act, 1903 424 may seek dissolution of their marpractice any religion. • Child Marriage Restraint Act, 1929 riage:nonpayment of dower or failure Laws governing Hindus • Dowry Prohibition Act, 1980 Hindu personal law governs • Muslim Family Laws Ordinance, 1961 to provide maintenance for a period of two years after a demand is made.437 marriage among Bangladeshi Hin• Muslim Marriages and Divorces In addition to these forms of dus.425 The law considers marriage (Registration) Act, 1974 426 divorce, judicial divorce is available It also recogto be a sacrament. • Hindu Widow’s Re-Marriage Act, under the 1939 Dissolution of Muslim nizes polygamy.427 1856 Marriages Act. Under the act, a Several codified laws enacted dur• Hindu Marriage Disabilities Removal woman married under Muslim law ing the British colonial era apply in Act, 1946 may seek to dissolve her marriage by the area of marriage among Hindus • Christian Marriage Act, 1872 judicial decree on any of the following in Bangladesh. These include the • Dissolution of Muslim Marriages grounds: 1856 Hindu Widow’s Re-Marriage Act, 1939 ■ husband’s whereabouts are Act,which legalizes the remarriage of • Hindu Married Women’s Right to unknown for four years; Hindu widows, and the 1946 Hindu Separate Residence and ■ neglect or failure of the husband Marriage Disabilities Removal Act, Maintenance Act, 1946 to provide her with maintenance which provides that an otherwise • Divorce Act, 1869 for two years; valid marriage does not become • Guardians and Wards Act, 1890 ■ addition of a new wife in contrainvalid by virtue of the parties’ memvention of the Muslim Family bership in the same gotra (clan) or in different subdivisions of 428 Laws Ordinance, which includes the same caste. obtaining the consent of an existLaws governing Christians ing wife or wives; The 1872 Christian Marriage Act allows for the solem■ a prison sentence of seven or more years for the husnization of marriage between persons in Bangladesh, one or band; both of whom are Christian.429 The law also prescribes pro■ failure of the husband to perform, without reasonable cedures for the registration of marriage.430 Polygamy is procause, his marital obligations for three years; hibited.431 ■ continued impotence of the husband from the time Divorce laws of marriage; Laws governing Muslims ■ insanity of the husband for two years or the husThere are several variants of divorce that are technically band’s affliction with leprosy or a virulent venereal recognized in the Sharia. These include talaq (unilateral action disease; by the husband), mubarat (mutual consent) and khula (at the ■ marriage of the woman before the age of 16, providinitiation of the wife, provided that she agrees to forgo her ed that the marriage has not been consummated and financial rights, such as her dower).432 she has repudiated the marriage before the age of 18; The Muslim Family Laws Ordinance regulates the proce■ cruel treatment by the husband; or dure for seeking a divorce. Under the ordinance, men may ■ any other ground recognized under Muslim law.438 seek divorce by pronouncing talaq and giving written notice The act defines cruel treatment by the husband as the following: to the chairman of the union parishad or other appointed offi433 ■ habitual assault or cruelty of conduct not amounting cial and a copy to his wife. The chairman is then bound to
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to physical ill-treatment; association with women of evil repute or leading an infamous life; ■ attempting to force the wife to lead an immoral life; ■ disposal of the wife’s property or preventing her from exercising her legal rights over her property; ■ obstructing her observance of her religious faith; or ■ in cases of polygamous marriage, failure to treat the wife or wives equitably according to the injunctions of the Quran.439 The Muslim Marriages and Divorces (Registration) Act provides for a mediation process over a period of three months before a divorce can become effective.440 Laws governing Hindus The concept of divorce does not exist in Hindu personal law.441 However,the 1946 Hindu Married Women’s Right to Separate Residence and Maintenance Act entitles married Hindu women to a right to a separate residence and maintenance on any of the following grounds, notwithstanding any custom or law to the contrary: ■ cruelty; ■ desertion; ■ husband’s remarriage; ■ conversion to another religion; ■ husband’s maintaining a concubine in the marital home or habitually residing with a concubine; or ■ any other justifiable reason.442 A woman loses her right if she is unchaste, converts to another religion or fails to comply without sufficient cause with a decree for the restitution of conjugal rights.443 Laws governing Christians The Divorce Act provides the grounds for divorce for Christians, which differ between men and women.444 Under the act, men may petition for divorce on the ground of adultery.445 Women may seek divorce on any of the following grounds: ■ conversion of the husband to another religion and his subsequent marriage to another woman; ■ “incestuous adultery”; ■ bigamy coupled with adultery; ■ the husband’s marriage to another woman coupled with adultery; ■ rape, sodomy or bestiality; ■ adultery coupled with cruelty of a degree that, without adultery, would justify divorce a mensa et toro (the separation of a woman from the bed and board of her husband); or ■ adultery coupled with desertion, without reasonable excuse, for at least two years.446 ■
Either party may also petition to annul the marriage on any of the following grounds: ■ impotence at the time of marriage and through the institution of the suit; ■ the parties are within prohibited degrees of relationship; ■ either party was a “lunatic” or an “idiot” at the time of marriage; or ■ either party had a living spouse at the time of marriage.447 Judicial separation Laws governing Muslims Judicial separation is not recognized as a matrimonial remedy under Muslim law. Laws governing Hindus See “Divorce laws” for information. Laws governing Christians Under the Divorce Act,either party may obtain a decree of judicial separation on the ground of adultery,cruelty or desertion without reasonable excuse for two or more years.448 Maintenance and support laws Laws governing Muslims The Muslim Family Laws Ordinance imposes a duty on husbands to provide adequate and equitable maintenance to their wives during marriage. The ordinance interprets “adequate” to mean “proper and reasonable.”449 In the case of married minors, the duty to pay maintenance devolves to a minor husband’s father.450 A woman whose husband fails to provide maintenance may seek a legal remedy in court, file a complaint with the chairman of the union parishad (who is charged with constituting an arbitration council to settle the matter), or both.451 The woman must give notice of maintenance proceedings to her husband.452 The council is authorized to specify the amount of a maintenance award, including past maintenance if appropriate, and enforce payment by the husband.453 A woman is entitled to receive a living allowance after her husband’s death from the proceeds of his property; his property may be divided among his heirs only after this requirement is met.454 A divorced woman is entitled to receive maintenance through the period of iddat but normally has no rights to maintenance or property beyond this period.455 However, a judgment of the Supreme Court awarded maintenance to a divorced woman beyond the iddat period,through the date of her remarriage.456 Laws governing Hindus Hindu personal law governs matters involving maintenance among Hindus in Bangladesh.457
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support themselves,the mother’s consent is always required for Laws governing Christians the appointment of a guardian, unless the proposed guardian Christian personal law governs matters involving mainte458 has made provisions for the support and education of the chilnance among Christians in Bangladesh. Custody and adoption laws dren.470 Under Hindu law, male children may be adopted.471 All Bangladeshi citizens have recourse to the 1890 Laws governing Christians Guardians and Wards Act in matters relating to custody,which Upon the death of her husband, a Christian woman autotakes into consideration any applicable personal law by look459 matically obtains guardianship of the couple’s minor children ing at the parties’ religious faiths. Under the act, fathers are considered the primary and the children’s property.472 In cases of divorce,the Divorce guardians of minor children, and courts will not appoint Act provides that a court may use discretion in determining another guardian unless the father is found to be unfit.460 In custody of the couple’s minor children.473 cases involving a married minor girl,the girl’s husband is conD. ECONOMIC AND SOCIAL RIGHTS sidered her natural guardian and courts will similarly not Property laws appoint another guardian unless he is found to be unfit.461 The constitution guarantees the right of every citizen “to Where a court must appoint a guardian, it is guided by severacquire, hold, transfer or otherwise dispose of property” and al factors,including the circumstances that appear to be in the prohibits the unlawful deprivation of property.474 welfare of the minor, so long as they are consistent with the Laws governing Muslims law to which the minor is subject.462 In determining what Muslim personal law is the primary source of women’s would be in the welfare of the minor, the court considers the property rights. In general,Muslim personal law dictates that a age, sex and religion of the minor; the “character and capacimale inherits double the share of a female. A widow is entitled ty” of the proposed guardian and his or her kinship to the to one-fourth of her husband’s property when the couple has minor; any wishes of a deceased parent; any existing or previno children, and to one-eighth when there are children.475 In ous relationship between the proposed guardian and the cases of polygamous marriage, the share is divided equally minor or his property;and the preference of the minor,if such among the husband’s wives.476 Where the wife predeceases minor is old enough to form an intelligent preference.463 her husband, he receives exactly double what his wife would Laws governing Muslims have received in the reverse situation: one-half or one-fourth, Under Muslim personal law, mothers may retain custody depending on whether there are children.477 of their daughters until they reach puberty, and of their sons A daughter inherits one-half of her until they reach seven years of age.464 father’s property, but where there is The father-in-law of a widow RELEVANT LAWS AND POLICIES more than one daughter, the daughters assumes custody of her children, and a • Hindu Women’s Right to Property inherit two-thirds collectively.478 When widow must seek permission from a Act, 1937 there is a son in the family, a daughter court to dispose of her minor chil• Indian Succession Act, 1925 inherits one-half of what the son gets as dren’s property.465 • Married Women’s Property Act, 1874 residuary.479 An exception in Shiah Muslim personal law does not recMuslim jurisprudence provides that Shiognize the concept of adoption as ah Muslim girls may inherit all of their father’s property if there widely understood in most societies.466 are no sons.480 Laws governing Hindus Laws governing Hindus Hindu personal law considers the father to be the natUnder Hindu personal law, the order of priority in inherural and legal guardian of the person and property of a itance is the following:son,grandson,great-grandson,daughminor child.467 ter, daughter’s son, father, mother, and so on.481 According to Under the Hindu Widow’s Re-Marriage Act, a widow the 1937 Hindu Women’s Right to Property Act,a widow,or who has not been expressly appointed in her deceased husin the case of polygamous marriage, all widows, inherit the band’s will as guardian of their children may lose her right to same share as a son.482 custody upon remarriage.468 In such cases,the father,mother, Laws governing Christians paternal grandfather or grandmother, or any male relative of Under the 1925 Indian Succession Act, Christians may the deceased husband may petition a court to appoint a make wills to bequeath any part of their property to any perguardian for the care and custody of the children.469 Howevson of their choosing.483 In cases where a Christian dies wither, in cases involving minor children who have no means to
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out a legal will, the widow or widower and all lineal descenUnder the constitution’s Fundamental Principles of State dants inherit.484 Sons and daughters inherit equal shares.485 Policy, the state is charged with responsibility for strengthenRights to agricultural land ing the country’s productive capabilities and elevating citiNo data is available on laws relating to Bangladeshi zens’ standard of living by securing “the right to work, that is women’s rights to agricultural land. the right to guaranteed employment at a reasonable wage Women’s exclusive property having regard to the quantity and quality of work.”498 The principles further proclaim that work is a “right, duty and Laws governing Muslims matter of honour for every citizen who is capable of working, All property given as dower or bridal gifts is vested in the and everyone shall be paid for his work on the basis of the prinbride, who may deal autonomously with such property. ciple,‘from each according to his abilities to each according to Laws governing Hindus his work.’ ”499 Hindu women have exclusive rights to their stridhan.486 Women are the sole owners of such stridhan and may dispose The National Strategy for Economic Growth, Poverty of it as they wish.487 Such property devolves to a woman’s Reduction and Social Development calls for several measures heirs upon her death.488 to remove restrictions on women’s employment and ecoLaws governing Christians nomic opportunities, including the following: ■ introduce equal opportunity laws and ensure equal Under the 1874 Married Women’s Property Act, married wage for similar work; Christian women’s exclusive property includes the following: ■ all wages and earnings from any employment, occu■ undertake affirmative measures to sustain and suppation or trade acquired or gained solely by the marport women’s employment such as providing child ried woman; care and safe transport; ■ any money or other property acquired by the mar■ increase women’s participation in all activities in the ried woman through the exercise of any literary, artisagricultural sector; ■ increase women’s ability to earn income by providtic or scientific skill; and ■ savings and investments from such wages, earnings ing training in starting small and medium scale busiand property.489 ness activities; Under the act, a married woman may effect an insurance ■ introduce training facilities in vocational skills for policy on her own behalf.490 She may additionally file a suit women in high-tech industries through effective 491 in her own name to recover her separate property. budgetary allocation; and Labor and employment ■ formulate economic policies to reduce discriminaNational-level data from 1995–96 indicates that 50.6% of tion against women.500 492 In an effort to increase women’s employment in governwomen participate in the workforce. Of working women, about 34% are unpaid family helpers; about 22% are selfment service positions, the government has instituted a quoemployed; and 18% are day laborers.493 The agricultural and ta system under which 10% of officially posted positions and manufacturing sectors are a major source of women’s 15% of non-posted positions are reserved for women.501 The government has also recently underemployment. Women account for taken special measures for the nearly 24% of all manufacturing appointment of women to senior workers, and 90% of all garment facRELEVANT LAWS AND POLICIES 494 administrative and management pository workers. In contrast,there are • National Strategy for Economic few women in formal public-sector tions of deputy secretary and joint Growth, Poverty Reduction and employment,and even fewer in mansecretary.502 In the realm of educaSocial Development tion, the government has undertaken agement or policy-making posi495 measures to recruit women to fill 60% tions. Although women currently have lower overall rates of employment in comparison with of teaching positions at the primary-school level, 40% at the men, it has been observed that women’s workforce participasecondary-school level and at least 10% at the college and tion is increasing at a faster rate than that of men.496 university levels.503 The constitution guarantees all citizens the rights to equalSome labor laws provide benefits to pregnant women ity and nondiscrimination in pursuit of public employment. and mothers, such as providing maternity leave and childThe state may,however,designate certain positions to be suitcare facilities when more than 50 women are employed by 497 able for only one sex. an employer.504 In the formal sector, two three-month
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make up the majority of borrowers. In the mid-1990s,about periods of maternity leave are allowed during a woman’s 94% of Grameen Bank’s members, 88% of Bangladesh Ruremployment.505 This benefit is not yet ensured in the pri506 vate and informal sector. al Advancement Committee members and 70% of Rural NGOs play a significant role in encouraging women’s Development Project-12 members were women.512 Overlabor force participation. In the garment manufacturing all, an estimated 10 million Bangladeshi women are benefiindustry, some NGOs have instituted pilot programs in colciaries of such programs.513 Microcredit programs have been a key contribution of the laboration with employers to establish day care centers for 507 Garment manufacNGO sector.514 As of 1998, more than 750 NGOs in female garment workers in factories. turers,the Bangladesh Garment Manufacturers and Exporters Bangladesh were involved in microcredit lending activities.515 Roughly 160 NGOs receive financial support for their Association,the International Labor Organization,UNICEF, microcredit lending activities through the Palli Karma Sahayak NGOs,and the government have initiated another collaboraFoundation, a quasi-governmental body that channels intertive effort to establish schools for child workers who have national and government aid to NGOs within Bangladesh; been removed from garment factories.508 Access to credit these NGOs lend to about 1.2 million borrowers.516 Education The National Strategy for Economic Growth, Poverty In 2000,the female literacy rate in Bangladesh was an estiReduction and Social Development proposes several measures mated 49.5%, an increase from 34.2% in 1995.517 to improve women’s access to credit, including the following: ■ increase the availability of funds to give medium-size The constitution’s fundamental rights prohibit discrimicredits to women and encourage female entreprenation in admission to any educational institution on the neurs in both small and medium scale business activigrounds of religion, race, caste, sex, or place of birth.518 The Fundamental Principles of State Policy charge the governties; ■ increase soft loans (with easy loan terms) for femalement with responsibility for establishing a “uniform, masssupported households; oriented and universal system of education”and ensuring free ■ facilitate collateral provisions for women who do not and compulsory education for all children up to a level as own land; determined by law.519 They further enjoin the government to ■ provide banking facilities for garment workers at adopt effective measures to “relat[e] education to the needs of their workplace; and society” and eliminate illiteracy within such time as the gov■ provide home banking facilities to support women’s ernment may determine.520 509 In an effort to translate these mandates into concrete savings habits. Microcredit programs have been a major effort of the govlaws and policies, the government enacted the Primary ernment, international donors and Education (Compulsory) Act in NGOs to improve women’s and oth1990 and National Education Policy RELEVANT LAWS AND POLICIES er marginalized groups’ access to in 2000. The Primary Education • Primary Education (Compulsory) financial services. (Compulsory) Act, which was impleAct, 1990 Three of the country’s largest and mented in 1993, authorizes the gov• National Education Policy, 2000 best-known microcredit programs ernment to make primary education • National Strategy for Economic are the Grameen Bank, a projectmandatory for children aged 6–10 in Growth, Poverty Reduction and turned-bank that spearheaded the any area of the country.521 Social Development The National Education Policy microcredit movement in reaffirms the government’s commitBangladesh in the early 1980s; the ment to making primary education uniform, free and comBangladesh Rural Advancement Committee, one of the pulsory. One of its specific objectives is to gradually extend largest NGO providers of microcredit to low-income the duration of universal and compulsory primary education individuals; and the Rural Development Project-12, a govto eight years by 2010.522 The policy also calls for special ernment program formed in 1988 under the Bangladesh 510 Between 1994 and 1999, efforts to improve women and girls’access to education. SpeRural Development Board. the Grameen Bank alone disbursed about USD 2.4 billion cific strategies in furthering this goal include the following: 511 ■ creating a special fund to enable more women and to nearly 2.3 million borrowers. These programs, like most microcredit programs in girls to attend school; ■ incorporating the issue of women’s equal rights, as Bangladesh,specifically target women and,as a result,women
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well as positive and progressive images of women, in school curricula; ■ providing equal opportunities for boys and girls at the secondary level in course selection; ■ establishing vocational training and polytechnic institutes for girls; ■ providing transportation and hostel facilities for girls who do not live near a secondary school; ■ encouraging girls to pursue professional studies, including the sciences, medicine, law, and business ■ providing scholarships and other need- and meritbased aid to women and girls for higher education and research; and ■ involving women in all levels of educational policy-making.523 The policy also promotes adult education and nonformal education programs as complementary strategies in combating illiteracy. Adult education programs target those aged 15–45 and include job skills training as part of the curriculum.524 Nonformal education programs are geared toward children aged 8–14 who are not enrolled in or have dropped out of the formal educational system.525 Nonformal education programs in Bangladesh have been a major contribution of the NGO sector in particular. As of 1999,there were more than 325 NGOs involved in literacy programs.526 The National Strategy for Economic Growth, Poverty Reduction and Social Development recognizes education as an important development issue. One of the strategy’s primary goals is to eliminate gender disparity in primary and secondary education by 2015.527 The strategy also emphasizes efforts to improve technical and vocational educational opportunities for women.528 E. RIGHT TO PHYSICAL INTEGRITY
Efforts to combat violence against women are incorporated into Bangladesh’s general development policies as well as specific national laws. The National Strategy for Economic Growth,Poverty Reduction and Social Development aims to substantially reduce or eliminate violence against women and children by 2015.529 The Prevention of Oppression Against Women and Children provides the legal framework for prosecuting a range of crimes of violence against women. In addition to legal and policy efforts, the government has created institutional mechanisms to focus on the problem of violence against women. The Department of Women’s Affairs has established a Cell Against Violence Against Women to provide legal counseling and assistance to female victims of violence in civil and criminal cases.530 Committees on violence against women have been formed by the government
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at the zila and thana levels.531 Women’s investigation cells have also been established in several police stations to facilitate women’s access to the police.532 These cells,which are staffed by female police officers, investigate cases of violence against women. In addition, a special squad of the Criminal Investigation Department of the police force has been specifically mandated to investigate acid attacks against women.533 Rape The penal code and the Prevention of Oppression Against Women and Children Act provide the legal framework for prosecuting crimes of rape. The penal code defines rape as sexual intercourse with a woman under any of the following circumstances: ■ against the woman’s will; ■ without the woman’s consent; ■ with the woman’s consent, where consent has been obtained by putting the woman in fear of death or injury; or ■ with the woman’s consent, where the man knows he is not the woman’s husband and the woman consents, believing that he is her husband.534 The code defines statutory rape as sexual intercourse with a girl under the age of 14.535 The code does not recognize marital rape as a crime, unless the wife is under the age of 13.536 The general rule is rationalized by the view,as stated in the code, that “one cannot be held guilty of raping his wife because her consent to marriage constitutes a consent to sexual intercourse with him which in law cannot be revoked during continuance of the marriage.”537 In order to meet the burden of proof for the crime of rape, an alleged victim must provide: ■ corroboration of her testimony by witnesses and medical evidence; and ■ physical evidence of struggle or resistance (nonresistance by the woman may raise the inference of implied consent).538 The Prevention of Oppression Against Women and Children Act, which was passed to address the need for more effective prosecution of perpetrators of violence against women, prescribes severe punishments for crimes of rape. The act defines rape in accordance with the penal code.539 Under the act, persons convicted of rape are subject to life imprisonment and a fine.540 If an adult female or child victim of rape dies later as a result of the act, the convicted perpetrator may be subject to capital punishment.541 Attempted rape is punishable with imprisonment of 5–10 years and a fine, and attempting to cause death or hurt after rape is punishable with life imprisonment and a fine.542 The act also prescribes death or life imprisonment and a fine for each
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years of prison and a fine for attempting to cause hurt in conindividual who participates in a gang rape that results in the nection with a demand for dowry.555 victim’s injury or death.543 In cases of women raped while in In addition to seeking criminal prosecution of an alleged police custody, the act provides that every individual directly perpetrator of domestic abuse, women may also seek civil responsible for the woman’s safety while in custody is subject redress under personal and marriage laws that grant divorce to 5–10 years’ imprisonment and a fine.544 The act additionally charges an individual convicted of rape with financial on the basis of cruelty.556 Sexual harassment responsibility for any child born as a result of the rape.545 Those arrested for crimes under Under the penal code, a person the act are not eligible for bail during who assaults or uses criminal force an initial investigation period of up to against a woman “intending to outRELEVANT LAWS AND POLICIES 90 days.546 The act provides for comrage or knowing it to be likely that • Penal Code, 1860 547 pensation to victims. It also prohe will thereby outrage her modesty” • Prevention of Oppression Against vides a cause of action against may be punished with up to two Women and Children Act, 2000 investigating officers for negligence or years’ imprisonment, a fine or • Dowry Prohibition Act, 1980 548 willful failure in their duties. both.557 The code does not define • National Strategy for Economic Incest the act or acts that constitute “an Growth, Poverty Reduction and Sexual relationships between paroutrage to female modesty.” Social Development ent and child and between brother Rather, explanatory comments in and sister are illegal under all the varithe code provide that a woman’s ous personal laws. Christian and Hindu law also prohibit standard of modesty will vary “according to the country marriage between first cousins, with Hindu law additionally and the race” of the woman.558 The Prevention of Oppression Against Women and Chilprohibiting marriage between other close relatives. The Spedren Act also prescribes punishments for the “sexual opprescial Marriage Act also forbids marriage between persons who sion” of women and children, defined as touching the sexual are related within prohibited degrees.549 Domestic violence organs of a woman or child without consent,sexually assaultThere is no specific national legislation on domestic vioing a woman or making any “indecent gesture.”559 Such acts may be punished with a minimum of two years’ imprisonlence. Various acts of domestic violence may, however, be ment and a fine, and a maximum of ten years’ imprisonprosecuted under the penal code, the Prevention of Oppresment.560 sion Against Women and Children Act and the Dowry ProCommercial sex work hibition Act. The constitution’s Fundamental Principles of State Policy Acts of violence such as causing hurt or grievous hurt may enjoin the government to “adopt effective measures to prebe prosecuted under the penal code.550 A husband who commits an act of violence causing his pregnant wife to miscarry vent prostitution and gambling.”561 Despite this mandate, there are no laws prohibiting a person over the age of 18 from may also be liable for the crime of causing miscarriage.551 The Prevention of Oppression Against Women and Chilengaging in sexual activity in exchange for money.562 In a 2000 case brought by more than 100 sex workers dren Act prescribes severe punishments for causing or after law enforcement authorities closed down two brothels attempting to cause death or hurt by means of burns or coroutside Dhaka,a high court ruled that prostitution as a livelirosive poisonous substances.552 (See “Customary forms of violence” for more information.) hood is not illegal.563 Prostitutes must obtain a license to practice their trade after proving that they have no other One of the most common forms of domestic violence is means of earning an income.564 that in connection with a demand for dowry. The Dowry Sex-trafficking Prohibition Act prohibits giving,taking or demanding dowry The penal code and the Prevention of Oppression Against in consideration for marriage, making these acts punishable 553 Women and Children Act provide the main legal framework with imprisonment of 1–5 years,a fine or both. Under the Prevention of Oppression Against Women and Children Act, for prosecuting commercial sex–related activities. a husband or any relative or person acting on behalf of the The penal code criminalizes a broad range of acts related husband who causes or attempts to cause his wife’s death in to trafficking, including: kidnapping or abducting a woman connection with a demand for dowry is subject to life imprisfor prostitution or other “immoral purposes”; selling, leasing, 554 onment and a fine. The punishment is lowered to 5–14 buying, hiring, or otherwise procuring a minor for prostitu-
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tion or other “immoral purposes”;and importing a girl under 21 years of age from a foreign country for illicit intercourse.565 The Prevention of Oppression Against Women and Children Act prescribes severe penal sanctions for sex-related trafficking activities. Under the act, those convicted of trafficking women for prostitution or other “illicit immoral act[s]” are subject to a minimum of ten years’ imprisonment and a fine, and may receive life imprisonment or capital punishmen t.566 The act prescribes equivalent punishments for those who aid the principal crime, as well as for brothel caretakers and managers.567 NGOs play a significant role in meeting the social welfare and other needs of trafficking victims. NGO efforts encompass offering awareness-raising programs; providing legal aid for victims,including initiating legal action against traffickers; operating safe shelters for victims; providing counseling and health care for victims; and setting up reintegration and rehabilitation programs for victims.568 Customary forms of violence Acid throwing is a prevalent form of violence against women in Bangladesh. In 2000, some 186 incidents of acid throwing were recorded, the majority of which were provoked by family disputes or sparked by a rejection of sexual advances or a proposal of marriage.569 The crime of acid throwing is specifically addressed in the Prevention of Oppression Against Women and Children Act, which prescribes capital punishment or life imprisonment and a fine for causing or attempting to cause death to a woman or child by means of a corrosive or similar substance.570 Similar punishments apply for causing permanent damage to a woman’s or child’s sight or hearing, or disfiguring the face, breast or sexual organ by the same means.571 Less severe injuries are punished with 7–14 years’ imprisonment and a fine.572 Acid throwing may also be prosecuted under provisions of the penal code relating to the crimes of hurt and grievous hurt.573
Focusing on the Rights of a Special Group:Adolescents IV.
The reproductive rights of adolescents, particularly the girl child, are often neglected. Adolescents face many age-specific disadvantages that are not addressed through formal laws and policies. The ability of adolescents to access the health system, their rights within the family, their level of education, and their vulnerability to sexual violence together determine
WOMEN OF THE WORLD:
the state of their reproductive health and their overall wellbeing. The following section presents some of the factors that shape adolescents’ reproductive lives in Bangladesh. A. REPRODUCTIVE HEALTH
Bangladeshi women begin childbearing early in life. By age 19, 58% of women are either pregnant or have already given birth.574 Maternal mortality and morbidity rates,which are exacerbated by acute and widespread malnutrition in Bangladesh, are high among adolescent girls.575 While the overall maternal mortality ratio is estimated to be 480–600 maternal deaths per 100,000 live births, the ratio exceeds 1,800 per 100,000 live births for those under the age of 19.576 Twenty-five percent of all maternal deaths occur to women under the age of 19.577 Among married adolescent girls, only 25.7% of 10–14-year-olds and 38.1% of 15–19-year-olds use some form of contraception.578 There are no separate national reproductive health policies specifically directed at adolescents.579 However, the Health, Nutrition and Population Sector Programme identifies adolescent health care as a key component of reproductive health care.580 The program aims to improve the nutritional status of adolescent girls by providing vitamin supplements and nutrition education.581 Bangladesh’s population policy also has objectives relating to adolescent health, specifically with regard to family planning. (See “Population”for specific objectives relating to adolescents.) In an attempt to increase adolescents’ awareness of reproductive health issues, the Department of Youth Development within the Ministry of Youth and Sports has developed programs to disseminate information on reproductive health and gender issues.582 The project,which is supported by UNFPA, also works with approximately 500 youth clubs that service hard-to-reach groups in underserved areas. NGO providers of reproductive health services and information include Nari Maitree, Concerned Women for Family Development and the Organization for Mothers and Infants.583 Both Nari Maitree and Concerned Women for Family Development have expanded reproductive health coverage for adolescents by setting up satellite clinics in various parts of the country.584 B. MARRIAGE
The median age at first marriage for women aged 20–49 is 15 years,with a difference of more than one year between urban and rural women.585 The Child Marriage Restraint Act,which applies to all citizens of Bangladesh, prescribes punishments for child mar-
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riages. The act requires the bridegroom to be at least 21 years of age and the bride to be at least 18.586 While marriage to a minor may render the adult spouse criminally liable and subject to imprisonment of up to one month, a fine or both, it does not by itself render the marriage void.587 The act punishes any parent or guardian of a minor who promotes or permits a child marriage to be solemnized,or who fails to prevent it from being solemnized, with imprisonment of up to one month, a fine or both.588 Likewise, anyone who performs, conducts or permits a child marriage is subject to similar terms of punishment.589 The Special Marriage Act allows people of different faiths, except Muslims, or those who do not ascribe to a particular faith,to legally register their marriage. Under the act,the husband must be at least 18 and the wife at least 14.590 Additionally,parties under 21 must obtain the consent of the father or guardian to be married.591 (See “Rights within Marriage” for more information.) Laws governing Muslims The Muslim Family Laws Ordinance specifies the legal marriage age as 18 for women and 21 for men.592 Under Muslim personal law, a minor may be given in marriage by his or her guardian until she or he reaches puberty.593 The Dissolution of Muslim Marriages Act allows a minor girl who was married before the age of 16 to repudiate the marriage before reaching 18 years of age, provided the marriage was not consummated.594 (See “Rights within Marriage” for more information.) Laws governing Hindus Hindu personal law governs marriage among Bangladeshi Hindus.595 The law permits child marriage and does not give the girl child the option to repudiate the marriage at any age.596 The Hindu Widow’s Re-Marriage Act provides that if the widow remarrying is a minor whose marriage has not been consummated, she may not remarry without the consent of her father or some other living male relative. (See “Rights within Marriage” for more information.) Laws governing Christians The Christian Marriage Act allows for the solemnization of marriage between parties, one or both of whom are Christian.597 (See “Rights within Marriage”for more information.) C. EDUCATION
About 82% of primary-school age girls are enrolled in school, with a 60% completion rate.598 At the secondary level, about 41% of girls are enrolled in school.599 The dropout rate is generally higher in secondary than primary schools, particularly among girls in grades six to ten.600 The constitution’s Fundamental Principles of State Policy
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enjoin the government to take measures to establish a free and compulsory education system.601 The Primary Education (Compulsory) Act authorizes the government to provide compulsory education for children aged six to ten.602 One of the primary goals of the National Strategy for Economic Growth,Poverty Reduction and Social Development is to attain universal primary education for all children of primary-school age.603 With regard to secondary education,the strategy pledges to strengthen current initiatives to promote the education of children from low-income families and girls.604 Under the Food for Education program, which was launched as a pilot project in 460 unions in 1993, the government provides a free monthly ration of food grain to lowincome households as an incentive to keep their primary-school age children in school.605 Female-headed households are included among households that qualify for the program.606 By 1999–2000, the program had been expanded to 17,403 schools in 1,247 unions, reaching 2.2 million households and 2.3 million students.607 Initiatives to increase the enrollment of girls in secondary school include an assistance program under which girls in grades six to ten who study at recognized schools and madrassas outside of urban areas receive free tuition and a stipend for books.608 The government has pledged to extend such assistance to grade 12.609 The Non-Formal Education System operates coeducational centers to meet the needs of students who have had to abandon formal schooling or who have been unable to attend formal schooling altogether.610 Through nonformal education programs, children receive basic education and practical training and have the option of re-enrolling in formal schools for completion of their nonformal curriculum.611 The Directorate of Non-Formal Education has been responsible for developing both rural- and urban-based projects to provide learning opportunities for working children aged 8–14.612 Learning centers have been set up and managed by approximately 150 NGOs under the care of the directorate.613 By December 2000, a total of 3,375 centers had been established with approximately 100,000 students, more than half of whom were girls.614 The Bangladesh Rural Advancement Committee is one NGO that has been providing children with nonformal education since 1985 in remote villages of the country. The organization works in over 62,000 villages and operates some 34,000 schools with a current enrollment of 1.1 million children.615 Knowledge of reproductive health, including reproduction, sexuality and menstruation, is extremely limited among Bangladeshi adolescents.616 Moreover, their knowledge about symptoms of STIs and HIV/AIDS, as well as on how
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STIs are transmitted and prevented, is less than adequate.617 onment and a fine.623 The crimes of kidnapping, rape and The National Policy on HIV/AIDS and STD Related “sexual oppression” under the act apply to children as well as Issues highlights the importance of providing adolescents adult women.624 (See “Right to Physical Integrity” for more information on these crimes.) The act trumps the punishwith access to accurate and relevant information on sexual 618 ments prescribed in the penal code for crimes relating to the health. It encourages educational institutions at all levels to include HIV/AIDS in their sexual exploitation and trafficking of curricula.619 (See “Education” for children, which are less severe than RELEVANT LAWS AND POLICIES more information.) those under the act.625 • National Plan of Action against the In addition to legislation, An STD/AIDS Network, Sexual Abuse and Exploitation of Bangladesh has a specific national composed mainly of NGOs, was Children including Trafficking, 2002 policy combating sexual abuse formed in 1993 to enable NGOs, in cooperation with the government, to coordinate a plan of action on STI/AIDS education and prevention. A number of NGO programs for adolescents include HIV/AIDS awareness in their health education activities.620 D. SEXUAL OFFENSES AGAINST MINORS
Reliable quantitative data on the prevalence of sexual abuse, sexual exploitation and child trafficking in Bangladesh is not available. However, small-scale studies indicate that these are rapidly growing problems that demand greater attention.621 In one survey of child sexual abuse, more than half of all respondents had experienced some form of such abuse; children ages 10–14 experienced the most frequent abuse.622 The Prevention of Oppression Against Women Act criminalizes acts related to the sexual exploitation of minors. Under the act, trafficking in children, defined as persons under the age of 14, is punishable with death or life impris-
against minors.The National Plan of Action against the Sexual Abuse and Exploitation of Children including Trafficking,adopted in 2002,identifies issues, objectives and strategies under the following seven broad “themes”: ■ prevention; ■ protection; ■ recovery and reintegration; ■ perpetrators; ■ child participation; ■ STIs, HIV/AIDS and substance abuse; ■ coordination and monitoring.626 The plan’s objectives include the elimination of “child marriage,” the establishment of a system for identifying, reporting and providing referrals in cases of sexual offenses against minors, and the creation of safe havens for child victims of sexual abuse and exploitation, and children at risk.627
ENDNOTES 1. Bangladesh, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World 1, vol. III–A (Thomas H. Reynolds & Arturo A. Flores eds., 1994). See Bureau of South Asian Affairs, U.S. Department of State, Background Notes: Bangladesh, http://www.state.gov/r/pa/ei/bgn/3452pf.htm (last visited Feb. 10, 2004). 2. Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 1. 3. Federal Research Division, Library of Congress, Country Studies: Bangladesh, tbl.A: Chronology of Important Events (James Heitzman & Robert Worden, eds. 1988), http://memory.loc.gov/frd/cs/bdtoc.html (last visited Feb. 9, 2004) [hereinafter Library of Congress Country Studies: Bangladesh]. 4. Library of Congress Country Studies: Bangladesh, supra note 3, ch.1,The “Revolution” of Ayub Khan, 1958–1966. See Modern Legal Systems Cyclopedia, ch. 1(B), §1.2(C)(3) (Kenneth Robert Redden, general ed. Emeritus, 2001). 5. See Library of Congress Country Studies: Bangladesh, supra note 3, ch. 1, The “Revolution” of Ayub Khan, 1958–1966. 6. See Library of Congress Country Studies: Bangladesh, supra note 3, ch. 1, The “Revolution” of Ayub Khan, 1958–1966. 7. Id. ch. 1, Emerging Discontent, 1966–1970. 8. Id. 9. See id. 10. See id. ch. 1, Birth of Bangladesh. 11. Central Intelligence Agency (CIA), U.S. Government, Bangladesh, in The World Factbook (2003), http://www.cia.gov/cia/publications/factbook/geos/bg.html (last visited Jan. 5, 2004). 12. The New York Times Almanac 530 (John W.Wright, ed., 1998);Whitaker’s Almanack 816 (Lauren Hill, ed., 133rd ed. 2000).
13. Library of Congress Country Studies: Bangladesh, supra note 3, ch.1,The Zia Regime and its Aftermath 1977–82. 14. See id. 15. New York Times Almanac, supra note 12;Whitaker’s Almanack, supra note 12. 16. The World Factbook, supra note 11;Virtual Bangladesh, Biography, Sheikh Hasina, http://www.virtualbangladesh.com/biography/hasina.html (last visited Jan. 9, 2004). 17. Ministry of Foreign Affairs, Government of the People’s Republic of Bangladesh, Country Profile, http://www.mofabd.org/glimpse_of_bangladesh.htm (last visited Mar. 2, 2004); Bangladesh Bureau of Statistics, Statistics Wing, Ministry of Planning, Government of the People’s Republic of Bangladesh, Official Statistics,About Bangladesh, http://www.bbsgov.org/ (last visited Mar. 2, 2004). See generally Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),Third and fourth periodic reports of states parties: Bangladesh, 357th and 358th Sess., ¶ 1.1.1, U.N. Doc. CEDAW/C/BGD/3–4 (1997) [hereinafter CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh]. 18. The World Factbook, supra note 11. 19. Id. 20. U.S. Committee for Refugees,World Refugee Survey 2003, Country Report: Bangladesh, www.refugees.org/world/countryindex/bangladesh.cfm (last visited Feb. 10, 2004). 21. See id. 22. Id. 23. Id. 24. U.S. Department of State, Background Notes: Bangladesh, supra note 1. 25. South Asian Association for Regional Cooperation, http://www.saarc-sec.org/ (last visited Feb. 10, 2004); Organization of Islamic Conference, Member States, http://www.oic-oci.org/ (last visited Feb. 10, 2004); Commonwealth Secretariat,
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Commonwealth Countries, http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=20724 (last visited Feb. 10, 2004). See also Library of Congress Country Studies: Bangladesh, supra note 3, ch. 4, Government and Politics,The Islamic World, International Organizations. 26. Bangl. Const., pmbl., http:/www.bangladeshgov.org/pmo/constitution/index.htm (last visited Feb. 10, 2004). 27. Bangl. Const., art. 48(1); The World Factbook, supra note 11. 28. Library of Congress Country Studies: Bangladesh, supra note 3, ch. 4, Presidency. 29. Bangl. Const., art 48(3). 30. Id. arts. 49, 56(2), 72(1), 95(1). 31. Id. art. 145A. 32. Id. art. 50(2). 33. Id. art. 58B(1). 34. U.S. Department of State, Background Notes: Bangladesh, supra note 1. 35. Bangl. Const., arts. 58(B)(2), 58(D)(1). U.S. Department of State, Background Notes: Bangladesh, supra note 1. 36. Bangl. Const., art. 55(2). In 1991, the constitution was amended to make the prime minister in charge of the government, thereby indicating that the presidency is largely a ceremonial position. U.S. Department of State, Background Notes: Bangladesh, supra note 1. 37. Bangl. Const., art. 56(3). 38. See id. arts. 48(3), 55(2), (4). 39. Id. art. 55(3). 40. Id. art. 65. 41. The World Factbook, supra note 11. 42. Email from Faustina Pereira, Supreme Court of Bangladesh, to Nile Park, Center for Reproductive Rights (Sept. 29, 2003, 10:20:00 EST); More Women MPs for Dhaka, THE STRAITS TIMES, Mar. 10, 2004. 43. Bangl. Const., arts. 72(1)–(3). 44. Id. art. 80(1). 45. Id. arts. 80(1) and (2). 46. Id. art. 80(3). 47. Id. 48. Id. art. 142. 49. Id. art. 83. 50. Bangladesh Bureau of Statistics, Statistics Wing, Ministry of Planning, Government of Bangladesh, Official Statistics, Data Sheet 1999, Geographic Data, http://www.bbsgov.org/ (last visited Feb. 24, 2004); The World Factbook, supra note 11. 51. Consideration of Reports Submitted by States Parties Under Article 44 of the Convention on the Rights of the Child, Second periodic reports of States parties due in 1997: Bangladesh, ¶ 11 [hereinafter CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh]. 52. Library of Congress Country Studies: Bangladesh, supra note 3, ch. 4, Government and Politics. 53. Email from Faustina Pereira, supra note 42 (citing Bangladesh Bureau of Statistics, Government of the People’s Republic of Bangladesh, 2000 Statistical Yearbook for Bangladesh 19 (2002)); Data Sheet 1999, supra note 50. 54. Data Sheet 1999, supra note 50. See United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP), Local Government in Asia and the Pacific:A Comparative Study, Country PAPER: Bangladesh, http://www.unescap.org/huset/lgstudy/country/bangladesh/bangladesh.html (last visited Feb. 10, 2004). 55. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51. 56. Id. 57. Kirsten Westergaard, Centre for Development Research, Decentralization in Bangladesh: Local Government and NGOs (paper prepared for the Colloquium on Decentralization and Development, Department of Political Science,Yale University,Apr. 7, 2000) (on file with Center for Reproductive Rights). See also Local Government in Asia and the Pacific:A Comparative Study, Country Paper: Bangladesh, supra note 54; see also BANGL. Const., arts. 59–60. 58. See Westergaard, supra note 57; see also Local Government in Asia and the Pacific: A Comparative Study, Country Paper: Bangladesh, supra note 54. 59. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51; Oxford Dictionary of the World, at 67. 60. Local Government in Asia and the Pacific: A Comparative Study, Country Paper: Bangladesh, supra note 54. 61. See id. 62. Id. 63. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51. See Local Government in Asia and the Pacific: A Comparative Study, Country Paper: Bangladesh, supra note 54. 64. Local Government in Asia and the Pacific: A Comparative Study, Country Paper: Bangladesh, supra note 54. 65. Id. 66 CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.6.3. 67.Westergaard, supra note 57.
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68. Local Government in Asia and the Pacific: A Comparative Study, Country Paper: Bangladesh, supra note 54. 69. Id. 70. Id. 71. Id. 72. Library of Congress Country Studies: Bangladesh, supra note 3, ch. 4, Judiciary. 73. Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 1, at 3. 74.. Bangl. Const., art. 103(1). See CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 16. 75. Bangl. Const., art. 103(2). 76. Id. art. 103(3). 77. Id. art. 106. 78. Library of Congress Country Studies: Bangladesh, supra note 3, ch. 4, Judiciary. 79. Modern Legal Systems Cyclopedia, supra note 4, §1.7(A)(1). 80. Bangl. Const., arts. 94(2), 95(1), 98. 81. Id. art. 96(1). 82. Id. art. 96(3)–(6). 83. Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 1, at 3–4. 84. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 16. 85. Id. 86. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 1.3(c). 87.The Family Courts Ordinance, No. XVIII, 1985, § 5 (Bangl.). 88.The Special Powers Act, No. XIV, 1974, § 26, pmbl. (Bangl.). 89. Id. § 28. 90. Id. § 2(f), sched. 4C. Rape is addressed in §§ 375–6 of the Bangl. Pen. Code. 91. Prevention of Oppression Against Women and Children Act, No.VIII, 2000, § 26 (Bangl.) (unofficial trans., on file with the Center for Reproductive Rights). 92. Id. 93. Modern Legal Systems Cyclopedia, supra note 4, §1.7(C). 94. Harry Blair, Department of International Development, Village Justice in Bangladesh: reforming the traditional shalish 1 (2003). 95. Id. 96. Id. 97. Id. 98. Id. 99. Id. 100. See Bureau of Democracy, Human Rights and Labor, U.S. Department of State, International Religious Freedom Report: Bangladesh (2001), http://www.state.gov/g/drl/rls/irf/2001/5556.htm (last visited Feb. 10, 2004). 101. Id. 102. Id. 103. Id. 104. Mokbul Morshed Ahmad, The State, Laws and Non-Governmental Organizations (NGOs) in Bangladesh, 3 Int’l J. Not-for-Profit L., Issue 3. 105. Id. 106. Id. 107. See Ministry of Health and Family Welfare (MOHFW), Government of the People’s Republic of Bangladesh, ICPD Programme of Action:What has been done in Bangladesh ¶ 3.7 (1999). 108. See id. 109. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.6.5. 110. ICPD Programme of Action:What has been done in Bangladesh, supra note 107. 111. International Planned Parenthood Federation, Country Profiles: Bangladesh, http://ippfnet.ippf.org/pub/IPPF_Regions/IPPF_CountryProfile.asp?ISOCode=BD (last visited Feb. 19, 2004). 112. Id. 113. Bangl. Const., art. 7(2). 114. Id. arts. 27–28, 31. 115. Id. arts. 36–39, 41 116. Id. arts. 8–25. 117. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 15. 118. Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 1, at 2. 119. Communication with Salma Sobhan, Peer Review of the Bangladesh Draft (Dec. 15, 2003) (on file with Center for Reproductive Rights). 120. Law Commission–Bangladesh,About Law Commission, http://www.lawcommissionbangladesh.org/about.htm (last visited Feb. 11, 2004).The commission was established under the Law Commission Act, No. XIX, 1996 (Bangl.). See id. 121. See id. 122. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.1.4. 123. Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdic-
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tions of the World, supra note 1, at 2; World Bank, A World Bank Country Study: Bangladesh, Strategies for Enhancing the Role of Women in Economic Development § 2.47. See Elimination of all forms of religious intolerance: Note by the Secretary–General, U.N. GAOR, 55th Sess., ¶ 27, U.N. Doc.A/55/280/Add.2 (2000). This document contains the interim report of the Special Rapporteur of the Commission on Human Rights on the elimination of all forms of intolerance and of discrimination based on religious belief. 124. Planning Commission, Government of the People’s Republic of Bangladesh, Fifth Five Year Plan (1997–2002). 125. Economic Relations Division, Ministry of Finance, Government of the People’s Republic of Bangladesh, Bangladesh: A National Strategy for Economic Growth, Poverty Reduction and Social Development (2003). 126. Ministry of Finance, Government of the People’s Republic of Bangladesh, Budget Speech 2003–2004 ¶ 7. 127. Bangladesh:A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, ¶ 7.11, tbl. 7, at 73. 128.Asjadul Kibria, Goodbye to five-year plans, New Age National, June 14, 2003. 129. Convention on the Elimination of All Forms of Discrimination Against Women, adopted Dec. 18, 1979, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc.A/34/46, at 193 (1979) (entered into force Sept. 3, 1981, ratified with reservation by Bangladesh Nov. 6, 1984); Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc.A/44/49, at 166 (1989) (entered into force Sept. 2, 1990) (ratified with amendment by Bangladesh Aug. 3, 1990); International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) (ratified by Bangladesh with declaration and amendment, July 11, 1979); International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 3 (entered into force March 23, 1976) (ratified by Bangladesh Dec. 6, 2000); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No .16, at 49, U.N. Doc A/6316 (1966), 999 U.N.T.S. 3 (entered into force Jan.3, 1976)(ratification by Bangladesh with declaration on Dec. 10, 1998). 130. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, adopted Oct. 6, 1999, G.A. Res.A/54/4 (entered into force Dec. 22, 2000) (ratified with reservation by Bangladesh Dec. 22, 2000). 131. Declarations, reservations, objections and notifications of withdrawal of reservations relating to the Convention on the Elimination of Discrimination Against Women, 9th mtg., at 14, U.N. Doc. CEDAW/SP/1996/2 (1996), available at http://www.un.org/documents/ga/cedaw/cedawsp1996-2.htm (last visited Feb. 24, 2004). 132. Id. CEDAW and Women:The Bangladeshi Experience,WPRN Newsletter, vol. 1, no. 3, Mar.– June 1998, reprinted by Asian Women’s Resource Exchange (AWORC), http://www.aworc.org/bpfa/pub/sec_i/hum00001.html (last visited Feb. 24, 2004). The reservations relate to Articles 2, 13.1(a) and 16.1(c), (f). 133. CEDAW and Women:The Bangladeshi Experience, supra note 132. Reservations were withdrawn to Articles 13.1(a) and 16.1(f). Id. Bangladesh:A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, annex 8. 134. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.1.4. 135. Vienna Declaration and Programme of Action,World Conference on Human Rights,Vienna, Austria, June 14–25, 1993, U.N. Doc.A/CONF.157/23 (1993); Programme of Action of the International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 1994, U.N. Doc.A/CONF.171/13/Rev.1 (1995); Beijing Declaration and the Platform for Action, Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, U.N. Doc. A/CONF.177/20 (1995); United Nations Millennium Declaration, U.N. GAOR, 55th Sess., U.N. Doc.A/Res/55/2 (2000). 136. South Asian Association for Regional Cooperation (SAARC), SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002), http://www.saarc-sec.org/publication/conv-traffiking.pdf (last visited Feb. 11, 2004); South Asian Association for Regional Cooperation (SAARC), SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, http://www.saarc-sec.org/publication/conv-children.pdf (last visited Feb. 11, 2004). 137. Bangl. Const., Part II, art. 15(a) . 138. Id. pt. II, art. 18(1). 139. Id. pt. II, art. 16. 140. See Fifth Five Year Plan, supra note 124, ¶ 21.1.2. 141. In his 2003–2004 budget speech, the Minister of Finance indicated that implementation of the program would commence July 1, 2003. Budget Speech 2003–2004, supra note 126, ¶ 28.As of the time of the writing of this report, data was not available on whether the program had actually been implemented as scheduled. 142. Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh, Health Policy of Bangladesh, http://www.mohfwbdgov.org/health_policy.htm (last visited Feb. 25, 2004). 143. Id. 144. Id. 145. Id. 146. Budget Speech 2003–2004, supra note 126, ¶ 28; Planning Wing, Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh, Conceptual Framework for Health, Nutrition and Population Sector Pro-
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gramme (HNPSP) July 2003–June 2006 (2002). 147. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 3.09. 148. Id. ¶ 3.10. 149. Id. 150. Id. HNPSP Interventions,A. See Ministry of Health and Family Welfare (MOHFW), Government of the People’s Republic of Bangladesh, Health and Population Sector Programme 1998–2003 (HPSP): Programme Implementation Plan, pt. I, § 4.2. 151. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, HNPSP Interventions. 152. Id. ¶ 3.11. 153. Id. ¶¶ 3.18–3.19, 3.24–3.30. 154. Id. ¶ 3.11. 155. Bangladesh:A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, ¶ 4.1, at 23. 156. Id. 157. Id. ¶¶ 5.61–5.64, at 45–46. 158. Bangladesh, Bhutan, India and Nepal (BBIN) Network for Vector–Borne Diseases, Bangladesh Country Profile, http://www.bbin.org/countries/bangladesh.htm (last visited Feb. 11, 2004). 159. See Asian Development Bank (ADB), Report and Recommendation of the President to the Board of Directors on a Proposed Loan to the People’s Republic of Bangladesh for the Urban Primary Health Care Project ¶ 14, RRP: BAN 29033 (1997) [hereinafter ADB Report and Recommendation on Urban Primary Health Care Project]; Zarina Kabir, Swedish International Development Cooperation Agency (Sida), Health Profile: Bangladesh § 5.2 (1995). 160.ADB Report and Recommendation on Urban Primary Health Care Project, supra note 159; CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.1. 161.ADB Report and Recommendation on Urban Primary Health Care Project, supra note 159. 162. See Ravi P. Rannan–Eliya & Aparnaa Somanathan, Institute of Policy Studies of Sri Lanka, IPS HPP Occasional Paper No. 12, Bangladesh Health Facility Efficiency Study Report 1 (1998). 163. Id. at 7. 164. Id. 165. Id. 166. Communication with Faustina Pereira, South Asia–WOW: Bangladesh 2 (Oct. 1, 2003) (on file with Center for Reproductive Rights) (citing Bangladesh Bureau of Statistics, Government of the People’s Republic of Bangladesh, 2000 Statistical Yearbook for Bangladesh 554). 167. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.2. 168. See Ravi P. Rannan–Eliya & Somanathan, supra note 162, at 1, 7. 169. Id. at 1, 5, 7, 9. 170. Id. at 7. 171. Id. 172. Communication with Faustina Pereira, supra note 166. 173.. Ravi P. Rannan–Eliya & Somanathan, supra note 162. 174. Id. at 7. 175. Kabir, supra note 159; Communication with Faustina Pereira, supra note 166 (citing Halida Hanum Akhter, Development Assistance Council,A Study to Assess the Determinants and Consequences of Abortion in Bangladesh 9, 10 (1998)). 176. Communication with Faustina Pereira, supra note 166. 177. See Kabir, supra note 159. 178 CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.2. 179. Fifth Five Year Plan, supra note 124, ¶ 21.2.2. 180. Bangladesh Bureau of Statistics, Government of the People’s Republic of Bangladesh, Report on Survey of Private Health Service Establishment 1997–98, ¶ 1.1 (1998). 181. Id. ¶ 2.2. 182. See id. 183. Id. ¶ 2.3. 184. Id. tbl. 30. 185. See id. 186. Draft of Private Medical Service Act approved, The Daily Star, Nov. 25, 2003. 187. See Kazi Shamsul Amin, 40 clinics, diagnostic centres closed down in 2 months, New Age, Nov. 30, 2003. 188. See id. 189. Kabir, supra note 159, § 5.3.2. 190. World Health Organization (WHO), Selected health indicators for Bangladesh, http://www3.who.int/whosis/country/indicators.cfm?country=bgd (last visited Feb. 11, 2004). 191. Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh, Consolidated Fund Receipts Detailed Estimates: 2002–2003 1, http://www.mohfwbdgov.org/budget.htm (last visited Feb. 26, 2004). 192. Id. at 2. 193. World Bank & Asian Development Bank (ADB), Bangladesh Public Expendi-
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ture Review ¶ 24. 194. Id. 195. Selected health indicators for Bangladesh, supra note 190. 196. Id. Bangladesh Public Expenditure Review, supra note 193, ¶ 168. 197. Henry B. Perry,World Bank, Quest for a Healthy Bangladesh; A Vision for the Twenty–First Century 13 (2000). 198. See id. at 14. 199. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 12.09, tbl. 3. 200.ADB Report and Recommendation on Urban Primary Health Care Project, supra note 159, ¶ 28. 201. Id. 202. Id. app. 4, at 45. 203. Perry, supra note 197, at 14. 204. Id. at 32. 205. Id. 206. Pilar Ramos–Jimenez & Celeste Maria V. Candor, eds., Gender, Sexuality and Reproductive Health in South Asia 21–22 (2001). 207. Report on Survey of Private Health Service Establishment 1997–98, supra note 180, tbl. 4.6. 208. Id. 209. Communication with Faustina Pereira, supra note 166 (citing Medical and Dental Council Act, No. XVI, 1980 (Bangl.)). 210. Health Policy of Bangladesh, supra note 142, Strategies ¶ 11. 211. Id. 212. Naimul Haq, Doctors face 10yrs for malpractice, Daily News Monitoring Service, Feb. 24, 2004. 213. Id. 214. Id. 215. Id. 216. Id. 217. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 4.24. 218. See ICPD Programme of Action: What has been done in Bangladesh, supra note 107, ¶ 3.2.10. 219. See id. ¶ 3.2.10 n.2. 220. Id. ¶ 3.2.10. 221. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146 ¶ 4.02. 222. See Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh, Bangladesh Population Policy, Implementation Strategies ¶¶ 4.1.1–4.1.5, www.mohfwbdgov.org/population_policy.htm (last visited Feb. 26, 2004). 223. National Institute of Population Research and Training (NIPORT), et al., Bangladesh Demographic and Health Survey 1999–2000, §1.3; Abul Barkat et al., Ministry of Health & Family Welfare & Partners in Population and Development, Family Planning Program in Bangladesh: Successes and Challenges 7 (1997). 224. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶¶ 3.11, 4.04. 225. Id. ¶ 4.05. 226. Id. 227. Id. ¶ 3.13. 228. Health Policy of Bangladesh, supra note 142, Strategy 4. 229. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, §§ 4.1, 4.4, tbls. 4.1, 4.7. 230. Id. tbls. 4.1, 4.7. 231. Id. tbl. 4.7. 232. Id. tbl. 4.9. 233. See Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh,Act & Legislation, http://www.mohfwbdgov.org/act_legislation.htm#1 (last visited Mar. 2, 2004; See also email from Shabnam Shahnaz, Marie Stopes International, to Pardiss Kebriaei, Center for Reproductive Rights (Jan, 16, 2004, 05:42:00 EST). 234. See Communication with Naripokkho, Family Planning, at 4 (2002) (on file with Center for Reproductive Rights). 235. Id. 236. Id. 237. See Consortium for Emergency Contraception, ECP Status and Activity by Country, http://www.cecinfo.org/files/ecstatusavailability.pdf (last visited Jan. 10, 2004). 238. See id. 239. M.E. Khan & Sharif Mohammed Ismail Hossain, Population Council & FRONTIERS in Reproductive Health, Research Update No. 1, Introducing Emergency Contraception in Bangladesh: A feasibility study 3 (2001). 240. Id. at 2. 241. Id. at 3. 242. See Communication with Naripokkho, supra note 234. 243. See Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 3.13. 244. Population Information Program, Center for Communication Programs, Johns
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Hopkins School of Public Health, Closing the Condom Gap, XXVII Population Reports 1, Series H, No. 9, ch. 8 (1999), http://www.infoforhealth.org/pr/h9/h9chap8_3.shtml (last visited Feb. 19, 2004). 245. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 4.15. 246. Id. 247. Id. tbl. 4.9. 248. Id. § 4.8. 249. Id. 250. Id. 251. See Communication with Naripokkho, supra note 234, at 7–9 (citing MCH Service Unit, Directorate of Family Planning, Ministry of Health and Family Welfare, MCWC Operational Manual,Technical Information on Various Contraceptive Methods 85–107 (1997)). 252. See id. at 7–8. 253. Id. 254. Id. 255. Id. 256. Id. 257. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 4.06. 258. Health and Population Sector Programme 1998–2003 (HPSP): Programme Implementation Plan, supra note 150, pt. II, annex 8.1.2, ¶ 2.4.3. See also EngenderHealth, Contraceptive Sterilization: Global Issues and Trends 5 (2002), http://www.engenderhealth.org/res/offc/steril/factbook/pdf/contents.pdf (last visited Feb. 19, 2004). 259. EngenderHealth, supra note 258, at 5. 260. Health and Population Sector Programme 1998–2003 (HPSP): Programme Implementation Plan, supra note 150, pt. II, annex 8.1.2, ¶ 2.4.3. 261. See Center for Policy Dialogue Bangladesh, National Policy Review Forum 2003, Health, Nutrition and Population Policy ¶ 5.6.3. 262. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.2. 263. Id. ¶ 2.11.1. 264. Id. 265. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 4.12. See Bangladesh Demographic and Health Survey 1996–1997, § 4.15. 266. See Bangladesh Demographic and Health Survey 1996–1997, supra note 265. 267. Id. 268. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 4.9, tbl. 4.17. 269. Id. tbl. 4.17. 270. Id. 271. Id. 272. Ramos–Jimenez & Candor, supra note 206, at 20. See also CEDAW Committee, Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.2. 273. Bangladesh Demographic and Health Survey 1996–1997, supra note 265, § 4.10. 274.. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, tbl. 4.17. 275. Id. 276. Id. 277. Id. § 4.3. 278. Id. § 4.7. See also Bangladesh Demographic and Health Survey 1996–1997, supra note 265, § 4.8. 279. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 4.7. 280. See Bangladesh:A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, annex 8, at 108. 281. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 8.1, at 111. 282. Id. 283. Id. § 8.1, tbl. 8.1, at 111–112. 284. Id. § 8.2, at 116. 285. Id. § 8.2, at 117. 286. Id. § 8.2, at 118. 287. See Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 3.12. 288. See id. 289. Id. ¶ 4.07. 290. Safe Motherhood, United News of Bangladesh, Dec. 2, 2003, reprinted in The Periodic Updates of Sexual and Reproductive Health Issues Around the World (PUSH) Journal. 291. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 9.3; News Release, No. 2000/367/SAS,World Bank, Bangladesh Intensifies Efforts to Fight Malnutrition (May 26, 2000) (on file with the Center for Reproductive Rights). 292. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.3. 293. Ramos–Jimenez & Candor, supra note 206, at 7. 294. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.3.
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295. See Perry, supra note 197, at 12. 296. ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.2.7. 297. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 4.09. 298. Id.¶ 3.14.The Bangladesh Integrated Nutrition Project, launched in 1995 was the country’s first nationwide nutrition program. See ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.6; see also World Bank Group, Bangladesh Integrated Nutrition Project, http://wbln0018.worldbank.org/lo+web+sites/bangladesh+web.nsf/0704a4348e105b 2e462566720023975f/fd5789e2b8cf979646256718002afb84 (last visited Feb. 19, 2004). 299. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.3.5. 300. Id. 301. Health and Population Sector Programme 1998–2003 (HPSP): Programme Implementation Plan, supra note 150, pt. I, § 4.2.1. 302. Id. Communication with Melissa Upreti, Center for Reproductive Rights (2004). 303. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 4.3; Halida Hanum Akhter, Bangladesh Institute of Research for Promotion of Essential and Reproductive Health Technologies (BIRPERHT), Bangladesh Experience (paper presented at Expanding Access: Midlevel Provider in Menstrual Regulation, Dec. 2–6, 2001, Pilanesberg National Park, South Africa) (on file with Center for Reproductive Rights). 304. Bangl. Pen. Code §§ 312–316. 305. United Nations, Abortion Policies: A Global Review, Bangladesh 47 http://www.un.org/esa/population/publications/abortion/profiles.htm, (last visited Feb. 12, 2004). 306. Bangl. Pen. Code, art. 312. 307. Id. 308. Id. art. 313. 309. Ramos–Jimenez & Candor, supra note 206, at 17. 310. See id. 311. See id. at 16. 312.Akhter, supra note 303, at 3; Bruce Caldwell et al., Pregnancy Termination in a Rural Subdistrict of Bangladesh:A Microstudy, 25 International Family Planning Perspectives 1, 347–37, 43 (1999). 313.Akhter, supra note 303, at 3. 314. Ramos–Jimenez & Candor, supra note 206, at 17. 315. ICPD Programme of Action: What has been done in Bangladesh, supra note 107, ¶ 3.2.10. 316. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 4.02. 317.Akhter, supra note 303, at 4. 318. Communication with Faustina Pereira, supra note 166;Akhter, supra note 303. 319. Ramos–Jimenez & Candor, supra note 206, at 17. 320. Ministry of Health and Family Welfare (MOHFW), Government of the People’s Republic of Bangladesh, Population and Development Issues in Bangladesh: National Plan of Action Based on ICPD ’94 Recommendations, at 131; Ramos–Jimenez & Candor, supra note 206, at 17. 321. Population and Development Issues in Bangladesh: National Plan of Action Based on ICPD ’94 Recommendations, supra note 320, at 132. 322. Id. 323. Id. 324. Id. 325.Akhter, supra note 303, at 6. 326. Id. at 5. 327. See Ramos–Jimenez & Candor, supra note 206, at 18. 328. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.4. 329. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 1.02. 330. See Ramos–Jimenez & Candor, supra note 206, at 18. 331. UNAIDS, et al., Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections: Bangladesh (2002 Update), http://www.who.int/emchiv/fact_sheets/pdfs/Bangladesh_EN.pdf (last visited Feb. 20, 2004). 332. Bangl. Pen. Code., §§ 269–270. 333. UNAIDS, National Responses to HIV/AIDS, National Response Brief: Bangladesh, www.unaids.org/nationalresponse/result.asp?action=overall&country=346 (last visited Feb. 26, 2004) [hereinafter National HIV/AIDS Response Brief: Bangladesh]. 334. See e.g., Dissolution of Muslim Marriage Act, No. 8, 1939, § 2(vi) (Bangl.). 335. Population and Development Issues in Bangladesh: National Plan of Action Based on ICPD ’94 Recommendations, supra note 320, at 139. 336. WORLD HEALTH ORGANIZATION (WHO), World AIDS Day 2001: Men Make a Difference: I Care...DoYou? [hereinafter World Aids Day 2001: Men Make a Difference: I Care...DoYou?] 337. Population and Development Issues in Bangladesh: National Plan of Action Based on ICPD ’94 Recommendations, supra note 320, at 140. 338. World Aids Day 2001: Men Make a Difference: I Care… DoYou?, supra note 336. 339. Id. 340. National HIV/AIDS Response Brief: Bangladesh, supra note 333, National
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Strategic Framework. 341. Communication with Naripokkho, HIV/AIDS and STDs, at 3 (2002) (on file with Center for Reproductive Rights) (citing Director General of Health Services, Ministry of Health and Family Welfare, Government of the People’s Republic of Bangladesh, National Policy on HIV/AIDS and STD Related Issues 3–7 (1996)). 342. Id. at 4. 343. ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.2.6. 344. Id. 345. Communication with Naripokkho, supra note 341, at 5. 346. See id. 347. Health and Population Sector Programme 1998–2003 (HPSP): Programme Implementation Plan, supra note 150, pt. II, annex 8.1.3, at 39–41 of 104. 348. Human Rights Watch, vol. 15, No. 6(C), Ravaging the Vulnerable:Abuses Against Persons at High Risk of HIV Infection in Bangladesh 12 (2003). See also World Aids Day 2001: Men Make a Difference: I Care… DoYou?, supra note 336. 349. Ravaging the Vulnerable:Abuses Against Persons at High Risk of HIV Infection in Bangladesh, supra note 348. 350. Id. 351. National HIV/AIDS Response Brief: Bangladesh, supra note 333, National Strategic Framework. 352. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 3.20. 353. Id. ¶ 3.21. 354. ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.2.9. 355. Population and Development Issues in Bangladesh: National Plan of Action Based on ICPD ’94 Recommendations, supra note 320, at 138. 356. World Aids Day 2001: Men Make a Difference: I Care… DoYou?, supra note 336. 357. ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.2.9. 358. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.11.4. 359. See Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 10.1. 360. Id. § 10.1, tbl. 10.1. About one-fifth of ever-married women and one-third of currently married men report television as a source of information about HIV/AIDS. 361. Id. § 1.3. 362. See Bangladesh Population Policy, supra note 222, pmbl.; see also Bangladesh Demographic and Health Survey 1999–2000, supra note 223. 363. Bangladesh Demographic and Health Survey 1996–1997, supra note 265, § 1.3. 364. Id. § 1.2. 365. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 1.12. 366. Bangladesh Demographic and Health Survey 1999–2000, supra note 223. 367. Bangladesh Population Policy, supra note 222. 368. Id. pmbl. 369. Id. Major Objectives. 370. Id. 371. Id. 372. Id. Implementation Strategies. 373. ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.2.5. 374. Id. 375. See Bangladesh Population Policy, supra note 222, Implementation Strategies ¶ 4.1.1. 376. Bangl. Const., arts. 27–28. 377. Id. art. 28. 378. Id. art.28(2); CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.1.2. 379. See ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.6. 380. See Programs Department (West), Asian Development Bank (ADB), Country Briefing Paper:Women in Bangladesh 35 (2001) [hereinafter ADB Country Briefing Paper:Women in Bangladesh]. 381. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 1.4.1. 382.ADB Country Briefing Paper:Women in Bangladesh, supra note 380. 383. See id. at 37. 384. Id. 385. See ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.6. 386. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 1.4.2. 387. Id. 388.ADB Country Briefing Paper:Women in Bangladesh, supra note 380, at 36. 389. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 1.4.3. 390. Bangladesh: A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, annex 8, at 110.
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391. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.2. 392.ADB Country Briefing Paper:Women in Bangladesh, supra note 380, at 37. 393. Id. 394. Bangladesh: A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, ¶ 4.1, at 23, annex 8 at 107. 395. Id. annex 8 at 107–113. 396. Bangl. Const., art. 6. 397. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.8.2. 398. Id. 399. See Law Commission– Bangladesh, supra note 120. 400. Ramos–Jimenez & Candor, supra note 206, at 14. 401. Communication with Naripokkho, Legal Status of Women, at 3 (2002) (on file with Center for Reproductive Rights). 402. Special Marriage Act, No. 3, 1872, §§ 1(2)–(4), 4 (Bangl.). 403. Id. §§ 1(1), 16. 404. Communication with Naripokkho, supra note 401. 405. Id. 406. Child Marriage Restraint Act, No. 19, 1929 § 2(a) (Bangl.). There is an anomaly in the law with respect to the minimum age of marriage laid down in the Special Marriages Act and the Child Marriage Restraint Act. Pursuant to the Child Marriage Restraint Act, it is probable that a parent can longer authorize an underage marriage as permitted in the Special Marriages Act, but the law is not clear. See Communication with Salma Sobhan, supra note 119. 407. Abdul Matin,The Law on Dowry Prohibition and Child Marriage Restraint 74 (1992). 408. Dowry Prohibition Act, No. XXXV, 1980 § 3 (Bangl.). 409. Communication with Salma Sobhan, supra note 119. The act does make an exception for Muslim dower. Dowry Prohibition Act, No. XXXV, 1980 § 2(b) (Bangl.) 410. Communication with Salma Sobhan, supra note 119. Such withholding has caused Hindu married women considerable financial hardship. Id. 411. Prevention of Oppression Against Women and Children Act, No.VIII, 2000 § 11 (Bangl.) (unofficial trans., on file with the Center for Reproductive Rights). 412. Ramos–Jimenez & Candor, supra note 206, at 14. 413. Communication with Naripokkho, supra note 401. 414. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.1. 415. Muslim Marriages and Divorces (Registration) Act, No. LII, 1974, §§ 3–4 (Bangl.). 416. Id. § 5. 417. Muslim Family Laws Ordinance, No.VII, 1961 § 2(a)–(b) (Bangl.). 418. Id. § 6(2). 419. Id. § 6(3). Muslim Family Law Rules, No. 658 Jdl. IV/IA–2/611961, § 14 (Bangl.). 420. Muslim Family Laws Ordinance, No.VII, 1961 § 6(4) (Bangl.). 421. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.4. 422. Muslim Family Laws Ordinance, No.VII, 1961 § 6(5) (Bangl.). 423. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.1. 424. Id. 425. See Elimination of all forms of religious intolerance: Note by the Secretary–General, supra note 123. 426. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.1. 427. Id. ¶ 2.15.4. 428. Communication with Naripokkho, supra note 401, at 4 (citing Hindu Widow’s Re–Marriage Act, 1856, § 1 (Bangl.); Hindu Marriage Disabilities Removal Act, 1946 (Bangl.)). 429. Id. (citing Christian Marriage Act, 1872 (Bangl.)). 430. See id. 431. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.4. 432. M. Hidayatullah and Arshad Hidayatullah, Mulla’s Principles of Mahomedan Law §§ 308, 319 (19th ed. N. M.Tripathi Private Ltd. 2003). 433. Muslim Family Laws Ordinance, No.VII, 1961 § 7 (Bangl.). 434. Id. § 7(4). 435. Id. §§ 7(3), 7(5). 436. See id. § 8. 437. Id. § 10 (comments). 438. Dissolution of Muslim Marriage Act, No. 8, 1939, §§ 2(i)–(iv), (vi–ix) (Bangl.). 439. Id. §§ 2(viii)(a)–(f). 440. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.3. 441. See id. 442. Communication with Naripokkho, supra note 401, at 6 (citing Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946 (Bangl.)). 443. Id. 444. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.3. 445. Communication with Naripokkho, supra note 401, at 7 (citing Divorce Act, 1869
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(Bangl.)). See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.3. 446. Communication with Naripokkho, supra note 401, at 7 (citing Divorce Act, 1869 (Bangl.)). 447. Id. (citing Divorce Act, 1869, §§ 18–21 (Bangl.)). 448. Id. at 8 (citing Divorce Act, 1869, §§ 22–25 (Bangl.)). 449. Muslim Family Laws Ordinance, No.VII, 1961 § 9 (comments) (Bangl.). 450. Id. 451. Id. § 9(1) 452. Id. § 9 (comments). 453. Id. § 9(1), (3). 454. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.2. 455. Id. ¶ 2.15.3. 456. Id. ¶ 2.15.8. 457. Elimination of all forms of religious intolerance: Note by the Secretary–General, supra note 123. 458. Id. 459. Law & Religion Program, Emory Law School, Legal Profiles: Bangladesh, http://www.law.emory.edu/IFL/index2.html (last visited Mar. 2, 2004). See also Elimination of all forms of religious intolerance: Note by the Secretary–General, supra note 123. 460. See Communication with Naripokkho, supra note 401, at 10. 461. See id. 462. See id. 463. Law & Religion Program, Emory Law School, supra note 459. 464. Ramos–Jimenez & Candor, supra note 206, at 15. 465. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.5. 466. See id. ¶ 2.15.5. 467.ADB Country Briefing Paper:Women in Bangladesh, supra note 380, at 6. 468. Hindu Widow’s Re–Marriage Act, No. XV, 1856 § 3 (Bangl.). 469. Id. 470. Id. 471. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.5. 472. Id. 473. Id. 474. Bangl. Const., art. 42. 475. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.6. 476. See Hidayatullah & Hidayatullah, supra note 432, § 63. 477. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.6. 478. Id. 479. Id. 480. Id. 481. Id. 482. Id. 483. Ramos–Jimenez & Candor, supra note 206, at 15. See also CEDAW Committee, Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.6. 484. Ramos–Jimenez & Candor, supra note 206, at 15. 485. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.6. 486. Ramos–Jimenez & Candor, supra note 206, at 15. 487. Id. 488. Communication with Salma Sobhan, supra note 119. 489. Married Women’s Property Act, No. III, 1874, § 4 (Bangl.). 490. Id. § 5. 491. Id. § 7. 492.An extended definition of labor force was used. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, tbl. 9. 1995–1996 appears to be the most recent year for which this data is available. See Data Sheet 1999, supra note 50, § 5. 493. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, tbl. 12. 494. Id. ¶¶ 1.2.5, 2.10.4. 495. See id. ¶ 1.2.5. 496. See id. ¶ 1.2.1. 497. Bangl. Const., art. 29(c). 498. Id. art. 15(b). 499. Id. art. 20. 500. Bangladesh:A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, annex 8, at 109. 501. ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.6; CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.6.4. 502. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.3.7. 503.Tahera Ahmed & Abdul Wahab, Population, Development and Education, in Popula-
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PAGE 66
tion and Development Issues in Bangladesh: National Plan of Action Based on ICPD ’94 Recommendations, supra note 320, at 211. 504. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.3.6. 505. Id. 506. Id. 507. Id. 508. Id. 509. Bangladesh: A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, annex 8, at 109. 510. News Release No. 99/2063/SAS,The World Bank Group, New Study Confirms Benefits of Bangladesh’s Microcredit Programs (Jan. 14, 1999) (on file with Center for Reproductive Rights); Development Economics Vice Presidency & Poverty Reduction and Education Management Network (PREM),The World Bank, PREM notes, no. 8, Using microcredit to advance women 1 (1998). 511. New Study Confirms Benefits of Bangladesh’s Microcredit Programs, supra note 510. 512. Using microcredit to advance women, supra note 510, at 2. 513. ICPD Programme of Action:What has been done in Bangladesh, supra note 107, ¶ 3.6. 514. Communication with Salma Sobhan, supra note 119. 515. Using microcredit to advance women, supra note 510, at 2. 516. New Study Confirms Benefits of Bangladesh’s Microcredit Programs, supra note 510. 517. Zinatun Nesa Talukdar, State Minister of Ministry of Women and Children Affairs, Statement at the Special Session of the U.N. General Assembly Women 2000: Gender Equality, Development and Peace for the Twenty–First Century (June 5, 2000), http://www.un.org/womenwatch/daw/followup/beijing+5stat/statments/bangladesh5 .htm (last visited Feb. 16, 2004). 518. Bangl. Const., art. 28. 519. Id. art. 17(a). 520. Id. art. 17(b)–(c). 521. (Obligation to) Primary Education Act, 27, 1990 § 3 (Bangl.); UNESCO Bangkok, Good Practices: Gender Equality in Basic Education and Lifelong Learning through CLCs: Experiences from 15 Countries, pt. 2, at 19 (2003). See also Budget Speech 2003–2004, supra note 126, ¶ 20. 522. Ministry of Education, Government of the People’s Republic of Bangladesh, National Education Policy 2000: English Version, ch. 2(B)(1). 523. Id. ch. 17. 524. See id. ch. 3. 525. See id. 526. ICPD Programme of Action: What has been done in Bangladesh, supra note 107, ¶ 3.7. 527. Bangladesh: A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, ¶ 4.1, at 23. 528. Id. ¶ 5.65, at 46. 529. Id. ¶ 4.1, at 23. See annex 8 for specific measures to achieve this goal. 530. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.4. 531. Id. 532. Id. 533. Report of the Special Rapporteur on violence against women, its causes and consequences, Radhika Coomaraswamy, in accordance with Commission on Human Rights Resolution 2000/45,Addendum, ¶ 8. 534. Bangl. Pen. Code § 375.The code defines sexual intercourse as an act of actual penetration. Partial penetration that does not result in injury to the hymen is also sufficient to constitute the crime of rape. Id. §376. 535. Id. § 375 (comments). 536. Id. § 375 Exception. 537. Id. § 376 (comments). 538. Id. Cruelty to Women (Deterrent Punishment) Ordinance, No. LX, No. 1983, §7 (comments) (Bangl.). 539. Prevention of Oppression Against Women and Children Act, No.VIII, 2000, § 2(e) (Bangl.) (unofficial trans., on file with the Center for Reproductive Rights). 540. Id. § 9(i). 541. Id. § 9(ii). 542. Id. § 9(iv)(a)–(b). 543. Id. § 9(iii). 544. Id. § 9(v). 545. Id. § 13. Financial responsibility continues until a male child reaches 21 years of age and a female child married; if the child is disabled, until he or she has the capacity to earn a living. 546. Id. § 18(i), 19(ii). 547. Id. § 15. 548. Id. § 18(v). 549. Special Marriage Act, No. 3, 1872, §3 (Bangl.). 550. See Bangl. Pen. Code §§ 319, 320. 551. See id. § 312. 552. Prevention of Oppression Against Women and Children Act, No.VIII, 2000, § 4 (Bangl.) (unofficial trans. on file with Center for Reproductive Rights).
WOMEN OF THE WORLD:
553. Dowry Prohibition Act, No. XXXV, 1980, §§3, 4 (Bangl.). 554. Prevention of Oppression Against Woman [sic] and Children Act, No.VIII, 2000, § 11(ii) (Bangl.). 555. Id. 556. Dissolution of Muslim Marriage Act, No. 8, 1939, § 2(viii) (Bangl.). 557. Bangl. Pen. Code §354. 558. Id. 559. Prevention of Oppression Against Women and Children Act, No.VIII, 2000, § 10 (Bangl.). 560. Id. 561. Bangl. Const., art. 18(2). 562. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.5.2. 563. Bangladesh says prostitution legal, BBC News, Mar. 14, 2000. 564. Id. 565. See Bangl. Pen. Code, §§ 366, 366A, 372–373, 366B. 566. Prevention of Oppression Against Women and Children Act, No.VIII, 2000, § 5 (Bangl.) (unofficial trans., on file with the Center for Reproductive Rights). 567. Id. § 5(ii)–(iii). 568. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.5.1. 569. Report of the Special Rapporteur on violence against women, its causes and consequences, supra note 533, ¶ 6. Saira Rahman, HURIGHTS Osaka, Reflections on Women and Violence in Bangladesh (2001), http://www.hurights.or.jp/asiapacific/no_24/05Saira.htm (last visited Feb. 19, 2004). 570. Prevention of Oppression Against Women and Children Act, No.VIII, 2000, § 4(i) (Bangl.) (unofficial trans., on file with the Center for Reproductive Rights). 571. Id. § 4(ii)(a). 572. Id. § 4(ii)(b), (iii). 573. See Bangl. Pen. Code §§ 319–320. 574. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 208. 575. See CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 1.2.3. 576. Ramos–Jimenez & Candor, supra note 206, at 8. 577. Id. at 8. 578. Bangladesh Demographic and Health Survey 1999–2000, supra note 223, tbl. 4.7. 579. See Ramos–Jimenez & Candor, supra note 206, at 10; see also Communication with Naripokkho, Focusing on the Rights of a Special Group:Adolescents, at 10 (2002) (on file with Center for Reproductive Rights). 580. Conceptual Framework for Health, Nutrition and Population Sector Programme, supra note 146, ¶ 4.02. 581. Id. ¶ 4.04. 582. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 211. 583. Uamrun Nahar, et al., Centre for Health and Population Research, Reproductive Health Needs of Adolescents in Bangladesh:A Study Report, at 11,Working Paper No. 161 (1999). 584. Id. 585. See Bangladesh Demographic and Health Survey 1999–2000, supra note 223, § 5.3, tbls. 5.3–5.4. 586. Child Marriage Restraint Act, No. 19, 1929, § 2, amended by Ordinances No. XXVII and No. XXXVIII, 1984 (Bangl.). 587. Child Marriage Restraint Act, No. 19, 1929, § 4, amended by Ordinance No. XXXVII, 1984 (Bangl.). 588. Child Marriage Restraint Act, No. 19, 1929, § 6 (Bangl.). 589. Id. § 5. 590. Special Marriage Act, No. 3, 1872, § 2(2) (Bangl.). 591. Id. § 2(3). 592. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.15.1. 593. United Nations Children’s Fund (UNICEF) Bangladesh, Summary of Report: Background Paper on Good Practices and Priorities to Combat Sexual Abuse and Exploitation of Children in Bangladesh 12 (2002). 594. Dissolution of Muslim Marriage Act, No. 8, 1939, § 2(vii) (Bangl.). 595. See Elimination of all forms of religious intolerance: Note by the Secretary–General, supra note 123. 596. Summary of Report: Background Paper on Good Practices and Priorities to Combat Sexual Abuse and Exploitation of Children in Bangladesh, supra note 593. 597. Communication with Naripokkho, supra note 401, at 4 (citing Christian Marriage Act, 1872 (Bangl.)). 598. CEDAW Committee,Third and fourth periodic reports of states parties: Bangladesh, supra note 17, ¶ 2.9.1. 599. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 263. 600. Id. 601. Bangl. Const., art. 17. 602. CRC Committee, Second periodic reports of States parties due in 1997:
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BANGLADESH
Bangladesh, supra note 51, ¶ 234. 603. Bangladesh: A National Strategy for Economic Growth, Poverty Reduction and Social Development, supra note 125, ¶ 4.1, at 23. 604. Id. ¶ 5.65, at 46. 605. Centre for Policy Dialogue (CPD), Policy Brief on “Education Policy”: CPD Task Force Report, at 10. 606. Bangladesh Development Gateway, Education: Food for Education (on file with Center for Reproductive Rights). 607. Policy Brief on “Education Policy”: CPD Task Force Report, supra note 605. 608. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 265. 609. Budget Speech 2003–2004, supra note 126, ¶ 25. 610. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 255. 611. National Education Policy 2000, supra note 522, at ch. 3. 612. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 256. 613. Id. ¶ 257. 614. Id. 615. Bangladesh Rural Advancement Committee (BRAC),About BRAC, www.brac.net/aboutb.htm (last visited Mar. 2, 2004); Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Report on Human Rights Practices for 2000: Bangladesh, in State Department Human Rights Report 29 (2001) http://www.usaid.gov/bd/files/hrr2000.pdf (last visited Feb. 20, 2004). 616. Population Council & Frontiers in Reproductive Health, Research Update No. 1, Improving Adolescents’ Reproductive Health Bangladesh 1 (2001) http://www.popcouncil.org/pdfs/frontiers/banglayouth.pdf (last visited Feb. 18, 2004). 617. Id. 618. CRC Committee, Second periodic reports of States parties due in 1997: Bangladesh, supra note 51, ¶ 218. 619. Id. 620. Id. ¶220. 621. Summary of Report: Background Paper on Good Practices and Priorities to Combat Sexual Abuse and Exploitation of Children in Bangladesh, supra note 593. 622. Ruth Finney Hayward, UNICEF, Breaking the Earthenware Jar 85 (2000). 623. Prevention of Oppression Against Woman and Children Act, No.VIII, 2000 §§ 2(k), 6 (Bangl.). 624. Id. §§ 7, 9–10. 625. Bangl. Pen. Code §§ 361–364A, 366A–B, 372–373. 626. See Ministry of Women and Children Affairs, Government of the People’s Republic of Bangladesh, National Plan of Action against the Sexual Abuse and Exploitation of Children including Trafficking 10 (2002). 627. Id. at 16, 19–20.
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LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES
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2. India Statistics GENERAL
Population ■
Total population: 1,065,500,000.1
■
Population by sex: 504,497,270 (female) and 536,646,720 (male).2
■
Percentage of population aged 0–14: 33.1.3
■
Percentage of population aged 15–24: 18.9.4
■
Percentage of population in rural areas: 72.5
Economy ■
Annual percentage growth of gross domestic product (GDP): 5.9.6
■
Gross national income per capita: USD 480.7
■
Government expenditure on health: 7.5% of GDP.8
■
Government expenditure on education: 3.3% of GDP.9
■
Population below the poverty line: 28.6% (below national poverty line); 34.7% (below USD 1 a day poverty line); 79.9% (below USD 2 a day poverty line).10
WOMEN’S STATUS ■
Life expectancy: 64.6 (female) and 63.2 (male).11
■
Average age at marriage: 18.7 (female) and 23.4 (male).12
■
Labor force participation: 43.5% (female) and 87.6% (male).13
■
Percentage of employed women in agricultural labor force: 31.14
■
Percentage of women among administrative and managerial workers: Information unavailable.15
■
Literacy rate among population aged 15 and older: 45.4% (female) and 68.4% (male).16
■
Percentage of female-headed households: 9.17
■
Percentage of seats held by women in national government: 9.18
CONTRACEPTION ■
Total fertility rate: 3.01 lifetime births per woman.19
■
Contraceptive prevalence rate among married women aged 15–49: 48% (any method) and 43% (modern methods).20
■
Prevalence of sterilization among couples: 30.7% (total); 27.3% (female); 3.4% (male).21
■
Sterilization as a percentage of overall contraceptive prevalence: 75.6.22
MATERNAL HEALTH ■
Lifetime risk of maternal death: 1 in 55 women.23
■
Maternal mortality ratio per 100,000 live births: 540.24
■
Percentage of pregnant women with anemia: 88.25
■
Percentage of births monitored by trained attendants: 42.26
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WOMEN OF THE WORLD:
ABORTION ■
Total number of abortions per year: 566,500.27
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Annual number of hospitalizations for abortion-related complications: Information unavailable.28
■
Rate of abortion per 1,000 women aged 15–44: 2.7.29
■
■
Breakdown by age of women obtaining abortions: 6.1% (under 20); 28.2% (between 20–24); 35.8% (between 25–29); 20.4% (between 30–34); 7.4% (between 35–39); 1.6% (40 or older).30 Percentage of abortions that are obtained by married women: Information unavailable.31
SEXUALLY TRANSMISSIBLE INFECTIONS (STIs) ■
Number of people living with sexually transmissible infections: Information unavailable.
■
Number of people living with HIV/AIDS: 3,970,000.32
■
Percentage of people aged 15–24 living with HIV/AIDS: 0.7 (female) and 0.3 (male).33
■
Estimated number of deaths due to AIDS: Information unavailable.34
CHILDREN AND ADOLESCENTS ■
Infant mortality rate per 1,000 live births: 64.35
■
Under five mortality rate per 1,000 live births: 92 (female) and 79 (male).36
■
Gross primary school enrollment ratio: 92 (female) and 111 (male).37
■
Primary school completion rate: 65% (female) and 70% (male).38
■
Number of births per 1,000 women aged 15–19: 45.39
■
Contraceptive prevalence rates among married female adolescents:4.7% (modern methods);3.3% (traditional methods);8.0% (any method).40
■
Percentage of abortions that are obtained by women younger than 20: 6.1.41
■
Number of children under the age of 15 living with HIV/AIDS: 170,000.42
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INDIA
ENDNOTES 1.See United Nations Population Fund (UNFPA),The State of World Population 2003,at 75 (2003) [hereinafter State of World Population 2003]. Estimates for 2003. 2.See United Nations Population Fund (UNFPA),UNFPA Country Profiles,available at http://www.unfpa.org/profile/default.cfm (last visited Aug.12,2003) [hereinafter UNFPA Country Profiles]. Estimates for 2001. 3.See The World Bank,World Development Indicators 2003,at 39 (2003) [hereinafter World Development Indicators 2003]. Estimates for 2001. 4.See UNFPA Country Profiles,supra note 2. 5.See State of World Population 2003,supra note 1,at 75. 6.See World Development Indicators 2003,supra note 3,at 187. 7.See The World Bank,World Development Indicators 2003,Data Query,available at http://devdata.worldbank.org/data-query/ (last visited Feb.24,2004). The statistical figure was obtained through the Atlas method. Estimates for 2002. 8.See State of World Population 2003,supra note 1,at 75. 9.See United Nations,Infonation,Government Education Expenditure,available at http://www.un.org/Pubs/CyberSchoolBus/infonation/e_infonation.htm (last visited Dec. 18,2003). Estimates for 1990-99. 10.See World Development Indicators 2003,supra note 3,at 59. The statistical figures were based on 1999-2000. 11.See State of World Population 2003,supra note 1,at 71. The government reports that from 1993 to 1997,life expectancy for women was 61.8 years,compared with 60.4 years for men. See Ministry of Finance,Government of India,Economic Survey 2000-2001,Family Welfare, available at http://indiabudget.nic.in/es2001-02/welcome.html (last visited Aug.22, 2003). 12.See UNFPA Country Profiles,supra note 2. 13.See id. 14.See World Health Organization South-East Asia Region (WHOSEA),Women’s Health in South-East Asia,Women’s health and development indicators- India,at http://w3.whosea.org/women/regtab_ind.htm (last visited Aug.19,2003). 15.While The World’s Women 2000 provides statistics for other countries,the information for India is unavailable. 16.See UNFPA Country Profiles,supra note 2. The government reports that 46% of women were illiterate compared with 24% of men. See Ministry of Finance,Government of India, Economic Survey 2000-2001, available at http://indiabudget.nic.in/es2001-02/welcome.html (last visited Aug.22,2003). 17.See United Nations,The World’s Women 2000,at 48 (2000). 18.See Save the Children,State of World’s Mothers 2003,at 40 (2003) [hereinafter State of World’s Mothers 2003]. Estimates for 1998. This indicator represents the percentage of seats in national legislatures or parliaments occupied by women. 19.See State of World Population 2003,supra note 1,at 75. The government reports that the total fertility rate in 1998 was 3.2 lifetime births per woman. See Ministry of Finance,Government of India,Economic Survey 2000-2001,Family Welfare, available at http://indiabudget.nic.in/es2001-02/welcome.html (last visited Aug.22,2003). 20.See id. 21.See EngenderHealth,Contraceptive Sterilization:Global Issues and Trends, tbl. 2.2,at 47 (2002). Estimates for 1992-93. 22.See id., tbl.2.5,at 55. 23.See WHO et al.,Maternal Mortality in 1995:Estimates Developed by WHO,United Nations Children’s Fund (UNICEF),UNFPA 44 (2001). Estimates for 1995. 24.See State of World Population 2003,supra note 1,at 71. 25.See State of World’s Mothers 2003,supra note 18,at 40. 26.See State of World Population 2003,supra note 1,at 75. 27.See Stanley K.Henshaw et al.,The Incidence of AbortionWorldwide,25 Int’l Fam.Planning Persp. S30-S38 (Supp.1999),available at http://www.agi-usa.org/pubs/journals/25s3099.html (last visited Aug.19,2003). Estimates for 1995-1996. 28.While the article,The Incidence of AbortionWorldwide in International Family Planning Perspectives,provides statistics for Bangladesh,the information for India is unavailable. 29.See United Nations,Population Division,Department of Economic and Social Affairs, United Nations World Abortion Policies 1999,U.N.Doc.ST/ESA/SER.A/178 (1999),available at http://www.un.org/esa/population/publications/abt/abt.htm (last visited Aug.20,
2003). Estimates for 1995/1996. 30.See Akinrinola Bankole et al.,Characteristics ofWomenWho Obtain Induced Abortion: AWorldwide Review,25 Int’l Fam.Planning Persp. 68-77 (1999) [hereinafter Akinrinola Bankole et al.],available at http://www.agi-usa.org/pubs/journals/2506899.html (last visited Aug.21,2003). The statistical figures were obtained through incomplete national statistics. Estimates for 1995-1996. 31.While the article,Characteristics ofWomenWho Obtain Induced Abortion:AWorldwide Review in International Family Planning Perspectives,provides statistics for Bangladesh,Nepal and Sri Lanka,the information for India is unavailable. 32.See UNAIDS & World Health Organization (WHO),Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections Updated 18 August 2003:India 2 (2003),available at http://www.who.int/GlobalAtlas/home.asp (last visited Aug.18,2003) [hereinafter UNAIDS]. Estimates for 2001. 33.See State of World Population 2003,supra note 1,at 75. 34.While the UNAIDS and WHO provide statistics for other countries,the information for India is unavailable in the report. 35.See State of World Population 2003,supra note 1,at 71. 36.See UNFPA Country Profiles,supra note 2. 37.See State of World Population 2003,supra note 1,at 71. The ratios indicate the number of students enrolled per 100 individuals in the appropriate age-group. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts,interrupted schooling or grade repetition. 38.See id. 39.See id. 40.See Saroj Pachauri & K.G.Santhya,Reproductive Choices for Asian Adolescents:A Focus on Contraceptive Behavior,28 Int’l Fam.Planning Persp.186-195 (2002),available at http://www.agi-usa.org/pubs/journals/2818602t.html (last visited Aug.21,2003). Estimates for 1998-1999. 41.See Akinrinola Bankole et al.,supra note 30. The statistical figures were obtained through incomplete national statistics. 42.See UNAIDS,supra note 32,at 2.
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I
ndia represents part of the former Indus Valley civilization, one of the first great civilizations of the world. India was also part of the former British Empire and remained a British colony for almost 250 years. In 1947, the country gained independence from the British and the Indian subcontinent was partitioned into present-day India and Pakistan, including modern-day Bangladesh.1 Jawaharlal Nehru became prime minister of secular India and ruled from independence until his death in 1964.2 In 1966, Nehru’s daughter, Indira Gandhi, took over as prime minister.3 In the mid-1970s, she came under intense criticism for abusing her governing powers, and her 1971 election victory was invalidated in 1975. In response to demands for her resignation,Gandhi declared a state of emergency,ordered mass arrests of opposition figures and suspended many civil liberties.4 Gandhi was harshly criticized for her new policies,including a compulsory birth control program.5 She was defeated by Morarji Desai in the 1977 elections.6 Gandhi returned to power in 1980,but was assassinated by her bodyguards four years later. Her son, Rajiv Gandhi, led the Congress Party to a sweeping victory and succeeded her as prime minister for the next four years. He was assassinated in 1991 during his campaign for re-election.7 The party won a plurality in parliament in 1991, but lost at the polls in 1996. Since that time, no single party has held an absolute majority in India’s parliament. In 1998, Atal Bihari Vajpayee of the Hindu nationalist Bharatiya Janata Party became prime minister.8 He formed a coalition government that has held power ever since. India has an estimated population of 1,027,015,247, approximately 48.3% of which is female.9 Although the gender ratio varies by state, the 2001 national ratio was estimated at 933 females per 1000 males—a decline from 972 females per 1,000 males in 1901.10 India’s official languages are Hindi and English, but the Constitution of India recognizes 15 official regional languages and more than 1,500 other languages and dialects.11 The majority of India’s population is Hindu (82.6%), but other religious groups include Muslims (11.3%), Christians (2.4%), Sikhs (2%), and Buddhists and Jains (1.19% together).12 According to available census data, there are also 79,382 Parsis,or followers of the Zoroastrian faith,and 5,271 Jews living in India.13 India has been a state party to the United Nations since 1945.14 It is also a member of the South Asian Association for Regional Cooperation (SAARC) and the Commonwealth of Nations, an organization of countries formerly part of the British Empire.15
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I. Setting the Stage:
The Legal and Political Framework of India Fundamental rights are rooted in a nation’s legal and political framework, as established by its constitution.The principles and goals enshrined in a constitution,along with the processes it prescribes for advancing them, determine the extent to which these basic rights are enjoyed and protected. A constitution that upholds equality,liberty and social justice can provide a sound basis for the realization of women’s human rights, including their reproductive rights. Likewise, a political system committed to democracy and the rule of law is critical to establishing an environment for advancing these rights. The following section outlines India’s legal and political framework. A. THE STRUCTURE OF NATIONAL GOVERNMENT
The Constitution of India came into force in 1950.16 The preamble establishes India as a “sovereign, socialist, secular democratic republic” that secures “justice, liberty, equality, and fraternity”to all its citizens.17 With 380 (originally 395) articles and ten schedules,the Constitution of India is one of the world’s longest and most detailed.18 It is also one of the most frequently amended—between 1950 and 1991, the constitution had been amended more than 75 times.19 The Union,as India’s central government is known, is divided into three distinct but interrelated branches:executive,legislative and judicial.20 Executive branch The president is the “Constitutional head of the Union.”21 He or she also serves as supreme commander of the armed forces.22 The president has the power to appoint the prime minister, cabinet members, governors of states and union territories, and justices for both the Supreme Court and high courts throughout the country.23 He or she may also summon and prorogue parliament,as well as dissolve the Lok Sabha (House of the People) and call for new elections.24 The president also has the power to dismiss state and union territory governments.25 Although the constitution vests an array of powers in the president,in practice the position is predominantly symbolic and ceremonial.26 The president is elected for a five-year term by an electoral college consisting of elected members of both houses of parliament and the legislative assemblies of the states.27 Either house of parliament may charge the president with violating the constitution and may impeach him or her with a twothirds vote.28 The prime minister is the most powerful figure in the gov-
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ernment.29 He or she is usually the leader of the majority party in the Lok Sabha.30 The prime minister serves as head of the Council of Ministers,a body mandated by the constitution and composed of members of parliament who are collectively responsible to the Lok Sabha.31 The president must act in accordance with the advice of the council.32 The prime minister’s duties include advising the president on the appointment of other ministers to the council, informing the president of all council decisions and presenting legislative proposals to the president.33 Legislative branch Parliament consists of two houses,the Rajya Sabha (Council of States) and the Lok Sabha.34 The Rajya Sabha,the upper house, may consist of no more than 250 members; the president nominates 12 members on the basis of their expertise in literature, science, art, or social service, and the remaining members are elected by the legislative assemblies of each state.35 Each member serves for five years, with one-third of the membership retiring every two years.36 The Rajya Sabha is not subject to dissolution.37 The Lok Sabha may consist of no more than 530 members directly elected from territorial constituencies in the states, and no more than 20 members to represent union territories.38 The number of seats for each state is proportional to its population, and the allocation of seats is readjusted after each census.39 Members serve for five years, after which point the entire house dissolves, unless the president dissolves it first.40 The “Women’s Reservation Bill,”introduced in 1996 as the 81st Amendment to the Constitution, is currently pending in parliament.41 If passed,this bill would require one-third of seats in parliament and state legislatures to be reserved for women.42 Parliament’s principal function is to legislate on matters within its constitutional jurisdiction.43 Parliament alone has the authority to amend the constitution.44 All parliamentary bills, with the exception of certain financial bills, may originate in either house.45 The constitution enumerates the separate and shared legislative powers of parliament and state legislatures in three separate lists: the Union List, the State List and the Concurrent List.46 Parliament has exclusive legislative power over all items on the Union List, which include defense; foreign affairs; citizenship and naturalization; jurisdiction and powers of the Supreme Court; and jurisdiction and powers of all courts except the Supreme Court with respect to exclusively federal issues.47 The constitution also grants parliament the exclusive power to legislate on matters not on the State or Concurrent Lists.48 Parliament and state legislatures share authority over matters on the Concurrent List, which include criminal law and procedure; marriage, divorce and all other personal law mat-
ters; economic and social planning; population control and family planning; social security and social insurance; employment; education; legal and medical professions; and prevention of the transmission of infectious or contagious diseases.49 Laws passed by parliament with respect to matters on the Concurrent List supercede laws passed by state legislatures.50 Parliament generally has no power to legislate on items from the State List,including public health,hospitals and sanitation. However, two-thirds of the Rajya Sabha may vote to allow parliament to pass binding legislation on any state issue if “necessary or expedient in the national interest.”51 In addition, two or more states may ask parliament to legislate on an issue that is otherwise reserved for the state.52 Other states may then choose to adopt the resulting legislation.53 In addition to its legislative powers, parliament has the authority to approve or remove members of the Council of Ministers, approve central government finances, authorize presidential orders for the removal of Supreme Court justices, and establish or eliminate states and union territories or change their boundaries and names.54 B. THE STRUCTURE OF LOCAL GOVERNMENTS
India is a union of 28 states and seven union territories administered by the central government.55 The structure and powers of state and union territory governments are prescribed by the constitution. Executive branch The constitution provides for a governor to head each state.56 The president, in consultation with the prime minister, appoints governors to five-year terms.57 Governors must act in accordance with the advice of the state Council of Ministers, which is headed by a chief minister and composed of members of the state legislature.58 The governor appoints the chief minister,who is usually majority leader of the state legislature,and selects other ministers in consultation with the chief minister.59 India’s seven union territories include the capital of Delhi, two groups of islands in the Bay of Bengal and the Arabian Sea, and cities and regions within states. The central government oversees the union territories through an administrator who is appointed by the president to act on his or her behalf.60 Legislative branch The constitution requires each state to have a legislature that may consist of either one or two houses.61 The number of seats in each state legislature is proportional to the population of territorial constituencies within the state.62 Not all union territories have a legislature, and parliament may directly legislate for union territories on issues that it may not normally legislate on for states.63 Out of the seven union
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territories, only two have elected legislative assemblies: Delhi and Pondicherry.64 Though Delhi remains a union territory, the 69th Amendment to the Constitution, passed in 1991, empowered the national capital territory to directly elect members of its legislature and pass its own laws with respect to virtually every matter on the State or Concurrent List.65 The 73rd and 74th Amendments to the Constitution, which were passed in 1992, confer constitutional validity and status on urban and rural institutions of local governance.66 The amendments direct states to establish panchayats (local governing bodies in rural areas) and nagar palikas (local governing bodies in urban areas), and to empower them to function as effective units of self-government.67 The amendments provide for direct elections for all governing bodies and reserve one-third of the total number of seats in each body for women.68 Seats are also reserved for the scheduled castes and scheduled tribes, one-third of which are reserved for women.69 Women must also fill a proportion of the chairperson positions in each body.70 The amendments also authorize states to empower panchayats and nagar palikas to develop and implement “economic development and social justice” plans for their communities with respect to a number of issues, including poverty alleviation and public health.71 Issues specifically within the domain of panchayats include “family welfare” and women and children’s development.72 C. THE JUDICIAL BRANCH
The constitution provides for a complex network of courts to administer national and state laws. The Supreme Court is the highest court in the judicial system and is the final arbiter of the constitution.73 Its decisions are binding on all subordinate courts.74 It has original and exclusive jurisdiction over suits between the central government and states or union territories and between different states and union territories, as well as appellate jurisdiction over all civil and criminal cases involving substantial constitutional issues.75 It can also issue advisory rulings on issues referred to it by the president.76 A unique component of the court’s jurisdiction is “public interest litigation,”or lawsuits involving issues that affect the interest of the general public.77 Any individual or group of individuals may invoke such jurisdiction by filing a petition with the court or by writing a letter to the chief justice of India raising an issue of public importance.78 Twenty-five associate judges and one chief justice serve on the Supreme Court.79 The president appoints the chief justice and consults with him or her about the appointment of associate judges.80 Parliament is not required to approve these appointments.81 In general, justices may not be removed from office until mandatory retirement at age 65.82 However, a parliamentary
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majority may vote to remove a justice on grounds of “misbehaviour or incapacity.”83 Beneath the Supreme Court is a system of 18 high courts that serve one or more of India’s states and union territories.84 The president appoints a chief justice and other judges to each high court in consultation with the chief justice of the Supreme Court and the relevant state governor.85 State high court judges serve until mandatory retirement at age 62, but may be removed sooner in the same manner as Supreme Court judges.86 Below high courts are district courts, which hear civil cases, and sessions courts, which hear criminal cases.87 Each of these courts serves one zilla (district) within a state and is subordinate to its respective high court.88 The judges for these courts are appointed by the relevant state governor in consultation with the state’s high court.89 A number of states have established district family courts pursuant to the 1984 Family Courts Act,which was passed in an effort to expedite the settlement of disputes relating to marriage and family affairs.90 Family courts are headed by one or more judges and a preference is given to female appointees.91 A hierarchy of judicial officials exists below the district level.92 Civil cases are filed in munsif (subdistrict) courts and lesser criminal cases are heard in subordinate magistrates’courts,which are under the immediate supervisory authority of a district magistrate and the ultimate authority of the state’s high court.93 The constitution also authorizes parliament or the appropriate legislature to establish administrative or other special tribunals to resolve disputes involving the recruitment and service conditions of public servants; taxation; foreign trade; labor;certain land,property and tenancy issues;and other specified matters.94 In order to create greater access to India’s judicial system, the government began providing legal aid services in the 1970s and later appointed a committee to monitor and implement legal aid programs nationwide.95 Pursuant to the 1987 Legal Services Authorities Act, statutory legal service institutions were established at the national, state and district levels for delivery of free legal aid to underprivileged groups, including women.96 At the national level, the Supreme Court Legal Aid Committee provides an attorney and financial aid covering litigation costs to low-income individuals and other designated persons,including women and children, who wish to bring a claim before the court.97 Customary forms of alternative dispute resolution Lok adalats (people’s courts) existed for many years as informal dispute resolution forums for low-income citizens.98 The Legal Services Authorities Act,in addition to its other purposes, was enacted to give statutory backing to such institutions.99
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A 2002 Amendment to the act provided for the establishment of permanent lok adalats with jurisdiction over cases involving public utilities services,including air;road and water transportation; telegraph or telephone services; power; water; sanitation; hospitals; and insurance.100 Their jurisdiction is, however, limited to cases involving damages of up to Rupees 1,000,000 (approximately USD 22,000).101 The permanent lok adalats are authorized to adjudicate pre-litigation disputes and issue binding awards in accordance with the “principles of natural justice, objectivity, fair play [and] equity.”102 The objective of the amendment is to “decongest the existing courts.”103 D. THE ROLE OF CIVIL SOCIETY AND NONGOVERNMENTAL ORGANIZATIONS (NGOs)
The government established the Central Social Welfare Board in 1953 to assist voluntary organizations and mobilize their efforts in developing social welfare services, especially for women and children.104 The Board has networked with over 20,000 voluntary organizations across the country.105 There are more than 12,000 active NGOs throughout India that work in various fields,including credit schemes and income-generating activities for low-income women, as well as access to health care, education and literacy programs.106 TheVoluntary Health Association of India is a dominant presence in the non-profit health sector,comprising a network of 24 StateVoluntary Health Associations and linking more than 4000 health-care institutions and grassroots-level community health programs across the country.107 E. SOURCES OF LAW AND POLICY
Domestic sources The main domestic sources of law are the constitution, central and state statutes, domestic jurisprudence, and personal and customary law.108 The constitution is the supreme law of the land. It is the source of the authority of all state institutions and creates the framework within which they discharge their duties.109 It establishes a system of governance and makes detailed provisions regarding legally enforceable, fundamental rights of citizens and other persons.110 It also issues broad directives to the state,called the Directive Principles of State Policy,that are not legally enforceable but help guide the different organs of state in discharging their functions.111 In 2000, the government founded the National Commission to Review the Working of the Constitution to evaluate the effectiveness of the constitution some 50 years after its adoption and to make any recommendations for change based on the modern needs of governance and socioeconomic development.112 The commission submitted its final
report in April 2002.113 Its principal recommendations with regard to the constitution’s guarantee of fundamental rights included the following: ■ extending the prohibition against discrimination to ethnic or social origin, political or other opinion, property, or birth; ■ inserting a new article guaranteeing the right to respect for one’s private and family life,home and correspondence; ■ inserting a new article requiring the state to establish a legal right to rural wage employment for a minimum of 80 days per year;and ■ guaranteeing children the right to care and assistance in the fulfillment of basic needs and protection from all forms of neglect,harm and exploitation.114 The commission also recommended that population control through education and the furthering of a normative standard of the small family be added as a new Directive Principle of State Policy in the constitution.115 It also recommended strengthening constitutional provisions relating to the “protection and promotion of the interests of Scheduled Castes and Scheduled Tribes, Backward classes, women, minorities and other weaker sections” by amendments and other measures.116 The 1860 Indian Penal Code, 1973 Code of Criminal Procedure,1872 Indian Evidence Act,and 1908 Code of Civil Procedure are codified civil and criminal laws that apply to all citizens, regardless of religious or ethnic affiliation. The constitution directs the state to adopt a uniform civil code for all its citizens, but no such code has been enacted to date.117 Numerous national laws address civil rights-related issues such as labor,tax, insurance,and property. Acts that specifically address human rights include the 1993 Protection of Human Rights Act, the 1993 National Commission for Backward Classes Act,the 1992 National Commission for Minorities Act, and the 1995 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. Other sources of primary law include statutes enacted by state and union territory legislatures. National laws always supercede state laws to the extent that they conflict:a trumped state law becomes “void unless it has received the assent of the President, and in such case, shall prevail in that state.”118 The Law Commission is a non-statutory body reconstituted by the government every three years to review all existing legislation and propose legal reforms in the interests of “maximising justice in society and promoting good governance under the rule of law.”119 The National Commission for Women, established in 1992, and the National Human Rights Commission, established in 1993, are charged with reviewing and suggesting reforms to existing national laws
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that involve issues of gender and human rights.120 Rules, regulations and by-laws developed by the central and state governments and local bodies of governance comprise a vast body of subordinate legislation.121 Case law from the Supreme Court and specialized tribunals comprise an important source of secondary law. Supreme Court decisions are binding on all courts and tribunals within India.122 The judgments of a high court are binding on all subordinate courts and tribunals within its jurisdiction.123 Such judgments are not binding on other high courts or their subordinate courts, though they do have persuasive value.124 The major religious communities in India—Hindus, Muslims, Christians, and Parsis—each have their own set of religious personal laws that generally govern issues involving family relations and private life, including marriage, divorce, maintenance,inheritance,adoption,and guardianship.125 These laws are generally codified,with the exception of Muslim personal law, which is largely uncodified.126 Buddhists, Jains and Sikhs constitute other major religious groups,but fall within the broad legal definition of “Hindu” and are thus governed by Hindu personal laws.127 The central government has adopted “a policy of non-interference in the personal laws of any [religious] community unless the demand for change comes from within those communities.”128 Hindu personal law has been reformed extensively to incorporate constitutional provisions.129 With the exception of Parsi personal laws,the personal laws of other religious communities have been left virtually untouched.130 Customary law governs matters of family and private life among tribal communities in India.131 In some cases, customary law may trump codified personal laws.132 National and state policies are formulated within the broad framework of the constitution and its Directive Principles of State Policy,and are articulated and put into operation through successive five-year development plans.These plans are comprehensive policy documents that set forth the government’s main objectives in various areas of national development, including health, poverty alleviation, education, and population management. They include specific objectives and programmatic measures targeted toward marginalized groups, including women and children. The Tenth FiveYear Plan,covering 2002–2007, is currently operative.133 International sources The constitution enjoins the state to foster respect for international law and treaty obligations.134 Courts are to interpret a statute according to international law principles to the extent possible. However, courts are bound to follow national laws whenever they conflict with international laws.135 In the 1997 Supreme Court case Vishakha v. State of Rajasthan, the court opined that “[a]ny International Con-
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vention not inconsistent with fundamental rights … must be read into these [statute’s] provisions to enlarge the meaning and content thereof, to promote the object of constitutional guarantee.”136 India is state party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (Children’s Rights Convention), the International Convention on the Elimination of All Forms of Racial Discrimination (Racial Discrimination Convention), the International Covenant on Civil and Political Rights (Civil and Political Rights Covenant) and the International Covenant on Economic, Social and Cultural Rights (Economic, Social and Cultural Rights Covenant).137 India made a reservation to Article 29, paragraph 1 of CEDAW, which deals with the settling of disputes between states that interpret the convention differently.138 The government of India has also participated in several key international conferences and endorsed the development goals and human rights principles contained in the resulting consensus documents.International consensus documents the government has adopted include the 1993 Vienna Declaration and Programme of Action; 1994 International Conference on Population and Development (ICPD) Programme of Action; 1995 Beijing Declaration and Platform for Action; and 2000 United Nations Millenium Declaration.139 India has also ratified important regional conventions such as the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution and the SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia.140
II. Examining
Reproductive Health and Rights In general, reproductive health issues are addressed through a variety of complementary, and sometimes contradictory, laws and policies. The manner in which these issues are addressed reflects a government’s commitment to advancing reproductive health. The following section presents key legal and policy provisions that together determine women’s reproductive rights and choices in India. A. GENERAL HEALTH LAWS AND POLICIES
The constitution enjoins the state to make the “improvement of public health” a primary responsibility.141 The National Health Policy, adopted in 2002, and the Tenth Five Year Plan create the primary framework for the delivery of public
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also address health issues. The plan recognizes that “economhealth services, and both aim to raise the health status of the ic growth cannot be the only objective of national planning population through ensuring equal access to primary health … over the years, development objectives are being defined care for all citizens.The policy prescriptions of the National not just in terms of increases in GDP or per capita income but Health Policy are largely reflected in the Tenth Five Year more broadly in terms of enhancement of human well Plan.142 The emphasis on primary health care in India’s contembeing.”152 In view of the importance of citizens’ health to porary health and development policies is rooted in the national development,the plan commits to providing services thinking of the 1946 Bhore Commission Report, which such as essential primary health care, emergency life saving declared that primary health care is a basic right of all indiservices,and services under national programs for disease conviduals, regardless of their ability to pay for services or other trol and family welfare free of cost to all, and further commits socioeconomic factors.143 The commission established prito providing essential health-care services to people living mary health care as the foundation for the public health-care below the poverty line.153 The plan specifically recognizes the failings of the Ninth Five Year Plan with regard to quality system in India and developed the blueprint for the delivery of care objectives and commits to introducing “quality control of primary health-care services in the public sector.144 India further manifested its commitment to these principles in 1978 concepts and tools … into every aspect of health care in order at the International Conference on Primary Health Care held to ensure that the population and the system benefit from in Alma-Ata, USSR, at which it defined and institutionalized norms, pledged to attain the Alma Ata Decaccountability and responsibility.”154 The plan also proposes to address defilaration’s goal of “Health for All” by RELEVANT LAWS AND POLICIES ciencies in the government’s provision the year 2000 by striving to ensure • National Health Policy, 2002 of health-care services to low-income all individuals’ equal access to pri• Tenth Five Year Plan, 2002-2007 145 populations in urban slums and remote mary health-care services. • Pre-Conception and Pre-Natal Objectives rural and tribal areas.155 Strategies and Diagnostic Techniques (Prohibition The primary objective of the programs for the prevention,control and of Sex Selection) Act, 1994 National Health Policy is to realize treatment of communicable diseases an “acceptable standard of good comprise continued areas of focus.156 Infrastructure of health-care services health” among the general population.146 To achieve this goal,the policy points to the need to improve access to health Government facilities services among all social groups and in all areas of the counHealth is a shared responsibility of the central and state govtry.147 It proposes to improve access by establishing new facilernments,although it is effectively a state responsibility in terms ities in areas where they are lacking and improving and of execution of policies and services.157 The Ministry of Health and Family Welfare is the main governmental body in charge of upgrading existing facilities.148 The policy sets forth several time-bound objectives, which include the following: developing national health policies and broad-based public ■ a reduction in maternal mortality and infant mortalihealth initiatives and coordinating implementation efforts of ty rates to 100 in 100,000 and 30 in 1000, respectivestates. The ministry’s divisions include the Department of ly, by 2010; Health,the Department of Family Welfare and the Department ■ zero level of growth of HIV/AIDS by 2007; of Indian Systems of Medicine and Homeopathy.158 ■ a 50% reduction in mortality due to tuberculosis, India has a massive and largely underfunded public health malaria and other vector and waterborne diseases by infrastructure through which it primarily finances and deliv2010; ers curative health-care services and implements centrally ■ an increase in the utilization of public health facilities sponsored family welfare and disease control programs, 149 from less than 20% to more than 75% by 2010. including those relating to tuberculosis, HIV/AIDS, malaria, The policy also recognizes that women and other “underand leprosy.159 In urban areas, primary health-care services are delivered privileged”groups disproportionately experience poor access through a large network of health facilities, including postto health services, and it aims to facilitate such groups’ access partum centers, urban health posts and urban family welfare to basic health-care services.150 Under the policy, the central government is to give top funding priority to programs tarcenters. There are 550 postpartum centers at the district levgeting women’s health.151 el and 1,012 centers at the subdistrict level.160 These facilities Some of the broad objectives of the Tenth Five Year Plan provide the following services:
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essential obstetric care; early detection of complications arising from anemia, bleeding, toxemia, obstructed labor, and sepsis; ■ emergency maternity services, including vacuum extraction, delivery by caesarian section, blood transfusion, and manual removal of placenta; ■ all public health interventions for baby well-being; ■ family planning services for permanent and spacing methods of contraception; and ■ satellite outreach services for the population and referral services for subdistrict centers and primary health centers.161 (See “Maternal Health”for information on government policies addressing maternal health.) There are presently 871 urban health posts,which provide primary health care, family welfare and maternity services.162 There are 1083 urban family welfare centers, which also provide family welfare services.163 In rural areas, a three-tiered infrastructure of subcenters, primary health centers and community health centers deliver primary health-care services to the rural population. The network of subcenters consists of 137,292 functioning facilities,which serve as the first contact point between the primary health-care system and the community.164 Subcenters provide basic drugs for women and children’s minor ailments and essential health needs.165 They are staffed by one male multipurpose worker and one female multipurpose worker/auxiliary midwife-nurse.166 One female health assistant oversees the work of a group of six subcenters and provides technical guidance and supervision to auxiliary midwifenurses.167 More than 97,000 of functioning subcenters are funded by the Department of Family Welfare; the remaining facilities are funded by state governments.168 Primary health centers are established and funded by states and generally serve as the first contact point between the village community and a medical officer.169 There are currently 22,807 functioning primary health centers.170 These facilities provide “curative,preventive,promotive”health-care and family planning services.171 Each is staffed by a medical officer and 14 paramedical and other workers, and serves as a referral unit for a group of six subcenters.172 Community health centers are similarly established and maintained by states and serve as a referral unit for a group of four primary health centers.173 Community health centers also provide obstetric care and specialist consultations.174 There are presently 3,027 functioning community health centers in India.175 Each is staffed by four medical specialists—a surgeon, physician, gynecologist, and pediatrician— and 21 paramedical and other workers.176 A network of government hospitals also delivers primary, ■ ■
secondary and more specialized health-care services to both the urban and rural population.177 These include district,subdistrict and rural hospitals.178 The majority of hospitals are located in urban areas.179 Privately run facilities The private health sector is composed largely of for-profit medically trained providers who operate their own clinics or work in facilities ranging from nursing homes with inpatient facilities that have generally fewer than 30 beds to large corporate hospitals.180 There are approximately 67,000 private hospitals, accounting for 93% of all hospitals in India, a dramatic increase from an estimated 3,000 private hospitals in 1981.181 Qualified and registered private doctors and institutions are not readily available in remote rural and tribal areas both because of a lack of social infrastructure and the inability of people to pay. The private sector also includes a broad range of non-governmental actors. More than 7,000 voluntary agencies are involved in health-related activities,although their services are unevenly distributed among states and generally limited in scope.182 In addition to providing health services independent of the government, some NGOs help implement government health programs sponsored by the Ministry of Health and Family Welfare.183 The government also has given funding to some NGOs to establish health-care facilities in rural and marginalized urban areas in an effort to improve the quality and availability of their health services.184 Financing and costs of health-care services Government financing Since independence, successive five-year plans have provided the framework for policy and funding decisions related to the development of India’s health-care infrastructure. Aggregate expenditure for health is about 5.2% of GDP.185 In contrast, public health investment is about 0.9% of GDP, which the National Health Policy aims to increase to 2.0% by 2010.186 Spending on health is more often for curative than preventive care.187 State spending on health accounts for 75%–90% of total public expenditure on health and is largely tied up in salary expenditures.188 The central and state governments equally share spending on most national health programs.189 The central government fully funds national programs relating to disease control, including HIV/AIDS, and family planning.190 Central government funds also support medical education, training for nurses,emergency relief measures,and pilot projects to develop disease control or other health-care strategies.191 States are responsible for most spending on primary, secondary and tertiary health institutions.192
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Private and international financing Health financing in India is predominantly private.193 Private health spending accounts for more than 80% of total health spending, one of the highest proportions of private spending in the world.194 Almost all such spending is out-ofpocket at the point of service.195 The private sector accounts for most curative care services in the country, although quality and distribution of services varies widely across states.196 The distribution of private services is heavily skewed toward the highest income groups.197 Although low-income individuals rely on public services for most of their health-care needs,79% of outpatient care for those below the poverty line is provided by the private sector. 198 However,this care is generally low quality and provided by untrained practitioners.199 Various international organizations and United Nations agencies provide significant technical and material assistance for many health and family welfare programs in India. The World Bank, European Commission, United Nations Population Fund (UNFPA), United Nations Children’s Fund (UNICEF), and other bilateral donors contribute funding to the Reproductive and Child Health Programme, the country’s primary national program focused on reproductive health.200 The World Bank contributed USD 248.3 million to the first phase of the program, which spanned 1997–2002, and an equal amount for the second phase.201 The European Commission approved assistance of ECU 200 million while UNFPA provided USD 100 million for the program.202 From 2001-2002,the World Health Organization (WHO) contributed funding and technical assistance to the implementation of more than 33 projects.203 Its funding amounted to approximately USD 13.7 million during this period.204 Some important WHO activities in India include supplying essential medicines, drugs and kits to primary health centers; helping control the spread of communicable diseases; and providing and promoting health education to low-income individuals and adolescents.205 Costs The Tenth Five Year Plan articulates a “continued commitment” to providing essential primary health care, emergency life saving services, and services under government disease control and family welfare programs free of cost to all individuals.206 However, user charges currently apply for some health-care services at public facilities, including public hospitals.207 Hospitalization due to major illness is a cause of debt among all income groups.208 Individuals receiving inpatient hospital treatment spend 58% of their total annual expenditures on health care.209 Less than 10% of the total population is covered by health insurance in the governmental and private sectors, and those
covered are primarily from upper-income groups,or government or industrial employees.210 Central government employees and their families living in the capital and 18 other major cities are entitled to health-care coverage through Central Government Health Schemes.211 Covered services include: outpatient care in all systems of medicine;emergency services in the Allopathic system (Western, curative medical system); free supply of necessary drugs; home visits to patients with serious illnesses; family welfare services; treatment in specialized hospitals in both the public and private sector; and a 90% advance for necessary specialized hospital procedures.212 In 1948, the Employees’ State Insurance Act introduced a national health insurance program for industrial employees.213 The act provides for compulsory state insurance for sickness, pregnancy and employment-related injury in all but seasonal factories.214 Under the act, employees and employers contribute to a fund held and administered by a corporation constituted under the act.215 In June 2000, the government launched a new group insurance scheme called Janashree Bima Yojana.216 The program covers all families below the poverty line in urban and rural areas.217 In urban areas, coverage extends to people slightly above the poverty line as well.218 Families receive Rs 20,000 on natural death, Rs 50,000 on death or total permanent disability caused by accident, and Rs 25,000 on partial permanent disability due to an accident.219 The Health Ministers Discretionary Grant is a little known source of financial assistance distributed by health ministers to help low-income individuals defray the costs of hospitalization and medical treatment where free health services are unavailable.220 Low-income individuals qualify for such funds, but there are otherwise no fixed guidelines for determining eligibility.221 In 1999-2000,a total of Rs 4,489,000 in assistance was distributed to 270 patients.222 Public sector insurance companies are designing an insurance scheme called Janraksha targeted to needy populations.223 The program would require subscribers to pay a premium of Rs 1 per day to entitle them to receive inpatient treatment costing up to Rs 30,000 per year at designated hospitals.224 Covered services also would include outpatient treatment at a cost of up to Rs 2,000 per year at designated clinics such as those in public hospitals, medical colleges, private trust hospitals, and NGO-operated institutions.225 Life Insurance Corporation of India launched Jeevan Bharati in March 2003, an insurance plan exclusively for women aged 18–50, the benefits of which include coverage for critical illnesses such as cancers of the breast,ovary and fallopian tubes and for congenital defects of newborn babies.226
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Regulation of health-care providers India has established statutory regulatory councils to monitor the standards of medical education, promote medical training and research activities, and oversee the qualifications, registration, and professional conduct of doctors, dentists, nurses, pharmacists, and practitioners of non-traditional medical treatments such as Ayurveda, Siddha, Unani, yoga, and Naturopathy. The Medical Council of India,established under the 1933 Indian Medical Council Act as repealed by the 1956 Indian Medical Council Act,oversees the licensing,educational standards,training,and research activities of doctors and maintains a register of all qualified medical practitioners in India.227 The council is also empowered to establish ethical and professional standards for medical practitioners.228 Violations of prescribed standards may result in the removal of a practitioner’s name from a state medical register.229 Similarly, the Dental Council of India, the Indian Nursing Council and the Pharmacy Council of India are statutory bodies that regulate the professions they oversee.230 The Central Council of Indian Medicine and the Central Council of Homeopathy regulate the educational and clinical programs of the Indian Systems of Medicine and Homoeopathy,which include Ayurveda,Siddha,Unani,yoga,and Naturopathy treatments.231 State Medical Councils have also been established with similar overall objectives. The Indian Council of Medical Research is the primary governmental body that formulates,coordinates and promotes biomedical research.232 The Union Health Minister presides over the council’s governing body.233 The council’s research priorities, in line with those of the National Health Policy, include control and management of communicable diseases; fertility control; maternal and child health; and the development of alternative strategies for health-care delivery.234 The council issued the Ethical Guidelines for Biomedical Research on Human Subjects in 2000. The guidelines provide for the establishment of institutional ethics committees to review all ethical aspects of proposed research protocols and monitor ethical compliance of approved projects.235 (See “Regulation of Reproductive Technologies and Patients’ Rights” sections for more information on the guidelines.) Regulation of reproductive health technologies Assisted reproductive technologies There is currently no law that regulates assisted reproductive technologies despite the emergence of a considerable number of specialized hospitals and infertility clinics in India. The Delhi Artificial Insemination (Human) Act, enacted by the Delhi Legislative Assembly in 1995, legalizes the donation of semen and ova.236 The act calls for the registration of
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all sperm banks that store,sell,donate,and supply semen.It also requires that all semen be tested for HIV infection and prohibits the segregation of sperm according to gender markers for the X orY chromosome. It mandates the confidentiality of donors and recipients,and requires the written consent of both the woman who is receiving the sperm and her husband. Noncompliance with the act results in strict punishment.237 The Ethical Guidelines for Biomedical Research on Human Subjects also address ethical issues involved in assisted reproductive technologies.238 The guidelines address issues such as informed consent, donor selection protocol, the legitimacy of a child born through assisted reproductive technologies, surrogacy, and the right of children born from such procedures and their adoptive parents to access relevant health information about a child’s genetic parents.239 The guidelines also mandate minimal screening of all relevant parties for sexually transmissible infections (STIs),HIV/AIDS and hepatitis.240 The Indian Council of Medical Research and the Draft National Academy of Medical Sciences have formulated the Draft National Guidelines for Accreditation, Supervision and Regulation of Assisted Reproductive Technology clinics in India, which were released for public debate in September 2002.241 The guidelines address the issues of surrogacy and the rights of the child born through various assisted reproductive technologies.242 They also express concern about the affordability and feasibility of related services.243 The guidelines include the following provisions: ■ Assisted reproductive technology clinics must not be a party to any commercial element in donor programs or in gestational surrogacy; ■ No assisted reproductive technology procedure shall be done without the spouse’s consent; ■ Sex selection at any stage—either before or after the fertilization or abortion of embryos of any particular sex—should not be permitted except to avoid the risk of transmission of a genetic abnormality linked to the biological parents or associated with pre-implantation genetic diagnosis; ■ Use of sperm donated by a relative or a known friend of either the wife or the husband should not be permitted. It will be the responsibility of the assisted reproductive technology clinic to obtain sperm from appropriate banks; ■ No relative or person known to the couple may act as a surrogate; ■ Surrogacy by assisted conception should only be considered for patients who are physically or medically unable to carry a pregnancy to term; ■ Sperm or egg donors may consent to have their
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embryos stored for up to five years for use by another couple or for research purposes; ■ The sale or transfer of human embryos or any part thereof, or of gametes in any form and in any way, to parties outside of the country must be prohibited; ■ A child born through assisted reproductive technologies is presumed to be the legitimate child of a surrogate couple, born within wedlock and with all the attendant rights of parentage,support and inheritance; ■ Although there is no legal bar on an unmarried or single woman receiving artificial insemination, it is universally recommended that this procedure be performed only on married women who have the written consent of their husbands; ■ There is an urgent need to treat infertility like any other disease and to require the government, an employer or an insurance carrier to cover all attendant expenses for one child.244 Sex determination techniques In response to the proliferation and misuse of prenatal diagnostic centers for the purpose of fetal sex determination, leading to female feticide,the national legislature enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act in 1994, which has been amended twice, most recently in 2003.245 The act prohibits the use of prenatal diagnostic tests for the purpose of determining fetal sex and the practice of “sex selection.”246 Such tests may only be conducted at registered facilities and for limited purposes, including the detection of chromosomal abnormalities, genetic metabolic diseases, sex-linked genetic disorders, and congenital anomalies. For a prenatal diagnostic test to be authorized,one or more of the following conditions must be present: ■ the pregnant woman is above age 35; ■ the pregnant woman has undergone two or more spontaneous abortions or fetal losses; ■ the pregnant woman has been exposed to potentially teratogenic agents such as drugs,radiation,infection,or chemicals; ■ the pregnant woman or her spouse has a family history of “mental retardation”or “physical deformities”;or ■ any other condition specified by a supervisory board constituted under the act.248 Where authorized prenatal diagnostic tests are conducted, the act prohibits medical providers from disclosing the fetus’s sex to the pregnant woman or her relatives.249 The advertisement of fetal sex determination services is also prohibited under the act.250 Contravention of the act’s provisions by those performing
or seeking prohibited services is punishable with imprisonment and a fine.251 Medical practitioners also may have their licenses suspended for a first offense and revoked upon a second offense.252 A woman who is “compelled” to undergo prenatal testing for the purpose of determining the sex of the fetus or to practice sex selection may not be punished under the act.253 The act provides a rebuttable presumption that any pregnant woman who undergoes such a test was “compelled” by her husband or other relative.254 The act provides for the creation of supervisory boards at the central,state and union territory levels to monitor implementation of the act, advise the government on related policy matters and conduct awareness-raising activities about the practice of sex selection and female feticide.255 The 2002 Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations specifically prohibit medical practitioners from performing sex determination tests for the purpose of female feticide.256 Violations of this provision constitute professional misconduct rendering the physician subject to criminal penalties and disciplinary action from the council.257 The Ethical Guidelines for Biomedical Research on Human Subjects address the issue of “prenatal diagnosis.”The guidelines state that “[prenatal diagnosis] should be performed only for reasons relevant to the health of the fetus or the mother. [It] should not be performed solely to select the sex of a child (in the absence of an X-linked disorder).”258 They urge medical practitioners to “recognize the human and economic costs involved … and limit its use to situations where there is a clear benefit.”259 In September 2003, the Supreme Court directed the central and state governments to enforce laws banning ultrasound scans for the purposes of determining the sex of the fetus.260 Patients’ rights There is no single national law that governs patients’rights. Patients can seek remedial measures against doctors for medical negligence under the 1872 Indian Contract Act, Indian Penal Code,Law of Torts,the 1986 Consumer Protection Act, and the Indian Medical Council Act. Under the Indian Contract Act, a doctor is required to use “reasonable professional skill and care.”261 A patient may sue under the act for breach of contract in civil court for his or her doctor’s failure to apply this level of skill and care.262 Under the Indian Penal Code,medical practitioners can be held criminally liable for causing the death of a patient by negligence.263 Acts performed without criminal intent and in good faith to prevent other harm, or in good faith with the patient’s express or implied consent or without consent when obtaining consent is impossible, are protected.264 A patient
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may also seek damages for medical negligence under the Law of Torts. Under the Consumer Protection Act, patients may seek compensation for suffering loss or injury due to their medical practitioner’s negligence.265 Although the act does not expressly protect harm caused by medical services, judgements under the act have held that paid, but not free, medical services are covered by the act.266 Compensation has been granted in a number of medical negligence cases.267 Courts have also articulated the duty of medical practitioners to act with a reasonable degree of skill, care and knowledge.268 A patient may also file a complaint with the appropriate State Medical Council for an act of professional misconduct by a medical provider.269 The council would then conduct an inquiry.270 The council may issue a warning, or suspend or terminate the provider’s medical license, but is not empowered to award monetary damages to the patient.271 The Ethical Guidelines for Biomedical Research on Human Subjects set forth the duties and rights of medical researchers and human research subjects with respect to issues including informed consent, non-exploitation, privacy, confidentiality, professional competence, accountability, and transparency.272 In the 2000 Supreme Court case, State of Haryana and Others v. Smt Santra, the court held the state liable for a doctor’s negligence in unsuccessfully performing a sterilization procedure after the patient became pregnant as a result of the failed procedure.273 The court awarded the patient monetary damages.274 B. REPRODUCTIVE HEALTH LAWS AND POLICIES
There is no comprehensive national health law or policy on reproductive health. However, several aspects of reproductive health are addressed in the Reproductive and Child Health Programme, a national program aimed at providing integrated health and family welfare services for women and children.275 The Ministry of Health and Family Welfare reoriented and renamed its former Family Welfare Programme as the Reproductive and Child Health Programme in 1997 to improve the quality,distribution and accessibility of services and to meet the health-care needs of women and children more effectively.276 The program’s key components include the following: ■ prevention and management of unwanted pregnancy; ■ services to promote safe motherhood; ■ services to promote child survival; and ■ prevention and treatment of reproductive tract infections and STIs.277 The program marked an important shift in the govern-
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ment’s provision of reproductive health services “from a focus on achieving method-specific contraceptive targets to providing client-centered quality services.”278 It abolished demographic targets and provider incentives that were identified by the central government for contraceptive use, and replaced them with a decentralized participatory approach to planning and monitoring reproductive and child health services,involving panchayats, women and community groups.279 Pursuant to this new approach, health plans are formulated at the primary health center and subcenter levels, not at the national or state level as they were under the Family Welfare Programme.280 The decentralized participatory approach seeks to adapt the concepts for reproductive health and rights that emerged from the ICPD.281 Family Planning The Reproductive and Child Health Programme and National Population Policy, adopted in 2000, establish the framework for the government’s delivery of family planning services. A key objective of the Reproductive and Child Health Programme is to promote contraceptive use and provide a full range of contraceptive methods,including condoms,oral pills, IUDs, and male and female sterilization.282 The National Population Policy aims to address the unmet need for contraception in order to meet the medium-term objective of reducing the national fertility rate to replacement levels by 2010 and the long-term objective of stabilizing the population growth rate by 2045.283 One of the 14 national socio-demographic goals identified in the policy is to achieve universal access to family planning information, counseling and services, including a wide range of contraceptives.284 Contraception Almost half of married women of reproductive age currently use modern contraceptive methods.285 There are wide differences between states in the levels of unmet need, with the highest levels in Bihar and Uttar Pradesh.286 Female sterilization is the most widely known and used method in all states although, again, there are substantial differences between states and districts.287 Thirty-four percent of currently married women have undergone sterilization, 3% use condoms,2% use the pill,2% use IUDs,2% rely on male sterilization, and 5% use traditional or other methods.288 Prevalence rates for almost all methods are higher in urban than in rural areas, with condom use more than four times higher in urban than in rural areas.289 Current contraceptive use peaks at 67% among women age 35–39.290 The variation in contraceptive use by age is similar across urban and rural areas.291 Contraception: legal status There is no specific statute that exclusively governs or
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prevention of conception.303 These rules have since been libcontrols the manufacture, advertisement, sale, or standards of eralized to provide prima facie protection for “ideas having contraceptives.Guidelines about contraception relate primarsocial importance … unless obscenity is so gross … that the ily to the approval of contraceptives as drugs.The key central interest of the public dictates the other way.”304 statutes are the 1940 Drugs and Cosmetics Act and the 1945 Sterilization Drugs and Cosmetics Rules.292 Testing and trials of contraFemale sterilization is the most commonly used form of ceptives are conducted by the Indian Council of Medical contraception in India.305 About 29% of the approximately Research.293 74.22 million couples that use a government-approved famiEmergency contraception pills are available by prescriply planning method are “protected” against conception by tion in family planning clinics, pharmacies and, more recentsterilization.306 Female sterilization accounts for 95% of all ly, in all urban government dispensaries and most rural reported sterilizations.307 The median age for female sterilizaprimary health-care centers.294 Dedicated Levonorgestraltion is 25.7.308 Acceptance of sterilization increased in all only products were officially registered in India in January 295 major states from 1997 to 1999, specifically, by 15.9% in In April 2003, the Federation of Obstetrics and 2002. Andhra Pradesh; 17.6% in Assam; 3.3% in Gujurat; 4.9% in Gynaecological Society of India established an emergency 296 Punjab;2.2% in Rajasthan;0.9% in Tamil Nadu;and 12.5% in contraceptive hotline. Uttar Pradesh.309 In the 1998 Supreme Court case All India Democratic Sterilization: legal status Women Association v. Union of India, petiNo specific central statute regulates tioners challenged the use of the drug the provision of sterilization services. quinacrine as a method of female sterilRELEVANT LAWS AND POLICIES 297 The Standards for Female and Male ization and contraception. The court Sterilization issued by the Ministry of disposed of the petition based on the • Reproductive and Child Health Health and Family Welfare set forth the government’s assurances that it intended Programme eligibility criteria for sterilization.310 to ban the use of the drug as a method of • National Population Policy, 2000 Applicants for sterilization must be marcontraception.298 A few months later, • Drugs and Cosmetics Act, 1940; ried.311 Male applicants should “idealthe government issued a notification and Drugs and Cosmetics Rules, ly” be below the age of 60, while female banning the import, manufacture, sale, 1945 applicants must be between the ages of and distribution of quinacrine for use as • Standards for Female and Male 22–45.312 Couples must have at least a contraceptive,and established penalties Sterilization, 1999 299 one child above the age of one.313 The for violators of the ban. • National Health Policy, 2002 standards also require that applicants be At the direction of the Supreme • Tenth Five Year Plan, 2002-2007 given counseling prior to undergoing Court, the Drugs Technical Advisory • National Nutrition Policy, 1993 the procedure; applicants should be Board, a statutory body constituted • Medical Termination of informed about all available methods of under the Drugs and Cosmetics Act, Pregnancy Act, 1971 family planning, the permanent nature issued a statement in 1995 recom• Indian Penal Code, 1860 of the procedure, the risk of complicamending that Depo-Provera not be • National AIDS Prevention and tions, and the inability of sterilization to included in India’s family planning proControl Policy, 2002 protect against reproductive tract infecgrams.300 In January 2002, the govern• National Blood Policy, 2002 tions,STIs or HIV/AIDS.314 Applicants ment abandoned its plan to offer should be informed specifically of their injectables through the Reproductive 301 option to decide against sterilization without sacrificing their and Child Health Programme. Ministry of Health officials right to receive other reproductive health services.315 All have stated that although injectables will not be offered counseling should be provided in a language the client can through government programs,they may be made available in understand.316 Sterilization may only be performed with the the private sector.302 applicant’s informed written consent, which should be given Regulation of information on contraception free of “coercion”or “physical or mental stress.”317 In the case No specific statute regulates the dissemination of informaof pregnant women, the standards prohibit health providers tion regarding advertisement, promotion or packaging of from obtaining a woman’s consent when she is “sedated or … contraceptives.Media and penal laws determine the legality of [experiencing] stress associated with some pregnancy-related publicizing contraceptives. Previously, obscenity laws within events/problems.”318 A spouse’s written consent is not the Indian Penal Code prohibited advertising a drug for the
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required for sterilization.319 Sterilization policies Although the Reproductive and Child Health Programme abolished centrally determined targets for methodspecific contraceptives, including sterilization, certain government incentives for sterilization still exist. In order to further the goals of the National Population Policy,a government health insurance plan was proposed to provide insurance incentives to couples below the poverty line who are undergoing sterilization.320 Such couples with no more than two children would be eligible for family health insurance, including hospitalization,of up to Rs 5000 and personal accident insurance for the spouse undergoing the sterilization procedure.321 In certain states, such as Andhra Pradesh, lowincome individuals who are sterilized after one or two children receive priority for anti-poverty benefits, including housing, land, wells, and loans.322 Government delivery of family planning services In urban areas in India,a network of government hospitals and urban family welfare centers is primarily responsible for providing family planning methods and services. In rural areas, primary health centers and subcenters provide these services.323 The public health sector is the source of contraception for 76% of current users of modern methods.324 Government facilities provide condoms, oral contraceptives and IUDs free of charge.325 The government launched a Social Marketing Programme for condoms in 1968 and for oral contraceptives in 1987 through which condoms and oral pills are made available by marketing companies or NGOs at highly subsidized rates and through diverse outlets.326 Sterilization and IUD insertions are mostly performed in government hospitals and primary health centers.327 On occasion, sterilization camps are organized in rural or urban areas throughout the country.328 In 1987, a joint NGO-government program established Centres of Excellence in Medical Colleges in different parts of the country to provide training in government standards for male and female sterilization.329 A UNFPA-funded non-scalpel vasectomy project is also being implemented by the Ministry of Health and Family Welfare. The project, which will train 1,500 medical personnel throughout the country to perform non-scalpel vasectomies, aims to promote male sterilization and male involvement in furthering family welfare.330 To encourage grassroots participation in the formulation of family planning services, the government allows medical personnel at the local and district levels to submit annual action plans and monthly activity reports to district family welfare officers who then inform state and national offi-
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cials.331 The government also instituted an Empowered Action Group in the Ministry of Health and Family Welfare to facilitate the planning of area-specific programs with the involvement of voluntary associations, community organizations and Panchayat Raj (local government) institutions.332 Part of the group’s mandate is to explore the possibility of socially marketing contraceptives in order to make them more accessible.333 By promoting a participatory approach to family planning services, the National Population Policy stresses the importance of panchayat institutions in furthering decentralized planning and program implementation in the context of the policy’s goals of meeting unmet need and achieving population stabilization.334 It urges panchayats to form representative committees to prepare “need-based, demand-driven, socio-demographic plans at the village level.”335 Family planning services provided by NGOs and the private sector Family planning services are provided by private hospitals and clinics as well as NGOs. Despite its provision of more than three-fourths of the country’s curative health-care services, the private health sector provides less than one-third of all maternal and child health and family planning services.336 Seventeen percent of modern contraceptive users rely on the private sector for their supply.337 The major factors limiting the private sector’s participation in family planning services include: the focus until now on curative services; the variable quality of services; and the inability of low-income people to pay for these services.338 One of the aims of the Tenth Five Year Plan is to more closely involve the private sector in the provision of family planning services.339 About 1% of current users of modern contraceptive methods obtain their method from NGOs.340 The Department of Family Welfare funds roughly 97 large NGOs and more than 800 smaller NGOs in ten states.341 However, a large number of districts in states with high fertility and mortality rates have no NGO presence.342 The National Population Policy aims to increase the role of NGOs and voluntary organizations in raising awareness about reproductive and child health interventions and improving community participation. To increase NGO participation, the Department of Family Welfare reached out to several well-established NGOs,such as the Family Planning Association of India and the Voluntary Health Association of India, to help select, train, assist, and monitor smaller NGOs working at the village level.343 Maternal Health Recent government estimates of India’s maternal mortality ratio range from 407 to 540 maternal deaths per 100,000 live births.344 Maternal deaths account for an estimated 15% of all deaths of women of reproductive age.345 Most mater-
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nal deaths are caused by hemorrhage (29.7%), anemia (19%) and sepsis (16.1%).346 Over half of all deliveries take place in private homes, while one-third take place in health facilities.347 Forty-two percent of deliveries are attended by a health professional.348 Older women as well as women from scheduled tribes, illiterate women and low-income women generally do not receive prenatal checkups.349 Policies One of the primary goals of the National Health Policy and National Population Policy is to reduce the maternal mortality rate to less than 100 maternal deaths per 100,000 live births by 2010.350 In support of this goal, the Tenth Five Year Plan gives emphasis to maternal health services including the following: ■ essential obstetric care through early registration of pregnancy and screening of pregnant women to detect risk factors; ■ identification and management of high-risk mothers; ■ appropriate management of anemia and hypertension disorders; and ■ referral care for at-risk mothers.351 Priority areas also include services for the prevention, detection and management of reproductive tract infections and STIs, and special efforts to promote institutional deliveries and safe home deliveries.352 The government also commits to making special efforts to promote access to health care during pregnancy at primary health centers.353 On the occasion of International Women’s Day on March 8,2003,the Ministry of Health and Family Welfare initiated a program that compensates pregnant women for their travel costs to health centers.354 The program additionally provides a sum of Rs 1000 for the birth of a daughter and Rs 500 for the birth of a son.355 Several initiatives undertaken in previous five-year plans and health policies have been incorporated into the government’s current policies. The Universal Immunization Programme,launched in 1985,became part of the Reproductive and Child Health Programme in 1997. As a result of this initiative,the number of pregnant women who were vaccinated against tetanus toxoid more than doubled between the start of the program and 2001.356 The interventions of the Child Survival and Safe Motherhood Programme, which was launched in 1992 in 72 districts and had expanded to 466 districts by the end of the Eighth Five Year Plan, also became part of the Reproductive and Child Health Programme.357 During the Ninth Five Year Plan, a training program for dais (midwives) was initiated in 142 districts in 15 states.358 Reproductive Child Health camps were also held to improve access in rural areas to primary-care services.359
The government also has launched a nationwide scheme of women’s health groups called Mahila Swasthya Sanghs in villages. These groups provide a forum for discussing women’s health concerns and issues.360 Group participants also receive short-term training and counseling by local health-care workers as well as educational and informational materials.361 More than 34,000 such groups have been formed in various states and union territories.362 Nutrition Approximately one-third of newborn children are of low birth weight, indicating that many pregnant women suffer from nutritional deficiencies.363 The constitution’s Directive Principles of State Policy enjoin the state “to regard raising the level of nutrition and standard of living of its people and the improvement of public health as among its primary duties.”364 The 1993 National Nutrition Policy gives special priority to at-risk women, mothers and children.365 During the Ninth Five Year Plan, several interventions were adopted as part of the policy, including the following: ■ screening of all pregnant women and lactating mothers for chronic energy deficiency; ■ identifying women who weigh less than 40 kg and providing them with adequate health care before,during and after pregnancy, as well as neonatal care, under the Reproductive and Child Health Programme; and ■ ensuring that such women receive food supplementation through the Integrated Child Development Services scheme.366 The Integrated Child Development Services scheme, launched in 1975, is a major intervention in combating malnutrition and provides food supplementation to children below age six as well as to expectant and nursing mothers, with a special emphasis on the girl child.367 It has grown to be the world’s largest child development program, covering more than 17 million children and pregnant and lactating mothers.368 Abortion There is no precise estimate of the total number of induced abortions in India because government data only account for abortions performed in government-approved facilities,which are a fraction of the total number of abortions that occur every year.369 According to government data, an estimated 1.7% of pregnancies end in induced abortion, although there are wide interstate differences ranging from 0.3% in Bihar to 6% in Manipur.370 The government also estimates that between 4 million and 6 million abortions are performed illegally and that unsafe abortion accounts for 9% of maternal deaths.371 Non-governmental studies suggest
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that an estimated 6.7 million abortions occur annually and that 4.5% to 16.9% of all maternal deaths result from unsafe abortion.372 Abortion: legal status The 1971 Medical Termination of Pregnancy Act sets forth the grounds for legal abortion, which include the following: ■ risk to the woman’s life; ■ grave injury to the woman’s physical or mental health; and ■ substantial risk of fetal impairment.373 In determining whether the continuation of a pregnancy would jeopardize a woman’s health, the law permits consideration of socioeconomic factors affecting the woman’s “actual or reasonable foreseeable environment.”374 Physical or mental injury to health may also be presumed when the pregnancy is the result of rape or contraceptive failure on the part of the man or woman.375 Abortions may only be performed by registered medical practitioners and in government hospitals or facilities approved for abortion by the government or district level committees.376 For pregnancies of up to 12 weeks, an abortion is permitted upon the good faith opinion of one registered medical practitioner.377 For pregnancies between 12 and 20 weeks, the opinions of two practitioners are required.378 For pregnancies beyond 20 weeks, abortion is prohibited except when “immediately necessary to save the life of the pregnant woman.”379 Registered medical practitioners must adhere to an elaborate procedure for reporting abortions performed.380 The pregnant woman’s consent, or that of a legal guardian where she is a minor or lacks mental capacity, is also required for legal abortion.381 The consent of the woman’s husband is not required. The central government has issued regulations to safeguard the confidentiality of a woman seeking legal abortion.382 The government approved the distribution of mifepristone and misoprostol, two drugs used in medical abortion, in March 2002.383 Medical abortion is available in governmentapproved hospitals and at all registered abortion clinics.384 Trials are underway to test the efficacy, dosage and safety of drugs for medical termination of pregnancy between 12 and 20 weeks.385 Early pilot studies report that medical abortion may be especially beneficial in rural settings and suggest that nurses trained to insert intrauterine devices could also administer the drugs for medical abortion.386 The Medical Termination of Pregnancy Act imposes a fine of up to Rs 1,000 for willful contravention of its provisions.387 Pursuant to amendments to the act in 2002, penalties for unauthorized clinics and unregistered practitioners perform-
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ing abortions were increased.388 The termination of a pregnancy by an unauthorized person or in an unauthorized facility is punishable with two to seven years imprisonment.389 The owner of an unauthorized facility performing abortion is also subject to the same punishment.390 All other penalties are provided in the Indian Penal Code.391 Any individual,including the pregnant woman herself, who causes a miscarriage for reasons other than to save the life of the mother, is punishable by up to seven years imprisonment and/or fines.392 The severity of the punishment increases if the woman is at a late stage of pregnancy, which the penal code defines only as “quick with child.”393 The act of causing a miscarriage without the woman’s consent is punishable by life imprisonment or a period of ten years and a fine.394 Regulation of information on abortion A 2002 Supreme Court directive ordered state governments to enforce the ban on sex-selective abortion and punish clinics that advertise and promote sex-selective abortion.395 Abortion policies The Tenth Five Year Plan identifies the improvement and expansion of, and women’s access to, early and safe abortion services as continuing areas of government focus.396 Government strategies for reducing abortion-related morbidity include meeting unmet needs for contraception to reduce the number of pregnancies;improving access to safe abortion services; and “ensuring that women do accept appropriate contraception at the time of [abortion] to prevent unwanted pregnancies requiring a repeat [abortion].”397 A major goal of the National Population Policy is the expansion of the availability of safe abortion services.398 In accordance with this policy and the Reproductive and Child Health Programme, actions have been initiated to improve and expand abortion facilities and women’s access to them, particularly in rural areas.399 Specific strategies for improving women’s access to safe abortion services include these: ■ decentralizing the registration of abortion clinics from the state to the district level; ■ simplifying the regulations for reporting of abortion; ■ training physicians in the government,private and voluntary sector in abortion; ■ providing manual vacuum aspiration syringes to recognized abortion centers where there is a trained physician but no vacuum aspiration machine; ■ using manual vacuum aspiration for performing abortion in community health centers and primary health centers; and ■ exploring the feasibility and safety of introducing non-surgical methods of abortion in medical college
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hospitals and extending the service in a phased manner to district hospitals.400 The National Population Policy also calls for the provision of postabortion care, including services to manage complications and identify other health needs of postabortion patients, and refer them to appropriate services.401 As part of postabortion care, physicians may also be trained to provide family planning counseling and services such as insertion of IUDs, sterilization, oral contraceptives, and condoms.402 Government delivery of abortion services More than 8,500 hospitals and clinics are authorized to perform abortions.403 The United Nations Special Rapporteur on Violence Against Women has reported that 1,800 of India’s 20,000 primary health centers have certified abortion facilities.404 Less developed but more populous states often have fewer abortion facilities than smaller and more developed states.405 For example, Maharastra, a more developed state, has over one-fifth of the country’s registered abortion facilities.406 The four large, less developed states of Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh contain 40% of the country’s population but only 16.7% of its total registered facilities.407 Not all registered abortion facilities are fully functional or have ever provided abortion services. According to an analysis of abortion facilities in Gujarat, Maharastra, Uttar Pradesh, and Tamil Nadu from 1995–1997, about one-fourth of the primary health centers in Maharastra and Uttar Pradesh,onethird of those in Gujarat and one-half of those in Tamil Nadu were providing abortion services.408 Up to half of surveyed primary health centers had never offered abortion services, even though they were approved as abortion facilities.409 In contrast,the majority of community health centers,rural hospitals and subdistrict hospitals surveyed were equipped to provide abortion services.410 According to national regulations, all community health centers, postpartum centers and other higher-level health facilities are expected to provide abortion services.411 In each of the four states that were surveyed, the main reason abortion services were not offered was the lack of trained providers.412 Some clinics cited lack of adequate equipment as the primary reason.413 To alleviate the shortage of trained providers in primary health centers,community health centers and subdistrict hospitals, the government is assisting states and union territories in hiring doctors trained in abortion techniques to pay weekly or bimonthly visits to these facilities to perform abortions and other reproductive health services.414 Abortion services provided by NGOs and the private sector Several NGOs play an important role in providing safe abortion services in India. Parivar Seva Sanstha, one of the
country’s largest NGOs working in the field of reproductive health,operates abortion care centers in urban areas throughout the country.The Family Planning Association of India provides counseling as well as abortion services at the district level.415 To support NGOs in providing abortion services,the government has proposed a plan to provide equipment and free training to authorized abortion facilities in the NGO sector.416 Sexually Transmissible Infections (STIs) and HIV/AIDS There are approximately forty million new reported cases of STIs every year.417 In rural areas, STI treatment facilities are not usually available.418 The incidence of HIV/AIDS has been on the rise for more than a decade and has reached alarming proportions in recent years. With nearly four million people infected with HIV,India has the world's second largest population of HIVinfected people.419 At the end of 2001, there were 1.5 million women living with HIV/AIDS.420 Studies indicate that a growing number of women attending prenatal clinics are testing HIV-positive.421 Relevant laws There is no separate national legislation on STIs or HIV/AIDS. However, there are a number of legal provisions and court decisions that apply to persons living with STIs and HIV/AIDS. Under the Indian Penal Code, negligently or malignantly engaging in any act that one knows is likely to spread the infection of any disease dangerous to life is a crime punishable by imprisonment ranging from six months to two years and possibly a fine.422 To date, this provision has been applied to STIs such as syphilis and gonorrhea, but it has not been applied to HIV/AIDS.423 Under most matrimonial laws, a spouse’s infection with a communicable venereal disease is a ground for divorce.424 To date, there are no reported cases where divorce has been sought on the basis of a spouse’s infection with HIV/AIDS.425 As stated above, there are no national laws specific to HIV/AIDS. However, the state of Goa has introduced the 1985 Goa,Daman and Diu Public Health Act,as amended by the 1987 Goa Public Health Act, which contains provisions specific to persons affected by HIV/AIDS.426 This act contains provisions for the isolation of persons found to be sero positive, under certain prescribed conditions.427 Attempts have been made to introduce HIV/AIDS specific legislation in the legislative assemblies of two more states.428 Although there are no laws per se that prohibit discrimination against persons living with STIs or HIV/AIDS, some court decisions have upheld such persons’ right to nondiscrimination, primarily in the health-care, employment and armed forces contexts.429 In MX v. ZY, the Bombay High
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Court held that the constitutional right to nondiscrimination requires that people living with HIV/AIDS not be refused treatment at public hospitals or terminated from their place of employment in the public sector on the basis of their HIV status.430 In Parmanand v. the Union of India, the Supreme Court held that private health-care providers may not refuse to treat HIV-infected individuals in emergency situations.431 Other court decisions have undermined the rights of persons living with HIV/AIDS. In Mr. X v. Hospital Z, the Supreme Court ruled that health-care workers are liable under the Indian Penal Code for failing to disclose a patient’s HIV status to his or her partner(s).432 The original ruling also suspended the right of HIV-positive individuals to marry, though this right was later restored in an order issued by the court in December 2002.433 However, HIV-positive individuals who know their status must still obtain informed consent from their prospective spouses prior to marriage.434 There are also several legal standards that address blood safety and transfusion services. In 1993, amendments to the Drugs and Cosmetics Act and accompanying rules required the screening of blood for five transmissible infections,including HIV/AIDS.435 Blood banks must obtain a license from the relevant authority, and these licenses must be renewed at regular intervals.436 A 1996 Supreme Court decision also generated key changes in the regulation of the country’s blood supply. In Common Cause v.Union of India and others,the court set forth mandatory licensing of blood banks, a ban on professional blood donations and strict guidelines for holding blood donation camps.437 Policies for the prevention and treatment of STIs and HIV/AIDS One year after the first HIV case was identified in 1986, the government formulated the National AIDS Control Program under the Ministry of Health and Family Welfare.438 In 1992, the Ministry established the National AIDS Control Organization as the focal governmental body for the formulation and implementation of HIV/AIDS-related policies and programmatic initiatives. In 2002, the government announced the National AIDS Prevention and Control Policy and National Blood Policy. The general objective of the National AIDS Prevention and Control Policy is to contain HIV/AIDS transmission and reduce the impact of the disease on infected persons and on the health and socioeconomic well-being of the general population.439 One specific target is to achieve a zero growth rate of new HIV infections by 2007.440 Other objectives include the following: ■ creating a socioeconomic environment that helps prevent HIV/AIDS; ■ providing care and support to people living with
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HIV/AIDS and ensuring the protection and promotion of their human rights, including their rights to access the health-care system,education,employment, and privacy; ■ mobilizing the support of NGOs and communitybased organizations in initiatives for the prevention and alleviation of HIV/AIDS; ■ decentralizing the National AIDS Control Program to the field level with adequate financial and administrative delegation of responsibilities; ■ strengthening program management capabilities in state governments, municipal corporations, panchayat institutions, and leading NGOs participating in the National AIDS Control Program; ■ integrating the National AIDS Control Program with other national programs such as Reproductive and Child Health, tuberculosis control, and the Integrated Child Development Scheme, and with the primary health-care system; ■ preventing women, children and other socially marginalized groups from becoming vulnerable to HIV infection by improving their health education, legal status and economic prospects; ■ providing adequate and equitable health care to HIVinfected individuals and drawing attention to the public health rationale for overcoming stigmatization, discrimination and seclusion in society; ■ maintaining constant interaction with international and bilateral agencies for support and cooperation in the field of research in vaccines, drugs and emerging systems of health care; ■ ensuring the availability of adequate and safe blood and blood products for the general population through promotion of voluntary blood donation; and ■ promoting a better understanding of HIV/AIDS among young people, especially students, youth and other sexually active groups.441 The National AIDS Prevention and Control Policy also gives special priority to the prevention and control of STIs as a strategy for controlling the spread of HIV/AIDS.442 The policy provides for the integration of services for treatment of STIs as well as reproductive tract infections at all levels of health care, including: ■ strengthening STI clinics in all district hospitals, medical colleges and other facilities by providing technical support, equipment and drugs; ■ undertaking a massive training program for all medical and paramedical workers involved in providing services for reproductive tract infections and STIs;
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ensuring that all STI clinics provide counseling services and good quality condoms for STI patients; and ■ utilizing NGOs to provide such counseling services at STI clinics.443 The National Blood Policy aims to ensure accessibility and adequate supply of safe and quality blood and blood components collected from voluntary and non-remunerated blood donors.444 The objectives of this policy include the following: ■ making available adequate resources to develop and reorganize blood transfusion services in the entire country; ■ making the latest technology available for operating blood transfusion services; ■ launching extensive awareness programs for donor information, education, motivation, recruitment, and retention in order to ensure a safe blood supply; ■ encouraging the appropriate clinical use of blood and blood products; ■ encouraging research and development in the field of transfusion medicine and related technology; and ■ taking adequate regulatory and legislative steps for the monitoring and evaluation of blood transfusion services and eliminating profiteering in blood banks.445 The Action Plan for Blood Safety was developed in 2003 to implement the objectives set forth in the National Blood Policy. The action plan provides for the following: ■ accreditation of blood banks; ■ disclosure of the status of all infections transmitted through blood transfusions; ■ multiagency response through partnerships between government, private sector, the Red Cross Society of India, the Indian Council of Medical Research, Medical Council of India,NGOs,community-based organizations, and others; ■ rational use of blood and blood products among clinicians; and ■ external quality-control mechanisms for public sector blood banks.446 In an effort to expand the range of preventive methods available to women against HIV transmission, the government is considering introducing microbicides—creams or gels that can prevent transmission of STIs and HIV when applied at the mouth or female genitals—in its HIV/AIDS prevention programs.447 Regulation of information on STIs and HIV/AIDS Restrictions on the right to freedom of expression and information on STIs and HIV/AIDS are traditionally covered by laws governing obscenity, censorship and the public interest.448 The Indian Penal Code criminalizes the sale, ■
publication, distribution, and advertisement of “obscene” materials, but does not specifically define “obscene.”449 The code does not prohibit materials if they are “for the public good.”450 In May 2000, the authors of a controversial pamphlet entitled “AIDS and Us” were arrested under the 1980 National Security Act for circulating the pamphlet.451 C. POPULATION
In 1952, India became the first country in the world to initiate a state-sponsored family planning program to slow population growth. From the early 1960s to the 1990s, India’s program was driven by government determined targets for contraceptive acceptance. After the ICPD, however, a major national policy shift occurred. In 1996, the government announced the “Target-Free Approach,” which eliminated nationally mandated targets for contraceptive acceptance while continuing to allow for locally determined targets. Under the new approach, planning would occur at the community level, where grassroots workers would set targets for their service areas after assessing the needs of clients.452 The National Population Policy commits to continuing the “target-free” approach in the provision of family planning services,as well as decentralized planning and implementation of such services. Despite the National Population Policy’s emphasis on client-based family planning services with locally determined needs, states are still authorized under the constitution to make their own laws with respect to population control and family planning,and they may implement population policies using various incentives and disincentives.453 In a major 2003 ruling, the Supreme Court upheld a Haryana state law barring any person from becoming the sarpanch (head of a village panchayat) or upsarpanch (a panchayat leader below a sarpanch) if he or she had more than two children.454 Population policy Objectives The National Population Policy commits to securing voluntary and informed choice and consent for anyone accessing reproductive health-care services. The policy also endorses the continuation of a “target free” approach to the administration of family planning services.455 The policy incorporates the following short-term, medium-term and long-term objectives: ■ Short-term objective: to address the unmet needs for contraception, health-care infrastructure and health personnel, and to provide integrated service delivery for basic reproductive and child health care. ■ Medium-term objective: to reduce the total fertility rate from 2.9 to replacement levels by 2010 through
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vigorous implementation of inter-sectoral operational strategies. ■ Long-term objective:to achieve a stable population by 2045,at a level consistent with the requirements of sustainable economic growth, social development and environmental protection.456 By 2010, the National Population Policy seeks to achieve the following national socio-demographic goals: ■ address the unmet needs for basic reproductive and child health services, supplies and infrastructure; ■ make school education up to age 14 free and compulsory and reduce drop out rates at primary and secondary school levels to below 20% for both boys and girls; ■ reduce the infant mortality rate to below 30 per 1,000 live births; ■ reduce maternal mortality rate to below 100 per 100,000 live births; ■ achieve universal immunization of children against all vaccine-preventable diseases; ■ promote delayed marriage for girls,not earlier than age 18 and preferably after 20 years of age; ■ achieve 80% institutional deliveries and 100% deliveries by trained persons; ■ achieve universal access to information,counseling and services for fertility regulation and contraception with a wide range of choices; ■ achieve 100% registration of births, deaths, marriages, and pregnancies; ■ contain the spread of AIDS and promote greater integration between the management of reproductive tract infections and STIs and the National AIDS Control Organization; ■ prevent and control communicable diseases; ■ integrate Indian Systems of Medicine in the provision of reproductive and child health services,and in reaching out to households; ■ vigorously promote the small family norm to achieve replacement levels of the total fertility rate; and ■ create a people-centered approach to all social programs relating to family welfare.457 The policy identifies several strategic themes to achieve the above goals, including these: ■ decentralizing planning and program implementation; ■ converging of service delivery at village levels; ■ empowering women for improved health and nutrition; ■ ensuring child health and survival; ■ meeting unmet needs for family welfare services; ■ improving access and quality of services to under-
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served population groups,including urban slums,tribal communities, hill area populations, displaced and migrant populations, and adolescents; ■ increasing participation of men in family planning; ■ diversifying health-care providers; ■ collaborating with and obtaining commitments from NGOs and the private sector; ■ mainstreaming Indian systems of medicine and homeopathy; ■ promoting contraceptive technology and research on reproductive and child health; ■ providing care for the older population; and ■ improving information, education and communication about family planning.458 In encouraging states to pursue these goals, the National Population Policy recommends that the 42nd Amendment to the Constitution,which has frozen the number of seats to the Lok Sabha and Rajya Sabha based on the 1971 census, be extended to 2026.459 In this way, states that are making progress in their efforts toward population stabilization need not fear that the number of their representatives in the Lok Sabha will decrease. (See “Structure of National Government”for information on proportionality of representation in the Lok Sabha.) Implementing agencies The National Population Policy is formulated by the central government and implemented and managed at panchayat and municipality levels in coordination with the concerned state or union territory government.460 The central and state or union territory governments, as well as international agencies, contribute to funding for implementation activities under the policy.461 In 2000,the prime minister established the National Commission on Population to oversee and review implementation of the population policy. The commission is headed by the prime minister and consists of 100 members, including the chief ministers of all states and union territories, the central minister of the Department of Family Welfare,personnel from other relevant ministries and departments, and reputed demographers, public health professionals and NGOs.
III. Legal Status of Women Women’s health and reproductive rights cannot be fully understood without taking into account the legal and social status of women. Laws relating to women’s legal status not only reflect societal attitudes that shape the landscape of reproductive rights, they directly impact women’s ability to
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exercise these rights. Issues such as the respect and dignity a woman commands within marriage,her ability to own property and earn an independent income, her level of education, and her vulnerability to violence affect a woman’s ability to make decisions about her reproductive health-care needs and to access the appropriate services. The following section describes laws in India regulating those areas of women’s lives that directly affect their health. The legal context of family life, women’s access to education, and the laws and policies affecting their economic status can contribute to the promotion or the restriction of women’s access to reproductive health care and their ability to make voluntary, informed decisions about such care. Laws regarding the age of first marriage can have a significant impact on young women’s reproductive health. Furthermore, rape laws and other laws related to sexual assault or domestic violence present significant rights issues and also have direct consequences for women’s health.
In 1990, the National Commission for Women Act was adopted, pursuant to which the National Commission for Women was established in January 1992.469 The commission advises the government on all policy matters affecting women, oversees the working of constitutional safeguards for women, and reviews relevant laws and regulations, intervening whenever women’s rights have been violated.470 Several states have set up their own commissions that function as ombudsmen for women.471 The National Commission for Women Act requires that central and state governments report annually to parliament on actions taken pursuant to the commission’s recommendations and provide explanations if they fail to take actions.472 In addition to establishing the National Commission for Women,the Department of Women and Child Development established the Task Force on Women and Children in 2000 to review and make recommendations with regard to legislation relating to women.473 In 2001, the National Policy for the Empowerment of A. RIGHTS TO GENDER EQUALITY AND Women was adopted to eliminate all forms of discrimination NONDISCRIMINATION against women, ensure gender justice and empower women The principle of gender equality is firmly established in the both socially and economically.474 The policy directs all cenconstitution. The constitution provides for equality before tral and state ministries to create time-bound action plans for the law and equal protection of the law, and prohibition of translating the policy into a set of concrete actions. The plans discrimination against any citizen on should include the following: the grounds of sex, religion, race, ■ goals to be achieved by 2010; caste, or any other basis. It empowers ■ identification and commitment of RELEVANT LAWS AND POLICIES the state to take affirmative action in resources; • National Policy for the favor of women.462 These provisions ■ assignment of responsibilities for Empowerment of Women, 2001 can be redressed in both the country’s implementation of goals; • Tenth Five Year Plan, 2002-2007 high courts and the Supreme ■ monitoring, reviewing and assessCourt.463 The constitution also prement mechanisms;and scribes several fundamental duties of ■ introduction of a gender perspecUP AND COMING LEGISLATION citizens, among which is the duty to tive in the budgeting process.475 • 81st Amendment to the renounce practices derogatory to the The Tenth FiveYear Plan sets forth Constitution, known as the dignity of women.464 broad policy objectives to promote "Women’s Reservation Bill" Indian courts have widely held gender equality, including these: that to achieve true gender equality,it ■ ensuring that women have equal is essential that every person be given opportunities to faciliaccess to health care, quality education at all levels, tate personal choice and that no person be forced into a preemployment, and equal remuneration; determined role according to gender.465 ■ strengthening legal systems aimed at the elimination Formal institutions and policies of all forms of discrimination against women; A number of national institutions and policies aim to ■ mainstreaming a gender perspective in the developadvance gender equality. The Department of Women and ment process; Child Development is at the core of the national machinery ■ eliminating all forms of discrimination against women for the advancement of women.466 The department is under and the girl child; and the charge of a cabinet minister,who is in turn accountable to ■ providing equal access to participation and decisionparliament.467 State-level departments also form part of this making for women in social, political and economic machinery.468 realms.476
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B. CITIZENSHIP
The 1955 Citizenship Act provides for the acquisition and termination of Indian citizenship.477 Under the act, women have equal rights with men to acquire and confer their citizenship.478 The act also gives all Indian citizens of “full age and capacity” the right to voluntarily renounce their citizenship, although it stipulates that unmarried women are not considered to be of full age, thus precluding this group from exercising the right to freely renounce their citizenship.479 Certain states within the Indian union confer benefits to state residents. In October 2002, a landmark decision of the Jammu and Kashmir High Court held that women who marry non-state subjects and continue to reside in the state have the right to retain their status as permanent residents of the state, including their rights to work, education, inheritance, and employment.480 Previously, women who married nonstate residents lost their state residency, which resulted in the loss of their rights to obtain or continue in a government job, own land and property, pursue higher education, and contest or vote in municipal and state elections.481 However, male Jammu and Kashmir residents have always retained their state residency rights even after marrying non-state subjects, who are automatically granted the state and class status of their husbands upon marriage.482 C. RIGHTS WITHIN MARRIAGE
Marriage laws Family relations, including marriage, are generally governed by the personal laws of individual religious communities.483 In addition to these laws, secular legislation applies to all citizens regardless of their religious affiliation. Among these secular laws is the 1954 Special Marriage Act, which allows people of different faiths to legally register their marriage.484 A marriage celebrated under religious rites may also be registered under the act.485 The 1929 Child Marriage Act establishes the legal minimum age for marriage as 21 for men and 18 for women and imposes penalties for any violation of its provisions.486 The act does not,however,affect the validity of an underage marriage.487 The 1961 Dowry Prohibition Act prohibits the giving, taking, abetting, or demanding of dowry.488 Personal laws generally supercede state laws. However,this is not the case in the union territories of Pondicherry, Goa, Daman,and Diu,and the state of Jammu and Kashmir,where distinct laws apply.489 Laws governing Hindus The 1955 Hindu Marriage Act is a codification of Hindu personal law and is also applicable to Sikhs, Buddhists and Jains.490 According to the act, marriage is a sacramental
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union.491 For most Hindu communities,the ritual of saptapadi—the taking of seven steps by the bridegroom and the bride jointly around the sacred fire—is necessary for a valid marriage.492 Additional requirements for a valid Hindu marriage include these: ■ at the time of marriage, neither party has a living spouse; ■ at the time of marriage,neither party is (1) incapable of giving valid consent to the marriage;(2) unfit for marriage and procreation because of a mental disorder; or (3) suffering from insanity or epilepsy; ■ the bridegroom has reached the age of 21 years and the bride 18 years; ■ the parties are not within prohibited degrees of relationship; and ■ the parties are not sapindas (close relatives) of each other.493 Despite the act’s prohibition of marriage between closely related individuals,customary practices may prevail if the custom of the relevant parties is contrary to this prohibition.494 Laws governing Muslims Under Muslim personal law, which is largely uncodified, marriage is a contract.495 Conditions for a valid Muslim marriage include these: ■ a proposal of marriage by one party and acceptance by the other, called nikah; if the parties are minors, the proposal and acceptance must be secured by their guardians; ■ among Sunnis, the presence of witnesses is necessary during nikah;among Shias,witnesses are not necessary during nikah; ■ a mahr, or sum of money or other property, is given to the bride by the bridegroom at the time of marriage; ■ the parties must not be closely related; ■ the parties must be “mentally sound”; ■ the bride and bridegroom must have attained the age of puberty, or 15 years of age.496 Muslim law allows a man to have up to four wives.497 Laws governing Christians Christian marriage is governed by the 1872 Indian Christian Marriage Act.498 There are three forms of marriage, including a religious marriage, a secular marriage and a marriage by certificate between Indian Christians.499 The conditions for a valid marriage are as follows: ■ the man should not be under age 21 and the woman should not be under age 18; ■ neither party should have a living husband or wife; ■ the parties must exchange vows in the presence of two witnesses and a person licensed under the act.500
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Laws governing Parsis year.506 Marriage between Parsis is governed by the 1936 Parsi The Indian Penal Code provides penalties for specific 501 Marriage and Divorce Act. The requirements for a valid grounds of divorce, including bigamy, cruelty and adultery.507 marriage include the following: Laws governing Muslims ■ the parties must not be closely related; Under Muslim personal law, non-judicial divorce may ■ the marriage must be solemnized by a priest in the occur in the following ways: presence of two additional witnesses in a Parsi cere■ by talak (at the husband’s will); mony known as ashirvad; ■ by tafweez, whereby the husband “delegates” his right ■ males must be at least 21 years of age and females must of divorce to his wife in a marriage contract; 502 be at least 18; ■ by khula, whereby the wife gives ■ neither party should have a or agrees to give consideration to husband or wife still living at her husband for her release from RELEVANT LAWS AND POLICIES the time of marriage.503 the marriage; • Special Marriage Act, 1954 Additionally,all marriages must be ■ by mubara’at, whereby the husband • Child Marriage Restraint Act, 1929 registered where the marriage was and wife mutually agree to • Dowry Prohibition Act, 1961 solemnized.504 divorce.508 • Hindu Marriage Act, 1955 Divorce laws A man may remarry immediately • Indian Christian Marriage Act, 1872 Laws governing Hindus upon receiving a divorce.509 If the • Parsi Marriage and Divorce Act, Under the Hindu Marriage Act, marriage was consummated,a woman 1936 grounds for divorce include the folmay not remarry before completion • Dissolution of Muslim lowing: of iddat, which is a specified period of Marriages Act, 1939 ■ adultery; time (usually three months) that must • Indian Divorce Act, 1869 ■ cruelty to the other spouse; pass after the date of divorce.510 • Code of Criminal Procedure, 1973 ■ desertion for a continuous The Supreme Court has ruled that • Marriage Laws (Amendment) Act, period of two years immedia mere plea of talak taken in an unsub2001 ately preceding the petition; stantiated statement and submitted • Hindu Adoptions and ■ conversion to another relibefore a court cannot be accepted as Maintenance Act, 1956 gion; adequate proof of talak.511 Rather,the • Muslim Women (Protection of ■ incurable unsoundness of divorce must be for reasonable cause Rights on Divorce) Act, 1986 mind; and preceded by an attempt at recon• Guardians and Wards Act, 1890 ■ incurable leprosy; ciliation between the husband and • Hindu Minority and ■ communicable venereal diswife and a mediator representing each Guardianship Act, 1956 ease; side.512 Only if the attempt fails can ■ renunciation by entering any religious order; talak be effected.513 Similarly, a city court in Delhi has ruled 505 ■ not being heard of as alive for at least seven years. that divorce by biddat (pronouncement of talak three times) by Additional bases for divorce under the act include: mail “cannot be deemed a continuing practice in India.”514 ■ no resumption of cohabitation for at least one year Citing the aforementioned Supreme Court case and the after a decree for judicial separation; Koran,the judge in the case stated that the Koran provides for ■ no restitution of conjugal rights for at least one year pre-divorce conference between both sides with one mediaafter a decree for restitution of conjugal rights; tor on behalf of the wife and one on behalf of the husband.515 ■ the husband has more than one living wife at the time Judicial divorce is also available at the suit of the wife of marriage; under the 1939 Dissolution of Muslim Marriages Act.516 ■ the husband is guilty of rape, sodomy or bestiality; Under the act, Muslim women may seek divorce on any of ■ the woman’s marriage was solemnized (whether conthe following grounds: summated or not) before she reached age 15,provided ■ whereabouts have not been known for a period of that she repudiates the marriage before reaching age four years; 18; ■ failure to provide maintenance for a period of two years; ■ mutual consent,provided the parties have not been liv■ imprisonment for a period of seven or more years; ing together as husband and wife for at least one ■ failure to perform marital obligations for a period of
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three years; impotency from the time of marriage; ■ insanity for a period of two years; ■ leprosy; ■ virulent venereal disease; ■ the woman’s marriage was solemnized before she attained age 15 and she repudiates the marriage before she attains age 18, provided that the marriage has not been consummated; ■ cruelty, including if the husband (1) habitually assaults her or makes her life miserable by cruelty of conduct not amounting to physical ill-treatment; (2) associates with women of “evil repute” or leads an “infamous” life; (3) attempts to force her to lead an “immoral” life; (4) disposes of her property or prevents her from exercising her legal rights over it; (5) obstructs her in the observance of her religious profession or practice; (6) has more than one wife and does not treat her equitably with the injunctions of Islam; or ■ any other recognized ground for the dissolution of marriages under Muslim law.517 Laws governing Christians Divorce among Christians is governed by the 1869 Indian Divorce Act.518 Under the act, grounds for dissolution of marriage by either party include the following: ■ adultery; ■ conversion from Christianity to another faith; ■ incurable unsoundness of mind for a continuous period of at least two years; ■ incurable leprosy for at least two years; ■ communicable venereal disease for at least two years; ■ not being heard of as alive for at least seven years; ■ willful refusal to consummate the marriage; ■ failure to comply with a decree of restitution of conjugal rights for at least two years; ■ desertion for at least two years; ■ cruelty as to cause a reasonable apprehension of harm or injury from continued cohabitation.519 A woman may also seek divorce if her husband has been found guilty of rape, sodomy or bestiality.520 Divorce may also be obtained by mutual consent.521 Laws governing Parsis The Parsi Marriage and Divorce Act governs divorce among Parsis.522 Under the act,divorce by either party to the marriage is permissible on the following grounds: ■ the marriage has not been consummated within one year of its solemnization due to the willful refusal of the defendant to consummate it; ■ unsoundness of mind from the time of marriage; ■
incurable unsoundness of mind for a period of two or more years immediately preceding the filing of the lawsuit, or continuous or intermittent mental disorder of such nature and extent that the plaintiff cannot reasonably be expected to live with the defendant; ■ the defendant was pregnant by someone other than the plaintiff at the time of marriage; ■ adultery,“fornication,” bigamy, rape, or an “unnatural offense”; ■ cruelty; ■ grievous hurt; ■ transmission of venereal disease by defendant to plaintiff; ■ where the defendant is the husband, compelled the wife to submit herself to prostitution; ■ imprisonment of seven or more years for an offense under the Indian Penal Code; ■ desertion for at least two years; ■ a court order awarding separate maintenance to the plaintiff against the defendant and the parties have not had marital intercourse for one or more years since such order; ■ conversion to another religion; ■ non-resumption of cohabitation or restitution of conjugal rights for a period of one or more years pursuant to a decree; ■ mutual consent.523 Either party may attempt to nullify the marriage if consummation is impossible due to natural causes.524 Either spouse may bring lawsuits to dissolve the marriage if the other spouse has been continually absent for a period of seven years and has not been heard of as alive within that time.525 Judicial separation Judicial separation is explicitly recognized as a matrimonial remedy in all matrimonial laws except Muslim personal law.526 Under all other personal laws, an individual can petition for judicial separation on any of the grounds available for divorce.527 Once a decree of judicial separation is obtained the parties are legally permitted,although not required,to live separately. The law still regards the couple as husband and wife and forbids them from remarrying, although their conjugal duties are temporarily suspended. Laws governing Hindus Under the Hindu Marriage Act,either party to a marriage may bring a petition for judicial separation on any of the grounds specified in the act for divorce.528 Once a decree for judicial separation has been obtained,the parties are no longer legally required to cohabit.529 The court may rescind the decree upon the petition of either party.530 ■
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The Supreme Court of India has held that “husbands living in adultery during judicial separation can be denied divorce as their action constitute[s] ‘a continuing matrimonial offence’ under the Hindu Marriage Act.”531 Laws governing Muslims Judicial separation is not recognized as a matrimonial remedy.532 Laws governing Christians Under the Indian Divorce Act, judicial separation is available to either party on the following grounds: ■ adultery; ■ cruelty; ■ desertion for at least two years.533 Laws governing Parsis Under the Parsi Marriage and Divorce Act, judicial separation is available to either party on any of the grounds specified for divorce.534 Maintenance and support laws Women of all religious communities in India are entitled to obtain financial or other support, known as maintenance, from their husbands upon dissolution of marriage.535 Alternatively, women may seek maintenance under the Code of Criminal Procedure.536 Under the code,a man with sufficient means is required to provide maintenance to an ex-wife until she remarries,as well as to his legitimate or illegitimate children and his parents who are unable to maintain themselves.537 A woman is not entitled to this support if she is living in adultery, has refused to live with her husband “without sufficient reason” or lives separately by mutual consent.538 A party may apply to the court for an increase, decrease or cancellation in the amount of maintenance if new facts and circumstances arise.539 An April 2003 Supreme Court decision held that a man who marries a pregnant woman with knowledge of the pregnancy at the time of marriage may not avoid paying maintenance in the event of divorce by claiming the marriage was illegal or void because of the prior pregnancy.540 The woman is entitled to maintenance in the event of divorce on that ground.541 The 2001 Marriage Laws (Amendment) Act amends certain provisions relating to maintenance in the Indian Divorce Act, Parsi Marriage and Divorce Act, Special Marriage Act, and Hindu Marriage Act.542 The effect of the Amendment Act is generally to allow women to petition for payment of expenses of a proceeding for divorce or dissolution in addition to seeking maintenance and alimony.543 Under the act, the court shall, as far as possible, deliver a disposition on petitions for expenses, alimony, maintenance, and education for minor children within 60 days of the peti-
tioner’s service on the respondent.544 Laws governing Hindus Under the Hindu Marriage Act, a court may order either party, as the case may be, to pay maintenance and support for a term not exceeding the life of the payee.545 In determining maintenance awards, the act instructs courts to consider the income, property and conduct of the parties and other circumstances of the case.546 A party may request the court to vary, modify or rescind an award for maintenance for the following reasons: ■ a change in circumstances of either party; ■ remarriage of the party receiving maintenance; ■ failure of the woman to remain chaste, if the party receiving maintenance is the woman; or ■ adultery by the man, if the party receiving maintenance is the man.547 Under the 1956 Hindu Adoptions and Maintenance Act, a Hindu woman is entitled to live apart from her husband during marriage and collect maintenance if certain specified grounds are present or where judicial separation or divorce have been awarded.548 A woman loses this right if she is unchaste or converts to another religion.549 A Hindu widow is entitled to maintenance from her father-in-law under certain conditions.550 In addition, the act provides that Hindus are bound during their lifetime to provide maintenance to their legitimate or illegitimate minor children and aged or infirm parents.551 However,in the case of parents and unmarried daughters,this obligation exists insofar as the parent(s) or unmarried daughter(s) are unable to support themselves out of their own earnings or property.552 A recent Supreme Court decision held that a husband’s refusal to pay a monthly alimony during a separation period could “disentitle him from divorce.”553 Laws governing Muslims Under the 1986 Muslim Women (Protection of Rights on Divorce) Act,a divorced woman is entitled to a “reasonable and fair” provision of maintenance within the period of iddat to be paid to her by her former husband.554 If the woman gives birth before or after the divorce,she may also obtain maintenance for her children for a period of two years from their dates of birth.555 A divorced woman is also entitled to an amount equal to the mahr agreed upon at the time of marriage.556 After the period of iddat, a court can order the divorced woman’s parents, children, relatives who would be entitled to inherit her property,or state wakf (charitable trust for religious purposes) board to pay maintenance to the woman,so long as she does not remarry.557 A divorced woman may also opt to seek maintenance under the Code of Criminal Procedure if both she and her
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former husband file an affidavit or other written declaration in court agreeing to be governed by the code.558 Laws governing Christians Under the Indian Divorce Act, a court may order a husband to pay maintenance to his wife for a term not exceeding her life upon confirmation of a decree of dissolution of marriage or judicial separation obtained by the wife.559 In making the determination of the amount of maintenance, courts may consider the woman’s financial circumstances, the man’s ability to pay and the conduct of both parties.560 A court may direct that maintenance be paid directly to the woman or a trustee on her behalf.561 Laws governing Parsis Many provisions of the Parsi Marriage and Divorce Act relating to maintenance mirror the Hindu Marriage Act. Thus,a court may order either party,as the case may be,to pay maintenance and support for a term not exceeding the life of the payee.562 In determining maintenance awards, the act instructs courts to consider the income, property and conduct of the parties and other circumstances of the case.563 Either party may request the court to “vary, modify or rescind” an award for maintenance for the following reasons: ■ a change in circumstances of either party; ■ remarriage of the party receiving maintenance; ■ failure of the woman to remain chaste, if the party receiving maintenance is the woman; or ■ adultery by the man, if the party receiving maintenance is the man.564 A court may require that alimony be paid directly to the wife or a trustee on her behalf.565 Custody and adoption laws The personal laws of India’s different religious communities apply to issues involving parental custody of minor children. Codified personal laws addressing custody are the 1956 Hindu Minority and Guardianship Act and the Parsi Marriage and Divorce Act. Personal laws do not generally address adoption, with the exception of the Hindu Adoption and Maintenance Act, which applies to Hindus, Buddhists, Jains, and Sikhs. Muslims, Christians and Parsis who wish to adopt may do so under the 1890 Guardians and Wards Act. 566 Under the Guardians and Wards Act, fathers are considered the primary guardians of minor children and courts will not appoint another guardian unless the father is found to be unfit.567 In the case of married minor girls,the girl’s husband is considered her natural guardian and courts will similarly not appoint another guardian unless he is found to be unfit.568 Where a court must appoint a guardian, it should be guided by several factors,including the circumstances,consistent with
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the law to which the minor is subject,that appear to be in the welfare of the minor.569 In determining what would be in the welfare of the minor, the court should consider the age, sex and religion of the minor; the “character and capacity” of the proposed guardian and his or her kinship to the minor; any wishes of a deceased parent;any existing or previous relations of the proposed guardian and the minor or his property; and the preference of the minor, if such minor is old enough to form an intelligent preference.570 Laws governing Hindus Under the Hindu Minority and Guardianship Act, the natural guardians of a Hindu minor,defined as a person under age 18, are the following: ■ in the case of a boy or an unmarried girl, the father and, after him, the mother; ■ in the case of a child under age five, or an illegitimate son or illegitimate and unmarried daughter,the mother and, after her, the father; ■ in the case of a married girl, the husband.571 A parent loses his or her rights to custody if he or she ceases to be a Hindu or renounces the world by becoming a hermit or an ascetic.572 The act directs courts to consider the welfare of the child to be of “paramount consideration” in deciding the question of guardianship.573 Leading an immoral life or remarrying after divorce are grounds upon which the mother may lose her right to custody.574 Under the Hindu Adoptions and Maintenance Act,a Hindu woman may adopt if she is of sound mind and an unmarried adult or, if married, is widowed or divorced.575 A married woman may only consent to an adoption petitioned by her husband; she may not be a joint petitioner with her husband in the process of adoption.576 Any adult Hindu man who is of sound mind may adopt.577 Married men need the consent of their wives in order to adopt.578 Laws governing Muslims Different schools of Islam prescribe different laws for custodial rights. Under some schools, the mother has custodial rights until the children are seven years old.579 Under other schools, she is entitled to custody until the children attain puberty.580 A court could refuse custody to the mother if it finds that she is of bad character,is suffering from a mental illness or is otherwise unfit according to the “welfare of the child” standard.581 Muslim personal law does not recognize the concept of adoption as widely understood in most societies. Muslims who wish to adopt may seek “guardianship” under the Guardians and Wards Act.582
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sists of separating and assigning the shares of a given property.598 Female heirs, including widows, do have a right to residence (although not ownership) in the home, provided that in the case of daughters, they are unmarried, have been deserted by or have separated from their husbands,or are widows.599 In a 2003 Supreme Court case,the court ruled that where a Hindu woman inherits property from her mother or father, her husband and his heirs can no longer receive such property if the woman dies without a will or without children.600 Rather,the property would revert to the heirs of the woman’s mother or father.601 If the property is inherited from the woman’s husband or father-in-law, the property is divided among her husband’s heirs.602 Laws governing Muslims In general,Muslim personal law dictates that a male inherits double the share of a female.603 A widow is entitled to one-eighth of her husband’s property when there are children and one-fourth when there are none.604 If the wife has not been paid her mahr upon her husband’s death,the amount D. ECONOMIC AND SOCIAL RIGHTS must be satisfied out of her husband’s property.605 Similarly, Property laws her heirs are entitled to any unpaid mahr if it is still unpaid In general, all women have the right to acquire, hold and upon her death.606 freely use their own property; to receive, keep or spend earnA wife has the right to residence in the matrimonial home ings; and to buy or sell property on par with men.589 All during marriage, but relinquishes that right upon divorce. women may also dispose of some or all of their property by She does not have a right to ownership of the matrimonial will.590 Inheritance rights, on the home.607 other hand,are governed by the perLaws governing Christians sonal laws of religious communities. The 1925 Indian Succession Act RELEVANT LAWS AND POLICIES The only law that accords substangoverns intestate distribution of prop• Hindu Succession Act, 1956 tive rights to the wife in the propererty for Christians.608 A Christian • Indian Succession Act, 1925 ty of her husband during marriage is widower or widow is entitled to onethe 1867 Portuguese Civil Code, third of his or her deceased spouse’s applicable generally to the residents of the state of Goa and property.609 All children,including married and single daughthe union territories of Daman and Diu.591 ters, receive equal shares in the remaining property.610 The Supreme Court of India has issued directives Laws governing Parsis enjoining the government to implement the principles of The Indian Succession Act governs intestate distribution equality articulated in the constitution, and ensure of property for Parsis as well as Christians.611 A Parsi widowwomen’s right to property.592 er or widow and his or her children are entitled to equal Laws governing Hindus shares of his or her deceased spouse’s property.612 Matters of intestate succession for Hindus are governed by Rights to agricultural land the 1956 Hindu Succession Act.593 Hindu males have a share Each state has its own laws governing succession to agriin the family’s ancestral property by birth.594 Women do not cultural land. Under the 1954 Delhi Land Reforms Act, the have a share in this property by birth, but do have rights to order of succession to a deceased male’s property is the “male expenses for food, shelter, clothing, education, and marlineal descendant in the male line of the descent.”613 An riage.595 Personal property is equally divided among heirs.596 interest inherited by a female heir, including a widow, mothFemale heirs are entitled to a share from partition of a er or unmarried sister,ceases upon her death or remarriage.614 “dwelling house,”although they cannot themselves demand a There is no means for a daughter to inherit.615 partition—only male heirs have this right.597 Partition conLaws governing Christians Under Christian personal law,the mother is entitled to custody of her children until they are at least five years old.583 The court may refuse custody to the mother if it finds her to be of very bad character,suffering from a mental illness,or otherwise unfit considering the “welfare of the child” standard.584 Christian personal law does not recognize the concept of adoption as widely understood in most societies. Christians who wish to adopt may seek “guardianship” under the Guardians and Wards Act.585 Laws governing Parsis The Parsi Marriage and Divorce Act specifies that custody and related matters should be decided by courts.586 Leading an immoral life or remarrying after divorce are grounds upon which a mother may lose her right to custody.587 Parsi personal law does not recognize the concept of adoption as widely understood in most societies. Parsis who wish to adopt may seek “guardianship” under the Guardians and Wards Act.588
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Women’s exclusive property strength.”629 The principles also direct the state “to promote In order to help empower women economically and cottage industries on an individual or co-operative basis in improve their property rights,the Delhi government has prorural areas.”630 posed a new property tax scheme that would impose a lower The 1976 Equal Remuneration Act provides a statutory house tax on residential properties issued to women.616 right to equal pay for equal or similar work.631 The act Laws governing Hindus applies to all employment establishments, regardless of their Hindu women have exclusive size or the nature of their work.632 In rights to all property and gifts given addition to the equal pay provision, to or acquired by them during their the act prohibits sex discrimination in RELEVANT LAWS AND POLICIES lifetime, known as a woman’s stridrecruitment, promotions, training, or • Equal Remuneration Act, 1976 han.617 Women are the sole owners of employment conditions and forbids • Maternity Benefits Act, 1961 such stridhan and may dispose of it as employers from lowering the wages • Factories Act, 1948 they wish.618 of any worker in an attempt to • Employees’ State Insurance Act, 1948 Laws governing Muslims achieve compliance with the act.633 • Central Civil Service (Leave) Rules, A woman’s mahr is her exclusive In order to monitor compliance with 1972 property to use and dispose of as she the act, state governments must sub• Plantations Labour Act, 1951 619 wishes. mit annual reports to the central gov• Mines Act, 1952 Laws governing Christians ernment detailing their efforts at • Beedi and Cigar Workers (Conditions Under Christian personal law, any compliance and progress.634 To of Employment) Act, 1966 gifts given to a woman by her family strengthen compliance with the act, • Employees’ Provident Fund and at the time of marriage, as well as any voluntary organizations have been Miscellaneous Provisions Act, 1952 money or other property earned or authorized to file complaints for vio• Payment of Gratuity Act, 1972 acquired by her, are her personal lation of the act.635 In addition, property, which she may dispose of as courts of judicial magistrates “can suo UP AND COMING LEGISLATION she wishes.620 • Sexual Harassment of Women at their moto take cognizance of an offence Laws governing Parsis punishable under the act.”636 Work Place (Prevention) Bill, 2003 Parsi women do not have special There are a number of labor laws 621 or exclusive rights to any separate category of property. that provide benefits to pregnant women and mothers.Under Labor and employment the 1961 Maternity Benefits Act, women working in factoSome 8.3% of women are engaged in regular salaried ries, mines, plantations, circuses, shops, and other establish622 employment, compared with 18% of men. In rural areas, ments in which ten or more people are employed are entitled women’s workforce participation is 86.5%, compared with to 12 weeks of paid maternity leave,six weeks of paid leave in 623 75.3% for men. Of women working in rural areas,87% are cases of miscarriage or abortion and two weeks of paid leave employed in agriculture as laborers and cultivators.624 Among for sterilization.637 The act prohibits women from working women working in urban areas, about 80% are employed in during the six-week period following delivery,miscarriage or unorganized sectors such as household industries,petty trades abortion and employers from knowingly employing a woman and services,and building construction.625 Women constitute during this period.638 Employers are also prohibited from 626 The only 17.6% of total organized sector employment. requiring work of an arduous nature or that may cause mismajority of women in this sector are employed in communicarriage or negatively impact health from a woman within 627 ty, personal and social services. ten weeks of delivery.639 Additional benefits under the act The constitution guarantees the right to equality of include a one-month paid leave for illness arising out of pregopportunity for all citizens in matters relating to public nancy, delivery, premature birth, or miscarriage; two nursing employment or appointment to public office.628 In addition, breaks of prescribed duration in addition to regular rest interthe constitution’s Directive Principles of State Policy enjoin vals until the child attains 15 months of age,without a deducthe state to ensure equal rights to adequate means of livelition of wages; and a medical bonus of Rs 250 to a woman hood; equal pay for equal work; just and humane conditions who has not been able to obtain free pre- or postnatal care.640 of work and women’s right to maternity relief;the health and The benefits of the act accrue after an employee has worked strength of workers; and that no citizen is “forced by ecofor a period of 80 days in the 12 months immediately prenomic necessity to enter avocations unsuited to their age or ceding the date of her delivery.641
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forbids or restricts the employment of married women vioThe 1948 Factories Act and 1948 Employees’ State Insurlates the constitution’s prohibition of discrimination on the ance Act also include provisions for maternity benefits.642 The Factories Act,which covers any factory with ten or more basis of sex.658 Various labor laws, including the 1952 Employees’ Provemployees, provides for up to 12 weeks paid maternity ident Fund and Miscellaneous Provisions Act and 1972 Payleave.643 The Employees’ State Insurance Act, which is similar in scope but does not include seasonal factories,authorizes ment of Gratuity Act, include social security provisions for the central government to prescribe the wage rates and durafemale and male workers.659 These schemes provide for a 644 Both this act and the Maternity lump sum to a worker upon his or her retirement after a tion of maternity leave. Benefits Acts prohibit the dismissal, discharge, reduction in prescribed length of employment or to his or her family in salary, or other punishment of an employee during the perithe case of work-related death.660 These provisions apply, however, only to workers in the formal sector.661 There is od in which an employee is in receipt of maternity benefits or no legislation regarding social security for workers in the absent from work as a result of illness arising out of pregnaninformal sector.662 cy or confinement.645 Under the 1972 Central Civil Service (Leave) Rules, Access to credit female employees of the central government are entitled to The government has taken a number of steps to improve 135 days paid maternity leave.646 Maternity leave is also women’s access to credit, both through mainstream financial allowed in cases of legal abortion.647 institutions and,with the involvement Schemes have also been introof NGOs, alternative systems of credduced at the central, state and local it. RELEVANT LAWS AND POLICIES levels to provide maternity benefits Measures to improve women’s • National Policy on Education, revised to the large number of women who access to mainstream credit have 1992 are self-employed or working in the included quotas of 30%–40% in all • 86th Amendment to the Constitution unorganized sector.648 major credit and subsidy programs Laws including the Factories Act, targeted toward families below the the 1951 Plantations Labour Act, the 1952 Mines Act, and poverty line for women,providing low interest rates on loans, the 1966 Beedi and Cigar Workers (Condition of Employand eliminating requirements of collateral on loans.663 In a pilot project with the National Institute of Bank Management) Act enjoin employers to make provisions for nursment in Pune, the government has also made efforts to sensieries or crèches if a certain number of women are tize bankers on gender issues relating to access to credit.664 employed in their establishments.649 The government has Alternative systems of credit have been developed wherealso established the National Crèche Fund to expand the by, generally, NGOs serve as intermediary organizations that network of government crèches with the help of NGOs channel loans from informal credit institutions to individual for low-income women in the unorganized sector.650 Such services are offered mostly in urban and semi-urban female borrowers or collectives of female borrowers at the areas.651 grassroots level.665 These systems are more “women-friendWomen are restricted in the nature of work they may perly” and less formal and have lower transaction costs.666 There form by a number of labor laws.The Factories Act prohibits are also generally no collateral or consent regulations for women from cleaning, lubricating or adjusting heavy women seeking microcredit.667 Significant central govern652 ment initiatives include the Rashtriya Mahila Kosh (National machinery and performing other specified types of work. The act also sets limits on the amount of weight women are Credit Fund for Women) and the Self-Help Group Scheme 653 The Mines Act prohibits allowed to lift, carry or move. of the National Bank for Agriculture and Rural Developwomen from working in underground mines.654 The Mines ment.668 In delivering micro-finance services to low-income Act, Plantation Labour Act, and Beedi and Cigar Workers women, the National Credit Fund channels low-interest (Condition of Employment) Act prohibit women’s employloans to borrowers through intermediate micro-finance orga655 ment between 7 p.m.and 6 a.m.,with some exceptions. A nizations, the vast majority of which include NGOs.669 The similar restriction on the Factories Act was lifted by amendfund also makes loans to borrowers directly at the grassroots ment in May 2003.656 In a number of cases, Indian courts level, where borrowers include thrift, credit or self-help have struck down restrictions on the employment of married groups.670 Education women or requirements that unmarried women resign upon 657 Specifically, courts have held that any law that Statistics from 2001 indicate that 54.21% of females are litmarriage.
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erate compared with 75.90% of males, although wide variations exist throughout the country.671 The constitution’s Directive Principles of State Policy enjoin the state to make education free and compulsory for all children up to the age of 14, although this goal has not yet been fully realized in India.672 The Supreme Court affirmed this principle in 1993 in J.P. Unnikrishnan v. State of Andhra Pradesh, holding that the right to education is fundamental and flows from the right to life,and that all children up to age 14 should be entitled to free education.673 The 86th Amendment to the Constitution, enacted in 2002, was a partial response to the constitutional directive,making free and compulsory education a fundamental right for children between the ages of six and 14.674 The amendment enjoins the state to “endeavor”to provide early childhood care and education for all children until they complete age six.675 The amendment also places the responsibility on the parent or ward of the child to provide educational opportunities to the child.676 The constitution also guarantees that “[n]o citizen shall be denied admission into any [state-supported] educational institution” solely on the basis of religion, race, caste, or language.677 The National Policy on Education, announced in 1986 and revised in 1992, expressly refers to education as a form of women’s empowerment and advocates the goal of “education for women’s equality.”678 Priority areas identified in the policy include incorporation of gender perspectives into school curricula and educational training materials, and gender sensitization of teachers.679 The National Council for Educational Research and Training and the National Institute for Educational Planning and Administration are the main governmental agencies charged with implementation of these objectives.680 In the field of higher education, the University Grants Commission assists 22 universities in operating centers for women’s studies to help engender university curricula,research and community development activities.681 The government has initiated a number of programs to decrease illiteracy rates and offer functional skills to socially marginalized groups.682 One major women’s development program is Mahila Samakhya, which was launched in 1989 to translate the goals of the National Policy on Education into “a concrete programme for education and empowerment of women in rural areas,particularly women in socially and economically marginalized groups.”683 As of 2002, the program had been implemented in more than 9,000 villages in 60 districts across ten states.684 The National Literacy Mission, launched in 1988, aims to offer functional literacy to individuals left out of the formal education system. One specific target is to attain a sustainable threshold level of 75% literacy by 2005.685 Non-Formal Education programs have
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been developed with a similar purpose.686 The Ministry of Labor has also implemented a number of vocational training programs for women. Programs have been established in the National Vocational Training Institute and Indian Technical Institutes.687 Vocational Rehabilitation Centers have also been established to rehabilitate women with disabilities through vocational training.688 E. RIGHT TO PHYSICAL INTEGRITY
Rape The Indian Penal Code defines rape as an act that occurs when a man has sexual intercourse with a woman without her consent or with her consent in particular circumstances.689 Sexual intercourse is defined as an act of penetration.690 A man is subject to punishment for rape even when the woman has consented to sexual intercourse when her consent was obtained in the following ways: ■ under threat of harm or death to herself or another; ■ by fraud; ■ when the woman believes that the man is her lawful husband; or ■ under circumstances where the woman cannot understand the nature and consequences of her consent due to unsoundness of mind, intoxication, or a“stupefying or unwholesome substance.”691 Statutory rape is defined to occur when a man has sex with a woman,with or without her consent,when she is under the age of 16.692 Marital rape is not recognized nor penalized unless either the wife is under the age of 15 or if she is living separately from her husband “under a decree of separation or under any custom or usage without her consent.”693 Rape laws were made more stringent following amendments in 1983 to rape provisions in the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act.694 Under the Indian Penal Code, for example, the burden of proof for rebutting a charge of sexual assault now falls upon the accused.695 However, the accused is permitted to use the victim’s sexual history to impeach the credibility of the witness by alleging that she is of “generally immoral character.”696 Punishment for non-marital rape ranges from seven years to life imprisonment and may include a fine.697 Marital rape during a separation, as well as of a wife aged 12–15, is punishable by up to two years of imprisonment and fines.698 Penalties increase in gang rape,custodial rape,rape where the perpetrator knows the woman is pregnant,or rape where the victim is under 12 years of age.699 Although the Supreme Court has held in a number of cases that the victim must be compensated, the court is entitled to impose a lesser prison sentence than that specified by law.700
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In Delhi Domestic Working Women’s Forum v. Union of India, cally prohibit marriage between closely related individuals. the Supreme Court laid down some broad parameters for (See “Marriage Laws” for more information.) assisting rape victims, including the following: Domestic violence ■ the police have a duty to inform the victim of her right There is no single law on domestic violence, although a to representation; proposal for a national bill—the Protection from Domestic ■ a legal representative must be provided to the victim; Violence Bill—was introduced in 2002 to eliminate all ■ the anonymity of the victim must be maintained; forms of domestic violence against women and the girl ■ regardless of whether the accused is convicted, the child.709 In the absence of a national domestic violence law, Criminal Injuries Compensation Board must award criminal and civil remedies are available against an abusive compensation to the victim; and husband or his relatives under the Indian Penal Code for the ■ upon conviction of the accused, the court must direct crimes of cruelty, hurt, grievous hurt, assault, confinement, 701 him to compensate the victim. abetment of suicide, and murder.710 Penal code provisions The Ministry of Law and Justice has drafted the 2003 dealing with causing miscarriage may also provide legal Sexual Offenses (Special Courts) Bill for speedy disposal of redress for women who experience violence during pregcases relating to rape and other sexnancy.711 Women may also obtain civil redress under personal laws ual offenses in special courts.702 The RELEVANT LAWS AND POLICIES proposed law seeks to establish spethat grant divorce or judicial separa• Indian Penal Code, 1860 cial courts in all districts at the sestion on the basis of cruelty.712 • Code of Criminal Procedure, 1973 Under the Indian Evidence Act, sions court level and a larger number • Indian Evidence Act, 1872 there is a presumption that a of such courts in cities and state cap• Dowry Prohibition Act, 1961 woman who was subjected to cruitals where the incidence of crime is 703 • Immoral Traffic (Prevention) Act, 1956 In conjunction with the elty by her husband or his relatives high. bill, provisions of the Indian Eviand who commits suicide within UP AND COMING LEGISLATION dence Act and Code of Criminal seven years from the date of her • Sexual Offenses (Special Courts) Bill, Procedure will also be amended.704 marriage was “abetted” by her hus2003 There have also been local efforts band or his relatives.713 The act also • Protection from Domestic Violence to improve the handling of rape casprovides for an inquiry by an execBill, 2002 es. Special police cells have been utive magistrate and mandates postestablished to provide professional mortem in all cases where a woman and support services to women and has committed suicide or died in 705 children victims of violence. The cells work with police circumstances raising a “reasonable suspicion” of foul play departments and women’s and social service groups to prowithin seven years of her marriage.714 706 The death of a woman caused by her husband or any of vide these services. In 2003, the Delhi police department implemented several steps to provide more sensitive treathis relatives in connection with a demand for dowry is a ment toward women victims of crime. Female officers are crime. Such deaths are punished under the Dowry Prohibinow assigned to investigate rape cases, law enforcement offition Act, the India Penal Code and the Indian Evidence Act. cials associated with the Delhi Rape Crisis Intervention The Dowry Prohibition Act punishes the giving, taking or Center must attend sensitivity training programs, and rape abetting of dowry with a minimum of five years imprisonvictims may register complaints over the telephone as ment and fines.715 The Indian Penal Code renders any agreement for the giving and taking of dowry void and opposed to making them in person. The changes were unenforceable and criminalizes dowry deaths within the first implemented after NGOs working with the center comseven years of marriage.716 Under the Indian Evidence Act, plained that investigating officers were impolite and intimia person is presumed guilty of causing a dowry death if it is dating toward rape victims.707 Incest shown that such person subjected the victim to cruelty or There is no specific legislation that prohibits and crimiharassment in connection with any demand for dowry prior nalizes incest. However, incest is addressed under sections of to the victim’s death.717 In addition to a police investigation, the court must hold an inquest or inquiry investigating the the Indian Penal Code relating to rape and general laws relatcause of death whenever a dowry death is suspected.718 ing to neglect and abuse of children.708 The personal laws of various religious communities governing marriage specifi-
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Sexual harassment There is no single legislation specifically addressing sexual harassment,although the 2003 Sexual Harassment of Women at their Work Place (Prevention) Bill is currently pending before parliament.719 In the landmark 1997 Supreme Court case Vishaka vs.State of Rajasthan, the court ruled that sexual harassment is a violation of the constitution.720 Specifically, the decision held that sexual harassment is a violation of the constitutional right to practice any profession, trade or business, since the right to work is contingent upon a safe working environment,and the right to life with dignity.721 The court defined sexual harassment as “unwelcome sexually determined behaviour (whether directly or by implication),” including the following: ■ physical contact and advances; ■ a demand or request for sexual favors; ■ sexually colored remarks; ■ showing pornography; and ■ any other unwelcome physical, verbal and nonverbal conduct of a sexual nature.722 Subsequent to the judgement, both public and private employers have a duty to include a prohibition of sexual harassment in their service rules as a specific act of misconduct and establish a permanent committee to deal with complaints and recommend suitable disciplinary action to be taken by the employer.723 In accordance with the Vishaka ruling,the National Commission of Women formulated the Code of Conduct for Work Place.724 Duties of employers include providing for effective complaint procedures and remedies.725 Courts have continued to issue important rulings upholding women’s right to be free from sexual harassment. In the 1999 Supreme Court case Apparel Export Promotion Council v. A.K. Chopra, the court upheld the decision of a disciplinary committee to remove a person from service for sexual harassment of a woman at the workplace.726 Commercial Sex Work The 1956 Immoral Traffic (Prevention) Act defines “prostitution” as “the sexual exploitation or abuse of persons for commercial purposes.”727 The act does not directly criminalize all commercial sex work, although it does criminalize a number of related activities.728 Prostitution in or near a public place and seduction or soliciting for the purposes of prostitution, for example, are criminal offenses.729 The act covers children (persons under age 16); minors (persons under age 18); and majors (persons age 18 or older), whether male or female.730 A 2003 decision of the Allahabad High Court directed the state government to economically empower women working as prostitutes in cities by providing them
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with technical training programs.731 Sex-Trafficking The constitution expressly prohibits the traffic in human beings for certain forms of forced labour.”732 The Indian Penal Code also contains provisions related to trafficking of persons and other offenses. It imposes criminal penalties for kidnapping or abduction for various purposes,buying or selling a person for slavery, buying or selling a minor for prostitution, procuring a minor girl, and rape.733 The main legislative tool for combating trafficking in persons is the Immoral Traffic (Prevention) Act. The act does not define “trafficking”or establish criminal penalties for “trafficking” as such.The activities that are criminalized under the act include keeping a brothel or allowing premises to be used as a brothel;living on the earnings of prostitution;procuring a person for prostitution, with or without consent; soliciting for prostitution; and seducing a person for prostitution while in custody.734 To “procure,induce or take a person”for prostitution is punishable with a three-year minimum prison sentence and a fine.735 The penalties for these offenses vary from three months to ten years plus a fine,with stiffer penalties—up to 14 years imprisonment or even life, but not fewer than seven years—for offenses that involve a child under the age of 16 or offenses that were committed against the will of any person.736 The penalties for solicitation vary depending on the gender of the solicitor:for a woman,up to six months for the first offense and up to one year for subsequent offenses; for a man, seven days to three months.737 In addition, in the case of a female offender, in lieu of a prison sentence, the court may place the woman in a corrective institution for two to five years,or until there is a determination that there is a “reasonable probability that the offender will lead a useful and industrious life.”738 The state is obligated to provide for such corrective institutions.739 The act contains a number of law enforcement measures. Police officers may carry out a search of any premises under the act without a warrant.740 The police are also empowered to rescue persons found in brothels.741 Additionally, the act provides for the appointment of trafficking police officers to investigate crimes with interstate ramifications and calls for special police officers assigned to specific areas to enforce the act.742 State governments are authorized to establish an unofficial advisory body consisting of up to five leading social workers from the area,including women,to advise the special police officers on implementation of the act.743 Although the Immoral Traffic (Prevention) Act and other national laws apply in all states of India, their enforcement is primarily left to the state governments, and the states may enact their own laws.744 For example, the state of Maharastra enacted its own Organized Crime Act,which could be used to
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prosecute more organized forms of trafficking.745 The Immoral Traffic (Prevention) Act specifically authorizes the central or state governments to establish special courts for the speedy disposal of cases and implementing rules to carry out its purposes.746 In response to the suggestion of various studies that existing laws tend to penalize the prostitute or sex worker more severely than the perpetrator, the government requested the National Law School of India University in Bangalore to thoroughly review the body of law dealing with sex-trafficking and make recommendations for legal reform.747 The law school’s final report is under consideration by the government in consultation with the National Commission for Women.748
IV. Focusing on the
Rights of a Special Group:Adolescents The reproductive rights of adolescents, particularly the girl child, are often neglected.Adolescents face many agespecific disadvantages that are not addressed through formal laws and policies. The ability of adolescents to access the health system, their rights within the family, their level of education, and their vulnerability to sexual violence together determine the state of their reproductive health and their overall well-being. The following section presents some of the factors that shape adolescents’ reproductive lives in India. A. REPRODUCTIVE HEALTH
India has more than 10 million pregnant adolescents and adolescent mothers, and one in six girls begin childbearing between the ages of 13 and 19.750 Some 56% of adolescent girls are anemic, and 7.4% of married girls aged 15-19 use contraception.751 Among mothers under the age of 20, 68.7% receive prenatal care from a health worker and 41.6% give birth with the assistance of a skilled birth attendant.752 Unsafe abortions account for half of the maternal deaths among girls aged 15-19.753 Of married women aged 15–24, only 37.2% have heard of HIV/AIDS.754 Women and girls also lack knowledge about prenatal care and lactation for the health of the mother and child, and lack access to pre- and postnatal services.755 There are no specific government health policies or programs specifically targeting adolescents’ reproductive health. However, the Tenth Five Year Plan and the National Population Policy include provisions that address
certain aspects of adolescents’ reproductive health.756 The government increasingly has acknowledged that the health needs of adolescents are significant and should be addressed in future programs. The Tenth FiveYear Plan specifically recognizes that the process of empowering women necessitates a “life-cycle approach” and that “every stage of [women’s] lives counts as a priority in the planning process.”757 One of the plan’s main objectives is to eliminate discrimination and all forms of violence against women and the girl child, recognizing that increasing violence against these groups and persistent discrimination against the girl child are critical areas of concern requiring government attention.758 Specifically, the plan calls for “urgent interventions to protect the girl child,” who continues to be a “victim of various types of discrimination, both within and outside the family.”759 The National Population Policy acknowledges that the needs of adolescents have not been specifically addressed in previous policies. It calls for programs to encourage delayed marriage and childbearing and to educate adolescents about the risks of unprotected sex.760 It highlights the needs of adolescents in rural areas, where early marriage and pregnancy are widespread, and calls for information, counseling, education on population, accessible and affordable contraceptive services, food supplements and nutritional services, and enforcement of the Child Marriage Restraint Act to address the special needs of this group.761 The action plan to implement the National Population Policy calls for the development of a health-care package for adolescents.762 It also encourages community education outreach to adolescents about the availability of safe abortion services and the dangers of unsafe abortion.763 It enjoins states to ensure adolescents’ access to information, counseling and affordable services,including reproductive health services,and to strengthen primary health centers and subcenters to include counseling services for adolescents and newlyweds, specifically on proper birth spacing.764 The Department of Women and Child Development drafted a National Policy and Charter for Children in 2001, which is still under review. The draft policy calls upon the state to “take measures to ensure that all children enjoy the highest attainable standard of health.”765 It specifically recognizes the right to protection of the girl child, and requires the state and communities to take the following actions: ■ ensure that offenses committed against the girl child, including child marriage,forcing girls into prostitution and trafficking are speedily abolished; ■ undertake measures, including social, educational and legal, to ensure that there is greater respect for the girl
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child in the family and society; and ■ take serious measures to ensure that the practice of child marriage is speedily abolished.766 Additionally, the draft policy calls upon the state and community to undertake special programs to improve the health and nutritional status of children.767 NGO providers of reproductive health services and information include the Bharat Scouts and Guides’Healthy Adolescent Project in India, Parivar Seva Sanstha and Marie Stopes International’s partner in India, Population Health Services. The Family Planning Association of India has a program that provides counseling for young newlyweds and engaged couples as well as free family planning services to married couples.768 B. MARRIAGE
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riage.777 (See “Marriage Laws governing Hindus” section for more information.) Laws governing Muslims Each of the various schools of Islam has its own personal law that governs the legal age for marriage. Generally, one marriage is allowed for those who have reached puberty, which is presumed to occur at 15 years of age.778 (See “Marriage Laws governing Muslims” for more information.) Laws governing Christians Under the Indian Christian Marriage Act, the legal minimum age for marriage is 21 years for males and 18 years for females.779 Minors may be married with the consent of the minor’s father or guardian.780 The act voids any marriage solemnized in contravention of its provisions and penalizes the person solemnizing the marriage of a minor in contravention of the act.781 (See “Marriage Laws governing Christians” for more information.) Laws governing Parsis The Parsi Marriage and Divorce Act stipulates that a marriage shall not be valid unless the male has completed 21 years of age and the female 18 years of age.782 (See “Marriage Laws governing Parsis” for more information.)
On average, the age at first marriage for women aged 20–49 is 16.7, with a two-year difference between urban and rural women.769 In urban areas, 18% of females aged 15–19 have been married, compared with 3% of men in the same age group.770 In rural areas,comparable statistics are 40% of women and 8% of men.771 According to national household surveys, only 38.6% of married women aged 15–19 are involved in decisions about their own health care and 86% need permission C. EDUCATION just to go to the market.772 The Child Marriage Restraint Act requires that the brideThe gross enrollment ratio for girls at the primary school levgroom be at least 21 years old and the bride at least 18.773 el is close to 85%, compared with 100% for boys.783 Only Under the act, a man over the age of 21 marrying a child is one-third of girls who enter primary school ultimately compunishable by imprisonment of up to three months and a fine, plete their schooling.784 Some 38% of girls aged 15–19 are but a man between ages 18–21 is subject to a punishment of up enrolled at the secondary school level,compared with 59% of to 15 days and a fine of up to Rs 1,000.774 To further discourboys in the same age group.785 Forty million children have age child marriages,the act also punishes any parent or guardian never entered schools.786 of a minor who promotes or permits a child marriage to be solThe constitution’s Directive Principles of State Policy emnized, or who negligently fails to prevent it from being solenjoin the state to provide free and compulsory education for emnized,with up to three months imprisonment and a fine.775 all children up to the age of 14.787 The 86th Amendment to Although the law invites penal action the constitution makes free and comfor child marriages, the act does not pulsory education a fundamental right UP AND COMING LEGISLATION render such marriages void. for children between the ages of • National Policy and Chart for The Special Marriage Act and 6–14.788 The amendment encourages Children, 2001 1969 Foreign Marriage Act have simibut does not mandate the state to prolar age requirements as the Child Marvide early childhood care and educa776 riage Restraint Act. tion for children below the age of six.789 The amendment Despite the law, in practice the minimum age of marriage also charges the parent or ward of the child with the responvaries among communities and is governed by each commusibility to provide educational opportunities to the child.790 nity’s respective personal laws. (See “Rights within Marriage” With respect to primary level education, the National for more information on laws relating to marriage.) Policy on Education calls for universal access and enrollLaws governing Hindus ment,universal retention of children up to the age of 14 and Marriage among adolescent Hindus is governed by the Hinimprovements in the quality of education.791 The policy’s du Marriage Act,which requires that the bridegroom be at least objectives for secondary education include increasing the 21 years of age and the bride at least 18 at the time of marenrollment of girls and children of the scheduled castes and
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tribes, particularly in science, commerce and vocational fields.792 The policy’s 1992 Programme of Action makes recommendations for centrally sponsored special education development programs for girls belonging to scheduled castes of very low literacy; non-formal and distance education programs for children of scheduled castes who cannot attend formal school; scholarships and the provision of uniforms, textbooks, stationary and mid-day meals for children of scheduled castes and tribes and other “backward” sections; and special incentives to low-income families among scheduled castes and tribes to send their children, particularly girls, to school.793 The draft National Policy and Charter for Children recognizes the right to free elementary education for all children and calls upon the state to provide access to education at the secondary level.794 It further recognizes the right of adolescents to education and the development of skills.795 It specifically requires the state “to take appropriate measures to ensure that the education is sensitive to the rights of the girl child.”796 Several government initiatives have been launched to promote access to education at the secondary level, including the provision of free secondary education to girls in some states, scholarship programs for members of vulnerable groups, including girls of scheduled castes and tribes, and assistance to voluntary organizations to strengthen boarding and hostel facilities for female students at the secondary and higher levels.797 The Sarva Shiksha Abhiyan, launched in 2000, is an educational program specially targeted toward “un-reached women and the girl child.”798 The program aims to provide quality elementary education to all children in the 6–14 age group by 2010 as well as bridge all gender and social gaps at the primary level by 2007.799 The Tenth Five Year Plan commits to making full efforts to ensure that the program achieves its objectives within its established time limits. The Non-Formal Education system operates coeducational and all-girls centers to meet the needs of students unable to attend formal schooling.800 As a special initiative for girls, the government has increased the number of non-formal centers that are run exclusively for girls to approximately 100,000 out of 270,000.801 Adolescent girls in India have extremely limited knowledge of sexuality, reproduction and menstruation.802 The Nutrition Foundation of India estimates that the average age of menarche is 13.4, yet 50% of both urban and rural girls aged 12–15 have no understanding of this basic biological process.803
India recently included sex education in its National Curriculum, with segments on HIV/AIDS awareness, adolescent education and life skills.804 The central government and states run separate HIV/AIDS awareness programs in secondary schools, although these programs have not yet been fully implemented and states vary in the topics they will cover.805 Some significant programs have been implemented by NGOs. One example is the Bharat Scouts and Guides’ Healthy Adolescent Project, which provides training in physiological aspects of reproductive health and promotes discussions of gender relations, confidence and relationships.806 Another NGO program offers counseling and free services to engaged and recently married couples.807 D. SEXUAL OFFENSES AGAINST MINORS
Certain sexual offenses against minors are governed by the Indian Penal Code and by the Immoral Traffic (Prevention) Act. The Indian Penal Code levies a punishment of imprisonment and fines for the kidnapping of a minor,procuring of a minor girl for illicit intercourse,buying or selling a minor for the purposes of prostitution, and rape.808 A man commits statutory rape upon having intercourse with any female under the age of 16 and may be punished with a prison term of seven years to life.809 If the girl is under 12, the minimum prison term is ten years.810 Under the Immoral Traffic (Prevention) Act, anyone who procures, induces or takes a youth between the ages of 16–18 for the sake of prostitution is punishable with seven to fourteen years imprisonment, and seven years to life if it involves a youth under age 16.811 Additionally, any person with custody, charge or care of, or authority over a minor, and who aids,abets or causes the minor to be seduced into prostitution, is punishable with seven to ten years imprisonment.812 According to the draft National Policy and Charter for Children,all children have a right to protection from all forms of abuse, exploitation and violence, including sexual and physical abuse and trafficking.813 The draft policy calls for states to ensure that children are not exploited for illegal activities, especially prostitution and pornography, and that children who are victimized receive immediate care and protection.814 The draft policy also urges states and communities to abolish violence against the girl child,including child marriage, forced prostitution and trafficking.815
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ENDNOTES 1. See Time Almanac 2000: Millennium Collector’s Edition 233 (1999) [hereinafter Time Almanac 2000].The British crown officially took over the administration of the Indian colony following the Sepoy Mutiny in 1857–58. Partition unleashed unprecedented anguish, bloodshed and death as an estimated 17 million Hindu and Muslim refugees fled to either India or Pakistan, creating the largest migration in human history. The two fledgling countries also engaged in a variety of disagreements, including control over Kashmir. Unresolved disputes and antagonistic relations have led to constant and continued conflict, escalating into war in 1947 and 1971. 2. See id. 3. See id. 4. See id. The Allahabad High Court disqualified Ms. Gandhi’s election on the grounds of electoral misconduct involving the use of official machinery. It was found that the landslide victory she had achieved had been fixed and that she had received illegal aid from civil servants. 5. See id. 6. See id. 7. See id. 8. See id. at 234. 9. See Census of India: 2001, Provisional Population Totals: India, http://www.censusindia.net/results/resultsmain.html (last visited Nov. 11, 2003) [hereinafter Census of India 2001]. 10. See id.The ratio of females per 1,000 males is 1,070 in Himachal Pradesh; 1,068 in Kerala; 1,019 in Goa; 1,000 in Tamil Nadu; 824 in Delhi; 880 in Rajasthan; and 888 in Haryana. See also Consideration of Reports Submitted by States Parties under Article 18 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Initial reports of States parties, India, CEDAW Committee, 22nd Sess., ¶ 21, U.N. Doc. CEDAW/C/IND/1 (1999) [hereinafter CEDAW Committee, States parties initial reports, India]. 11. India Const., 8th sched., available at http://parliamentofindia.nic.in/const/const.html (last visited Sept. 22, 2003). See also Time Almanac 2000, supra note 1, at 754. 12. See Time Almanac 2000, supra note 1, at 232. 13. See Federal Research Division, Library of Congress, Country Studies: India, ch. 3, Other Minority Religions: Zoroastrianism (James Heitzman and Robert L.Worden, eds. 1995), http://lcweb2.loc.gov/frd/cs/intoc.html (last visited Dec. 16, 2003) [hereinafter Library of Congress country studies, India].These totals are from the 1991 Indian census. 14. See United Nations, List of Member States, http://www.un.org/Overview/unmember.html (last visited Sept. 22, 2003). 15. See Department of State of the United States of America, Countries and Regions, India, available at http://www.state.gov/r/pa/bgn/index.cfm?docid=3454 (last visited Sept. 22, 2003); see also Commonwealth Secretariat, Commonwealth Countries, at http://www.thecommonwealth.org/dynamic/Country.asp (last visited Sept. 22, 2003). 16. See D.K.Agarwal, International Encyclopedia of Laws: Constitutional Law, vol. 3, ¶ 12, at 33 (1993) [hereinafter International Encyclopedia of Laws]. 17. India Const., pmbl. 18. See International Encyclopedia of Laws, supra note 16, ¶ 30, at 45. 19. See id. ¶ 39, at 48. 20. See India Const., pt.V; see also International Encyclopedia of Laws, supra note 16, at 34. 21. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 11. 22 See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government:The Executive (last visited Sept. 22, 2003). 23. See id. 24. See id. 25. See id. 26. See id. 27. India Const., arts. 54(a)–(b), 56(1).An eligible candidate for the office of the presidency must be a citizen of India, at least 35 years of age and qualified for election as a member of the Lok Sabha (House of the People). Id. art. 58. A candidate may not hold any national, state or local government office for profit. Id. art. 59. 28. Id. art. 61(1), (4). 29. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government:The Executive (last visited Sept. 22, 2003). 30. See International Encyclopedia of Laws, supra note 16, at 74. 31. India Const., arts. 74(1), 75(3). 32. Id. art. 74(1). 33. Id. arts. 75(1), 78(a)–(c). 34. Id. art. 79. 35. Id. art. 80(1), (3)–(4). 36. Id. art. 83(1)–(2). Eligible candidates for membership in the Rajya Sabha must be citizens of India and at least 30 years of age, and must possess other qualifications as prescribed by law. Id. art. 84(a)–(c). 37. Id. art. 83(1). 38. Id. art. 81(1)(a)–(b). Eligible candidates for membership in the Lok Sabha must be citizens of India and at least 25 years of age, and must possess other qualifications as pre-
scribed by law. Id. art. 84 39. Id. arts. 81(2)(a)–(b), 82. 40. Id. art. 83(2). 41.The Constitution (84th Amendment) Bill (1998) (India), http://www.altindia.net/gender/readings/84AMENDMENT.html (last visited Dec. 16, 2003). See Talks on for passing Women’s Bill, The Hindu (Apr. 25, 2003); see CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 109. 42. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 109; see also Chaos over Indian Women’s Bill, BBC News (May 6, 2003), available at http://news.bbc.co.uk/2/hi/south_asia/3002979.stm (last visited Sept. 22, 2003). 43. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government:The Executive (last visited Dec. 3, 2003). 44. See International Encyclopedia of Laws, supra note 16, at 35. 45. Money bills can only originate in the Lok Sabha. If they are passed in the Lok Sabha, they move to the Rajya Sabha for recommendation. The Rajya Sabha has 14 days to make recommendations, but the bill passes regardless of whether the Lok Sabha incorporates the recommendations. India Const., arts. 107(1), 109(1)–(2), 110, 117. 46. Id. 7th sched. 47. Id. 7th sched., List I. 48. Id. art. 248. 49. Id. 7th sched., List III. 50. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government:The Executive (last visited Dec. 3, 2003). 51. India Const., art. 249(1). 52. Id. art. 252. 53. Id. 54. Id. art. 3. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government:The Legislative,The Judiciary (last visited Dec. 3, 2003). 55. Ministry of Home Affairs, Government of India, at http://mha.nic.in/stat.htm and http://mha.nic.in/unio.htm (last visited Dec. 3, 2003). See also Embassy of India,Washington, DC, at http://www.indianembassy.org/dydemo/indiaprofile/profile.htm (last visited Dec. 3, 2003). 56. India Const., art. 153. Eligible candidates for governor must citizens of India and at least 35 years of age, and must not be a member of either the national or state legislature. Id. arts. 157–158. 57. Id. arts. 155, 156(3). 58. Id. art. 163(1). 59. Id. art. 164. 60. Id. art. 239. 61. Id. art. 168(1)(a)–(b).A state legislature consisting of only one house is called a legislative assembly.A bicameral state legislature consists of a legislative council and a legislative assembly. Id. art. 168(2). Members of the legislative council serve five-year terms, with one-third of the membership retiring every two years.They must be at least 30 years of age and citizens of India. Members of the legislative assembly also serve five-year terms, and must be at least 25 years of age and citizens of India. Id. arts. 172–173. 62. Id. art. 170(2). 63. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government: State Governments and Territories (last visited Sept. 23, 2003); see also Chandigarh City Government, at http://chandigarh.nic.in/frctg.htm (last visited Dec. 5, 2003). 64. George Mathew, Decentralized Governance through Panchayati Raj:A Presentation, Forum on Intergovernmental Relations and Improved Services Delivery in Pakistan, Bhurban, Murree, June 27–29, 2003, available at http://lnweb18.worldbank.org/sar/sa.nsf/0/d485d3126299ec6545256d52001 cf1b8?OpenDocument (last visited Dec. 16, 2003). 65. India Const., amend., 69. 66. Id. amend., 73–74. 67. Id. 68. Id. amend, 73, art 243c(2), d(3), r(2), t(3). 69. Id. art 243d(1)–(2), t(1)–(2). 70. Id. art 243d(4), t(4). 71. Id. art 243(g), (w). See also CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 35. 72. India Const., 11th sched. 73. See International Encyclopedia of Laws, supra note 16, at 35. 74. India Const., art. 141. 75. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government:The Judiciary (last visited Sept. 23, 2003). 76. See id. 77. See Supreme Court of India, Jurisdiction of the Supreme Court, http://supremecourtofindia.nic.in/new_s/juris.htm (last visited Dec. 4, 2003). 78. See id. 79. India Const., art. 124(1). 80. Id. art. 124(2). 81. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government:The Judiciary (last visited Sept. 23, 2003). 82. India Const., art. 124(2). Judges serving on the Supreme Court must be citizens of
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India and must have served as judge on a high court for at least five years, as an advocate of the high court for ten years, or as a distinguished jurist in the opinion of the president. Id. art. 124(3). 83. Id. art. 124(4). 84. See Indian Courts, Ministry of Law and Justice, Government of India, http://indiancourts.nic.in/indian_jud.htm (last visited Sept. 23, 2003); see Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government: High Courts (last visited Sept. 23, 2003). 85. India Const., art. 217. High court judges must be citizens of India and must have worked as a judicial officer or an advocate for ten years. 86. Id. art. 217(1). 87. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government: Lower Courts (last visited Nov. 11, 2003). 88. See id. 89. See International Encyclopedia of Laws, supra note 16, pt. 2, ch. 5, §3. 90.The Family Court Act, No. 66 (1984) (India). See also CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 366. 91. Family Court Act § 4(1), (4)(b). 92. See Library of Congress country studies, India, supra note 13, ch. 8,The Structure of Government: Lower Courts (last visited Oct. 14, 2003). 93. See id. 94. India Const., art. 323(a)–(b). 95. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 99; see also Legal Services Authorities Act, No. 39, Introduction (1987) (India) (Am. 1994, 1996, 2002). 96. See id. 97. See Supreme Court of India, Jurisdiction of the Supreme Court, at http://supremecourtofindia.nic.in/new_s/juris.htm (last visited Dec. 4, 2003). 98. Legal Services Authorities Act, No. 39 (1987) (India). 99. See id; see also Indian Courts, Ministry of Law and Justice, Government of India, at http://indiancourts.nic.in/indian_jud.htm (last visited Sept. 23, 2003). 100. Legal Services Authorities (Amendment) Act, No. 37, § 4 (2002) (India). 101. Id. § 4(22)(C). 102. Id. § 4(22)(C)–(E). 103. See Press Release, Ministry of Law, Justice and Company Affairs, Government of India, President’s Assent to Three More Bills (June 18, 2002), http://www.pib.nic.in/archieve/lreleng/lyr2002/rjun2002/18062002/r180620022.htm l (last visited Oct. 14, 2002). 104. See Consideration of Reports Submitted by States Parties Under Article 44 of the Convention on the Rights of the Child, Initial reports of States parties due in 1995, Addendum, India, CRC Committee, 22nd Sess., ¶ 10, U.N. Doc. CRC/C/28/Add.10 (1997). 105. See Central Social Welfare Board, at http://www.cswb.org/board.htm (last visited Nov. 11, 2003). 106. See Centre for Social and Technological Change, Reproductive and Sexual Health Rights in India, ch. 3, § 3.4.5 (2000) [hereinafter Reproductive and Sexual Health Rights in India]. 107. See Voluntary Health Association of India, at http://www.vhai.org/ (last visited Dec. 4, 2003). 108. See Chun-Chi Young, Modern Legal Systems Cyclopedia,The Legal System of the Republic of India (Kenneth Robert Redden & Linda L. Schlueter eds., 2001), vol. 9, § 1.5(A), at 9.80.29 [hereinafter Modern Legal Systems Cyclopedia]. 109. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 11. 110. See India Const., pt. III. Fundamental rights guaranteed by the Constitution include the rights to equality before the law; nondiscrimination on grounds of religion, caste, sex, or place of birth; freedom of speech and peaceful assembly; and freedom of religion. Id. art 14–15, 19, 25.The constitution also abolishes untouchability. Id. art. 17. 111. See id. pt. IV. 112. See Department of Legal Affairs, Ministry of Law and Justice, Government of India, at http://lawmin.nic.in/Legal.htm (last visited Sept. 23, 2003). 113. National Commission to Review the Working of the Constitution, Department of Legal Affairs, Ministry of Law and Justice, Government of India, at http://ncrwc.nic.in (last visited Oct. 14, 2003). 114. National Commission to Review the Working of the Constitution, Ministry of Law and Justice, Government of India, Report of the National Commission to Review the Working of the Constitution, vol. 1, ch. 11, recommendation nos. 2, 8-9, 16, http://lawmin.nic.in/ncrwc/finalreport/v1ch11.htm (last visited Oct. 14, 2003). 115. Id. recommendation no. 24. 116. Id. recommendation no. 239. 117. India Const., pt. IV, art. 44. See Reproductive and Sexual Health Rights in India, supra note 106, ch. 3, § 3.3.2. 118. Supreme Court of India, at http://supremecourtofindia.nic.in/new_s/constitution.htm (last visited Sept. 22, 2003). 119. Law Commission of India, Ministry of Law and Justice, Government of India, at http://lawcommissionofindia.nic.in/ (last visited Sept. 23, 2003). 120. See National Commission for Women,at http://www.ncwindia.org/about_ncw/brief_history.php (last visited Oct.14,2003);see National Human Rights Commission,at http://nhrc.nic.in/ (last visited Oct.14,2003). 121. See Supreme Court of India, at http://supremecourtofindia.nic.in/new_s/constitution.htm (last visited Sept. 23, 2003).
122. See id. 123. See Indian Courts, Ministry of Law and Justice, Government of India, at http://indiancourts.nic.in/indian_jud.htm (last visited Dec. 4, 2003). 124. See V. Ramakrishnan, Guide to Indian Laws (2001), available at http://www.llrx.com/features/indian.htm (last visited Dec. 4, 2003). 125. See Modern Legal Systems Cyclopedia, supra note 108, at 9.80.30. In the union territory of Goa, however, there is one family code applicable to all citizens irrespective of religion.The code is based largely on Portuguese family law. See Memorandum from Jaya Sagade to the Center for Reproductive Rights (Sept. 1, 2003) (on file with the Center for Reproductive Rights). 126. See Memorandum from Jaya Sagade, supra note 125.The Muslim Personal Law (Shariat) Application Act of 1937 states that “in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females ... marriage, dissolution of marriage ... maintenance, dower, guardianship, gifts, trust and trust properties, and wakfs ... the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (shariat).” Muslim Personal Law (Shariat) Application Act, No. 26, § 2 (1937) (India). 127. See Reproductive and Sexual Health Rights in India, supra note 106, ch. 3, § 3.3.2. 128. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 363. 129. See id. 130. See id. 131. See Memorandum from Jaya Sagade, supra note 125. 132. For example, the 1955 Hindu Marriage Act prohibits marriages between certain closely related individuals. Hindu Marriage Act, No. 25, §§ 5(iv)–(v), 11 (1955) (India). However, if there is a custom prevalent in both families contrary to such provision, then custom prevails over the statutory prohibition. See Memorandum from Jaya Sagade, supra note 125. 133. See National Development Council, Planning Commission,Tenth Five Year Plan (2002–2007), available at http://planningcommission.nic.in/plans/planrel/fiveyr/10th/default.htm (last visited Sept. 23, 2003) [hereinafter Tenth Five Year Plan]. 134. India Const., art. 51. 135. See Memorandum from Jaya Sagade, supra note 125. 136.Vishaka v. State of Rajasthan, 1997 SOL 177 (India), www.supremecourtonline.com/cases/2447.html.The Supreme Court quoted relevant articles of CEDAW in developing guidelines regarding sexual harassment of women in the workplace. 137. See CEDAW, adopted Dec. 18, 1979, U.N. GAOR, 34th Sess. Supp. No. 46, U.N. Doc.A/34/46, at 193 (1979) (entered into force Sept.3, 1981) (ratified by India Aug. 8, 1993); Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc.A/44/49, at 166 (1989) (entered into force Sept. 2, 1990) (ratified by India Jan. 11, 1993); International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) (ratified by India Jan. 4, 1969); International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 3 (entered into force Mar. 23, 1976) (ratified with reservations by India July 10, 1979); International Covenant on Economic, Social, and Cultural Rights, adopted Dec. 16, 1966, 993 U.N.T.S. 3, (entered into force Jan. 3, 1976) (ratified by India July 10, 1979). 138. See CEDAW, Reservations made by India, http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (last visited Sept. 23, 2003). 139. Vienna Declaration and Programme of Action,World Conference on Human Rights,Vienna, Austria, June 14-25, 1993, U.N. Doc.A/CONF.157/23 (1993); Programme of Action of the International Conference on Population and Development, Cairo, Egypt, Sept. 5-13, 1994, U.N. Doc.A/CONF.171/13/Rev.1 (1995); Beijing Declaration and the Platform for Action, Fourth World Conference on Women, Beijing, China, Sept. 4-15, 1995, U.N. Doc. A/CONF.177/20 (1995); Millenium Declaration, Millennium Assembly, New York, United States, Sept. 6-8, 2000, U.N. GAOR, 55th Sess., U.N. Doc.A/Res/55/2 (2000). 140. India keen on combating trafficking in women and children, The Hindu (June 9, 2003); South Asian Association for Regional Cooperation (SAARC), SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002), available at http://www.saarc-sec.org/publication/conv-traffiking.pdf (last visited Oct. 14, 2003); India ratifies SAARC convention on child welfare, South Asia Monitor (Aug. 6, 2003), available at http://southasiamonitor.org/events/2003/june/05child.html (last visited Dec. 4, 2003); South Asian Association for Regional Cooperation (SAARC), SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, available at http://www.saarc-sec.org/ (last visited Dec. 4, 2003). 141. India Const., art. 47. 142. Tenth Five Year Plan, supra note 133, vol. II, ch. 2, ¶ 2.8.216. 143. See World Bank, India–Raising the Sights: Better Health Systems for India’s Poor 25 (2001) [hereinafter India–Raising the Sights], available at http://lnweb18.worldbank.org/sar/sa.nsf/Attachments/rprt/$File/INhlth.pdf (last visited Sept. 29, 2003). 144. See id. 145. See Ministry of Health and Family Welfare, 1998–1999 Annual Report, pt. II, ch. 7, § 7.1.3 (1999); see also World Health Organization (WHO), South-East Asia Regional Office (SEARO), 50 Years of WHO in South-East Asia, Highlights 19481998, 1978-1987:The Fourth Decade, available at http://w3.whosea.org/aboutsearo/ (last visited Nov. 6, 2003). 146. Department of Health, Ministry of Health and Family Welfare, Government
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of India, National Health Policy 2002, ¶ 3.1 (2002) [hereinafter National Health Policy]. 147. Id. 148. Id. 149. Id. box IV. 150. Id. ¶ 4.20.1. 151. Tenth Five Year Plan, supra note 133, vol. II, ch. 2.11, ¶ 2.11.8. 152. Id. vol. I, ch. 1, ¶ 1.22. 153. Id. vol. II, ch. 2.8, ¶ 2.87. 154. Id. vol. II, ch. 2.8, ¶ 2.8.62. 155. Id. vol. II, ch. 2.8, ¶ 2.8.64. 156. Id. vol. II, ch. 2.8, ¶ 2.8.82. 157. See India–Raising the Sights, supra note 143, at 17. 158. See Ministry of Health and Family Welfare, at http://mohfw.nic.in/ (last visited Sept. 29, 2003). 159. See India–Raising the Sights, supra note 143, ¶ 1.4, 1.7. 160. Ministry of Health and Family Welfare, 2001–2002 Annual Report, pt. II, ch. 3, ¶ 3.2.1 (2002). [hereinafter Ministry of Health Annual Report 2001–2002]. 161. Id. 162. Id. pt. II, ch. 3, ¶ 3.2.4. 163. Id. pt. II, ch. 3, ¶ 3.2.8. 164. Id. pt. II, ch. 3, ¶ 3.3.2. 165. Id. 166. Id. 167. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 331. 168. Ministry of Health Annual Report 2001–2002, supra note 160, pt. II, ch. 3, ¶ 3.3.2. 169. Id. pt. II, ch. 3, ¶ 3.3.3. 170. Id. 171. Id. 172. Id. 173. Id. pt. II, ch. 3, ¶ 3.3.4. 174. Id. 175. Id. 176. Id. 177. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.8.12, chart I. 178. Id. vol. II, ch. 2, chart I. 179. Id. vol. II, ch. 2, ¶ 2.8.26. 180. See India–Raising the Sights, supra note 143, ¶ 1.16. 181. See id. pt. 1, ¶ 1.18, at 21. 182. Tenth Five Year Plan, supra note 133, vol. II, ch. 2, ¶ 2.8.53. 183. Id. 184. Ministry of Health and Family Welfare, 1999–2000 Annual Report, pt. II, ch. 2, § 2.2 (2000) [hereinafter Ministry of Health Annual Report 1999–2000]. 185. National Health Policy, supra note 146, ¶ 2.1.1. 186. Id. ¶ 3.1, box IV. 187. See India–Raising the Sights, supra note 143, ¶ 5, at 2. 188. See id. ¶ 6, at 2. 189. See Voluntary Health Association of India (VHAI) andWHO, National Profile on Women, Health and Development: Country Profile–India 57 (Sarala Gopalan and Mira Shiva, eds., 2000) [hereinafter VHAI & WHO, National Profile on Women]. 190. See id. 191. Tenth Five Year Plan, supra note 133, vol. II, ch. 2.8, ¶ 2.8.211. 192. Id. vol. II, ch. 2.8, ¶ 2.8.209. 193. See India–Raising the Sights, supra note 143, ¶ 1.17. 194. See id. ¶ 8, at 3. 195. See id. pt. 1, ¶ 9, at 3. 196. See id. ¶ 12, at 3. 197. See id. 198. See id. 199. See id. 200. Ministry of Health and Family Welfare, 2000–2001 Annual Report, pt. II, ch. 4, ¶ 4.1.4 (2001) [hereinafter Ministry of Health Annual Report 2000–2001]. 201. Id. pt. II, ch. 4, ¶ 4.1.5. 202. Id. 203. Ministry of Health Annual Report 2001–2002, supra note 160, pt. I, ch. 9, ¶ 9.2.3. 204. Id. 205. Id. 206. Tenth Five Year Plan, supra note 133, vol. II, ch. 2.8, ¶ 2.8.7. 207. Id. vol. II, ch. 2, ¶ 2.8.192-2.8.193, fig. 2.8.33. 208. Id. vol. II, ch. 2, fig. 2.8.37. 209. See India–Raising the Sights, supra note 143, ¶ 10, at 3. 210. Tenth Five Year Plan, supra note 133, vol. II, ch. 2.8, fig. 2.8.37. 211. Ministry of Health Annual Report 1999–2000, supra note 184, pt. I, ch. 3, § 3.2. See also Ministry of Health and Family Welfare, Government of India,A Compilation of the Central Government Health Scheme: Orders and Instructions (1976). 212. Ministry of Health Annual Report 1999–2000, supra note 184, pt. I, ch. 3, §
WOMEN OF THE WORLD:
3.2.6. See also Ministry of Health and Family Planning, Government of India, A Compilation of the Central Government Health Scheme: Orders and Instructions (1976). 213. See Employee’s State Insurance Act, No. 34 (1948) (India). 214. See id. 215. Id. §§ 3, 26, 28, 39–40. 216. See Economic Editors Conference 2000, Oct. 16–18, 2000, at http://pib.nic.in/archive/eec2000/finance/finance3.html#7 (last visited Sept. 30, 2003). 217. See id. 218. See id. 219. See id. 220. Ministry of Health Annual Report 2000–2001, supra note 200, pt. I, ch. 2, ¶ 2.4.1. 221. See Memorandum from Jaya Sagade, supra note 125. 222. Ministry of Health Annual Report 2000–2001, supra note 200, pt. I, ch. 2, ¶ 2.4.1. 223. See Shri Yashwant Sinha, Minister of Finance, Budget 2002–2003, pt.A, § 68 (Feb. 28, 2002), at http://indiabudget.nic.in/ (last visited Sept. 30, 2003). 224. See id. 225. See id. 226. See LIC Launches Policy for Women, The Hindu (Mar. 9, 2003), available at http://www.thehindu.com/thehindu/2003/03/09/stories/2003030900931500.htm (last visited Sept. 30, 2003). 227. See Indian Medical Council Act, No. 102 (1956) (India). 228. Id. § 20A(1). See also Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations (2002) (India) [hereinafter Indian Medical Council Professional Conduct Regulations]. 229. Indian Medical Council Act, No. 102, § 24(1) (1956) (India). 230. See Dentists Act, No. 16 (1948) (India); [Indian] Nursing Council Act, No. 48 (1947); Pharmacy Act, No. 8 (1948) (India).The Indian Nursing Council regulates and maintains uniform standards of education and training for nurses, midwives, auxiliary nurse/midwives and health visitors. 231. See Indian Medicine Central Council Act, No. 48 (1970) (India); see Homoeopathy Central Council Act, No. 59 (1973); see Ministry of Health Annual Report 2000–2001, supra note 200, pt. III, ch. 2, ¶ 2.2.1.The philosophy of Ayurveda and the allopathic system of medicine have had a major impact on India’s approach to health care and the pattern of development of India’s health infrastructure.There are a large number of private practitioners in various systems such as Ayurveda,Allopathy, Unanni, Sidhi, Homeopathy,Yoga, and Naturopathy.These practitioners enjoy high local acceptance and respect and consequently exert considerable influence on health beliefs and practices. See id. pt. III, ch. 3, ¶ 3.1.1. 232. See Indian Council of Medical Research, at http://icmr.nic.in/abouticmr.htm (last visited Oct. 15, 2003). 233. See id. 234. See id. 235. See Indian Council on Medical Research, Ethical Guidelines for Biomedical Research on Human Subjects (2000), http://www.icmr.nic.in/ethical.pdf (last visited Oct. 15, 2003) [hereinafter Indian Council on Medical Research Ethical Guidelines]. 236. See Regional Office for South-East Asia,WHO, Health Ethics in Six SEAR Countries., Health Ethics in Asia, vol. 1, at 35 (Nimal Kasturiaratchi, et al. eds.), available at http://www.hf.uib.no/i/Filosofisk/seahen/vol1rev3.pdf (last visited Oct. 1, 2003). 237. See id. 238. Indian Council on Medical Research Ethical Guidelines, supra note 235, at 64–68. 239. Id. 240. Id. 241. See Indian Council of Medical Research and National Academy of Medical Sciences, Draft National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2002), http://icmr.nic.in/art/chap3.PDF (last visited Oct. 14, 2003) [hereinafter Indian Council of Medical Research Draft Assisted Reproductive Technologies Guidelines]; seeTC Anand Kumar, Proposed legislation for assisted reproduction technology clinics in India, 5 Reproductive BioMedicine Online 3.351, (Oct. 1, 2002), http://www.sisab.net/docs/guidelines.pdf (last visited Oct. 1, 2003). 242. Indian Council of Medical Research Draft Assisted Reproductive Technologies Guidelines, supra note 241, § 3.10, 3.12. 243.TC Anand Kumar, supra note 241. 244. See Indian Council of Medical Research Draft Assisted Reproductive Technologies Guidelines, supra note 241. 245. Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, No. 57 (1994) (India) (amended 2001, 2003). In West Bengal, the male to female ratio is 970 females for every 1000 males, which some medical officials believe is evidence of “rampant” female foeticide. See Jhimli Mkherjee Pandey, Parents press doctors to reveal foetus sex, Asia Intelligence Wire via NewsEdge Corporation, Mar. 12, 2002 (quoting the former president of the Bengal Chapter of the Federation of Obstetrics and Gynaecological Societies of India,Alakendu Chatterjee, who referred to the 2001 census data). In the Haryana state in north India, the male to female ratio is even more exaggerated at 861 females to 1000 males. In neighboring Punjab, the ratio is 874 females to
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1,000 males. See Sanjay Kumar, India Cracks Down on Abortion of Female Fetuses, Reuters Health, Jan. 31, 2002. 246. See Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, pmbl. 247. Id. §§ 3, 4(1)–(2). 248. Id. § 4(3), amended by Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act 2002, No. 14, § 7 (2003). 249. Id. § 5(2), amended by No. 14, § 8 (2003). 250. Id. § 3A–B, amended by No. 14, § 18 (2003). 251. Id. § 23(1), (3), amended by No. 14, § 19 (2003). 252. Id. § 23(2), amended by No. 14, § 19 (2003). 253. Id. § 23(4), amended by No. 14, § 19 (2003). 254. Id. § 24, amended by No. 14, § 20 (2003). 255 Id. §§ 7–16A, amended by No. 14 (2003). 256. Indian Medical Council Professional Conduct Regulations, supra note 228, § 7.6. 257. Id. 258. Indian Council on Medical Research Ethical Guidelines, supra note 235, at 48. 259. Id. 260. See Ban on Prenatal Scans Ordered Enforced, N.Y.Times (Sept. 11, 2003), http://www.nytimes.com/2003/09/11/international/asia/11BRIE4.html (last visited Oct. 1, 2003). 261. See R.C. Goyal, Dilemma of Doctors and Patients, at 13 (on file with the Center for Reproductive Rights). 262 Indian Contract Act, No. 9 § 73 (1872) (India). See R.C. Goyal, supra note 261. 263. India Pen. Code, No. 45, § 304(A). 264. India Pen. Code, No. 45, §§ 81, 88, 92. 265. SeeThe Consumer Protection Act, No. 68 (1986) (India); see R.C. Goyal, supra note 261, at 15–16. 266.The Consumer Protection Act, ch. I, § 2, Definitions. See R.C. Goyal, supra note 261, at 15. 267. See Poonam Verma v.Ashwin Patel and Others (1996) 4 S.C.C. 332. 268. See Indian Medical Association v.V.P. Shantha and Others (1995) 6 S.C.C. 651; Achutrao Haribhau Khodwa and Others v. State of Maharashtra and Others (1996) 2 S.C.C. 634. 269. See Indian Medical Council Professional Conduct Regulations, supra note 228, § 8.2. 270. See id. 271. See id; see Memorandum from Jaya Sagade, supra note 125.According to some sources, patients do not make use of the Indian Medical Act because of the perception that complaints are not taken seriously by the council. See R.C. Goyal, supra note 261. 272. Indian Council on Medical Research Ethical Guidelines, supra note 235. 273. State of Haryana v. Smt Santra, (2000) SOL 268. 274. Id. 275. See Tenth Five Year Plan, supra note 133, vol. II, ch. 2.10, ¶ 2.10.32. 276. See Department of Family Welfare, Ministry of Health and Family Welfare, Reproductive and Child Health Programme, Introductory letter [hereinafter Reproductive and Child Health Programme booklet]. 277. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.10.32. 278. Press Release, Population Council, Implementing a Reproductive Health Agenda in India:An Assessment of the New Policy (June 12,1999) (on file with the Center for Reproductive Rights). 279. See Reproductive and Child Health Programme booklet, supra note 276, at 9–12. 280. See id., Introductory letter. 281. Ministry of Health and Family Welfare, Reproductive and Child Health Programme, at http://health.nic.in/reproheal.htm (last visited Dec. 16, 2003). 282 See Reproductive and Child Health Programme booklet, supra note 276, at 5. 283. Department of Family Welfare, Ministry of Health and Family Welfare, Government of India, National Population Policy 2000 ¶ 7 (2000) [hereinafter National Population Policy]. 284. See id. box 2. 285. International Institute for Population Sciences (IIPS) and ORC Macro, National Family Health Survey (NFHS–2), 1998–1999: India, tbl. 5.4, at 132 (2000), available at http://www.nfhsindia.org/india2.html (last visited Sept. 29, 2003) [hereinafter India National Family Health Survey (NFHS–2) 1998–1999]. The rate for current use is 48.2% for any method and 42.8% for modern methods. 286. Tenth Five Year Plan, supra note 133, ¶ 2.10.49, fig. 2.10.13. 287. Id. ¶ 2.10.51. 288. India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, fig. 5.1, at 129. 289. Id. at 133. 290. Id. 291. See id. 292. Drugs and Cosmetics Act, No. 23 (1940) (India); Drugs and Cosmetics Rules (1945) (India) (amended 2001). See Central Drugs Standard Control Organization, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, at http://cdsco.nic.in/ (last visited Oct. 2, 2003). 293. See Indian Council of Medical Research, Ministry of Health and Family Welfare, at
http://icmr.nic.in/abouticmr.htm (last visited Oct. 2, 2003). 294. See International Consortium for Emergency Contraception (ICEC), ECPs Status and Activity by Country, at http://www.cecinfo.org/files/ecstatusavailability.pdf (last visited Oct. 2, 2003); see Statesman News Service, Pills and boons for Indian women, The Statesman (Sept. 8, 2003), http://www.thestatesman.net/page.arcview.php?clid=2&id=50509&date =2003-09-08&usrsess=1 (last visited Oct. 2, 2003). 295. See International Consortium for Emergency Contraception (ICEC), ECPs Status and Activity by Country, at http://www.cecinfo.org/files/ecstatusavailability.pdf (last visited Oct. 2, 2003). 296. See Emergency contraceptive help’s just a phone call away,The Times of India (May 24, 2003), http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=4732024 1 (last visited Oct. 2, 2003). 297.A.I. Democratic Women Association and Others v. Union of India and Another, (1998) 5 S.C.C. 214 (India). 298. See id. 299. See Use of quinacrine as contraceptive banned, The Hindu 10 (Aug. 18, 1998), www.hsph.harvard.edu/Organizations/healthnet/ SAsia/repro/bolquinacrine3.html (last visited Dec. 15, 2003). 300. See Sama– Resource Group for Women and Health, Unveiled Realities:A study on women’s experiences with Depo-Provera, An injectable contraceptive 5 (2003). 301. See id. at 6. 302. See id. (quoting The Hindu, Jan. 4, 2002). 303. India Pen. Code, No. 45, §§ 292–293. 304. Ranjit D. Udeshi v.The State of Maharashtra (1965) A.I.R. 1965 S.C. 881 (India). 305. Ministry of Health Annual Report 2000–2001, supra note 200, pt. II 181. 306. Id. pt. II, ¶ 9.5.9. 307. India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 146. 308. Id. at 147. 309. Ministry of Health Annual Report 2000–2001, supra note 200, pt. II, ¶ 9.1.4(a). Note that all of the major states, except Orissa (–11.2%) and Rajasthan (–1.9%), have shown increased use from 1998 to 2000. 310. Division of Research Studies and Standards, Ministry of Health and Family Welfare, Government of India, Standards for Female and Male Sterilisation (1999). 311. See id. § 1.1.1. 312. Id. § 1.1.2–1.13. 313. See id. § 1.1.4. 314 See id. § 1.2. 315. See id. § 1.2.7. 316. See id. § 1.2.3. 317. Id. § 1.3.1. 318. See id. § 1.3.2. 319. See id. § 1.3. 320. See Ministry of Health Annual Report 2000–2001, supra note 200, pt. II ¶ 2.1.6(iv). 321. See id. 322. See Celia W. Dugger, Relying on Hard and Soft Sells, India Pushes Sterilization, N.Y. Times, June 22, 2001, at A1. 323. See India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 147. 324. Id. at 149. 325. See Family Welfare Programme, Department of Family Welfare, Ministry of Health and Family Welfare, Government of India, at http://health.nic.in/fsfwp.htm (last visited Oct. 2, 2003). 326. See Ministry of Health Annual Report 2000–2001, supra note 200, pt. II ¶ 9.1.7.1.The extent of the subsidy ranges from 70% to 80%. Health officials have reported that selling condoms through “social marketing” techniques is more effective than giving them away since up to 75% of free condoms are “wasted.” See Social Marketing Fosters Condom Use in India, Kaiser Daily Reproductive Health Report (Dec. 14, 2000), http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=1677.As part of a new scheme by the Indian State Innovative Family Planning Service Agency, over 270 postal workers were trained to function as “family planning propagators” and were paid an additional USD 1 per month to deliver condoms in the Uttar Pradesh districts of Agra and Firozabad. See Population Connection, Legislative Update: November 7, 2000, India: Postal Workers to Deliver Contraception (2000),http://www.populationconnection.org/Action_Alerts/alert60.html (last visited Dec. 15, 2003). 327. See India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 149. 328. See id. 329. See Ministry of Health and Family Welfare, Government of India, Major Schemes and Programmes 153 (2000), available at http://mohfw.nic.in/MSP-1.pdf (last visited Oct. 2, 2003). 330. Id. at 154. 331. See Family Welfare Programme, Department of Family Welfare, Ministry of Health
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and Family Welfare, Government of India, at http://health.nic.in/fsfwp.htm (last visited Oct. 2, 2003). 332. Id. 333. See id. 334. See National Population Policy, supra note 283, ¶ 11. 335. See id. 336. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.10.119. 337. See India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 149. 338. See Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.10.119. 339. See id. vol. II, ¶ 2.10.90. 340. India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 149. 341. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.10.122. 342. See id. 343. See id. vol. II, ¶ 2.10.121. 344. India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, § 6.3, at 196. 345. CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 221. 346. Tenth Five Year Plan, supra note 133, vol. II, ch. 2.11, tbl. 2.11.8. 347. India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 294. 348. Id. at 297. 349. See id. at 284. 350. National Health Policy, supra note 146, box IV; National Population Policy, supra note 283, box 2, at 2. See also Tenth Five Year Plan, supra note 133, vol. II, ch. 2.8, at 143. 351. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.11.70. 352. See id. 353. See id. vol. II, ¶ 2.11.71. 354. See Posting of Center for Women’s Development Studies Library,
[email protected], to
[email protected] (Dec. 13, 2002) (copy on file with the Center for Reproductive Rights). 355. Id. 356. Forty percent of pregnant women were vaccinated in 1985–1986 and 83.4% were covered by 2000–2001. See Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.11.9. 357. Id. vol. II, ¶ 3.8.61. 358. National Development Council, Planning Commission, Ninth Five Year Plan (1997-2002), vol. II, ¶ 3.5.66; Ministry of Health Annual Report 2000–2001, supra note 200, pt. II, ¶ 5.9.2. 359. See Ministry of Health Annual Report 2000–2001, supra note 200, pt. II, ¶ 5.10.1. 360. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 275. 361. See id. ¶ 333. 362. See id. 363. India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 291. 364. India Const., art. 47. 365. See Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.11.10. 366. Id. 367. See id; see CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 273. 368. CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 273. 369. See M.E. Khan et al., Abortion in India: An Overview, Social Change, Sept.–Dec. 1996, at 208–225, available at http://www.hsph.harvard.edu/grhfasia/suchana/0510/khan_etc.html (last visited Oct. 3, 2003). 370. India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, tbl. 4.7, at 92.The survey acknowledges the likelihood of underreporting of non-live births. See id. at 96. 371. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.10.56. 372. Heidi Bart Johnston, Induced Abortion Practice in India: A Review of Literature 4-5 (2002) (Abortion Assessment Project–India,Working Paper Series), www.cehat.org/app1/app1.html (last visited Dec. 17, 2003). 373. Medical Termination of Pregnancy Act, No. 34, § 3(2)(a)(i)–(ii) (1971) (India). 374. Id. § 3(3). Such factors may include socioeconomic factors such as a woman’s age, marital status and the number of her living children. See Anika Rahman et al.,A Global Review of Laws on Induced Abortion, 1985–1997, 24 Int’l Fam. Planning Persp. 56–64 (1998). 375. See Medical Termination of Pregnancy Act, § 3(2), Explanation 1 (1971) (India). 376. See Medical Termination of Pregnancy (Amendment) Act, No. 64, ¶ 4(b) (2002) (India). As of December 2002, the government had not yet set an enforcement date for the amendment. See Press Release, Ministry of Law and Justice, Six More Bills Get President’s Assent (Dec. 27, 2002), available at http://pib.nic.in/archieve/lreleng/lyr2002/rdec2002/27122002/r271220022. html (last visited Oct. 3, 2003).The 1975 Medical Termination of Pregnancy Regulations elaborate upon the qualifications of registered medical practitioners and facilities providing abortion services. See The Medical Termination of Pregnancy Regulations, 1975 § 3 (1975) (India). 377. Medical Termination of Pregnancy Act, § 3(2)(a) (1971)(India). 378. Id. § 3(2)(b).
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379. Id. § 5(1). In such circumstances, the restrictions on the number of doctors’ opinions and on the location of abortion procedure may be waived. See id. 380. See Medical Termination of Pregnancy Regulations, 1975, § 3–7 (1975) (India). 381. Medical Termination of Pregnancy Act, § 3(4)(a)–(b)(1971)(India). 382. See Medical Termination of Pregnancy Regulations, § 4 (1975)(India). 383. See Ministry of Health and FamilyWelfare,Central Drugs Standard Control Organization,List of Drugs Approved 1999-2002,at http://www.drugscontrol.org/news/news1.htm (last visited Dec. 15, 2003). 384. See Statesman News Service,Pills and boons for Indian women,The Statesman,Sept.8, 2003,available at http://www.thestatesman.net/page.arcview.php?clid=2&id=50509&date=2003-0908&usrsess=1 (last visited Oct.2,2003). 385. See Gargi Parsai, Plan to launch abortion pill in Family Welfare Programme, The Hindu, Mar. 6, 2003, at http://www.thehindu.com/2003/03/06/stories/2003030607811200.htm (last visited Oct. 3, 2003). 386. See Bela Ganatra and Heidi Bart Johnston, Reducing Abortion-Related Mortality in South Asia:A Review of Constraints and a Road Map for Change, 57 J.Am Med.Women’s Ass’n 162 (2002). 387. Medical Termination of Pregnancy Act, No. 34 § 7(3) (1971) (India). 388. Medical Termination of Pregnancy (Amendment) Act, No. 64 § 5(3) (2002) (India). 389. Medical Termination of Pregnancy (Amendment) Bill, No. 64 § 5(2)–(3) (2002) (India). 390. Id. § 5(a)(4). 391. Prior to the Medical Termination of Pregnancy Act, the Indian Penal Code criminalized all abortions other than those performed to save the life of the mother. India Pen. Code, No. 45, §§ 312–316 (India). 392. India Pen. Code, No. 45, § 312. 393. Id.. 394. Id. § 313. 395. See Posting of Center for Women’s Development Studies Library,
[email protected], to
[email protected] (Dec. 13, 2002) (copy on file with the Center for Reproductive Rights). 396. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.11.71. 397. Id. vol. II, ¶ 2.10.59. 398. See National Population Policy, supra note 283, § 13. 399. See Ministry of Health Annual Report 2001–2002, supra note 160, vol. II, ¶ 5.8.3. 400. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.10.59. 401. See National Population Policy, supra note 283, app. 1, ¶ 13. 402. See id. 403. M.E.Khan et al.,Availability and Access to Abortion Services in India:Myth and Realities 3 (2001),available at http://www.iussp.org/Brazil2001/s20/S21_P10_Barge.pdf (last visited Oct.3,2003). 404. Center for Reproductive Rights, Reproductive Rights 2000: Moving Forward 28 (2000) (citing Radhika Coomaraswamy, Report of the Special Rapporteur on Violence against Women, Its causes and consequences,Addendum: Policies and Practices that impact Women’s Reproductive Rights and Contribute to, Cause or Constitute Violence against Women ¶ 50, U.N. Doc. E/CN.4/1999/68/Add.4 (1999)). 405. Maharastra has 1,808 approved abortion facilities, constituting 21.2% of all registered abortion facilities. See M.E. Khan et al., supra note 403, at 6. 406. Id. 407. Id. 408. Id. at 7. 409. Id. 410. See id. 411. See id. 412. See id. at 8. 413. See id. 414. See Ministry of Health Annual Report 2000–2001, supra note 200, vol. II, ¶ 5.6.3. 415. See Family Planning Association of India, available at http://www.fpaindia.com/fpaiactivity.htm (Dec. 15, 2003). 416. See Ministry of Health Annual Report 2000–2001, supra note 200, vol. II, ¶ 5.6.4. 417. National AIDS Control Organization, Ministry of Health and Family Welfare, Government of India, Country Scenario 1997–1998 35 (1998) [hereinafter National AIDS Control Organization Country Scenario 1997–1998]. 418. Id. 419. Id. at 2;The Joint United Nations Programme on HIV/AIDS (UNAIDS),Country information:India,at http://www.unaids.org/en/geographical+area/by+country/india.asp (last visited Oct.3,2003);see India Announces New National Policy to Control Disease,UN Wire,Apr.3,2002,available at http://www.unwire.org/UNWire/20020403/25266_story.asp (last visited Dec.16,2003). 420. UNAIDS & WHO,Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections:India 2002 Update,http://www.who.int/emchiv/fact_sheets/pdfs/india_en.pdf (last visited Dec. 17, 2003) (2002). 421. National AIDS Control Organization Country Scenario 1997–1998, supra note 417, at 2. 422. India Pen. Code, No. 45, §§ 269-270.
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423. See Memorandum from Jaya Sagade, supra note 125; see Lawyers Collective, Legislating an Epidemic: HIV/AIDS in India 267 (2003). 424. Special Marriage Act, No. 43, § 27 (1954) (India); Hindu Marriage Act, No. 25, § 13 (1955) (India); Parsi Marriage and Divorce Act, No. 3, § 32 (1936) (India). 425. See Memorandum from Jaya Sagade, supra note 125. 426 See Communication with Leena Prasad, Lawyer’s Collective, India country report draft (June 16, 2001) (on file with the Center for Reproductive Rights). 427. See id. 428. See id. 429. See Lawyers Collective, Legislating an Epidemic: HIV/AIDS in India 14 (2003); see also Indo-Asian News Service, Free drugs for HIV positive, Laws against discrimination, Yahoo! India News (Nov. 30, 2003), available at http://in.news.yahoo.com/031130/43/29z3e.html (noting that the Indian government is planning to introduce legislation addressing discrimination against persons living with HIV/AIDS). 430. MX v. ZY,A.I.R. 1997 Bombay 406 (India). See India Const., art 14, 21. 431. Parmanand Katara v. Union of India, (1989) 4 S.C.C. 286 (India). 432. India Pen. Code, No. 45, § 269–270; Mr. X v. Hospital Z, (1998) 8 S.C.C. 296 (India).The court states that it requires this disclosure to protect the right to life of partners of HIV-positive individuals. 433. Mr. X v. Hospital Z, (2002) SOL 657 (India). 434. Id. 435. National AIDS Control Organization, Ministry of Health and Family Welfare, Government of India, An Action Plan for Blood Safety 5 (2003), available at http://www.naco.nic.in/nacp/action.pdf (last visited Oct. 7, 2003) [hereinafter National AIDS Control Organization Blood Safety Action Plan]. 436. See id. 437. Common Cause v Union of India, (1996) 1 S.C.C. 753 (India). 438. National AIDS Control Organization, Ministry of Health and Family Welfare, Government of India, at http://naco.nic.in/nacp/nacobkg.htm (last visited Oct. 7, 2003). 439. See National AIDS Control Organization, Ministry of Health and Family Welfare, National AIDS Prevention and Control Policy § 3 [hereinafter National AIDS Policy]. 440. Id. 441. Id. 442. See id. ¶ 5.4.1. 443. Id. 444. See National AIDS Control Organization Blood Safety Action Plan, supra note 435, at 15. 445. National AIDS Control Organization, Ministry of Health and Family Welfare, National Blood Policy. 446. National AIDS Control Organization Blood Safety Action Plan, supra note 435, at 5. 447. See Microbicides to be introduced for AIDS prevention, The Times of India (Sept. 28, 2003), available at http://timesofindia.indiatimes.com/cms.dll/xml/uncomp/articleshow?msid=205971 (last visited Dec. 15, 2003). 448. See Lawyers Collective, HIV/AIDS Unit,Abstracts of Papers, available at http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/Media.htm (last visited Oct. 15, 2003). 449. India Pen. Code, No. 45, §§ 292-294 (India). See also Lawyers Collective, HIV/AIDS Unit,Abstracts of Papers. 450. India Pen. Code, No. 45, § 292. 451. Lawyers Collective, HIV/AIDS Unit,Abstracts of Papers, supra note 448. 452. See Population Reference Bureau, Population Bulletin, vol. 56, No. 1, box 6, India: From Family Planning Targets to Reproductive Health (Mar. 2001), available at http://www.prb.org/Template.cfm?Section=Population_Bulletin1&template=/ContentManagement/ContentDisplay.cfm&ContentID=5878#evolution (last visited Dec. 16, 2003). 453. India Const., 7th sched. 454. See Javed and Others v. State of Haryana and Others, (2003) SOL 411(India). 455. National Population Policy, supra note 283, ¶ 6. 456. Id. ¶ 7. 457. Id. box 2. 458. Id. ¶¶ 4–11. 459. Id. ¶ 37. 460. See id. ¶ 39. 461. See National Population Policy, supra note 283, ¶ 44; Ministry of Health Annual Report 2000–2001, supra note 200, vol. II, ¶ 4.2. 462. India Const., arts 14–15, 15(3), 16. 463. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 83. 464. India Const., art. 51A(e). 465. See W.A. Baid v. Union of India, 1976 A.I.R. (Del.) 302 (India);A.N. Rajamma v. State of Kerala, 1983 LB 1388 (India); Brij Bala v. State of H.P. (1984) 2 SLR 408 (India); CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 180. 466. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 33. 467. See id. 468. See id. 469. See National Commission for Women, at http://www.nationalcommissionforwomen.org/ (last visited Oct. 7, 2003).
470. See id. 471. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 91. 472. See id. ¶ 15. 473. See Tenth Five Year Plan, supra note 133, vol. II, at 222. 474 See id. 475. Department of Women and Child Development, Ministry of Human Resource Development, Government of India, National Policy for the Empowerment of Women ¶ 10.1 (2001), available at http://www.wcd.nic.in/empwomen.htm (last visited Oct 7, 2003). 476. Tenth Five Year Plan, supra note 133, vol. II, ¶ 2.11.57. 477. Citizenship Act, No. 57 (1955) (India) (amended 1986, 1992). 478. Id. §§ 3–6, 8–9. See also CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 143. 479. Citizenship Act, § 8. See also CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 143. 480 See HC on J&K women’s right to property, service, The Tribune (Oct. 9, 2002), http://www.tribuneindia.com/2002/20021009/j&k.htm#6 (last visited Oct. 7, 2003). 481. See Kashmiri women: Citizens at last, Indiatogether.org (Dec. 2002), http://indiatogether.org/women/articles/kashciti.htm (last visited Nov. 10, 2003). 482. See id. 483. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 363. 484. Special Marriage Act, No. 43, Statement of Object and Reasons (1954) (India).Also, under the Indian Christian Marriage Act, a Christian and a non-Christian may marry. See Indian Christian Marriage Act, No. 15, art. 4 (1872) (India). 485. Special Marriage Act, No. 43, § 15 (1954) (India). 486. Child Marriage Restraint Act, No. 19, § 2(a) (1929) (India) (amended 1978). 487. See Usha Tandon, Population Law:An Instrument for Population Stabilization 129 (2003). 488. Dowry Prohibition Act, No. 28 (1961) (India) (Am. 1984, 1986). 489. See Memorandum from Lawyers Collective to the Center for Reproductive Rights (on file with the Center for Reproductive Rights). 490. Hindu Marriage Act, No. 25, § 2(2) (1955) (India).The scheduled tribes of India, irrespective of their religion, are governed by their uncodified customary laws and not by Hindu laws. 491. Id. Introduction. 492.Where a Hindu marriage is being performed according to religious ceremonies, certain rituals, which vary according to the customs of community, are necessary to make the marriage valid, but for most Hindu communities “saptapadi” is necessary. See id. art. 7. 493. See id. § 5.Two parties are said to be sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them. See id. art. 3(f)(i)–(ii). 494. Id. § 5. 495. See M. Hidayatullah and Arshad Hidayatullah, Mulla’s Principles of Mahomedan Law § 250 (19th ed. N. M.Tripathi Private Ltd. 2003). 496. Multiple Action Research Group for the Department of Women and Child Development, Ministry of Human Resource Development, Government of India, No. 6, Our Laws: Muslim Marriage Law/Right to Property 1–7 (1992). 497. Hidayatullah and Hidayatullah, supra note 495, § 255. 498. Indian Christian Marriage Act, No. 15 (1872) (India). 499. See Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 1–3. 500. Indian Christian Marriage Act, No. 15, § 60 (1872) (India). 501. Parsi Marriage and Divorce Act, No. 3 (1936) (India). 502. Id. § 3, amended by Parsi Marriage and Divorce (Amendment) Act, No. 5, § 2 (1988) (India). 503. Id. § 4. 504. Id. § 6. 505. Hindu Marriage Act, No. 25, § 13(1) (1955) (India). 506. Id. § 13(1A), 13(2), 13B. 507. Bigamy is punishable with imprisonment of up to seven years. India Pen. Code, No. 45, art. 494.A husband or his relative is subject to imprisonment of up to three years and fines for cruelty to the husband’s wife. Id. art. 498A.An adulterer is subject to imprisonment of up to five years and fines. Note that the definition of “adultery” in this section applies only to male offenders; women cannot be guilty of adultery. See id. art. 497. 508. Hidayatullah and Hidayatullah, supra note 495, §§ 307–308, 314, 319. 509. See id. § 336(1). 510. Muslim Women (Protection of Rights on Divorce) Act, No. 25, § 2(b) (1986) (India). 511. See Shamim Ara v. State of U.P. and Anr., 2002 SOL 514 (India). 512. See id. 513. See id. 514. Meenal Dubey, Talaq by post not admissible: Court, Hindustan Times (Mar. 8, 2003), http://www.hindustantimes.com/news/printedition/080303/detCIT01.shtml (last visited May 5, 2003). 515. See id. 516. Dissolution of Muslim Marriages Act, No. 8 (1939) (India); Hidayatullah and Hidayatullah, supra note 495, § 323.
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517. Dissolution of Muslim Marriages Act, No. 8, art. 2 (1939) (India). 518. Indian Divorce Act, No. 4 (1869) (India) (amended 2001). 519. Id. § 10, amended by Indian Divorce (Amendment) Act, No. 51, § 5 (2001) (India). 520. See id. § 10(2), amended by Indian Divorce (Amendment) Act, No. 51, § 5 (2001) (India). 521. See id. § 10(A), amended by Indian Divorce (Amendment) Act, No. 51, § 6 (2001) (India). 522. Parsi Marriage and Divorce Act, No. 3 (1936) (India) (amended 1988). 523. Id. § 32, 32A–32B, amended by Parsi Marriage and Divorce (Amendment) Act, No. 5, § 9 (1988) (India). 524. See id. § 30. 525. See id. § 31. 526. See Memorandum from Jaya Sagade, supra note 125. 527. Hindu Marriage Act, No. 25, § 10 (1955) (India); Indian Divorce Act, No. 4, § 22 (1869) (India); Parsi Marriage and Divorce Act, No. 3, § 34 (1936) (India). 528. Hindu Marriage Act, § 10(1)(1955)(India). 529. Id. § 10(2). 530. Id. 531. Memorandum from Lawyers Collective to the Center for Reproductive Rights (on file with the Center for Reproductive Rights). 532. See Memorandum from Jaya Sagade, supra note 125; see relatedly Hidayatullah and Hidayatullah, supra note 495, § 281(3). 533. Indian Divorce Act, No. 4, § 10 (1869) (India). 534. Parsi Marriage and Divorce Act, No. 3, art. 34 (1936) (India). 535. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 379. 536. See id. 537. Code of Criminal Procedure, No. 2, § 125(1)(b)–(d) (1973) (India). 538. Id. § 125(5). 539. Code of Criminal Procedure (Amendment) Act, No. 50, § 3 (2001) (India). 540. See Amina v. Hassn Koya, 2003 SOL 239 (India). 541. See id. 542. Marriage Laws (Amendment) Act, No. 49 (2001) (India). 543. Id. §§ 2, 4, 6, 8. 544. Id. §§ 2–9. 545. Hindu Marriage Act, No. 25, § 25 (1955) (India). 546. Id. § 25. 547. Id. § 25(2)–(3). 548. Hindu Adoptions and Maintenance Act, No. 78, § 18(1)–(2) (1956) (India); Hindu Marriage Act, No. 25, § 25 (1955) (India). 549. Hindu Adoptions and Maintenance Act, No. 78, § 18(3) (1956) (India). 550. Id. § 19. 551. Id. § 20. 552. Id. § 20(3). 553. Hirachand Srinivas Managaonkar v. Sunanda, 2001 SOL 188 (India). 554. Muslim Women (Protection of Rights on Divorce) Act, No. 25, ¶ 3(1)(a) (1986) (India). If the woman is pregnant, iddat may be extended to the time of delivery of the child. Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 16. 555. Muslim Women (Protection of Rights on Divorce) Act, No. 25, ¶ 3(1)(b) (1986) (India). 556. Id. ¶ 3(1)(c). 557. See Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 17. Under Muslim law, a wakf is a dedication by a Muslim of property or money for pious or charitable purposes.There are a number of wakf acts under which state governments have appointed state wakf boards to act as corporate bodies, holding the money and property dedicated to the wakf for maintenance of Muslim women divorcees, among other purposes. See Lawyers Collective, Law of Domestic Violence:A User’s Manual for Women (Indira Jaising ed., 2001); see Muslim Women (Protection of Rights on Divorce) Act, No. 25, § 4 (1986) (India). 558. See Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 17 (1992); Muslim Women (Protection of Rights on Divorce) Act, No. 25, § 5 (1986) (India). 559. Indian Divorce Act, No. 4, ¶ 37 (1869) (India). 560. Id. ¶ 37. 561. Id. ¶ 38. 562. Parsi Marriage and Divorce Act, No. 3, § 40(1) (1936) (India). 563. Id.. 564. Id. § 40(2)–(3). 565. See id. § 41. 566. Hindu Adoption and Maintenance Act, No. 78 (1956) (India); Guardians and Wards Act, No. 8 (1890) (India). 567. Guardians and Wards Act, No. 8, § 19 (1890) (India). 568. Id. 569. Id. § 17(1). 570. Id. § 17(2)–(3), (5). 571. Hindu Minority and Guardianship Act, No. 32, § 6(a)–(c) (1956) (India). 572. Id. § 6. 573. Id. § 6 (Comments). 574. See Memorandum from Jaya Sagade, supra note 125. 575. Hindu Adoptions and Maintenance Act, No. 78, § 8 (1956) (India). 576. Id. §§ 7, 11(v).
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577. Id. § 7. 578. See id. 579. See Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 19. 580. See id. Under the Hanafi school of Muslim jurisprudence, the mother is deemed the natural guardian of her son until he is seven years old. Under Hanbali and Shafi law, a son may choose to live with either parent after the age of seven.Among Shias, the mother has custody of her son until he is weaned. Under Maliki law, a son stays with his mother until he reaches puberty. In the case of female children, the mother retains custody of her daughter until she attains the age of puberty under Hanafi law. Under Ithana Ashari law, daughters remain with their mothers until the age of seven. In other sects, mothers have custody of their daughters until they marry. See Law of Domestic Violence: A User’s Manual for Women, supra note 557, at 78. 581. See Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 20. 582. Guardian and Wards Act, No. 8, §§ 6–19 (1890) (India); Hidayatullah and Hidayatullah, supra note 495, § 349. 583. See Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 16. 584. See id. 16–17. 585. Guardian and Wards Act, No. 8, §§ 6–19 (1890) (India). 586. Parsi Marriage and Divorce Act, No. 3, art 49–50 (1936)(India). 587. See Memorandum from Jaya Sagade, supra note 125. 588. Guardian and Wards Act, No. 8, §§ 6–19 (1890) (India). 589. See Multiple Action Research Group for the Department of Women and Child Development, Ministry of Human Resource Development, Government of India, No. 5, Our Laws: Hindu Marriage Law/Right to Property 27; Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 21; Multiple Action Research Group for the Department of Women and Child Development, Ministry of Human Resource Development, Government of India, No. 7, Our Laws: Christian Marriage Law/Right to Property 19(1992). 590. Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 30–31; Our Laws: Christian Marriage Law/Right to Property, supra note 589, at 21; Our Laws: Hindu Marriage Law/Right to Property, supra note 589, at 38. 591. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 395. 592. See id. ¶ 81. 593. Hindu Succession Act, No. 30 (1956) (India). 594. See Our Laws: Hindu Marriage Law/Right to Property, supra note 589, at 30. 595. See id. at 30–31. 596. Hindu Succession Act, No. 30, §§10–11, sched. (1956) (India). 597. Id. art. 23. See also Our Laws: Hindu Marriage Law/Right to Property, supra note 589, at 34–36. 598. See Satyajeet A. Desai, Mulla Hindu Law § 347 (vol. 1) (18th ed. 2001). 599. Hindu Succession Act, No. 30, art. 23 (1956) (India). See also Our Laws: Hindu Marriage Law/Right to Property, supra note 589, at 36. 600.V. Dandapani Chettiar v. Balasubramanian Chettiar, 2003 SOL Case NO. 440 (India 2003), www.supremecourtonline.com/cases/7926.html. 601. Id. 602. Id. 603. See Our Laws: Muslim Marriage Law/Right to Property, supra note 496, at 22. 604. See id. at 24. Note that the property and share are determined according to the relationship of the heir to the deceased and the number of heirs. See id. at 22–24. 605. See id. at 26–28.The widow or divorcee has a right of retention, and, as such, is entitled to take possession of her husband’s property until her mahr is paid. Although she cannot gift or sell the property, she may satisfy the mahr owed to her out of profits from the property. She may also file a lawsuit to recover her mahr. See id. at 28. 606. See id. at 27. 607. See Memorandum from Jaya Sagade, supra note 125. 608. Indian Succession Act, No. 39, art. 29 (1925) (India). 609. Id. art 32, 33(a), 35 (1925) (India). In cases where there is no lineal descendant, but the descendant has other kin, a widow is entitled to one-half of her deceased husband’s property, with the remaining property divided among his surviving kin. If there are no other survivors, the widow inherits all of the property. Id. art. 33(c). 610. See Our Laws: Christian Marriage Law/Right to Property, supra note 589, at 23. 611. Indian Succession Act, No. 39, pt.V, ch. III (1925) (India). 612. Id. art. 51(a). 613. Delhi Land Reforms Act, No. 8, art. 50 (1954) (India). 614. Id. art. 51. 615. Id art. 50. 616. See Lower tax on houses in women’s name,Tribune of India, National Capital Region, Mar. 9, 2003, http://www.tribuneindia.com/2003/20030309/ncr1.htm#5 (last visited Oct. 9, 2003). 617. See Our Laws: Hindu Marriage Law/Right to Property, supra note 589, at 37. 618. See id. 619. See Memorandum from Jaya Sagade, supra note 125. 620. See Our Laws: Christian Marriage Law/Right to Property, supra note 589, at 25–27. 621. See Memorandum from Jaya Sagade, supra note 125. 622. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 195. 623. See id. 624. See id. ¶ 197. 625. See id.
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626. See Ministry of Labour, Government of India, 2001–2002 Annual Report, § 11.2, http://labour.nic.in/annrep/files2k1/lab11.pdf (last visited Dec. 15, 2003). 627. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 197. 628. India Const., arts 14–16. 629. Id. arts. 39(a), (d)–(e), 42. 630. Id. art. 43. 631.The Equal Remuneration Act defines “same work or work of a similar nature” as, “work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a women and the difference, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.” Equal Remuneration Act, No. 25, § 2(h) (1976) (India). 632. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 183. 633. Equal Remuneration Act, No. 25, pmbl, § 4(2) (1976) (India). 634. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 188. 635. See id. 636. See id. 637. Maternity Benefit Act, No. 53, §§ 2, 5, 5(3), 9, 9A (1961) (India), http://www.indialawinfo.com/bareacts/maternity.html (last visited Dec. 15, 2003). 638. Id. § 4(1)–(2). 639. See id. § 4(4). 640. Id. §§ 8, 10–11, 13. 641. Id. § 5(2). 642. Employees’ State Insurance Act, No. 34, §50 (1948) (India); Factories Act, No. 63, § 79(1)(b) (1948) (India). 643. Factories Act, No. 63, §§ 2(m), 79(1)(b) (1948) (India). 644. Employees’ State Insurance Act, No. 34, §§1, 50 (1948) (India). 645. Id. §73.“Confinement” is defined under § 2(3) as “labour resulting in the issue of a living child, or labour after twenty-six weeks of pregnancy resulting in the issue of a child whether dead or alive” and “miscarriage” is defined under § 2(14B) as “expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy, but does not include any mis-carriage, the causing of which is punishable under the Indian Penal Code.” Id. §§ 12–13. Note that § 13 prohibits the deduction of wages on account of the reduction of hard work. 646. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 285; Office Memorandum Recommendation of Fifth Central Pay Commission relating to grant of Commuted Leave/ Leave on Medical Certificate to Gazetted and NonGazetted Governemnt (sic) Servants No. 13018/1/97-Estt.(L), from B. Gangar, Under Secretary to the Govt. of India, Ministry of Personnel, Government of India, (Oct. 7, 1997), http://persmin.nic.in/estt/leave2.htm (last visited Oct. 9, 2003). 647. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 287. 648. See id. ¶ 209. 649. Factories Act, No. 63, § 48 (1948) (India); Plantations Labour Act, No. 69, § 12 (1951) (India); Mines Act, No. 35, § 58 (Comments) (1952) (India); Beedi and Cigar Workers (Conditions of Employment) Act, No. 32, § 14(1966) (India). 650. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 213, 289. 651. See id. ¶ 213. 652. Factories Act, No. 63, §§ 22, 27, 34 (1948) (India). 653. Id. § 27. 654. Mines Act, No. 35, § 46 (1952) (India). 655. Id; Plantations Labour Act, No. 69, §25 (1951) (India); Beedi and Cigar Workers (Conditions of Employment) Act, No. 32, §25 (1966) (India). 656. See Press Release, Press Information Bureau, Ministry of Labour and Empowerment, Government of India,Women Workers in Night Shifts (Apr. 7, 2003), http://pib.nic.in/archieve/lreleng/lyr2003/rapr2003/07042003/r0704200312.html (last visited Dec. 15, 2003). 657. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 203. 658. See id. Relevant cases discussed include Bombay Labour Union v. International Franchises Pvt. Ltd,AIR 1966 SC 1942; Muthumma v. Union of India,AIR 1979 SC 1868;Air India v. Nergeesh Mirza,AIR 198 1 SC 1829. 659. See id. ¶ 189. 660. Employees Provident Fund and Miscellaneous Provisions, No. 19, § 6A (1952) (India); Payment of Gratuity Act, No. 39, § 4 (1972) (India). 661. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 338. 662. See id. 663. See id. ¶¶ 292, 294. The Integrated Rural Development Program was launched in 1978 and extended to all development blocks in the country by 1981. It was conceived as one of the main governmental antipoverty initiatives. Credit from banking institutions and subsidies from the government were loaned to families below the poverty line for self-employment and income generation. See id. ¶ 306. 664. See id. ¶ 293. 665. See id. ¶ 294. 666. See id. 667. See Memorandum from Jaya Sagade, supra note 125. 668. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 294. 669. See Rashtriya Mahila Kosh (RMK), Compendium of RMK Schemes 7 [hereinafter Compendium of RMK Schemes]. Intermediate microfinance organizations include NGOs, women’s cooperative societies, women development corporations, and state urban development authorities. However, NGOs have been the primary conduits
for RMK credit funds to beneficiaries. See id. at 7. 670. Self-help groups should be based on affinity; small in size; voluntary, cohesive and stable; democratic; and possess decision-making abilities. See id. at 23. 671. See Census of India 2001, supra note 9; see CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 28. 672. India Const., art. 45. In particular, the state shall promote the educational interests of the scheduled castes and tribes. Id. art. 46. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 150–155. 673. Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., 1 S.C. C. 645 (India 1993). 674. India Const., amend.86,available at http://indiacode.nic.in/coiweb/amend/amend86.htm (last visited Oct. 15, 2003). 675. Id. 676. Id. 677. India Const., art 29(2). 678. See VHAI & WHO, National Profile on Women, supra note 189, at 114–115.The policy provides,“women become empowered through collective reflection and decision-making.The parameters of empowerment are building a positive self image and self confidence; developing [the] ability to think critically; building … group cohesion and fostering decision-making; ensuring equal participation in the process of bringing about social change; [and] providing the wherewithal for economic independence.” Supra at 115. 679. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 175. 680. See id. ¶¶ 117, 175. 681. See id. ¶ 176. 682. See VHAI & WHO, National Profile on Women, supra note 189, at 113. 683. See Tenth Five Year Plan, supra note 133, vol. II, ch. 2.11, ¶ 2.11.14. 684. See id. 685. See id. vol. II, ch. 2.11, ¶ 2.11.13. 686. See VHAI & WHO, National Profile on Women, supra note 189, at 113. 687. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 173. 688. See id. 689. India Pen. Code, No. 45, § 375. According to § 114A of the Indian Evidence Act, in a prosecution for rape brought under Indian Penal Code §§ 376(2)(a)–(e) or (g), there is a presumption that a woman did not consent where sexual intercourse is proved and the woman states that she did not consent. 690. Id. 691. Id. 692. Id. 693. Id. §§ 375 (Exception), 376-A. 694. See Reproductive and Sexual Health Rights in India, supra note 106, ch. 3, § 3.3.1(b). 695. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 94. 696. Indian Evidence Act, No. 1, § 155(4) (1872) (India). 697. India Pen. Code, No. 45, § 376(1). 698. Id. § 376(1), 376-A. 699. Id. § 376(2)(a)–(g). 700. See Jarnail Singh v. State of Punjab, (1998) 8 S.C.C. 629, a case of statutory rape of a 15-year-old girl by a 17-year-old boy where the girl was a consenting party.The court decreased the sentence of the accused but directed him to pay Rs 12,000 as compensation to the girl. See also cases involving rape by public functionaries, such as the decision in Chairman, Railway Board v. Chandrima Das, (2000) 2 S.C.C 465. In P.A. Narayanan v Union of India and Others, (1998) 3 S.C.C. 67, a case of rape, robbery and murder on a moving train, the court held that the railway must pay compensation to the husband of the deceased for failing to take care. See also India Pen. Code, No. 45, § 376(1)–(2). 701. Delhi Domestic Working Women’s Forum v. UOI, (1995) 1 S.C.C. 14. 702. See Posting of CWDS Library,
[email protected], to
[email protected] (May 2, 2003) (on file with the Center for Reproductive Rights). 703. See id. 704. See id. 705. See Reproductive and Sexual Health Rights in India, supra note 106, ch. 3, § 3.4.2. 706. See id. 707. Posting of CWDS Library,
[email protected], to
[email protected] (Jan. 21, 2003) (on file with the Center for Reproductive Rights). 708. India Pen. Code, No. 45, §§ 375–376; Children Act, No. LX, § 41 (1960) (India); Juvenile Justice Act, No. 53, §41 (1986). Note that India is a signatory to the Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, annex, U.N. GAOR, 44th Sess., Supp. No. 49, at 166, U.N. Doc.A/44/49 (1989), reprinted in 28 I.L.M. 1448 (entered into force Sept. 2, 1990), which provides under article 34 that the state shall undertake to protect the child from all forms of sexual exploitation and sexual abuse. 709. See Tenth Five Year Plan, supra note 133, vol. II, ch. 2.11, at 222.As of April 2003, the bill was shown on the Ministry of Law and Justice, Government of India website as “pending on conclusion of Winter Session, 2002.” 710. India Pen. Code, No. 45, §§ 300, 319–320, 351, 498-A. 711. See id. §§ 313–316. 712.All personal laws (except for Christian law) and secular statutes allow cruelty as grounds for divorce. 713. Indian Evidence Act, No. 1, §113A (1872) (India).
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714. CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 370. 715. Dowry Prohibition Act, No. 28, §3 (1961) (India).The penalty for demanding dowry is a prison term of between 6 months and 2 years and up to Rs 10,000 in fines. Id. § 4.The burden of proof is on the accused to show that he or she did not give, take, or demand dowry. Id. § 8. 716. India Pen. Code, No. 45, § 304-B.The provision provides,“[w]here the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death,’ and such husband or relative shall be deemed to have caused her death.” The prison term for dowry death is between seven years and life. 717. Indian Evidence Act, No. 1, § 113-B (1872). 718. See Code of Criminal Procedure, No. 2, §176 (1973) (India). 719. Prevention of Sexual Harassment of Women Employees at their Work Places, Rajya Sabha, pvt. bill, (1994), available at http://www.ncwindia.org/publications/sexual_harassment/shpbill1.htm (last visited Oct. 15, 2003). 720.Vishaka and others v. State of Rajasthan, 1997 SOL Case No. 177 (India). Prior to this judgement, since sexual harassment was not recognized as a systemic form of violence that interfered with the constitutionally guaranteed right to work, women sought relief through penal, labour and tort laws. For example, women could initiate lawsuits on the basis of laws dealing with obscenity, or criminal force or assault with the object of outraging the modesty of a woman; wrongful dismissal; and the causing of emotional trauma. 721. Id. See alsoVHAI & WHO, National Profile on Women, supra note 189, at 126. 722.Vishaka and others v. State of Rajasthan, (1997) 1997 SOL Case No. 177 (India). 723. See VHAI & WHO, National Profile on Women, supra note 189, at 126. 724. See id. at 223. 725. National Commission for Women,Code of Conduct for Work Place,¶¶ 5–6,11,available at http://www.nationalcommissionforwomen.org/publications/code_of_conduct/index.htm (last visited Oct.15,2003). 726.Apparel Export Promotion Council v.A.K. Chopra (1999) 1 S.C.C. 759. 727. Immoral Traffic (Prevention) Act, No. 104, § 2(f) (1956) (India). 728. See Asian Development Bank, Combating Trafficking of Women and Children in South Asia 99 (Apr. 2003), http://www.adb.org/Documents/Books/Combating_Trafficking/default.asp (last visited Oct. 10, 2003). 729. See Immoral Traffic (Prevention) Act, No. 104, §§ 7–8 (1956) (India). 730. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 127–128. 731. Posting of CWDS Library,
[email protected], to cwdsbol.net (Jan. 20, 2003) (on file with the Center for Reproductive Rights). 732. India Const., art. 23. 733. India Pen. Code, No. 45, §§367–370, 372–373, 366A-B, 375–376. 734. Immoral Traffic (Prevention) Act, No. 104, §§ 7–8 (1956) (India). 735. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 128. 736. See id. 737. Immoral Traffic (Prevention) Act, No. 104, §8 (Commentary) (1956) (India). 738. See Immoral Traffic (Prevention) Act, No. 104, §§ 10A (1956) (India). 739. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 129. 740. See id. 741. See id. 742. See id. ¶ 130. 743. See id. 744. See Combating Trafficking of Women and Children in South Asia, supra note 728, at 103. 745. See id. 746. Immoral Traffic (Prevention) Act, No. 104, §§ 22A, 22AA, 23 (1956) (India). 747. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 136. 748. See id. 749. See National Population Policy, supra note 283, ¶ 26. 750. See Centre for Development and Population Activities (CEDPA), Adolescent Girls in India Choose a Better Future:An Impact Assessment, (2001). 751. See id. (citing India National Family Health Survey (NFHS–2) 1998–1999, supra note 285). 752. See id. 7. 753. See id. n.3. 754. See id. n.4. 755. See Adolescent Girls in India Choose a Better Future:An Impact Assessment, supra note 750, at 7. 756.According to the National Population Policy,“the needs of adolescents, including protection from unwanted pregnancies and sexually transmitted diseases (STD), have not been specifically addressed in the past.” See National Population Policy, supra note 283, at 8. 757. See Tenth Five Year Plan, supra note 133, vol. II, ch. 2.11, ¶ 2.11.2. 758. See id. vol. II, ch. 2.11, ¶ 2.11.57. 759. See id. vol. II, ch. 2.11, ¶ 2.11.66. 760. See National Population Policy, supra note 283, ¶ 26. 761. See id. 762. Department of Family Welfare, Ministry of Health and Family Welfare, Government of India, National Population Policy 2000, Action Plan, app. 1, § iii, ¶ 12.
WOMEN OF THE WORLD:
763. Id. app. 1, § iii, ¶ 13. 764. Id. app. 1, § iv(c), ¶ 1. 765. Department of Women and Child Development, Government of India, Draft National Policy and Charter for Children, 2001, ¶ 2.a, http://wcd.nic.in/charterchild.htm (last visited Oct. 13, 2003) [hereinafter Draft National Children’s Policy and Charter]. 766. Id. ¶ 11 a–c. 767. Id. §§ 2–3. 768. See Margaret E.Greene, et. al., In This Generation: Sexual & Reproductive Health Policies for a Youthful World 22 (2002). 769. Adolescent Girls in India Choose a Better Future: An Impact Assessment, supra note 750, at 7. 770. See India National Family Health Survey (NFHS–2) 1998–1999, supra note 285, at 20. 771. See id. 772. See id. at 67. 773. Child Marriage Restraint Act, No. 19, §2(a) (1929) (India). 774. Id. §§3–4. 775. Id. § 6. Note that the act expressly provides that “…no woman shall be punishable with imprisonment.” 776. Special Marriage Act, No. 43, § 4(c) (1954) (India); Foreign Marriage Act, No. 33, § 4(c) (1969) (India). 777. Hindu Marriage Act, No. 25, art. 5.3 (1955) (India). 778. See Hidayatullah and Hidayatullah, supra note 495, §251. 779. Indian Christian Marriage Act, No. 15, art. 60 (1872) (India). 780. Id. arts. 19, 44. 781. Id. arts. 4, 70–72. 782. Parsi Marriage and Divorce Act, No. 3, art. 3(1)(c) (1936) (India). 783. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 29. 784. See id. 785. See Adolescent Girls in India Choose a Better Future:An Impact Assessment, supra note 750, at 6. 786. See Tenth Five Year Plan, supra note 133, vol. II, ch. 2.11, ¶ 2.11.138. 787. India Const., art. 45. 788. Id. amend. 86. 789. Id. 790. Id. 791. Revised National Policy on Education (1992), in R.C. Sharma, National Policy on Education & Programme of Implementation 274 (2002). 792. Id. at 276–277. 793. Id. at 299–354. 794. Draft National Children’s Policy and Charter, supra note 765, ¶ 7(a)–(b). 795. Id. ¶ 12. 796. Id. ¶ 7(e). 797. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 167. 798. See Tenth Five Year Plan, supra note 133, vol. II, ch. 2.11, ¶ 2.11.73. 799. See id. vol. II, ch. 2.11, ¶ 2.11.117. 800. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 162. 801. See id. 802. See Adolescent Girls in India Choose a Better Future:An Impact Assessment, supra note 750, at 7. 803. See id. 804. See Greene, et. al., supra note 768, at 20. 805. For example,Tamil Nadu is the only state that has advanced sexual health education programs. Maharastra actually banned AIDS education in public schools, despite having the worst epidemic of any state. See Greene, et. al, supra note 768, at 20 (citing S. Dube , Sex, Lies and AIDS 99 (2000)). 806. See id. at 22. 807. See id. 808. India Pen. Code, No. 45, §§ 359–366A, 372–373, 375–376. 809. See id. §§ 375–376. 810. See id. § 376(2)(f). 811. Immoral Traffic (Prevention) Act, No. 104, §§ 5(1)(i)–(ii) (1956) (India). See also §2(cb), (aa) regarding the definition of a minor and a child. 812. See CEDAW Committee, States parties initial reports, India, supra note 10, ¶ 129. 813. Draft National Children’s Policy and Charter, supra note 765, §9(a). 814. Id. § 10(a). 815. Id. § 11(a).
LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES
3. Nepal Statistics GENERAL
Population ■
Total population: 25,200,000.1
■
Population by sex: 11,781,610 (female) and 12,371,340 (male).2
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Percentage of population aged 0–14: 40.7.3
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Percentage of population aged 15–24: 19.2.4
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Percentage of population in rural areas: 88.5
Economy ■
Annual percentage growth of gross domestic product (GDP): 4.9.6
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Gross national income per capita: USD 230.7
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Government expenditure on health: 4.2% of GDP.8
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Government expenditure on education: 2.0% of GDP.9
■
Population below the poverty line: 42.0% (below national poverty line); 37.7% (below USD 1 a day poverty line); 82.5% (below USD 2 a day poverty line).10
WOMEN’S STATUS ■
Life expectancy: 60.1 (female) and 59.6 (male).11
■
Average age at marriage: 17.9 (female) and 21.5 (male).12
■
Labor force participation: 85.0% (female) and 92.1% (male).13
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Percentage of employed women in agricultural labor force: 45.1.14
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Percentage of women among administrative and managerial workers: 9.15
■
Literacy rate among population aged 15 and older: 24.0% (female) and 59.5% (male).16
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Percentage of female-headed households: 13.17
■
Percentage of seats held by women in national government: 6.18
CONTRACEPTION ■ ■
Total fertility rate: 4.26 lifetime births per woman.19 Contraceptive prevalence rate among married women aged 15–49: 39% (any method) and 35% (modern methods).20
■
Prevalence of sterilization among couples: 17.5% (total); 12.1% (female); 5.4%(male).21
■
Sterilization as a percentage of overall contraceptive prevalence: 61.4.22
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MATERNAL HEALTH ■
Lifetime risk of maternal death: 1 in 21 women.23
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Maternal mortality ratio per 100,000 live births: 905.24
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Percentage of pregnant women with anemia: 65.25
■
Percentage of births monitored by trained attendants: 12.26
ABORTION ■
Total number of abortions per year: Information unavailable.27
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Annual number of hospitalizations for abortion-related complications: Information unavailable.28
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Rate of abortion per 1,000 women aged 15–44: Information unavailable.29
■
■
Breakdown by age of women obtaining abortions: 6.7% (under 20); 20.0% (between 20–24); 15.8% (between 25–29); 26.7% (between 30–34); 17.6% (between 35–39); 13.3% (40 or older).30 Percentage of abortions that are obtained by married women: 87.9.31
SEXUALLY TRANSMISSIBLE INFECTIONS (STIs) AND HIV/AIDS ■
Number of people living with sexually transmissible infections: Information unavailable.
■
Number of people living with HIV/AIDS: 58,000.32
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Percentage of people aged 15–24 living with HIV/AIDS: 0.28 (female) and 0.27 (male).33
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Estimated number of deaths due to AIDS: 2,400.34
CHILDREN AND ADOLESCENTS ■
Infant mortality rate per 1,000 live births: 71.35
■
Under five mortality rate per 1,000 live births: 106 (female) and 91 (male).36
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Gross primary school enrollment ratio: 108 (female) and 128 (male).37
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Primary school completion rate: 76% (female) and 67% (male).38
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Number of births per 1,000 women aged 15–19: 117.39
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Contraceptive prevalence rates among married female adolescents: 4.4% (modern methods); 2.2% (traditional methods); 6.5% (any method).40
■
Percentage of abortions that are obtained by women younger than age 20: 6.7.41
■
Number of children under the age of 15 living with HIV/AIDS: 1,500.42
WOMEN OF THE WORLD:
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ENDNOTES 1. See UNITED NATIONS POPULATION FUND (UNFPA), THE STATE OF WORLD POPULATION 2003 75 (2003)[HEREINAFTER THE STATE OF WORLD POPULATION 2003]. Estimates for 2003. 2. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003). The figures for male and female population was not available in THE STATE OF WORLD POPULATION 2002. Estimates for 2001. 3. See THE WORLD BANK, WORLD DEVELOPMENT INDICATORS 2003 39 (2003). Estimates for 2001. 4. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003). 5. See THE STATE OF WORLD POPULATION 2003 75 (2003). Estimates for 2003, supra note 1, at 75. Estimates for 2003. 6. See THE WORLD BANK, WORLD DEVELOPMENT INDICATORS 2003 187 (2003). Estimates for 1990-2001. 7. See THE WORLD BANK, WORLD DEVELOPMENT INDICATORS 2003, DATA QUERY, available at http://devdata.worldbank.org/data-query/ (last visited Aug. 18, 2003). The statistic was obtained through the Atlas method in or the US $ conversion rate during 2001. 8. See THE STATE OF WORLD POPULATION 2003 75 (2003), supra note 1, AT 75.. 9. See THE WORLD BANK, WORLD DEVELOPMENT INDICATORS 2000 285 (2000). 10. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003). 11. See World Health Organization South-East Asia Region (WHOSEA), Women’s Health in South-East Asia, Women’s health and development indicators- Nepal, at http://w3.whosea.org/women/regtab_nepal.htm (last visited Aug. 19, 2003). WHOSEA’s source was CENTRAL BUREAU OF STATISTICS, POPULATION CENSUS 1991 (1993). Estimates for 1991. 12. See UNITED NATIONS POPULATION FUND (UNFPA), THE STATE OF WORLD POPULATION 2003 71 (2003). 13. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003). 14. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003). 15. See World Health Organization South-East Asia Region (WHOSEA), Women’s Health in South-East Asia, Women’s health and development indicators- Nepal, at http://w3.whosea.org/women/regtab_nepal.htm (last visited Aug. 19, 2003). 16. See SAVE THE CHILDREN, STATE OF WORLD’S MOTHERS 2003 40 (2003). This indicator represents the percentage of seats in national legislatures or parliaments occupied by women. 17. See THE UNITED NATIONS, THE WORLD’S WOMEN 2000 48 (2000). Estimates for 1991/1997. 18. See WHO ET AL., MATERNAL MORTALITY IN 1995: ESTIMATES DEVELOPED BY WHO, UNITED NATIONS CHILDREN’S FUND (UNICEF), UNFPA 45 (2001) [hereinafter WHO ET AL., MATERNAL MORTALITY IN 1995]. Estimates for 1995. 19. See THE STATE OF WORLD POPULATION 2003 71 (2003), supra note 1, at 71. 20. See SAVE THE CHILDREN, STATE OF WORLD’S MOTHERS 2003 40 (2003). 21. See THE STATE OF WORLD POPULATION 2003 75 (2003), supra note 1, at 71. 22. See id. 23. See id. 24. See Akinrinola Bankole et. al., Characteristics of Women Who Obtain Induced Abortion: A Worldwide Review, 25 INT’L FAM. PLANNING PERSP. 68-77 (1999), available at http://www.agi-usa.org/pubs/journals/2506899.html (last visited Aug. 21, 2003). The statistics were obtained through ad hoc surveys and hospital records. Estimates for 19841985. 25. See id. 26. See id. 27. See UNAIDS & WORLD HEALTH ORGANIZATION (WHO), EPIDEMIOLOGICAL FACT SHEETS ON HIV/AIDS AND SEXUALLY TRANSMITTED INFECTIONS UPDATED 18 AUGUST 2003: NEPAL 2 (2003), available at http://www.who.int/GlobalAtlas/home.asp, last visited Aug. 18, 2003). Estimates for 2001. 28. See THE STATE OF WORLD POPULATION 2003 71 (2003), supra note 1, at 71. 29. See UNAIDS & WORLD HEALTH ORGANIZATION (WHO), EPIDEMIOLOGICAL FACT SHEETS ON HIV/AIDS AND SEXUALLY TRANSMITTED INFECTIONS UPDATED 18 AUGUST 2003: NEPAL 2 (2003), available at http://www.who.int/GlobalAtlas/home.asp, last visited Aug. 18, 2003).
30. See THE STATE OF WORLD POPULATION 2003 71 (2003), supra note 1, at 71. 31. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003). 32. See THE STATE OF WORLD POPULATION 2003 71 (2003), supra note 1, at 71. 33. See UNITED NATIONS POPULATION FUND (UNFPA), THE STATE OF WORLD POPULATION 2002 70 (2002). 34. See THE STATE OF WORLD POPULATION 2003 71 (2003), supra note 1, at 71. 35. See Saroj & K.G. Santhya, Reproductive Choices for Asian Adolescents: A Focus on Contraceptive Behavior, 28 INT’L FAM. PLANNING PERSP. 186-195 (2002), available at http://www.agi-usa.org/pubs/journals/2818602t.html (last visited Aug. 21, 2003). Estimate for 1996. 36. See Akinrinola Bankole et. al., Characteristics of Women Who Obtain Induced Abortion: A Worldwide Review, 25 INT’L FAM. PLANNING PERSP. 68-77 (1999), available at http://www.agi-usa.org/pubs/journals/2506899.html (last visited Aug. 21, 2003). The statistics were obtained through ad hoc surveys and hospital records. 37. See UNAIDS & WORLD HEALTH ORGANIZATION (WHO), EPIDEMIOLOGICAL FACT SHEETS ON HIV/AIDS AND SEXUALLY TRANSMITTED INFECTIONS UPDATED 18 AUGUST 2003: NEPAL 2 (2003), available at http://www.who.int/GlobalAtlas/home.asp, last visited Aug. 18, 2003).
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N
epal has existed as an independent kingdom for more than 1,500 years1. Although it is surrounded by former British colonies,Nepal has never been ruled by a foreign power.2 Instead,the kingdom has been under the control of absolute monarchs for much of its history.3 This tradition ended in November 1990, when a nationwide movement led to the formation of a multiparty democracy and constitutional monarchy under a new constitution.4 In 1991,Girija Prasad Koirala became the country’s first elected prime minister.5 There have been frequent changes in government since then, reflecting a period of political instability.6 In 2002, the king dismissed the elected prime minister and assumed a greater role for himself. All prime ministers since then have been appointed by the king.7 In 1996, the Communist Party of Nepal (Maoists) launched a “People’s War”against the government,demanding social, political and economic reforms.8 More than 8,500 Maoists, security force members and civilians have died since the beginning of the insurgency.9 In view of the escalating violence, the government declared a state of emergency throughout Nepal in November 2001, which lasted until August 2002.10 In January 2003, the government and insurgency leaders entered into a cease-fire agreement, which broke down in August of that year.11 Nepal has a population of approximately 23.2 million, of which some 88% live in rural areas.12 Women make up 49% of the population.13 There are 61 indigenous ethnic groups and four castes.14 Although Nepalese speak more than 125 languages and dialects, the official language is Nepali, which is spoken by almost 60% of the population.15 Nepal is the only official Hindu state in the world.16 While 86% of the population is Hindu, 8% of Nepalese practice Buddhism, 4% follow Islam and 2% practice other religions.17 There are some 100,000 Bhutanese refugees living in Nepal.18 They fled Bhutan in response to that country’s discriminatory citizenship policies targeting its ethnic Nepalese population in the early 1990s.19 Nepal has been a member of the United Nations (UN) since 1955.20 It also belongs to the South Asian Association for Regional Cooperation (SAARC). 21
I. Setting the Stage:
The Legal and Political Framework of Nepal Fundamental rights are rooted in a nation’s legal and political framework, as established by its constitution. The principles
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and goals enshrined in a constitution along with the processes it prescribes for advancing them, determine the extent to which these basic rights are enjoyed and protected. A constitution that upholds equality,liberty and social justice can provide a sound basis for the realization of women’s human rights, including their reproductive rights. Likewise, a political system committed to democracy and the rule of law is critical to establishing an environment for advancing these rights. The following section outlines Nepal’s legal and political framework. A. THE STRUCTURE OF NATIONAL GOVERNMENT
On November 9,1990,Nepal ratified a new constitution and became a constitutional monarchy with a multiparty democracy.22 Under the constitution,the Nepalese people maintain principal authority for the country.23 The constitution also establishes three branches of government—executive,legislative and judicial—and outlines functions for each. Executive branch The executive power of government is vested in the king and the Council of Ministers, a body consisting of members of Nepal’s bicameral parliament and headed by the prime minister.24 The king is chief of state and largely a figurehead of the government.25 He also serves as commander of the Royal Nepal Army, although a three-member Defense Council headed by the prime minister commands the military.26 The king’s role as commander gives him broad powers to declare a state of emergency,subject to approval by the Pratinidhi Sabha (House of Representatives), in cases of threats to national security or sovereignty, foreign aggression, armed revolt, or severe economic depression.27 During the period of emergency, which may remain in effect for six months and is renewable for the same duration, fundamental rights may be suspended.28 The king’s responsibilities include appointing the prime minister,state ministers and assistant ministers from among elected members of parliament.29 He also has the authority to suspend or discontinue a legislative session of either house; dissolve the Pratinidhi Sabha with the prime minister’s recommendation and call for new elections; grant pardons; suspend, commute or remit any sentence passed by any court;appoint all ambassadors and emissaries for the kingdom;and remove any barriers to enforcing the constitution.30 Accession to the throne is hereditary and subject to declaration by the Raj Parishad, which consists of members of the royal family and leading members of various branches of government.31 The king may lose the throne by either abdicating power or being declared physically or mentally unfit to perform his duties upon a two-thirds vote of the Raj
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Parishad.32 In either case, the Raj Parishad is responsible for declaring the heir apparent to be the new king or appointing a regent when the heir is under the age of 18.33 The prime minister, who is usually the leader of the majority party in the Pratinidhi Sabha, is in fact the head of government.34 He or she serves as the chief link between the palace and the government.35 The prime minister’s duties include informing the king of decisions regarding administration of the kingdom, bills to be introduced in parliament and the state of affairs of the country.36 The prime minister also presides over the Council of Ministers, which is responsible for the direction, supervision and conduct of the general administration of the country.37 The king’s powers, except those that are exclusively within his domain, are exercised by and with the advice and consent of the council.38 Council members are appointed by the king upon the prime minister’s recommendation from among elected members of parliament.39 Both the prime minister and other council ministers are collectively responsible to the Pratinidhi Sabha.40 Legislative branch The two houses of parliament are the Rashtriya Sabha (National Assembly) and the Pratinidhi Sabha.41 The Rashtriya Sabha is a permanent house consisting of 60 members, each serving a six-year term, with one-third of its membership retiring every two years.42 Of the total number of members, ten are nominated by the king; 15 are elected by an electoral college representing the local government of each of Nepal’s five development regions;and 35 members,including at least three women,are elected by the Pratinidhi Sabha.43 The Rashtriya Sabha has various subcommittees such as the Social Justice Committee, which have advocated for the reform of discriminatory laws against women.44 The Pratinidhi Sabha consists of 205 directly elected members; each member serves a five-year term, unless the house is dissolved earlier.45 The constitution requires that women account for at least 5% of every political party’s candidates for election to the Pratinidhi Sabha.46 The constitution empowers the house to form any number of committees to conduct business; there are currently nine standing committees, including the Foreign Affairs and Human Rights Committee, and the Population and Social Development Committee.47 Either house of parliament may also pass a resolution demanding that a joint committee be constituted to facilitate the conduct of business between the two houses, resolve disagreements on any bill or for any other specified reason.48 The constitution provides that the joint committee shall consist of up to 15 members in the ratio of two Pratinidhi Sabha members to one Rashtriya Sabha member.49 The committees are dissolved when parliament dis-
solves, and are reconstituted after general elections.50 Parliament’s principal function is to create laws. All bills, with the exception of finance bills, which must originate in the Pratinidhi Sabha, may be introduced in either house.51 The standard legislative procedure for a bill to become law requires a bill’s passage by both houses and approval by the king.52 If the king returns the bill to its originating house for further discussion and an identical or amended version of the bill is again passed by both houses, the king must sign it within 30 days of receipt.53 The constitution prohibits discussion of certain subjects in both houses.54 Neither house may discuss the conduct of the royal family or matters under consideration in any court, nor question any judicial decision.55 B. THE STRUCTURE OF LOCAL GOVERNMENTS
For administrative purposes,Nepal is divided into five development regions, 14 zones and 75 administrative districts.56 Districts are subdivided into village development committees in rural areas and municipalities in urban areas. Each village development committee consists of nine wards, while the number of wards in urban municipalities varies by population size and political persuasion.57 According to national-level data from 2001, there were 3,914 village development committees and 58 municipalities.58 The structure, powers and duties of local bodies of governance are prescribed by the constitution and the 1999 Local Self-Governance Act. Executive branch Local bodies of governance include district development committees, district councils, village development committees, village councils, municipalities, municipal councils, and ward committees.59 District and village development committees, and municipalities in urban areas, serve as the executive arm of the local government infrastructure.60 District development committees consist of an elected president and vice president and other members, including members of the Pratinidhi Sabha and Rashtriya Sabha from the district who serve as ex officio members. One member must be a woman.61 General members are elected by village and municipal council members from among the council’s membership.62 The Local Self-Governance Act outlines general members’ duties, which include formulating district-level policies on agriculture and livestock development;formulating district policies on adult and nonformal education;overseeing the operation and management of schools in the area; establishing labor wages and rates; devising and implementing programs on the abolition of child labor;and maintaining records of cottage industries within the area.63 The committees also have a number of responsibilities relating to district-level
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health services,including formulating and implementing programs on family planning, maternal and child welfare, vaccination, nutrition, population education, and public health; operating and managing district-level health facilities; and overseeing the supply and quality standards of medical drugs and equipment for health-care facilities in the area.64 Village development committees consist of an elected chairman and vice chairman,and other members.65 Municipalities consist of an elected mayor and deputy mayor, and other elected and appointed members.66 Village development committees, municipalities and ward committees, which are local governing units below the village and municipal levels, must each include one female member.67 Although village development committees and municipalities are not empowered to formulate policies,they otherwise serve similar functions as their district-level counterparts. They operate and manage various facilities and services within their jurisdiction,and prepare and implement plans on subjects outlined in the Local Self-Governance Act.68 In the area of health,the duties of these bodies include operating and managing village- or municipal-level health facilities;preparing and implementing programs on primary health education, sanitation and waste disposal; and launching programs on family planning and maternal and child health care.69 Members serve five-year terms.70 District and village development committees and municipalities are all charged with preparing and implementing plans for the advancement of women and the elimination of “social ill practices” against women and girls.71 These bodies are also required to formulate periodic and annual development plans. Periodic plans must include income-generating and skills development programs for women and children, among other things.72 Annual plans must support national development policies and goals.73 Legislative branch District,village and municipal councils serve as the legislative organs of the local government infrastructure,with council members performing the role of lawmakers at their respective levels.74 At least one woman must serve on all councils.75 Among other functions, these councils give final approval for budgetary and programmatic proposals submitted by the relevant executive body.76 They also evaluate and provide direction for the development and infrastructure projects carried out within their respective areas.77 Members of these councils serve five-year terms.78 C. THE JUDICIAL BRANCH
The constitution provides for a three-tiered judicial system: a Supreme Court, appellate courts and district courts.79 Other courts or tribunals may be constituted by law as necessary.80
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The Supreme Court is the highest court in the country.81 All other courts and institutions exercising judicial powers, except military courts, are subordinate to the Supreme Court.82 Its interpretations of law are binding on all, including the king.83 The court has both original and appellate jurisdiction, and may inspect, supervise and issue directives to subordinate courts and other judicial institutions.84 Any Nepalese citizen may petition the court to declare any law void due to its inconsistency with the constitution.85 The court may also issue orders or writs for various purposes, including to enforce fundamental rights guaranteed in the constitution or determine constitutional or legal questions raised in cases involving the public interest.86 The king appoints a chief justice to head the court upon the recommendation of the Constitutional Council, which consists of the prime minister, the speaker of the Pratinidhi Sabha, the chairman of the Rashtriya Sabha, the leader of the opposition party in the Pratinidhi Sabha, and the presiding chief justice of the Supreme Court.87 The chief justice serves for a sevenyear term or until the age of 65,whichever comes first.88 The king also appoints up to 14 other judges to serve on the Supreme Court upon the recommendation of the Judicial Council, which consists of the Minister of Justice, the chief justice of the Supreme Court, the two most senior judges of the Supreme Court, and one distinguished jurist nominated by the king.89 Associate judges of the Supreme Court serve until the age of 65.90 Any Supreme Court judge may resign at any time or may be removed from office for incompetence or misbehavior if two-thirds of the total membership of the Pratinidhi Sabha pass an appropriate resolution that is approved by the king.91 There are 16 appellate courts and 75 district courts below the Supreme Court.92 Appellate courts primarily hear appeals of lower court decisions. District courts have both civil and criminal jurisdiction. They may hear cases relating to family and property matters,marriage,divorce,adoption,rape, child abuse, inheritance, and infanticide.93 The king appoints judges to serve on the appellate courts and district courts upon the recommendation of the Judicial Council.94 Both appellate and district court judges serve until the age of 63.95 The Local Self-Governance Act vests village development committees and municipalities with judicial powers to hear cases at the village and municipality levels.96 Under the act, these bodies may form arbitration boards to hear and settle local disputes relating to specified subjects, including land, property and water.97 The boards may issue enforceable judgments; appeals of these judgments fall under the jurisdiction of district courts. 98 Apart from the traditional hierarchy of regular courts, the
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1974 Special Courts Act provides for special courts to hear specific types of cases, such as those involving high treason, sedition or corruption by public servants.99 Special courts may also be constituted to try locally sensitive criminal cases.100 To promote equal access to the legal system, the government enacted the Legal Aid Act in 1997 to provide free legal assistance to low-income individuals, particularly women, through court-hired attorneys, legal assistance projects and law firms.101 In addition, through a legal assistance program under the Central Women Legal Aid Committee of the Ministry of Women, Children and Social Welfare, free legal aid is available in cases connected with abortion, trafficking, sexual exploitation, and domestic violence.102 Customary forms of alternative dispute resolution There are no customary law courts in Nepal.103 D. THE ROLE OF CIVIL SOCIETY AND NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
The Social Welfare Council, a statutory body established under the 1977 Social Welfare Council Act, regulates the functions of local and international NGOs working in Nepal.104 The council is chaired by the Minister of the Ministry of Women, Children and Social Welfare.105 All international NGOs must obtain authorization from the council to work in Nepal.106 NGOs may register with the council or at chief district administration offices under the 1977 Association Registration Act.107 There are some 25,000 NGOs operating in Nepal.108 As of December 1999,there were 10,719 NGOs registered with the Social Welfare Council,of which 1,100 were working primarily on women’s issues.109 The Family Planning Association of Nepal is a leading NGO in the field of reproductive health, providing programs and services in 33 of Nepal’s 75 districts and serving approximately six million people, nearly 960,000 of whom are married women of reproductive age.110 E. SOURCES OF LAW AND POLICY
Domestic sources Nepal’s legal system is a hybrid of Hindu law and English common law.111 Customs have also been important sources of law, taking precedence over other sources in some cases.112 The constitution is the fundamental law of Nepal and all laws inconsistent with it are invalid.113 The document guarantees several fundamental rights and identifies means for enforcing them, as well as effective remedies for the violation of those rights. In particular, the constitution ensures life, liberty, security, and integrity of person; it also endorses equality and equal protection of the law to all, without regard to religion, race, sex, caste, tribe, or ideological conviction,“provid-
ed that special provisions may be made by law to protect or promote the interests of women, children, aged or persons who are physically or mentally incapacitated or those who belong to a class which is economically, socially and educationally backward.”114 The constitution further guarantees the rights to freedom of opinion and expression, assembly, movement within Nepal, and the practice of any profession.115 It prohibits cruel, inhuman or degrading treatment; preventive detention; traffic in human beings; slavery; forced labor; and specific types of child labor.116 The constitution additionally guarantees the rights to information, property, religion, privacy, and of each community to preserve and promote its written and spoken language and its culture.117 In addition to fundamental rights,the constitution enumerates several Directive Principles and Policies of the State that,although not legally enforceable, are intended to guide the government in its formation of laws and policies.118 Statutes are a primary source of domestic law. The king may also make rules or issue statutory orders, or approve rules framed by an authorized body.119 Such rules and orders have the legal effect of acts.120 The king may also promulgate ordinances when parliament is not in session to meet the immediate requirements of the existing circumstance. Such ordinances have the same force and effect as acts, but cease to have effect 60 days after the commencement of parliament’s session.121 The lack of codified laws is one of the main features of the Nepalese legal system.122 The Muluki Ain, derived, in part, from Hindu law and custom, serves as a general code of civil and criminal law and procedure.123 It applies to all citizens of Nepal, regardless of religion or ethnicity. The code includes substantive and procedural civil and criminal laws pertaining to property, inheritance, adoption, marriage, divorce, maintenance, homicide, rape, and incest, among other subjects.124 Where a provision in the Muluki Ain conflicts with formal law (i.e., a particular statute or the constitution), the latter prevails.125 Supreme Court decisions are another source of law. They are binding unless nullified by an act of parliament or overruled by a subsequent Supreme Court judgment.126 There are no separate customary or religion-based personal laws.127 Specific government policies are formulated within the framework of the constitution and its Directive Principles and Policies of the State and successive five-year development plans;these plans are comprehensive policy documents setting forth the government’s main goals and strategies for various aspects of national development. The Tenth Plan, covering 2003–08, is currently operative.
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International sources variety of complementary, and sometimes contradictory, laws International treaties signed by the government must be and policies. The manner in which these issues are addressed ratified by parliament to become effective. Once ratified, a reflects a government’s commitment to advancing reproductreaty has the same legal status as a domestic law, and the govtive health. The following section presents key legal and polernment is obligated to protect and advance the rights it idenicy provisions that together determine women’s reproductive tifies. Under the 1990 Nepal Treaties Act, an international rights and choices in Nepal. treaty to which the country is a party takes precedence over a A. GENERAL HEALTH LAWS AND POLICIES Nepalese law if the two conflict.128 The constitution’s Directive Principles and Policies of the Nepal is a party to several international human rights State provide guidance to the government in the formulation treaties, including the Convention on the Elimination of All of health policies. They enjoin the government to adopt poliForms of Discrimination Against Women (CEDAW) and the cies to achieve the following objectives: Optional Protocol to CEDAW; the Convention on the ■ raise the standard of living of the general public Rights of the Child (Children’s Rights Convention), the through the development of an education, health, Optional Protocol on the involvement of children in armed housing, and employment infrastructure; conflict and the Optional Protocol on the sale of children, ■ provide opportunities for the maximum participation child prostitution and child pornography; the International of women in the task of national development by Convention on the Elimination of All Forms of Racial Dismaking special provisions for their education, health crimination (Racial Discrimination Convention); the Interand employment; and national Covenant on Civil and Political Rights (Civil and ■ protect the welfare of “orphans, helpless woman [sic], Political Rights Covenant) and the Optional Protocol and aged, disabled and incapacitated persons” through speSecond Optional Protocol to the Covenant; and the Internacial measures relating to education, health and social tional Covenant on Economic, Social and Cultural Rights security.132 (Economic, Social and Cultural Rights Covenant).129 The National Health Policy, adopted in 1991, the Second The government of Nepal has also participated in severLong Term Health Plan for 1997–2017 and the Tenth Plan set al key international conferences and has endorsed the develforth the government’s current objectives in the health sector opment goals and human rights and provide the policy framework for principles contained in the resulting the delivery of health-care services. consensus documents. International RELEVANT LAWS AND POLICIES Objectives consensus documents that the gov• National Health Policy, 1991 The National Health Policy ernment has adopted include the • Second Long Term Health Plan, broadly aims to improve the health 1993 Vienna Declaration and Pro1997–2017 conditions of the people of Nepal. Its gramme of Action;the 1994 Interna• Tenth Plan, 2003–08 primary objective is to improve the tional Conference on Population • Eleventh Amendment to Muluki Ain health of people living in rural areas and Development (ICPD) Proby providing primary health-care sergramme of Action; the 1995 Beijing vices and accessible modern medical Declaration and Platform for Action; 133 In support of these goals, the facilities at the village level. and the 2000 United Nations Millennium Declaration.130 policy sets forth the following strategies: Nepal is also a signatory to the SAARC Convention on ■ provide integrated preventive health services Preventing and Combating Trafficking in Women and Chilthrough sub-health posts in rural areas, with an dren for Prostitution. As of May 2003, the government had emphasis on programs that directly help reduce not ratified the convention.131 infant and child mortality rates; ■ provide health services to promote good health, including programs to raise public awareness about health issues, improve nutrition and educate people about personal hygiene and environmental health issues; ■ make curative health services available at health instiIn general, reproductive health issues are addressed through a tutions at the central, district and village levels,
II. Examining
Reproductive Health and Rights
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including organizing mobile teams to provide specialized health services in remote areas and developing a referral system; ■ establish sub-health posts in all village development committees to provide basic primary health services; ■ increase community participation in health services through female community health volunteers, traditional birth attendants and leaders of various social organizations; ■ improve the organization and management of health facilities at the central, regional and district levels; ■ develop human resources for health development, including strengthening training centers and academic institutions; ■ coordinate with the private sector, NGOs and nonhealth sectors of the country to provide health services; ■ develop Ayurvedic and other traditional health services; ■ improve drug supplies by increasing domestic production and improving the quality of essential drugs through effective implementation of the National Drug Policy; ■ mobilize national and international resources for health services, including exploring health insurance, user fees and revolving drug schemes; ■ encourage research in the health sector; ■ continue decentralizing health services and strengthening the regional delivery of services; ■ authorize the Nepal Red Cross Society to conduct all programs related to blood transfusion, and prohibit the buying, selling and depositing of blood; ■ formulate health laws and regulations as necessary; and ■ develop programs in coordination with the private sector and NGOs regarding the welfare of disabled and handicapped persons.134 Within preventive health care,the policy identifies the following priority areas: ■ family planning and maternal and child health care; ■ expanded immunization; ■ safe motherhood; ■ diarrhea and acute respiratory infection control; ■ tuberculosis, leprosy, malaria, and kalajar control; ■ control and prevention of communicable diseases; ■ prevention of noncommunicable diseases; ■ primary health services in urban slums; and ■ prevention and control of HIV/AIDS.135 The Second Long Term Health Plan similarly aims to
improve the health of the population, with particular attention to addressing those health needs that are not often met.136 Its objectives include the following: ■ improve the health status of the most vulnerable groups of the population, particularly those whose health needs often are not met—women and children, people living in rural areas, low-income people, the underprivileged, and marginalized populations; ■ extend cost-effective public health measures and essential curative services to all districts for the appropriate treatment of common diseases and injuries; ■ provide the appropriate numbers, distribution and types of technically competent and socially responsible health personnel for quality health care throughout the country, particularly in underserved areas; ■ improve the management and organization of the public health sector and increase the efficiency and effectiveness of the health-care system; ■ develop appropriate roles for NGOs and the public and private sectors in providing and financing health services; and ■ improve coordination within and among sectors, and provide the necessary conditions and support for effective decentralization with full community participation.137 The plan establishes specific targets to achieve by 2017, which include the following: ■ reduce the infant mortality rate to 34.4 deaths per 1,000 live births; ■ reduce the under five mortality rate to 62.5 deaths per 1,000 live births; ■ reduce the total fertility rate to 3.05; ■ increase life expectancy to 68.7 years; ■ reduce the maternal mortality ratio to 250 maternal deaths per 100,000 live births; ■ increase the contraceptive prevalence rate to 58.2%; ■ increase the percentage of deliveries attended by trained personnel to 95%; ■ increase the percentage of pregnant women making a minimum of four prenatal visits to 80%; ■ reduce the percentage of iron deficiency anemia among pregnant women to 15%; ■ increase the percentage of women of childbearing age (15–44) who receive tetanus shots to 90%; ■ decrease the percentage of newborns weighing less than 2,500 grams to 12%; ■ make essential health-care services in the districts available to 90% of the population living within 30 minutes of facilities;
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make essential drugs available at all facilities; equip all facilities with full staff to deliver essential health-care services; and ■ increase overall health expenditures to 10% of total government expenditures.138 The health objectives of the Tenth Plan reinforce those of the national health policies. The plan’s main objective in the area of health is to ensure that basic health services are available and accessible to all Nepalese, specifically those groups who have traditionally lacked such access,including high-risk women, children and people living in remote and rural areas.139 Components of the plan’s health objectives include the following: ■ placing special emphasis on making health-care services available to low-income groups and people living in rural and remote areas; ■ realizing the small family ideal by making reproductive health care and family planning services easily accessible to people in rural areas; ■ broadening community participation in all levels of health services; ■ coordinating the efforts of governmental organizations, the private sector and NGOs in providing health-care services; and ■ ensuring efficient management of human, financial and physical resources to increase the quality of health-care services provided by governmental organizations, the private sector and NGOs.140 The plan sets forth a series of policies and strategies related to its health objectives. Its policies include the following: ■ gradually turning over responsibility for managing district- and lower-level health institutions to local bodies; ■ strengthening the referral system between local health institutions that provide basic health-care services and all governmental, NGO and private health sector institutions that provide health-care services at the central and other levels; ■ strengthening the drug regulation process to ensure self-reliance in the manufacture of quality medicines and the quality of imported medicines; ■ implementing a cost sharing and cost recovery system in community drug programs and insurance to improve access to health-care services; and ■ adopting and implementing uniform health standards for health-care services provided by the governmental, NGO and private sectors.141 ■ ■
Infrastructure of health-care services Government facilities The Ministry of Health is the country’s health authority;as such,it is responsible for formulating national policy guidelines on health. Within the Ministry of Health, the Department of Health Services is the chief government body responsible for executing health-related policies, programs and services.142 The department’s overall purpose is to deliver preventive,promotive and curative health services throughout Nepal.143 It consists of seven divisions, including the Family Health Division, the Child Health Division and the Epidemiology and Disease Control Division, and five centers, including the National Centre for AIDS and STD Control, the National Public Health Laboratory,and the National Health Education, Information and Communication Centre.144 Government health services are delivered through a seven-tier delivery system that includes some 4,200 public health facilities.145 The various levels of service delivery include the following: ■ the central level, consisting of five central hospitals; ■ the regional level, consisting of five regional health services directorates that include a hospital, training center, laboratory, medical store, and tuberculosis center; ■ the zonal level, consisting of 11 zonal hospitals; ■ the district level, consisting of 74 district hospitals, 14 district public health offices and 61 district health offices; ■ the electoral constituency level, consisting of 120 primary health-care centers, 17 health centers and 747 health posts; ■ the village development committee level, including 3,195 sub-health posts and a system of maternal and child health workers; and ■ the community level, including some 47,000 female community health volunteers, 14,000 traditional birth attendants, 13,507 primary health-care outreach workers, and an unspecified number of immunization outreach workers.146 There is only one mental hospital in the country, which is located in the capital, Kathmandu.147 Public health-care facilities at the electoral constituency level and below, such as primary health-care centers, health posts and sub-health posts,provide preventive,promotive and essential clinical care.148 Sub-health posts, which exist at the village development committee level, are the first contact point between the community and a government health facility. These facilities provide basic health services and serve as referral centers for community outreach workers and as
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venues for community-based activities,such as primary health care, immunization outreach and home-visit programs.149 Each sub-health post is staffed by an auxiliary health worker and a female maternal and child health worker.150 Doctors head primary health-care centers, which are one level above sub-health posts.151 Each facility above the sub-health post serves as a referral point for the level below it.152 At the district level and above, hospitals provide curative health care.153 The doctor to patient population ratio in Nepal is about 1 to 15,000.154 Most doctors and public-sector facilities are concentrated in urban areas and in the more developed regions of the country.155 One-half to three-quarters of the population relies on the public sector for health-care services.156 Privately run facilities Health-care services are provided through private health institutions and international and local NGOs. One of the main health strategies of the Tenth Plan is to increase the accessibility and quality of health-care services by involving the private sector in the health-care system, as well as promote cooperation between the public,private and NGO sectors.157 The private sector includes hospitals, nursing homes and diagnostic centers run by qualified doctors in urban areas; practitioners of indigenous systems of medicine and non-registered providers who operate throughout rural parts of the country; and pharmacies.158 Like public-sector facilities, most private health facilities are concentrated in the relatively developed regions of the country. The central region, one of the more developed regions of Nepal, accounts for 73% of all private health-care facilities, 78% of all private hospital beds and 41% of all registered pharmacies.159 In contrast, there are no private health facilities in the two least developed regions of Nepal.160 Some 200 NGOs are involved in providing both preventive and curative health services, primarily in the area of reproductive health and family planning.161 About 60% of NGOs operate in the central region, 32% in the eastern and western regions, and 8% in the mid-western and far-western regions of the country.162 Financing and costs of health-care services Government financing About 5.6% of the government’s total budget in 1998–99 was allocated for the health sector, totaling Rs 4,317 million (about USD 58 million).163 Of this amount, more than 70% was for programs and activities under the Department of Health Services.164 The department’s budget was distributed
relatively equally between the central and district levels, with 46.1% allocated to the central government and 53.9% going to the district level.165 Public-sector spending for health is roughly USD 3.10 per person annually.166 Private and international financing Private spending accounts for some 70% of total expenditure on health.167 Most private expenditure (70%) is out-ofpocket spending on public health-care services.168 International donors contributed more than one-third of the Department of Health Services’ health budget in 1998–99.169 India was the top donor country,accounting for 40.5% of total donor contributions.170 Other key donor countries included Germany and Japan.171 Costs Government health services often involve fees for medicine, X-rays, lab tests, and other services, although government hospitals and health centers provide services and medicine at subsidized rates.172 The average cost of seeking treatment in a public health facility is Rs 367, ranging from Rs 183 in a primary health-care center to Rs 637 in a hospital.173 Household expenditures on government health services vary substantially by income group, ranging from Rs 470 per year for the lowest-income quartile of the population to Rs 5,016 for the highest-income quartile.174 Private health facilities in the cities charge higher rates for health-care services.175 One of the priorities of the Tenth Plan is to develop and implement health insurance schemes in Nepal.176 Insurance coverage is currently limited, although a number of insurance coverage schemes are underway.177 For example, the Center for Micro Finance and Rural Development Banks introduced a pilot insurance scheme for low-income individuals in three districts in Nepal in 2002. Under the scheme, clients pay Rs 70 per year for insurance coverage, which includes all accidents, medical claims, natural calamities, and deaths (except suicides).178 In 2003–04, the government plans to introduce a pilot community health insurance scheme in eight districts in Nepal.179 Regulation of health-care providers The practice of various health professions in Nepal is governed by statutes and regulatory bodies. The Nepal Medical Council, established by the Nepal Medical Council Act, is a statutory body responsible for regulating the practice of medicine in Nepal by determining the eligibility of individuals to practice medicine and overseeing the registration of practitioners.180 The legal practice of medicine requires that doctors in Nepal possess a degree,diploma, certificate, license, or title from a medical institution formally
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recognized by the government.181 In certain exceptional cases, individuals who receive their degrees and training from other institutions may still be eligible to practice medicine in Nepal upon the recommendation of the Nepal Medical Council.182 All doctors must register with the council.183 The illegal practice of medicine,such as failing to register with the council or adding unearned medical credentials to one’s name, may result in imprisonment of up to three years, a fine of Rs 3,000 or both.184 The council also prescribes a Code of Ethics for doctors, which sets forth general principles of medical ethics, but is not legally binding.185 A number of other statutory councils regulate the practice of other health-related professions. The Nepal Nursing Council, established under the Nepal Nursing Council Act, is a statutory body that regulates the practice of nursing in Nepal. All nurses or auxiliary nurse-midwives must register with the council to practice legally.186 The practice of nursing in violation of the act is subject to six months’ imprisonment, a fine of Rs 3,000 or both.187 The Nepal Health Professional Council, constituted under the Nepal Health Professional Act, regulates the practice of health professionals other than doctors and nurses. Such individuals are required to complete prescribed degree requirements and register with the council in order to legally practice.188 In addition,the Nepal Pharmacy Council Act provides for the establishment of a statutory council to regulate the practice of pharmacology in Nepal.189 The Health Research Council regulates ethical issues related to research on health.190 According to the Muluki Ain,major treatment and surgery can be performed only by certified doctors, while minor ailments may be treated by health-care providers with some experience in such treatment.191 Regulation of reproductive health technologies Assisted reproductive technologies There is currently no regulation of assisted reproductive technologies in Nepal. In July 2002,a treatment center in the Putalisadak area of Kathmandu began offering in vitro fertilization for couples without children, the first such reproductive assistance technology in Nepal.192 Sex determination techniques The Muluki Ain, as amended by its Eleventh Amendment, prohibits the use of amniocentesis tests to determine fetal sex for the purpose of sex-based abortion.193 The law prescribes a punishment of three to six months’ imprisonment for anyone who conducts such a test or causes one to be conducted.194 (See “Abortion”for information on the prohibition of sex-selective abortion.)
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Patients’ rights There are no separate laws protecting patients’ rights in Nepal. However, under the Muluki Ain, doctors can be held liable for the death of a patient or injury resulting from negligence and may be subject to two years’imprisonment,a fine of up to Rs 500 or both.195 The 1997 Consumer Protection Act, which protects consumers from the sale or distribution of harmful consumable products and services, may also be used in the context of medical malpractice claims.196 Penalties under the act include: 1) 14 years’ imprisonment, a fine of up to Rs 500,000 or both, in the case of imminent danger to the life of the patient; 2) ten years’ imprisonment, a fine of up to Rs 500,000 or both, if any part of the body is paralyzed or lost; or 3) five years’ imprisonment, a fine of up to Rs 300,000 or both, in other cases of violation.197 Under the act, injured individuals may also submit a claim for monetary compensation within 35 days of the date of injury.198 An individual who dies or suffers injury due to the use of substandard drugs may claim compensation from the responsible manufacturer under the Drugs Act.199 B. REPRODUCTIVE HEALTH LAWS AND POLICIES
Women’s reproductive health is addressed through specific and general policies,including the 1998 National Reproductive Health Strategy, the National Health Policy, the Second Long Term Health Plan, the Tenth Plan, the National Plan of Action for Gender Equality and Women Empowerment (“National Plan of Action”), and the 2000 National Reproductive Health Research Strategy. The ICPD Programme of Action serves as the basis for the National Reproductive Health Strategy, which adopts a new “holistic life cycle approach” to providing services under the country’s existing health programs in safe motherhood, family planning, sexually transmissible infections (STIs) and HIV/AIDS,child survival,and nutrition.200 The strategy aims to incorporate gender perspectives and women’s empowerment into all such program areas.201 It adopts the following strategies for the effective and efficient provision of quality reproductive health services: ■ implement the Integrated Reproductive Health Package in hospitals, primary health-care centers, health posts, and sub-health posts, as well as through community-based workers at the community level; ■ enhance the functional integration of reproductive health activities carried out by different divisions; ■ emphasize advocacy for the concept of reproductive health; ■ review and develop information, education and
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communication materials to support all levels of intervention; ■ review and update the existing health training curricula to include missing reproductive health components; ■ ensure effective management systems by strengthening and revitalizing existing committees at various levels; ■ develop a national reproductive health research strategy that outlines research priorities and work plans based on information requirements of policy-makers, planners, managers, and service providers; ■ construct and upgrade appropriate service delivery and training facilities at the national, regional, district, and electoral constituency levels; ■ strengthen health institutions through structured planning, monitoring, supervision, and performance review; ■ develop an appropriate reproductive health program for adolescents; ■ provide support for national experts and consultants; and ■ promote inter- and multisectoral coordination.202 The Integrated Reproductive Health Package to which the strategy refers includes a set of reproductive health services to be provided through government health-care facilities at the district level and below.203 The package includes the following components: ■ family planning; ■ safe motherhood; ■ child health (newborn care); ■ prevention and management of complications of abortion; ■ reproductive tract infections, STIs and HIV/AIDS; ■ prevention and management of subfertility; ■ adolescent reproductive health; and ■ problems of elderly women (i.e., cancers of the uterus, cervix and breast) at the tertiary health-care level or in the private sector.204 Two committees have been established within the Ministry of Health to support the national reproductive health program. They are the National Reproductive Health Programme Steering Committee, which is to provide policy guidance for all reproductive health activities in Nepal, and the National Reproductive Programme Coordinating Committee, which is responsible for executing, implementing, reviewing, and monitoring the program at all levels.205 The National Reproductive Health Strategy fits within the framework of the National Health Policy and the Second Long Term Health Plan.206 The National Health
Policy outlines several strategies to promote women’s reproductive health, including: ■ giving priority to programs for family planning, maternal and child health care, safe motherhood, and the prevention and control of AIDS among preventive health services; ■ establishing one hospital in each zone of the country that provides specialized gynecological services, among others; ■ ensuring the availability of at least one hospital in each district of the country that provides family planning, maternal and child health services and immunization services, among others; ■ establishing sub-health posts, staffed with one maternal and child health worker and one auxiliary health worker, in all village development committee areas of the country to provide services that include immunization, family planning, maternal and child health care, health education, and nutrition; and ■ mobilizing the participation of female volunteers and traditional birth attendants for health programs at the ward level.207 The Second Long Term Health Plan sets several target goals related to reproductive health. (See “General Health Laws and Policies” for specific targets.) The Tenth Plan also includes several government objectives in the area of reproductive health,including family planning, safe motherhood for women and adolescents, STIs and HIV/AIDS, and nutrition.208 (See “Family Planning,” “Maternal Health” and “Sexually Transmissible Infections (STIs) and HIV/AIDS” for specific objectives.) The National Plan of Action, which was formulated to implement Nepal’s commitments under the Beijing Declaration and Platform for Action,includes several objectives related to reproductive health. One objective is to expand women’s access to health services throughout their life cycle and provide affordable basic health services, including holistic reproductive health services, to all citizens.209 The plan also calls for research on women’s health issues, increased resource allocation for women’s health services and programs, a system to provide gender-disaggregated data on the delivery and quality of health services, and amendments to existing laws related to women’s health.210 The National Reproductive Health Research Strategy was developed pursuant to the National Reproductive Health Strategy. The research strategy recognizes the value attributed to research in reproductive health program development and implementation in the ICPD Programme of Action, and aims to conduct research to assess,
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assist and improve Nepal’s own reproductive health prolife expectancy,increase the contraceptive prevalence rate,and grams.211 Its specific objectives are the following: decrease the total fertility rate.215 ■ promote continued research and utilize research findFamily Planning ings at all levels; The main thrust of the National Health Policy with ■ identify strengths, weaknesses, gaps, and overlapping regard to family planning is to expand contraceptive covareas in the reproductive health program; erage and sustain adequate family planning services ■ conduct studies to remedy shortcomings in reprothrough all health facilities, down to the village level.216 The Tenth Plan also specifies several family planning ductive health interventions identified through objectives, which include the following: ongoing evaluations of programs; ■ identify undiscovered research needs; ■ gradually reduce the population growth rate; ■ prioritize research needs according to their impor■ explain the concept of the small family to rural tance and necessity; people; ■ plan additional research as required, while simultane■ increase the availability of and the demand for family ously strengthening mechanisms to link needs with planning services; ■ provide quality services; available human and material resources for reproduc■ reduce unmet need for family planning; tive health research, strengthening research capacities ■ increase the involvement of the private sector and at different levels, and identifying additional required NGOs; and financial resources; ■ develop appropriate mechanisms for the dissemina■ launch mobile sterilization camps in remote districts tion and utilization of to increase access to sterilization.217 The plan’s specific target goals for research; RELEVANT LAWS AND POLICIES ■ conduct follow-up to assess family planning are to increase the • National Reproductive Health the implementation of reccontraceptive prevalence rate to 47% Strategy, 1998 ommendations; and and reduce the total fertility rate to • National Health Policy, 1991 ■ regularly assess the implemen3.5.218 • Second Long Term Health Plan, Contraception tation of the Reproductive 1997–2017 National-level data from 2001 Health Research Strategy for 212 • Tenth Plan, 2003–08 indicates that 39% of currently marcost-effectiveness. • National Plan of Action for Gender National policies related to reproried women are using some method Equality and Women Empowerment ductive health are implemented of family planning and that most • National Reproductive Health through various national programs (35%) use modern methods.219 CurResearch Strategy, 2000 rent usage of modern methods has assisted by international donor agen• Drugs Act increased by 13% since 1996.220 An cies,among other strategies. One pro• Eleventh Amendment to Muluki Ain estimated 15% of women use female gram is the national Female • Safe Abortion Services Directive, 2003 sterilization, 8% the injectable, 6% Community Health Volunteer Pro• National Safe Abortion Policy male sterilization, 3% condoms, and gram, which was launched in 1988 • National Policy on AIDS and STD 2% oral pills;less than 1% each rely on with assistance from the United States Prevention, 1995 the IUD or the implant.221 ContraAgency for International Develop• National Strategic Plan on HIV/AIDS, ceptive use varies by age, with lower ment (USAID) in an effort to involve 2002–06 rates among younger and older women in primary health-care activi• Safe blood policy, 1993 women, and a peak in usage among ties at the community level through213 The role of women aged 35–39.222 Women in out the country. volunteers includes providing information to local women urban areas are also more likely than their rural counterparts about a range of health issues (including safe motherhood, to use a family planning method;the contraceptive prevalence maternal and child health care, family planning and commurate for any method is 62% in urban areas, compared with nity health) and distributing oral pills and condoms.214 Anoth37% in rural areas.223 Despite relatively low rates of contraceptive use, knowler program is the Population and Family Health Project, edge of at least one modern method of family planning is which began in 1994 with World Bank assistance,and supports nearly universal in Nepal.224 The most widely known modgovernment efforts to reduce morbidity and mortality, raise
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ern contraceptives among both ever-married and currently married women are female sterilization (99%), male sterilization (98%), injectables (97%), oral pills (93%) and condoms (91%).225 Contraception: legal status There is no specific legislation regulating the sale, distribution and quality of contraceptives. However, contraceptives are within the scope of medicinal drugs regulated by the Drugs Act. The act regulates the availability, sale and distribution of medicinal drugs in Nepal. According to the act,only physicians are authorized to prescribe certain categories of drugs through verbal or written permission.226 Individuals and companies involved in the retail sale of drugs must also register with the government in accordance with the law.227 Selling expired drugs is prohibited.228 The government’s general policy on contraceptives is to provide direct support for making contraceptives widely available to the public.229 The government has not approved emergency contraception products.230 Regulation of information on contraception The government promotes the dissemination of information on family planning and contraception. Radio and television are important media through which the government communicates messages about family planning.231 The most common media source for such messages in Nepal is radio.232 As part of a strong effort to inform women and men about family planning,the National Health Education,Information and Communication Centre has launched radio programs with technical assistance from foreign institutions.233 These radio broadcasts include dramas and songs that relay information about family planning in an accessible way.234 Sterilization Among currently married women, female sterilization is the most commonly used method of contraception, with a prevalence of 15%.235 Female sterilization is more common among women in urban areas (21.8%) than among their rural counterparts (14.3%).236 Six percent of currently married women rely on male sterilization for contraception.237 Sterilization: legal status Available surgical contraception services include vasectomies, laparoscopies and minilaps. Such procedures require the consent of the individual undergoing the procedure.238 No data is available on other eligibility requirements for sterilization. Sterilization policies The National Reproductive Health Strategy aims to increase the availability of sterilization services by providing procedures at district hospitals and select primary health-care
centers.239 Similarly, one of the health priorities of the Tenth Plan is to expand mobile sterilization camps to remote areas to increase accessibility to sterilization services.240 The government provides “wage compensation” of about Rs 100 to individuals undergoing sterilization.241 Government delivery of family planning services The government provides temporary family planning methods,such as the pill,condoms and injectables,at hospitals (at the national, regional, zonal, and district levels); primary health-care centers;health posts;sub-health posts;and through community-based health workers and volunteers.242 The implant and the IUD are available at a limited number of hospitals, primary health-care centers and select health posts where trained workers are available.243 Surgical sterilization is primarily provided through scheduled “seasonal”or mobile outreach services in 21 districts.244 The public sector is the primary source of contraception in Nepal, supplying four in five users with their method of contraception.245 Family planning services provided by NGOs and the private sector The private sector and NGOs complement and supplement government efforts in providing family planning services. The Nepal Contraceptive Retail Sales Company promotes social marketing of contraceptives.246 Most contraceptives sold in pharmacies are provided through the company.247 Seven percent of contraceptive users get their methods from the private sector, mostly from pharmacies.248 A number of NGOs are involved in delivering family planning services, including sterilization services, at the community level throughout the country. NGO family planning activities include operating stationary and mobile clinics to provide temporary and permanent forms of contraception; providing home visits and referral services; and conducting health education and awareness-raising programs.249 A special NGO Mobilization Project,which addresses the reproductive health needs of vulnerable and disadvantaged groups,is also in the process of being implemented.250 NGOs involved in family planning activities include the Family Planning Association of Nepal, the Nepal Fertility Care Center, the Center for Development and Population Activities, and the Asia Foundation.251 Eight percent of contraceptive users get their methods from the NGO sector,mostly from the Family Planning Association of Nepal.252 Maternal Health Nepal’s maternal mortality ratio is about 415 maternal deaths per 100,000 live births.253 Although the abortion law has recently been liberalized,abortion-related maternal deaths used to reach more than 4,000 per year.254 Overall, one in
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two pregnant women obtain prenatal care,although there are wide urban and rural discrepancies: 82% of women in urban areas utilize prenatal services, compared with 47% of their rural counterparts.255 Less than half (47%) of deliveries are reportedly assisted by a trained health worker or traditional birth attendant.256 Fewer than one in five mothers receive postnatal care within the first two days after delivery.257 Policies The government developed a national Safe Motherhood Program in 1994 that aims to improve maternal health through providing “around-the-clock”essential obstetric services and ensuring the presence of skilled attendants at deliveries, especially home deliveries.258 A plan of action to implement the program has been developed.259 The government ultimately aims to implement the program in phases in all 75 districts of the country.260 In its first phase,the program was launched in three districts.261 Six more districts were incorporated by 2001.262 The program’s main objectives include the following: ■ reduce maternal and neonatal mortality and morbidity; ■ standardize maternity care services using clinical guidelines for each level to ensure quality and consistency of care; ■ improve accessibility, coverage and quality of prenatal, natal, postnatal, neonatal, and emergency obstetric care through appropriate training of health personnel; ■ strengthen emergency obstetric services through the improvement of facilities, provision of essential drugs and appropriate equipment, and building of staff capacity at district hospitals; ■ establish a functioning referral system between peripheral health institutions and district hospitals; ■ strengthen community-based maternity care services through community information and education; ■ raise public awareness about safe motherhood issues; ■ advocate for legal reforms that would reduce the incidence of maternal deaths resulting from factors such as unsafe abortion and early marriage; ■ promote educational opportunities for the girl child and adolescents, as well as adult literacy and incomegenerating activities for women; ■ identify and initiate priority research and evaluation activities aimed at improving maternal and neonatal health services; ■ reduce anemia in pregnant women by distributing iron tablets; and ■ increase the coverage of tetanus toxoid immunization for women of reproductive age.263 The Tenth Plan reflects many of the objectives of the Safe
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Motherhood Program.264 The plan’s general objectives in promoting safe motherhood include: ■ expanding and strengthening health services to pregnant women; ■ ensuring that health workers provide maternity services; and ■ providing basic obstetric care and comprehensive emergency obstetric care at primary health-care centers and hospitals.265 One of the plan’s main goals is to reduce the maternal mortality ratio to 400 deaths per 100,000 live births by 2008; its long-term goal is to reduce the ratio to 300 deaths.266 The plan also aims for 25% of pregnant women to receive four prenatal care visits, and 55% of women aged 15–44 to receive the tetanus toxoid vaccine by 2008.267 The national Traditional Birth Attendant Program is an important government initiative to improve the quality and usage of maternal health services to reduce maternal and neonatal mortality.268 Traditional birth attendants provide a range of maternal health-care services in the home, which include delivery assistance,pre- and postnatal care,family planning counseling and condom distribution, and referrals for tetanus toxoid immunization and pregnancy complications.269 The program seeks to ensure access to information and services to help control the timing, spacing and number of pregnancies for all couples, and access to prenatal care, trained attendants during childbirth, and referrals for high-risk pregnancies and obstetric emergencies for all pregnant women.270 In 1998–99 alone, traditional birth attendants assisted 42,369 deliveries.271 International aid organizations have initiated safe motherhood programs in several targeted districts to complement government efforts. Participating organizations include the World Health Organization, United Nations Children’s Fund (UNICEF),United Nations Population Fund,the Department for International Development, USAID, and Deutsche Gesellschaft für Technische Zusammenarbeit (the German Agency for Technical Cooperation).272 Program activities have included providing essential obstetric care kits and maternal and child health equipment to primary health-care centers and hospitals, constructing maternity facilities and developing human resources.273 Nutrition Iron deficiency anemia is the most common nutritional problem in Nepal, affecting approximately three-fourths of pregnant women and two-thirds of women of reproductive age.274 Vitamin A deficiency is also a common problem among women of reproductive age.275 According to national health surveys, 7.5% of women of reproductive age
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reported night blindness, and 19.6% had night blindness during their last pregnancy.276 The National Health Policy identifies nutrition as an area for intervention and gives priority to programs for the prevention of iodine deficiency disorders, and iron and vitamin A deficiencies. In 2000–01,the government carried out various programs for anemia treatment and prevention and undertook mass distribution of vitamin A capsules.277 Abortion Before the recent legalization of abortion in Nepal, illegal unsafe abortion was widespread, especially in urban areas of the country.278 Official government statistics on the prevalence of abortion are not available,although one communitybased study estimated the abortion rate among women aged 15–49 to be 117 per 1,000.279 Between 20% and 60% of obstetric and gynecological admissions at major hospitals were due to complications from unsafe abortion.280 According to international sources of data on Nepal, illegal unsafe abortions were responsible for 50% of maternal deaths in the country.281 Until quite recently, up to 20% of all women in prison were imprisoned for having an illegal abortion.282 Abortion: legal status Nepal recently amended its restrictive abortion law with the passing of the Eleventh Amendment in the Muluki Ain, which came into effect on September 26, 2002.283 Prior to this amendment, abortion was strictly prohibited except when carried out for the purpose of “welfare,” although the law did not clearly state under what circumstances this exception would apply.284 Abortion was considered a homicide and was punishable with up to three years’ imprisonment.285 The Eleventh Amendment changes the homicide provisions of the Muluki Ain and legalizes abortions that are performed by a government-approved physician under the following conditions: ■ upon request for pregnancies of up to 12 weeks, with the voluntary consent of the woman; ■ when the pregnancy (of up to 18 weeks) results from rape or incest; and ■ when, at any time during the pregnancy, the life or physical or mental health of the pregnant woman is at risk, or if there is a risk of fetal impairment, with the women’s consent and the recommendation of an authorized medical practitioner.286 No spousal consent is necessary for abortion and the law makes no distinction between married and unmarried women. The Safe Abortion Services Directive, approved by the government in December 2003 to implement the new law, requires the involvement of a third party in the decisionmaking process of a minor seeking abortion. The directive also
establishes specific rules and procedures for the provision of safe abortion services in government hospitals and clinics.287 No data is available on the legal status of medical abortion in Nepal. The law prohibits anyone from forcing, coercing, “tricking,” or providing incentives to a pregnant woman to have a sex-based abortion or to determine the sex of the fetus for the purpose of abortion.288 Violators of these prohibitions are subject to imprisonment of one year.289 Anyone who performs or forces a pregnant woman to undergo a sex-selective abortion is punishable with additional imprisonment of one year.290 Regulation of information on abortion Under new government policies on abortion, counseling and informed choice for abortion are to be made available by abortion service providers throughout the country.291 Abortion policies The National Safe Abortion Policy was formulated subsequent to the legalization of abortion in Nepal. The policy was drafted by the Abortion Task Force, a group of government and NGO representatives that was formed under the Family Health Division in February 2002 to work toward implementation of the new abortion law.292 The policy, on which the Safe Abortion Services Directive is largely based, came into effect with the approval of the directive in December 2003.293 The policy lays out various strategies to ensure women’s access to safe abortion services, including: ■ ensuring that abortion providers respect the rights of women, including their rights to informed consent, counseling and confidentiality; ■ developing clinical protocols to serve as the basis for comprehensive abortion care services and training; ■ developing measures to address the service needs of socioeconomically marginalized groups; ■ ensuring transparency of fees for abortion services by all abortion providers and institutions; ■ linking every abortion facility to a higher-level referral center where more specialized care can be provided; and ■ developing public, private and NGO institutions as training sites under government monitoring.294 A draft Implementation of Comprehensive Abortion Care Services, 2003–2005 Training Strategy has also been formulated.295 The strategy’s main goal is to ensure that safe and comprehensive abortion services are available and accessible throughout the country.296 Government delivery of abortion services The government is in the process of creating facilities for safe abortion services.297 The Safe Abortion Services Directive authorizes the provision of safe abortion services in gov-
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ernment hospitals and clinics.298 Abortion services provided by NGOs and the private sector The Safe Abortion Services Directive encourages NGOs to provide safe abortion services and information throughout the country. The National Safe Abortion Policy also envisages an important role for NGOs in the provision of safe abortion services.299 Sexually Transmissible Infections (STIs) and HIV/AIDS STIs are emerging as a major health threat in Nepal, with socioeconomic ramifications. Although there is currently no national-level data on STIs in Nepal, various studies indicate that prevalence rates are quite high.300 There are 3,103 reported cases of HIV infection in Nepal; 859 of these cases are women.301 The government acknowledges that these official figures probably grossly underestimate actual numbers of cases, given the limited HIV/AIDS surveillance system in the country.302 According to international sources of data on Nepal, there were approximately 34,000 cases of HIV infection in the country in 2000.303 By age-group, individuals aged 20–29 account for the greatest number of infections, followed by those aged 30–39.304 As a group, sex workers represent the greatest number of those infected.305 Relevant laws There is no specific legislation on STIs or HIV/AIDS, or on prohibiting discrimination against infected persons.306 Policies for the prevention and treatment of STIs and HIV/AIDS The government’s formal initiatives in the area of HIV/AIDS and STIs began in 1986,with the organization of the AIDS/STD Control Committee under the Ministry of Health.307 Short- and medium-term plans for the control of STIs and HIV/AIDS were adopted in subsequent years, with a focus on providing advocacy and training, establishing laboratory facilities,raising awareness,and providing STI services and counseling.308 The National Centre for AIDS and STD Control was established under the Ministry of Health in 1993 to coordinate the government’s previous initiatives in the area of STI and HIV/AIDS prevention and control.309 The center’s activities include: ■ screening blood; ■ conducting surveillance; ■ generating information; ■ providing education and communication materials; ■ promoting condoms; ■ counseling and treating those infected with STIs; and ■ training health workers in the clinical management of HIV/AIDS patients.310 The center issued the National Policy on AIDS and STD
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Prevention in 1995, which has the following objectives: ■ accord high priority to STI and HIV/AIDS prevention programs; ■ execute an integrated, coordinated, decentralized, and multisectoral program; ■ pursue follow-up and evaluation of prevention activities in both the governmental and non-governmental sectors; ■ promote safe sexual behavior; ■ provide counseling and other services to people living with HIV/AIDS; ■ maintain confidentiality for blood tests for STIs and HIV/AIDS; ■ collect blood test reports at the National Centre for AIDS and STD Control; ■ screen all donated blood before transfusion; ■ discourage discrimination on the basis of one’s HIV/AIDS status; and ■ mandate universal precautions and proper disposal of medical instruments and equipment.311 The center also prepared a 2002–06 National Strategic Plan to combat HIV/AIDS in Nepal.312 The plan’s priority action areas include the following: ■ prevention among at-risk populations and youth; ■ care and support to people living with HIV/AIDS, including voluntary counseling and testing and mother-to-child transmission; ■ second generation surveillance; ■ capacity building; and ■ monitoring and evaluation.313 Programs and services for the prevention and treatment of STIs and HIV/AIDS in Nepal are priority areas in both the National Reproductive Health Strategy and the Tenth Plan. The Tenth Plan emphasizes the importance of coordinating the efforts of various sectors and conducting awareness-raising campaigns to reduce the incidence of HIV/AIDS and change high-risk behavior.314 In addition, the National Plan of Action calls for holistic and integrated programs for the provision of HIV/AIDS services.315 Nepal also has a policy to ensure the screening of all donated blood, which the government adopted in 1993.316 The growing spread and threat of HIV/AIDS among the general population, together with the limited capacity of the National Centre for AIDS and STD Control, resulted in the formation of the Nepal HIV/AIDS Initiative Program in 2001, which is a joint effort of the government and other multilateral and bilateral agencies.317 Regulation of information on STIs and HIV/AIDS No data is available on how information on STIs or
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HIV/AIDS is regulated in Nepal. C. POPULATION
The government’s first population policy was formally initiated during the Third Five Year Plan, covering the period 1965–70.318 The main focus of this plan was on family planning, with the objective of reducing the crude birth rate.319 Family planning services during the Fourth FiveYear Plan targeted only 5% of married couples, but these services were greatly expanded through outreach workers beginning in the Fifth Five Year Plan. In addition to an emphasis on family planning, population policies and programs from this period onward began incorporating long-term strategies to encourage the small family norm, such as education and employment programs aimed at raising women’s status. The Eighth Five Year Plan, covering 1992–97, continued the integrated approach adopted in previous plans. It emphasized family planning and maternal and child health programs as strategies to control population growth, improve people’s standard of living and minimize the possible adverse effects of population growth on the socioeconomic development of the country.320 The Ninth Five Year Plan had the long-term objective of lowering fertility to replacement level within the next 20 years. The plan’s immediate objectives were to encourage couples to adopt a two-child family norm; implement various programs to lower the fertility rate to replacement level; and make high quality family planning and maternal child health services easily available and accessible. The plan aimed to reduce population growth primarily through social awareness, education and family planning programs.321 At the time of the Ninth Five Year Plan, the total fertility rate in Nepal was 4.1 births per woman.322 Population policy Objectives Nepal’s current population policy is set forth in the Tenth Plan.323 The plan’s main long-term objective is to promote the concept of the small family to achieve replacement fertility levels by the end of the Twelfth Five Year Plan.324 In the immediate term,it aims to reduce the total fertility rate to 3.5 lifetime births per woman and increase the percentage of family planning users to 47% by 2008.325 In order to achieve its objectives,the plan enumerates several strategies, including: ■ centering policies around special programs targeted at adolescents and youths; ■ increasing local participation in population management programs, in line with the vision of decentralization;
working in partnership with the private sector and NGOs in population management programs; ■ encouraging late marriage and the availability of reproductive health care; ■ reviewing population-related laws and policies for improvement; ■ raising the family and social status of women, with an emphasis on increasing women’s job skills, employment and levels of education; ■ improving educational institutions’ involvement in the planning and implementation of population management; and ■ stressing massive public awareness of population issues.326 Implementing agencies The Ministry of Population and Environment was established in 1995 as the government agency in charge of developing and implementing Nepal’s population policies.327 In 1996, the government established a national population committee composed of ministers from various ministries and chaired by the prime minister to provide strong political leadership and guidance in formulating population policies and coordinating, implementing, monitoring, and evaluating population activities.328 ■
III. Legal Status of Women Women’s health and reproductive rights cannot be fully understood without taking into account the legal and social status of women. Laws relating to women’s legal status not only reflect societal attitudes that shape the landscape of reproductive rights, they directly impact women’s ability to exercise these rights. Issues such as the respect and dignity a woman commands within marriage,her ability to own property and earn an independent income, her level of education, and her vulnerability to violence affect a woman’s ability to make decisions about her reproductive health-care needs and to access the appropriate services. The following section details the nature of women’s legal status in Nepal. A. RIGHTS TO GENDER EQUALITY AND NONDISCRIMINATION
The constitution establishes the right of all citizens to equality; equal protection of the law; and nondiscrimination in application of the law on the basis of religion, race, sex, caste, tribe, or ideology.329 It also allows for “special provisions … made by law for the protection and advancement of the interests of women,children,the aged or those who are physically or mentally incapacitated or those who belong to a class which is economically, socially and educationally backward.”330
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CEDAW; The constitution’s Directive Principles and Policies of the ■ establishing equal legal rights for women; and State enjoin the government to aim to “eliminat[e] all types of ■ providing legal education.341 economic and social inequalities.”331 The government should The Tenth Plan recognizes that poverty alleviation, one of specifically adopt a policy of encouraging women’s participathe primary goals of national development, is contingent tion “in the task of national development” through special upon the achievement of gender equality.342 The plan idenmeasures for their education, health and employment.332 Statutes that aim to promote gender equality include the tifies various forms of existing traditional, cultural and legal Local Self-Governance Act, the 1991 Labour Act, 1993 discrimination against women, and recognizes that women Labour Regulations, and the 1955 suffer disproportionately from vio333 Civil Rights Act. lence, low literacy rates, poor health, Formal institutions and policies and poor access to property and ecoRELEVANT LAWS AND POLICIES The government has established a nomic opportunities and resources. It • National Plan of Action for Gender number of institutional mechanisms commits to reversing these trends by Equality and Women Empowerment and formulated specific policies for implementing CEDAW, the Beijing • Tenth Plan, 2003–08 the advancement of gender equality. Declaration and Platform for Action • Nepal Citizenship Act, 1964 The Ministry of Women,Children and other laws, policies and programs and Social Welfare,established in 1995 that promote gender equality.343 The plan’s strategies for promoting gender equality and women’s following the Fourth World Conference on Women in Beiempowerment include: jing, is the lead agency charged with the task of fulfilling ■ formulating laws and amending discriminatory laws Nepal’s national and international obligations on gender on the basis of notions of equality and international equality.334 The ministry’s functions include formulating plans and policies for women’s advancement and ensuring the commitments; ■ coordinating, monitoring and evaluating women-tarintegration of gender concerns into broader national poligeted programs and policies of all sectors; cies.335 It also has the mandate to supervise, monitor, evalu■ increasing awareness regarding women’s rights and ate, and coordinate development activities for women in all gender inequality; government ministries and departments.336 It serves as the ■ undertaking special measures to increase women’s focal point for all CEDAW-related activities, including overparticipation at the central and local levels in political sight of a national CEDAW committee formed to monitor and administrative areas; and the implementation of CEDAW provisions.337 Additional ■ strengthening the National Women’s Commission.344 activities of the ministry include organizing training proThe government has established a number of councils and grams, seminars and workshops for policy-makers, civil sercommissions dedicated to protecting and promoting women’s vants and other members of civil society to raise awareness rights. The National Women’s Commission was established in about women’s rights and the need for gender equality.338 One of the major policy efforts of the ministry is the 2002 with a similar mandate as that of the Ministry of Women, 339 The plan encompasses all “12 National Plan of Action. Children and Social Welfare.345 The commission is charged critical areas of concern”identified in the Beijing Declaration with advising the government on the effective implementation and Platform for Action and identifies objectives, strategies of international human rights instruments and on the formu340 and institutional mechanisms for achieving its aims. (See lation of plans and policies specifically aimed at advancing “Reproductive Health Laws and Policies,” “Education,” women’s rights;coordinating the efforts of relevant government “Labor and employment” and “Right to Physical Integrity” agencies and NGOs; and providing support to victims of viofor specific provisions.) The broad objectives of the National lence.346 The National Child and Women Development Council,which is chaired by the prime minister and consists of Plan of Action include: ■ strengthening institutional capacity for women’s relevant government and NGO representatives,gender experts development; and lawyers,plays a coordinating,monitoring and advisory role ■ incorporating gender issues into legislation, public on policies and activities relating to women’s issues and conpolicies and programs; cerns.347 There is a National Human Rights Commission, ■ collecting and disseminating gender-disaggregated which may hear complaints from any citizen or third party actdata and information; ing on behalf of an aggrieved party.348 There is also a high-lev■ protecting women’s human rights as defined by el commission to review existing discriminatory laws against
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women and make recommendations for reform measures.349 Additionally,“women and development”units have been appointed in sectoral ministries with the objective of ensuring that women’s issues are incorporated into government policies and programs.350 Currently, such units have been established in the Ministries of Local Development; Agriculture and Cooperatives; Labour and Transport Management;and Education and Sports.351 Various other ministries that do not have such units have specific projects or programs on women’s issues.352 NGOs and civil society actors have played an important role in advancing gender equality,particularly in fighting legal discrimination against women. Their efforts have included monitoring the government’s efforts to eliminate discriminatory laws, cooperating with government actors in drafting laws on women’s rights,and initiating public interest litigation that challenges discriminatory provisions of existing laws.353 NGOs have also formed a CEDAW Monitoring Committee to hold the government accountable for its obligations under CEDAW.354 The Ministry of Women, Children and Social Welfare has also enlisted significant support from various civil society organizations in its efforts to raise awareness about gender issues.355 B. CITIZENSHIP
The constitution and the 1964 Nepal Citizenship Act are the main sources of law that govern citizenship status. Under the law, only male Nepalese citizens may confer automatic citizenship upon their children.356 A woman of foreign nationality married to a Nepalese citizen may acquire Nepalese citizenship, provided that she renounces her foreign citizenship.357 However, a foreign man married to a Nepalese citizen is not entitled to Nepalese citizenship through such a marriage.358 Under recent amendments to the 1996 Immigration Rules, male foreign nationals married to Nepalese citizens may obtain visas, subject to renewal every year.359 C. RIGHTS WITHIN MARRIAGE
Marriage laws The Muluki Ain sets out the rights and responsibilities of spouses in the contracting and dissolving of marriage. Pursuant to the Eleventh Amendment to the Muluki Ain,the legal age for marriage for both sexes is 20 years;however,where the parents or guardians consent to the marriage, the minimum age is 18 years for both sexes.360 Generally, a marriage must be performed with the consent of both parties.361 Marriages entered into without the free and full consent of both parties are voidable.362 Under the 1972 Marriage Registration Act,
spouses may register their marriage, but registration is not compulsory.363 The law does not prohibit the remarriage of a woman who has been divorced or widowed.364 Bigamy is generally prohibited by law.365 Despite this general prohibition, bigamy is common in practice.366 Exceptions to the general rule allow a man to enter into a second marriage if the first wife is infected with an incurable STI; becomes physically disabled or insane; is infertile or does not bear a child who survives during the first ten years of marriage; becomes lame and cannot walk; becomes completely blind; or is living separately after obtaining her share of property from her husband.367 Previously, no medical examination was necessary to confirm a husband’s claim of his wife’s infertility.368 However, the Eleventh Amendment to the Muluki Ain requires the wife’s infertility to be confirmed by a medical board certified by the government.369 The Eleventh Amendment also increases the punishment for bigamy. A second marriage in the absence of one of these exceptions is punishable with imprisonment of one to three years and a fine ranging from Rs 5,000 to 25,000.370 However, the law does not make the second marriage void.371 Women who wish to file a claim of bigamy have three months from the date they learned about the bigamous marriage to file their claim.372 The law penalizes married women or widows who misrepresent the fact of their existing or former marriage when entering into a subsequent marriage.373 The Eleventh Amendment to the Muluki Ain prescribes punishments for married or divorced men and widowers who make similar misrepresentations.374 Divorce laws Marriage may be dissolved through the consent of both parties or through one of several grounds enumerated in the Muluki Ain.375 The grounds for divorce differ for women and men. A wife may divorce her husband if the marriage was performed without the consent of both parties,through fraud or on any of the following grounds: ■ bigamy; ■ husband throws her out of the home or fails to provide basic food, clothing and support; ■ desertion for a period of three continuous years or more; ■ threats or acts of serious bodily or mental injury; ■ impotence, ■ incurable STI; or ■ adultery.376
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under some circumstances. A woman may now adopt if she A husband may divorce his wife if the marriage was peris separated from her husband or has taken her share of formed without the consent of both parties,through fraud or 377 property from him, provided that she does not have chilon any of the following grounds: ■ desertion for a period of dren of her own in either case.390 Under the Eleventh Amendment, three continuous years or parents who have only one daughter longer without the husband’s RELEVANT LAWS AND POLICIES may not give the child up for adoppermission; • Muluki Ain; and Eleventh ■ threats or acts of serious bodtion; this prohibition previously Amendment to the Muluki Ain ily or mental injury; applied only where a couple had only • Marriage Registration Act, 1972 ■ incurable STI; one son.391 No adoption made pur■ the wife is unable to bear a suant to the law may be revoked child due to a condition certified by a physician; or except on specific grounds.392 378 ■ adultery. D. ECONOMIC AND SOCIAL RIGHTS A husband who wishes to divorce his wife must first take Property laws his case to the relevant village development committee and, The constitution guarantees the right of all citizens to on the committee’s recommendation, to the district court. “acquire,enjoy,dispose of and deal in other manner with their However,if a woman wishes to divorce her husband,she may property” and prevents the state from acquiring or creating take her claim directly to the district court.379 any encumbrance on the property of any person.393 Judicial separation The Muluki Ain is the main source of law that governs propIn the Supreme Court case of Lila Bahadur Karki v.Annaerty and inheritance rights, which are determined in part on purna Karki, the court established a wife’s right to separathe basis of marital status and gender. The Eleventh Amendtion.380 ment to the Muluki Ain amended some provisions relating to Maintenance and support laws property, providing greater rights for women. Under the The Eleventh Amendment to the Muluki Ain provides for amendment,married women have full rights in their husband’s the right of a divorced woman to partition of the couple’s property and may,without any restrictions of age or duration of property at the time of divorce.381 If the woman wants to marriage, take their share of property and live separately from receive yearly or monthly payments instead of taking her their husband. A divorced woman is entitled to a share of propshare of property,a court may set the payment amount on the erty from her husband at the time of divorce.394 Widows are basis of the husband’s property and level of earnings.382 A fully entitled to inheritance and may use their share as they woman is entitled to such payments until she remarries.383 wish,even upon remarriage.395 In cases of bigamy,the first wife A divorced woman is also entitled to maintenance from and any children from a first marriage must share their properher former husband for their minor children’s reasonable ty with the second wife and children.396 Sons and daughters expenses for food,clothing,education,and medical treatment, are entitled to inheritance rights to ancestral property.397 Howas long as the woman does not remarry.384 ever, daughters must return their share of partitioned intestate Custody and adoption laws property after marriage.398 Upon a decree of divorce, a woman is entitled to custody In matters of disposing of her share of property, a woman of a minor child until the child reaches five years of age.385 must obtain the consent of her father and mother if she is She may maintain custody even after the child reaches age unmarried,or of her adult son or daughter if she is divorced or five, so long as she does not remarry.386 In the event that the widowed,to dispose of more than half of any immovable propwoman does not want custody,the father is responsible for the erty she receives in partition.399 Also, the law does not recogcare of the child.387 nize a transaction carried out by a woman without the consent Adoption by a couple is permitted only if they do not of her husband in matters dealing with his property.400 have a child. The law requires that the age difference In Mira Dhungana v. Ministry of Law, Justice and Parliamenbetween an adopted daughter or son and an adoptive father tary Affairs, a Supreme Court case involving the issue of be at least 30 years.388 equal property rights for women,the court issued a directive Under the general rule, a married woman cannot adopt order requiring the government to introduce appropriate if her husband is alive or if she has children of her own.389 legislation to enforce gender equality provisions in the conThe Eleventh Amendment to the Muluki Ain added a prostitution.401 vision to the code that allows a married woman to adopt
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vide special benefits for women. The regulations entitle Rights to agricultural land women to two maternity leaves of 52 days each with full pay Women account for only 6% of all landowners,and own a 402 over the course of her employment.416 There is no requirecombined share of 4% of arable land. Of women who do 403 own land, most (81%) own less than one hectare of land. ment for accruing a minimum number of working days before Under a recent amendment to the 1964 Act Relating to taking advantage of the maternity leave benefit.417 The Land,daughters,daughters-in-law and grand-daughters may Labour Act requires organizations with more than 50 employobtain tenancy rights previously reserved for men only; ees to establish child-care centers, and requires all employers however, the amendment stipulates that these female relaregulated by the act to allow breaks for breast-feeding.418 Under the 1998 Civil Service Act, women may apply for tives must be at least 35 years of age and unmarried to inher404 a civil service job up to the age of 40, and men can do so up it tenancy rights. Women’s exclusive property to the age of 35.419 The act also provides for a six-month proA married woman has the full right of disposition only on bationary period for women and a one-year probationary movable and immovable property she period for men,and sets the minimum earns either in the form of daijo, service period required for promotion RELEVANT LAWS AND POLICIES defined as any property given to a to be one year less for women than the • Act Relating to Land, 1964 women by relatives and friends of her minimum required for men.420 Sim• Muluki Ain; and Eleventh ilarly, under the 2000 National Teachfamily and any property generated Amendment to Muluki Ain ers Service Commission Regulation, therefrom, or pewa, defined as any women may apply for teaching posiproperty given to a woman by her tions until the age of 35, while men may join until the age of husband or coparcenaries of her husband in writing, or any 40. Female candidates need not have previous training in property given by her husband’s relatives or friends.405 Labor and employment teaching.421 The law restricts women’s participation in some About 66% of Nepalese women participate in the labor 406 The agricultural sector is the largest source of employment activities. The Labour Act and Labour Regforce. employment for women, as it is for the population in generulations limit women’s working hours from 6 a.m. to 6 407 al. About 24% of the urban population, 81% of the rural p.m.422 Women may only work outside of these prescribed population, 94% of women, and 79% of men are engaged in hours if they and their employer provide consent, and if 408 agriculture. Women receive less pay than men for equal the employer agrees to make special arrangements for their work in this sector.409 Only about 7% of women are security.423 The 1959 Army Act prohibits recruitment of employed in a job other than agriculture,and only 2.6% have women to serve in the Royal Nepal Army or in any asso410 wage employment. In contrast, 27% of men are employed ciation attached to any organization or division of the in an economic sector other than agriculture,and 16.4% have army.424 Under the 1971 Police Boy Rules, boys receive 411 priority over girls for training in police service.425 Under wage employment. Women constitute 8.6% of the workforce in civil service.412 the 1997 Foreign Employment Act, a woman who wishes The constitution guarantees the right “to carry out any to seek foreign employment must obtain the consent of a profession, occupation, trade or industry” and to equal pay guardian or husband.426 Agencies that seek to place women in foreign employment positions must obtain the for men and women for equal work.413 In addition, the constitution’s Directive Principles and Policies of the State approval of the Nepalese government and affirm the contain a number of policy recommendations related to woman’s family’s consent.427 In some cases, the Supreme Court has intervened with labor and employment, including increasing overall particiregard to discriminatory labor provisions. The court declared pation in the labor force and guaranteeing the right to work; ultra vires and unconstitutional a provision of the 1974 Royal providing opportunities for women through special proviNepal Airlines Corporation Rules that required retirement sions for their employment; and making special provisions for men at age 55 and for women at age 30.428 for the employment of “socially and economically backward 414 The government has introduced the provision of social tribes and communities.” The Labour Act and Labour Regulations include provisecurity for citizens aged 75 and older and for widows aged sions for job security, minimum wage, workplace safety, med60 and older.429 Payments are made through recipients’ respective village district committees and municipalities.430 ical benefits and leave, workplace code of conduct, and labor 415 The government has taken policy and programmatic courts for dispute settlement. The act and regulations pro-
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measures to promote women’s participation and opportutry is the Women Development Programme.441 The pronities in the workforce. The National Plan of Action sets gram covers 540 village development committees in 67 forth specific strategies in the area of women’s economic districts of the country, and almost 67,000 rural women participation, including: benefit from its lending operations.442 No collateral is ■ improving women’s access to productive resources required for obtaining loans from the program.443 Importhrough promoting employtant components of the program ment opportunities and creatinclude group and community saving a positive work ing schemes and training in various RELEVANT LAWS AND POLICIES environment; issues, including savings and credit • Labour Act, 1991; and Labour ■ improving women’s equal management, reproductive health, Regulations, 1993 access to resources, employleadership, and entrepreneurial • Civil Service Act, 1998 ment, markets, and business skills.444 The program has trained • National Teachers Service opportunities; almost 316,000 women in approxiCommission Regulation, 2000 ■ providing training, skills promately 15 disciplines.445 It has also • Army Act, 1959 motion opportunities and implemented a “revolving fund” • Police Boy Rules, 1971 business services for lowinitiative, which extends credit to • Foreign Employment Act, 1997 income women; and women’s groups for activities in ten • National Plan of Action for Gender ■ strengthening commercial districts.446 Equality and Women Empowerment 431 networks of women. The Small Farmers Develop• Contract Act, 1966 The plan also calls for reserving ment Program, initiated by the 25% of seats in employment-oriented Agricultural Bank of Nepal, is the training programs and 20% of new job opportunities for leading institution for women-focused microcredit serwomen.432 vices in the banking sector.447 The program organizes In the agricultural sector, the Ministry of Agriculture and farmers into homogenous groups of five to ten members Cooperatives has prepared guidelines for gender-sensitive and extends loans to each group for agricultural income-gen433 planning in local-level agricultural activities. The Agriculerating activities.448 The program aims for women to make ture Perspective Plan, approved by the government in 1995, up at least 25% of the groups’members.449 Other main comaims to ensure that all training programs in agricultural activponents of the program include adult education; and support ities have equal numbers of female and male participants.434 for farmer-managed irrigation systems,child-care centers,and In the field of education,the government requires that all prihygiene and sanitation.450 In addition, about 11 rural banks 435 mary schools have at least one female teacher. To recognize provide microcredit services.451 the full contribution of women’s labor to the national econNGOs also play an important role in microcredit lending omy, the government is undertaking a reform of the national activities. More than 155 NGOs approved by the Central accounting system that will incorporate a much broader defBank in Nepal provide microcredit services.452 inition of women’s economic activities, including their conEducation tribution to the household economy, and will provide Over the past few decades, the literacy rate for both sexes gender-disaggregated data.436 In 2001, the national census has increased markedly.453 The female literacy rate among 437 included household economic activities by women. those aged 15 and older rose from 3.9% in 1971 to 42.5% in Access to credit 2001.454 Male adult literacy rates rose from 23.6% to 65.1% The 1966 Contract Act states that women have the legal during the same time span.455 Female literacy rates are far capacity to obtain bank loans, mortgages and other forms of higher in urban areas than in rural areas—55% versus 22%.456 438 financial credit. However,women are largely ineligible for The constitution guarantees each community the right to obtaining institutional credit because all formal credit institu“establish schools for providing primary level education to tions seek tangible collateral for loans.439 The introduction of the children in their mother tongue.”457 The constitution’s microcredit programs for women, particularly low-income Directive Principles and Policies of the State recommend sevwomen in rural areas, has been a major government policy eral government policies related to education, including: initiative to enhance women’s socioeconomic status and ■ raising the standard of living through developing expand their limited access to credit.440 public education; One of the largest microcredit programs in the coun■ facilitating women’s participation in national devel-
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tion to the literacy aspect, these programs focus on building opment by making special provisions for their educafunctional skills to generate income.464 Some 500 NGOs are tion; and ■ promoting special measures on education for certain also involved in adult nonformal education programs, and groups, such as “orphans, helpless woman [sic], aged, many work together with the government.465 Government initiatives in the area of adult education also disabled and incapacitated persons” and “socially and 458 include promoting technical education and vocational traineconomically backward tribes and communities.” The government has promoted the concept of ing programs for women.466 These programs are implementwomen’s education since the implementation of the Fifth ed through the Council for Technical Education and Five Year Plan, covering 1975–80.459 The Tenth Plan sets Vocational Training under the Ministry of Education and forth the government’s current Sports as well as through various seceducation policy, the main objectoral ministries, general secondary RELEVANT LAWS AND POLICIES tives of which include: schools, universities, and civil society • Tenth Plan, 2003–08 ■ making free primary educaorganizations.467 Women constitute • National Plan of Action for Gender tion universally accessible, almost one-third of students in techEquality and Women Empowerment and gradually making primanical schools.468 Several institutions have a policy of providing scholarships ry schooling compulsory; ■ enhancing the quality of general education; to women and other disadvantaged groups.469 ■ implementing programs on literacy, post-literacy, Through various policy and programmatic efforts to proincome generation, and other nonformal education mote education and literacy, especially among women and for assisting marginalized groups, including women, other marginalized groups, the government aims to achieve in improving their standard of living; the following target goals: ■ empowering local bodies and communities to shoul■ elimination of gender disparities in primary and secder the responsibility for education policy-making ondary education by 2005; ■ an improvement of 50% in adult literacy by 2015; and management of schools; ■ ensuring gender equality in education; and ■ formulating and implementing programs on formal ■ gender equality by 2015.470 and nonformal technical education and vocational E. RIGHT TO PHYSICAL INTEGRITY training for producing human power as required by There is a dearth of official data on the prevalence of violence the country; and against women in Nepal,but non-governmental sources have ■ expanding technical higher education.460 reported a high prevalence of various forms of violence, The government additionally proposes in the plan to including rape, sexual abuse, domestic violence, dowry relatintroduce a Gender Auditing System throughout the entire ed violence,sexual harassment in the workplace,trafficking of education system to prepare concrete gender indicators for women and children, and traditional cultural forms of violearning, teaching, training, policy-making, and managelence.471 There are also many cases of sexual and domestic ment.461 violence in refugee camps, as well as some cases of refugee The National Plan of Action also includes objectives in the girls who have been trafficked to India for sex work.472 area of women’s education and training. Its five strategic The National Plan of Action specifically addresses the interventions include: issue of violence against women and sets forth three ■ promotion of equal opportunities for women; broad objectives: ■ literacy promotion among women; ■ adoption of an integrated approach to control and ■ promotion of equal access to vocational education eliminate violence against women; and technical training; ■ raising of awareness about gender-based violence ■ development of measures to counter gender stereoamong all segments of society; and typing; and ■ rehabilitation of victims of violence.473 ■ allocation of adequate resources.462 Rape It additionally calls for the provision of legal education Rape as described in the Muluki Ain is an act of sexual to women.463 intercourse with a woman without her consent or with the Nonformal literacy programs are an important compouse of force, threats, fear, or immoral enticement.474 The law nent of government efforts to promote adult literacy. In addi-
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related to the case such as the near relatives of the victim, does not further explain the scope or definition of rape. lawyers or the police.489 However, judicial interpretations have limited the definition Incest of rape to vaginal penetration. The Muluki Ain deals with the offense of incest. It proNepalese courts have strictly interpreted the non-consent vides punishment for incestuous relationships depending requirement:if a woman is raped against her will but does not on the degree of closeness of the individuals involved.490 resist the sexual advances of the rapist, the act does not Incest with one’s sister or daughter is punishable with ten amount to rape.475 476 The Muluki Ain does not recognize marital rape. Howyears’ imprisonment.491 The code provides that marriages can be solemnized ever, a landmark Supreme Court decision in 2002 held that between near relations if such customs persist in the parfailing to recognize rape as a criminal act solely because of the ticular community.492 marital relationship of the parties involved constitutes disDomestic violence crimination and is in violation of the constitution and Nepal’s There is no separate legislation on domestic violence. commitments under CEDAW.477 The Muluki Ain prescribes five to seven years’ imprisonHowever, laws under the Muluki Ain punishing murder, ment for an individual convicted of rape if the victim is age 16 attempted murder and physical assault are used in prosecuting or older.478 Other penalties vary depending on the age of the cases of domestic violence.493 The State Cases Act is another legvictim. (See “Sexual Offenses against islative tool for bringing claims of Minors” for specific penalties.) The domestic violence, although the state code provides for additional punishRELEVANT LAWS AND POLICIES will only prosecute for the crimes of ment of five years’ imprisonment for • National Plan of Action for Gender murder and attempted murder; physithe crime of gang rape and the rape Equality and Women Empowerment 479 cal assault is not considered a crime of a pregnant or disabled woman. • Muluki Ain Rape of a prostitute is punishable for which the state can be a prosecut• State Cases Act with up to one year of imprisoning party. In physical assault cases, the • Public Offenses Act, 1970 ment or a fine of up to Rs 500, in victim must bring a private suit • Traffic in Human Beings (Control) contrast to the more severe senthrough a hired attorney; this distincAct, 1986 tences prescribed by the code for tion prevents the police from filing or • Children’s Act, 1992 480 In a the rape of other women. investigating many forms of domestic 2002 decision, the Supreme Court violence.494 UP AND COMING LEGISLATION: The 1970 Public Offenses Act may declared this provision of the Mulu• Legislation on domestic violence; be invoked to prosecute some types of ki Ain to be ultra vires, deeming it amendment to Traffic in Human assault, but as the title implies, the unconstitutional and discriminatory Beings (Control) Act, 1986; national 481 In addition to crime must be committed and witagainst women. anti-trafficking policy imprisonment, a rapist is obliged to nessed in public.495 Claims covered by this act are heard through an transfer half of his property to the administrative system under a chief district officer,rather than woman he raped.482 Anyone who assists in rape is liable to up to three years’ through the regular channels of the judicial system.496 Penal483 If the victim is under the age of 16, the imprisonment. ties can include significant fines and up to 35 days’ imprisonpunishment may extend up to six years’ imprisonment.484 ment, which may be increased to two years by an appellate The law immunizes a woman from punishment if she kills court.497 Conviction under the Public Offenses Act prethe rapist in self-defense during the rape or out of uncontrolcludes prosecution under any other law for the same 485 lable anger within an hour of the incident. However,if she offense.498 To pursue a claim of domestic violence, the victim must kills the perpetrator after one hour has passed,she is subject to 486 file a complaint known as the First Information Report with ten years’ imprisonment or a fine of Rs 5,000. Cases of rape must be reported within 35 days from the the police.499 Police have stated that their first step in these date of the incident in order to be heard in court.487 The law cases is to pursue reconciliation,whereby they try to convince further provides that a victim’s statements are to be taken by the victim to return to her home and obtain a written female police officers only.488 In addition,access to the courtpromise from the offender to not assault again.500 The Ministry of Women, Children and Social Welfare room in cases involving sex crimes is restricted to people
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is drafting a new bill on domestic violence.501 The bill aims to eliminate family violence and establish a family court to address issues of domestic violence, rape, family conflict, marriage, divorce, and custody.502 Sexual harassment There is no law addressing all forms of sexual harassment.503 However, some aspects of sexual harassment are dealt with in provisions of the Muluki Ain. Any man who touches the body of a woman other than his wife, or a girl above the age of 11, with the intention of having sexual intercourse is liable to up to one year of imprisonment, a fine of up to Rs 500 or both.504 Additionally, the seduction of a woman with the intention of sexual intercourse is punishable with six months to two years’ imprisonment, a fine of Rs 500–6,000 or both.505 There is no specific law on sexual harassment in the workplace.506 Commercial sex work The law in Nepal is silent on prostitution. However, in reality, women are arrested under the Public Offenses Act for the practice.507 Sex-trafficking According to government sources,there were 110 reported cases of trafficking in 1998–99, a slight decrease from figures reported in previous years.508 However, many cases go unreported.509 As many as 35% of girls trafficked for prostitution from Nepal to neighboring countries are lured with promises of opportunities for employment or marriage.510 The constitution guarantees the right against exploitation, which prohibits trafficking in human beings,slavery,serfdom, or forced labor in any form.511 Any contravention of this provision is punishable by law.512 The constitution is supplemented by provisions in the Muluki Ain against trafficking in human beings within Nepal and to other countries. The code decrees prison sentences of 20 years for international trafficking cases where the victim has already been sold, and 10 years for the attempted sale of a victim,in addition to fines equivalent to the amount of the transaction.513 In cases where the purchaser is found within Nepal’s borders,he or she is subject to the same punishment as the seller.514 The code also forbids slavery and all other “transactions in human beings”; violations of these provisions are punishable with three to ten years of imprisonment.515 The offender is also liable for monetary compensation to the victim upon conviction.516 In addition, pimping and solicitation of prostitutes is forbidden under the code.517 Any person involved in pimping or solicitation of prostitutes is punishable with six months to two years’ imprisonment, a fine of Rs 500 to 6,000 or both.518 In addition to provisions in the constitution and in the
Muluki Ain on trafficking, the 1986 Traffic in Human Beings (Control) Act is a specific law dealing with the crime of trafficking. The act expressly forbids the sale of human beings for any purpose; the transport of any person to another country with intent of sale; the act of compelling any woman to prostitute herself through “allurement,enticement,deceit,threats, intimidation, or any form of pressure”; and conspiracy to commit any of these acts.519 The act also provides for extraterritorial application of the law: if any offense specified under the act is committed outside of Nepal’s borders, the person committing the offense is punishable under the act as if the offense were committed within Nepal.520 The act prescribes penal sanctions of 10 to 20 years’ imprisonment for any person convicted of trading in human beings; five to ten years’ imprisonment for any person convicted of trafficking a person to another country with the intent to sell; 10 to 15 years’ imprisonment for enticing, tricking or pressuring a woman into prostitution; and up to five years’ imprisonment for conspiring, assisting or advising in trafficking.521 In addition to the term of imprisonment,the amount procured from the transaction is confiscated.522 In cases involving a charge of trafficking, there is a presumption of guilt against the accused if that person is not the victim’s guardian or close relative.523 The judiciary has interpreted legal provisions in favor of victims of trafficking in some cases. In Durga Dhimal v.HMG, the court held that the statement of a female victim of trafficking who filed a First Information Report with the police was reliable and admissible evidence, thus shifting the burden of proof to the offender.524 The Ministry of Women, Children and Social Welfare serves as the focal point for government initiatives and activities against trafficking.525 The ministry has proposed a new bill to replace the Traffic in Human Beings (Control) Act, which aims to incorporate relevant trafficking provisions of various laws into a single comprehensive law.526 Among other things, the bill broadens the definition of trafficking and prescribes increased penal sanctions for a person who traffics his own wife, near relative, or a woman or child under his care.527 The ministry has also taken the lead in formulating a national anti-trafficking policy.528 In 1998, the ministry also established a “women self-reliance and rehabilitation home” for victims of trafficking.529 In January 2003,a National Rapporteur on Trafficking was appointed to oversee and monitor the implementation of anti-trafficking efforts in Nepal.530 The rapporteur’s duties also include preparing a report on the current status of trafficking in Nepal and making recommendations for further actions.531 Other government anti-trafficking initiatives include
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the creation of a national Coordination Committee and Task Force for anti-trafficking activities, and task forces at the district and village levels with representatives from local bodies, police units and NGOs.532 So far, 26 district task forces have been formed.533 In addition, the Nepal police headquarters has instituted a Women’s Cell that, among other activities, works in coordination with UNICEF to promote awareness about trafficking and sexual exploitation.534 The headquarters is creating women’s cells in its district-level security units.535 It is also implementing a five-year project to train and mobilize the police force in preventing and raising awareness about trafficking.536 The government has additionally instituted rehabilitation programs for victims of trafficking and worked closely with civil society actors to raise awareness about trafficking.537 The National Network Against Girl Trafficking and the Alliance Against Trafficking in Women in Nepal are two networks of NGOs that have actively collaborated with the government in launching media campaigns against trafficking.538 NGOs have also been active in establishing shelters for victims of trafficking and other vulnerable groups,such as street girls and orphans.539 Customary forms of violence Customary forms of violence such as deuki, badi, dowry related violence, and witchcraft are highly prevalent in Nepal.540 Deuki and badi are both customary forms of prostitution.541 Deuki is the practice of placing young girls in temples and offering them to gods; when the girls grow up, they are forced to become prostitutes.542 Badi is the practice of an ethnic group of the same name, whereby young women are trained to become prostitutes.543 Allegations of being a witch have led women to suffer humiliating and degrading treatment, as well as severe forms of violence and even death.544 The 1992 Children’s Act discourages the practice of deuki by punishing offenders with imprisonment for five years.545 However, there is no other legislation that addresses these forms of violence against women.546
IV. Focusing on the
Rights of a Special Group:Adolescents The reproductive rights of adolescents, particularly the girl child, are often neglected. Adolescents face many age-specific disadvantages that are not addressed through formal laws and policies. The ability of adolescents to access the health system, their rights within the family, their level of education,
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and their vulnerability to sexual violence together determine the state of their reproductive health and their overall wellbeing. The following section presents some of the factors that shape adolescents’ reproductive lives in Nepal. A. REPRODUCTIVE HEALTH
According to the 2001 census, adolescent girls aged 10–19 constitute 23.6% of the population in Nepal.547 According to national-level data from 2001, only 12% of women aged 15–19 were using any method of contraception.548 More than one-fifth of women in this age-group were mothers or were pregnant with their first child.549 While only 2% of 15year-olds had begun childbearing, 41% of 19-year-olds had begun this process.550 The majority of women aged 15–19 give birth without trained assistance.551 Among women younger than age 20, 72% suffer from anemia.552 Women aged 15–19 account for more than one-fifth of all maternal deaths and 5.5% of ever-married women in this age-group have had an abortion.553 Adolescents aged 14–19 make up 13% of all HIV-positive cases.554 The government developed the National Adolescent Health and Development Strategy in 2000 in recognition of the need for a clear framework to address adolescent-specific health and development issues in Nepal.555 In the strategy,the government also recalls its commitments under the ICPD Programme of Action and other international conferences to improve the reproductive health of the people of Nepal, including adolescents.556 The strategy’s main objectives include the following: ■ increase the availability and accessibility of information on adolescent health and development, and provide skill-building opportunities to adolescents, service providers and educators; ■ increase the accessibility and use of health and counseling services for adolescents; and ■ create a safe and supportive environment for adolescents to improve their legal, social and economic status.557 The strategy identifies eight areas for intervention and develops a series of objectives, plans and implementing activities for each area. The intervention areas are as follows: ■ information and skills; ■ health services and counseling; ■ creation of a safe and enabling environment for adolescent health and development initiatives; ■ collaboration among various sectors; ■ research in adolescent health and development; ■ young people’s participation in the development and implementation of programs;
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of marital status; program management; and ■ involving and establishing links with NGOs and the gender sensitivity and equality in adolescent health private sector; and development initiatives.558 ■ providing health screening and counseling services In the area of information and skills,the strategy recognizes through schools, clubs and other community-based the need to empower adolescents with accurate, current and organizations; and age-appropriate information and skills so that they may devel■ initiating peer counseling programs in schools, clubs op and practice safe and responsible behaviors and be able to and workplaces.565 seek appropriate services.559 One of the activities based on In the area of efforts to create a safe and enabling environthis objective is the formulation of a standard information ment for adolescent health and development initiatives,one of package on adolescent health and development to distribute the strategy’s objectives is to formulate and revise laws and to adolescents, service providers, parents, educators, policy560 policies as needed in the areas of health,education,skills,welmakers, and the broader community. The package would fare, and rights.566 include information on the following topics: The strategy also calls for increased collaboration between ■ human sexuality, including puberty, marriage, the various sectors on adolescent health and development initiatives, reproductive process, sexual relationships, and responincluding between government and NGOs. Key NGOs cursible parenthood; rently working in the area of adolescent health include Family ■ contraception, emphasizing the prevention of early Planning Association of Nepal, Bisweswar Prasad Koirala and unwanted pregnancies, and STIs for all sexually Memorial Foundation, Nepal Society of Obstetricians and active adolescents without discrimination; Gynaecologists,and Margaret Sanger Center International. ■ safe motherhood, including healthy pregnancy, safe delivery, pre- and neonatal care and breast-feeding; B. MARRIAGE ■ prevention and management of unsafe abortions and Despite the illegality of early marriage, the practice is pervaabortion complications; sive in Nepal.567 Among adolescent females aged 15–19, ■ prevention and management of reproductive tract 43.3% are married.568 According to national-level data from infections, STIs, HIV/AIDS, and other reproductive 2001,the median age at marriage is 16.8 among women curhealth conditions; and rently aged 20–24.569 Generally, women in rural areas marry ■ nutrition, emphasizing the importance of specific about a year earlier than their urban counterparts.570 nutritional requirements of childhood and adolesUnder the Eleventh Amendment to the Muluki Ain, the cence, especially for girls.561 minimum marriageable age for both sexes is 20 without In the area of health services and counseling, the strategy parental consent.571 The minimum age is 18 for both sexes aims to provide “adolescent-friendly” health services that are with parental consent.572 Previously, women could marry at affordable, accessible, confidential, and nonjudgmental to age 16 and men at 18 with parental improve adolescents’ access to and use consent, and women could marry at of health services.562 The strategy age 18 and men at 21 in the absence RELEVANT LAWS AND POLICIES highlights the need for such improveof such consent.573 • National Adolescent Health and ments to reduce the incidence of early, The Eleventh Amendment Development Strategy, 2000 frequent and unwanted childbearing, increased the punishment for child • National Plan of Action Against and address the problem of STIs and marriage, imposing longer prison Trafficking in Children and their HIV/AIDS, malnutrition and mental terms and higher fines for underage Commercial Exploitation health issues among adolescents.563 marriage. The severity of the penalThe strategy also aims to promote ty varies depending on the age of the counseling services on adolescent health and development child bride. Parents may be punished with six months to issues.564 three years’ imprisonment and a fine of Rs 1,000 to 10,000 Strategies and activities developed on the basis of these where the bride is younger than age ten;three months to one objectives include the following: year imprisonment and a fine of up to Rs 5,000 where the ■ integrating adolescent health services into the existbride is age 10 or older and younger than 14; up to six ing health-care delivery system and developing innomonths’ imprisonment, a fine of up to Rs 10,000 or both, vative models for adolescent-friendly health services; where the bride is age 14 or older and younger than 18; and ■ providing health services and counseling irrespective ■ ■
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up to six months’ imprisonment, a fine of up to Rs 10,000 or both, where the bride is age 18 or older and younger than 20 and the marriage occurs without parental consent.574 (See “Rights within Marriage” for more information.) C. EDUCATION
Among adolescents aged 10–14, 51.0% of girls are literate, compared with 68.4% of boys.575 Among those aged 15–19, about 48.8% of girls are literate, compared with 74.5% of boys.576 Some 44.1% of girls are enrolled in primary school and 40.6% are enrolled in secondary school.577 However, only about 41% of all children complete their primary school education within a period of 5–13 years, and only 14% of children in first grade complete primary school without a failing grade.578 The constitution’s Directive Principles and Policies of the State declare that the state shall “gradually implement a program of free-education [sic].”579 It further provides that the state “shall adopt a policy of education,health and social security of the orphans, helpless woman [sic], aged, disabled and incapacitated persons for their protection and welfare.”580 In accordance with these directives, the government has made primary education free up to grade ten in public schools.581 Free textbooks are also provided to students up to grade five.582 Under the Labour Act and Children’s Act, employers, including tea plantations, must establish primary schools if they employ more than 50 children between the ages of 5 and 14 and there is no primary school within a radius of one kilometer from the employer.583 Provisions in the 1971 Education Act and 1992 Education Regulations provide for special education to children with physical and mental disabilities.584 The government aims to expand access to quality primary education for all communities,with a special focus on girls and socioeconomically disadvantaged groups, and to implement special programs to reduce gender and ethnic imbalances in secondary and higher education.585 The Tenth Plan aims to gradually make free primary education compulsory.586 In 1992,the Ministry of Education and Sports launched the Basic and Primary Education Program to improve the accessibility and quality of basic education in Nepal.587 Teacher training, education for out-of-school children, special needs education, literacy programs, and revision of textbooks and curricula are important components of the program.588 The program has been the main provider of nonformal literacy programs to out-of-school children and young women.589 The aim of such programs,many of which are operated in collaboration with national and international NGOs, is to encourage and motivate girls and out-of-school children, and eventually
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integrate them into mainstream formal schools.590 The program is also one of two main sources of government scholarships for girls,which are provided to girls from remote districts at the primary, secondary and university levels.591 The government has also implemented a meal program in primary schools in 16 districts with especially large food deficits to increase students’ attendance and maximize their learning capacity.592 About 250,000 children in rural areas will benefit from this program.593 The government is also making efforts to enhance gender sensitivity and equity in the education sector. National-level gender orientation workshops have been held for policy-makers in the Ministry of Education and Sports,and similar workshops are planned for ministry officials involved in the implementation of programs and policies.594 The government is also undertaking reforms of textbooks at all levels of the education system to incorporate gender perspectives and eliminate gender stereotyping of professions.595 Adolescents in Nepal, especially those in rural areas, have very little knowledge or access to information about sexual and reproductive health issues due to factors such as illiteracy, lack of education and social taboos.596 Few adolescent girls know about menstruation or puberty.597 One NGO study revealed that only 19% of adolescent girls had some knowledge of diseases or complications related to pregnancy.598 Another study showed that more than 40% of adolescents admitted having no knowledge about any type of sexual activity.599 According to national-level data from 2001, only 52.1% of females aged 15–19 have heard of HIV/AIDS.600 Only 42.3% of the adolescent women who have heard of HIV/AIDS believe there is a way to avoid infection.601 The government has undertaken some health and education initiatives to address this lack of information. The government began including AIDS education in secondary school curricula in 1993.602 “Population Studies,” which include family and reproductive health information, have also been introduced in secondary schools.603 The National Safe Abortion Policy calls for the incorporation of education on the prevention of unsafe abortion in school sexual and reproductive health curricula.604 D. SEXUAL OFFENSES AGAINST MINORS
Adolescents in Nepal are the victims are various forms of sexual abuse and exploitation. There are an estimated 5,000 female commercial sex workers under the age of 16 in Nepal.605 About 5,000–7,000 Nepalese girls are trafficked to India every year,where 60,000 Nepalese girls under the age of 18 are working as commercial sex workers.606 Under the Muluki Ain, an act of sexual intercourse with a
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girl under age 16 is considered statutory rape. Penalties for rape vary depending on the age of the victim,ranging from 10 to 15 years’imprisonment if the victim is younger than age ten;seven to ten years’imprisonment if the victim is older than age 10 and younger than 16; and five to seven years’ imprisonment if the victim is age 16 or older.607 Pedophilia is also dealt with under the Muluki Ain.608 The law provides for one extra year of imprisonment for the offense of pedophilia in addition to the sentence imposed for rape, as well as appropriate compensation for the victim.609 The Children’s Act prohibits the use or involvement of children in immoral or pornographic acts, including photography and the distribution or display of immoral pictures, and the use of publicity materials that are damaging to the child’s character.610 The act also discourages the practice of deuki by punishing offenders with five years’ imprisonment.611 (See “Customary forms of violence” for more information on deuki.) In 1997,the Ministry for Women,Children and Social Welfare formed a national task force to draft national plans and policies for the prevention of trafficking of girls.612 One outcome was the formulation of the National Plan of Action Against Trafficking in Children and their Commercial Sexual Exploitation, which calls for the creation of district task forces to identify high trafficking areas and conduct awareness-raising campaigns; distribute information on trafficking; collect data on trafficking of women and children; and coordinate with other stakeholders to address the problem.613
ENDNOTES 1. See Federal Research Division, Library of Congress, Country Studies: Nepal, Introduction (Andrea Matles Savada, ed. 1991), http://lcweb2.loc.gov/frd/cs/nptoc.html (last visited Feb. 17, 2004) [hereinafter Library of Congress, Country Studies: Nepal]; see also His Majesty’s Government of Nepal, Country Profile, http://www.nepalhmg.gov.np/country.html (last visited Feb. 17, 2004). 2. See Library of Congress, Country Studies: Nepal, supra note 1; see Time Almanac 2000: Millennium Collector’s Edition 270 (1999). 3. See Library of Congress, Country Studies: Nepal, supra note 1. 4. Whitaker’s Almanac 967 (2000). 5. Id. Timeline: Nepal, BBC News, Feb. 13, 2004, at http://news.bbc.co.uk/1/hi/world/south_asia/country_profiles/1166516.stm (last visited Feb. 17, 2004). 6. Country profile: Nepal, BBC News, http://news.bbc.co.uk/2/hi/south_asia/country_profiles/1166502.stm (last visited Mar. 3, 2004). See Time Almanac 2000, supra note 2. 7. Bureau of South Asian Affairs, U.S. Department of State, Background Note: Nepal (2004), http://www.state.gov/r/pa/ei/bgn/5283.htm (last visited Mar. 3, 2004). 8. Forum for Women, Law and Development & The Asia Foundation, Implementation Status of the Outcome Document of Beijing Platform for Action 29 (2003). 9. Id. Amy Waldman, Maoist Rebellion Shifts Balance of Power in Rural Nepal, N.Y.Times, Feb. 5, 2004, at A3. 10. International Covenant on Civil and Political Rights, Nepal, Derogations: Notifications under article 4(3) of the covenant, http://www.bayefsky.com/./html/nepal_t2_ccpr.php (last visited Feb. 17, 2004). During this period, the government suspended several fundamental rights, including those to freedom of opinion and expression; assembly and movement; press; information; privacy, constitutional remedy; property; and against preventive detention. 11. Asian Development Bank, Country Strategy and Program Update 2002–2006: Nepal, pt. I, § A, ¶ 2, http://www.adb.org/Documents/CSPs/NEP/2003/csp0100.asp (last visited Feb. 17, 2004);Waldman, supra note 9. 12. His Majesty’s Government of Nepal, Country Profile, supra note 1; Consideration of Reports Submitted by States Parties under Article 18 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Combined 2nd and 3rd reports of States parties, Nepal, CEDAW Committee, 30th Sess., ¶ 109, U.N. Doc. CEDAW/C/NPL/2–3 (2003) [hereinafter CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal]. 13. The World Bank, Gender Profile, Summary Gender Profile, http://genderstats.worldbank.org (last visited Feb. 17, 2004). 14. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 12; Time Almanac 2000, supra note 2. 15. Library of Congress, Country Studies: Nepal, supra note 1, Society. 16. Id. 17. Central Intelligence Agency (CIA), U.S. Government, Nepal, in The World Factbook (2003), http://www.cia.gov/cia/publications/factbook (last visited Feb. 17, 2004). 18. Country Profile: Nepal, BBC News, supra note 6. 19. See Human Rights Watch,Trapped by Inequality: Bhutanese Refugee Women in Nepal 8 (2003). 20. United Nations, List of Member States, http://www.un.org/Overview/unmember.html (last visited Feb. 17, 2004). 21. See South Asian Association for Regional Cooperation (SAARC), at http://www.saarc-sec.org/ (last visited Feb. 17, 2004). 22. Oxford Dictionary of the World 431 (1995); The World Factbook, supra note 17. 23. Nepal Const. pmbl. 24. Id. arts. 35(1), 36(1)–(2). 25. Whitaker’s Almanac, supra note 4, at 968 (2000); Communication with Premlata Prasai and Rakesh Chhetri, Legal Aid and Consultancy Center, Women of Nepal: Laws and Policies Affecting Their Reproductive Lives (draft) (July 1, 2001) (on file with Center for Reproductive Rights). 26. Library of Congress, Country Studies: Nepal, supra note 1, ch. 4, Government and Politics,The Executive. 27. Id. 28. Id. 29. Nepal Const., arts. 36(1), 37(1)–(2). 30. Id. art. 53(4); Library of Congress, Country Studies: Nepal, supra note 1, ch. 4, Government and Politics,The Executive. 31. Nepal Const., art. 34(2), (6). 32. Id. art. 34(6)–(7). 33. Id. art. 34(6). 34. Whitaker’s Almanac, supra note 4, at 968; Library of Congress, Country Studies: Nepal, supra note 1, ch. 4, Government and Politics,The Executive; Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 35. See Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 36. Nepal Const., art. 43(1). 37. Id. art. 35(3)–(4). Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 38. Nepal Const., art. 35(2). 39. Whitaker’s Almanac, supra note 4, at 968; Library of Congress, Country Studies:
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Nepal, supra note 1, ch. 4, Government and Politics,The Executive. 40. Nepal Const., art. 36(4). 41. Library of Congress, Country Studies: Nepal, supra note 1, ch. 4, Government and Politics,The Legislature. 42. Id. Nepal Const., art. 46(1)–(3). 43. Library of Congress, Country Studies: Nepal, supra note 1, ch. 4, Government and Politics,The Legislature. 44. See CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 18. 45. Library of Congress, Country Studies: Nepal, supra note 1, ch. 4, Government and Politics,The Legislature; Nepal Const., art. 45(1), (3). 46. Nepal Const., art. 114. 47. Id. art. 64. LabourNepal.org, Legislation in Nepal, at http://www.labournepal.org/labourlaws/legislation.html (last visited Mar. 4, 2004). 48. Nepal Const., art. 65(1). 49. Id. art. 65(2). 50. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 51. Nepal Const., art. 68(1). 52. Id. art. 69(1) 53. Id. art. 71(3)–(4). 54. Id. art. 56. 55. Id. art. 56. 56. Family Health Division, Department of Health Services, Ministry of Health, Government of Nepal, Nepal Demographic and Health Survey 2001, 1 (2002). 57. Id. 58. Id. 59. Local Self-Governance Act, 2055 (1999) (Nepal). See CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 42, tbl. 2. 60. Local Self-Governance Act, 2055 (1999), arts. 12(1), 176(1) (Nepal). 61. Id. art. 176(2). 62. Id. art. 176(2)(a)–(b). 63. Id. art. 189. 64. Id. art. 189(n). 65. Id. art. 12(2). 66. Id. art. 80(2). 67. Id. arts. 12(2)(c), 7(b), 80(2)(d). Female members are appointed. 68. Id. arts. 28, 96. 69. Id. arts. 28(g), 96(g). 70. Id. arts. 14(1), 82(1). 71. Id. arts. 96(h)(2), 189(f)(2), 28(k)(7)–(8). 72. Id. arts. 195(4)(d), 111(6)(d), 43(6)(d). 73. Id. arts. 195(5), 43(7), 111(7). 74. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 43, tbl. 2. 75. Local Self-Governance Act, 2055 (1999), arts. 8(2)(b), 76(2)(b), 172(2)(e) (Nepal); CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 42. 76. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal,supra note 12, ¶ 43. 77. Local Self-Governance Act, 2055(1999) B.S., arts. 26(g), 94(1)(g), 188(1)(c) (Nepal). 78. Id. arts. 9(1), 77(1), 173(1). 79. Nepal Const., art. 85(1). 80. Id. art. 85(2). 81. Id. art. 86(1). 82. Id. 83. Library of Congress, Country Studies: Nepal, supra note 1, ch. 4, Government and Politics,The Judiciary. 84. Nepal Const., arts. 86(1), 88(3). 85. Id. art. 88(1). See also Surya P.S. Dhungel et al., Commentary on the Nepalese Constitution 478–519 (1st ed. 1998). 86. Nepal Const., art 88(2). See CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 24. 87. Nepal Const., arts. 86, 86(3), 87(2), 117(1)–(2). 88. Id. art. 87(1), (5). 89. Id. arts. 86(3), 93(1), 117. 90. Id. art. 87(5). 91. Id. art. 86(6)–(7). 92. Supreme Court of Nepal, Judiciary in Nepal, www.supremecourt.gov.np/general_info.html (last visited Feb. 18, 2004); Dhruba Bar Singh Thapa, Modern Legal Systems Cyclopedia,The Legal System of Nepal, vol. 9, §1.4(E)(1) (Kenneth Robert Redden & Linda L. Schlueter eds., 2001). 93. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 94. Nepal Const., art. 91(1). 95. Id. art. 91(5). 96. Local Self-Governance Act, 2055 (1999), arts. 33, 101 (Nepal). 97. Id. arts. 34, 102. 98. Id. arts. 34, 40, 102, 108. 99. Modern Legal Systems Cyclopedia, supra note 92, §1.4(F). 100. See id. 101. See CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal,
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supra note 12, ¶ 17. 102. Id. 103. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 104. Asian Development Bank, Programs Department West, Country Briefing Paper: Women in Nepal 69 (1999). 105. Id. 106. Id. 107. Id. 108. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 4. 109. Id. 110. Family Planning Association of Nepal, Coverage, at http://www.fpan.org/demo/cover.html (last visited Mar. 4, 2004). 111. The World Factbook, supra note 17; Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 112. See Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 113. Nepal Const., art. 1. 114. Id. art. 11(3). 115. Id. art. 12. 116. Id. arts. 14(4), 20. 117. Id. arts. 16, 17, 18, 19, 22. 118. Id. pt. 4. 119. See Modern Legal Systems Cyclopedia, supra note 92, §1.3(B). 120. See id. 121. See id. §1.3(A)(2). 122. See Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 123. See id. 124. Forum for Women, Law and Develoment, Discriminatory Laws in Nepal and Their Impact on Women:A Review of the Current Situation and Proposals for Change § 1.3 (2000). 125. Id. 126. Id. 127. See Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 128. Nepal Treaty Act, 2047 § 9(1). See International Women’s Rights Action Watch Asia Pacific (IWRAW),The Conflict between National and International Law, http://www.iwraw-ap.org/protocol/conflict_laws.htm (last visited Feb. 27, 2004). 129. Convention on the Elimination of All Forms of Discrimination Against Women, adopted Dec. 18, 1979, U.N. GAOR, 34th Sess. Supp. No. 46, U.N. Doc.A/34/46, at 193 (1979) (entered into force Sept. 3, 1981) (ratified by Nepal May 22, 1991); Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, adopted Oct. 6, 1999, U.N. GAOR, 54th Sess., U.N. Doc.A/Res/54/4 (entered into force Dec. 22, 2000) (ratified by Nepal Dec. 22, 2001); Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49, at 166 (1989) (entered into force Sept. 2, 1990) (ratified by Nepal Oct. 14, 1990); Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts, adopted May 25, 2000, G.A. Res.A/RES/54/263, U.N. GAOR, 54th Sess., Supp. No. 49, U.N. Doc.A/54/49 (2000) (entered into force Feb. 12, 2002) (ratified by Nepal Sept. 8, 2000); Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child prostitution and Child Pornography, adopted May 25, 2000, G.A. Res.A/RES/54/263, U.N. GAOR, 54th Sess., Supp. No. 49, U.N. Doc.A/54/49,Vol. III (2000) (entered into force Jan. 18, 2002) (ratified by Nepal Sept. 8, 2000); International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21, 1965, G.A. Res. 2106 (XX), 660 U.N.T.S. 195 (entered into force Jan.4, 1969) (ratified by Nepal Mar. 1, 1971); Optional Protocol to the International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc.A/6316, 999 U.N.T.S. 302, at 59 (entered into force Mar. 23, 1976) (ratified by Nepal Aug. 14, 1991); Second Optional Protocol to the International Covenant on Civil and Political Rights,Aiming at the Abolition of the Death Penalty, adopted Dec. 15, 1989, G.A. Res. 44/128, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49, at 207 (1989), (entered into force July 11, 1991) (ratified by Nepal June 4, 1998); International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc.A/6316, at 52 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by Nepal Aug. 14, 1991); International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc.A/6316 (1966), 993 U.N.T.S. 3, at 49 (entered into force Jan. 3, 1976) (ratified by Nepal Aug. 14, 1991). 130. Bishal Bhattarri, Present Status of Women in Nepal: Constraints and Policy Measures to Gender Equality and Women Empowerment, http://www.unescap.org/stat/meet/rrg3/twsa-nepal-a.pdf (last visited Feb. 18, 2004); Ramesh Nath Pandey, Minister for Population and Environment of Nepal,Address at The Hague Forum (Feb. 18, 1999), http://www.un.org/popin/icpd/icpd5/hague/nepal.pdf (last visited Feb. 18, 2004); Programme of Action of the International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 1994, U.N. 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133. Ministry of Health, Government of Nepal, National Health Policy 1991 (1991). 134. Id. See also Information and Communication Centre, National Health Education, Ministry of Health, Government of Nepal, National Policies and Plans, at http://www.hellisnepal.gov.np/aboutMOH/about_moh.htm (last visited Feb. 18, 2004). 135. National Health Policy 1991, supra note 133. 136. Ministry of Health, National Policies and Plans, supra note 134. 137. Information and Communication Centre, National Health Education, Ministry of Health, Government of Nepal, Second Long Term Health Plan, at http://www.hellisnepal.gov.np/aboutMOH/about_moh.htm (last visited Feb. 18, 2004). 138. Id. 139. National Planning Commission, Government of Nepal,Tenth Plan, ch. 22, § 1 (2003). 140. Id. ch. 22, §§ 3.1.2.1–3.1.2.5. 141. Id. ch. 22, §§ 4.1.3, 4.1.5–4.1.6, 4.1.8–4.1.9. 142. See Department of Health Services, Ministry of Health, Government of Nepal, Annual Report 1998/99 (2055/56), fig. 1b.1, at 12–13, 15 (2000) [hereinafter Ministry of Health Annual Report 1998/99]. 143. Id. at 14. 144. Id. fig. 1b.1, at 12–13, 15. 145. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 86. 146. Id. ¶ 6. Ministry of Health Annual Report 1998/99, supra note 143, fig. 1b.1, at 15. 147. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 13, ¶ 97. 148. The World Bank, Nepal: Operational Issues and Prioritization of Resources in the Health Sector ¶ 2.8 (2000). 149. See Ministry of Health Annual Report 1998/99, supra note 142, at 14. 150. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148. 151. Id. 152. Ministry of Health Annual Report 1998/99, supra note 142, at 14. 153. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148. 154. Id. ¶ 5.25. 155. Id. 156. Id. ¶ 5.55. 157. Tenth Plan, supra note 139, ch. 22, §§ 3.1.2.4, 4.2.3. 158. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.19. 159. Id. ¶ 5.26. 160. Id. 161. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 94. 162. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.17. 163. Ministry of Health Annual Report 1998/99, supra note 142, at 6. 164. Id. 165. Id. tbl. 6h.3, at 252. 166. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 2.6. 167. Id. ¶ 4.1. 168. Id. 169. Ministry of Health Annual Report 1998/99, supra note 142, at 252. 170. Id. tbl. 6h.6, at 252. 171. Id. 172. CEDAW Monitoring Committee, Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention 37 (2003); Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 173. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 4.16. 174. Id. 175. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 176. Tenth Plan, supra note 139, ch. 22, § 4.6.1. 177. Communication with Dr. Lakshmi Narayan Thakur, UNDP, Examining Reproductive Health and Rights (peer review) (Aug. 25, 2003) (on file with Center for Reproductive Rights). 178. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 35. 179. Prakash Chandra Lohani, Minister of Finance, Budget Speech of the FiscalYear 2003/2004, ¶ 112 (July 17, 2003), http://www.mof.gov.np/publication/budget/2003/index.php (last visited Feb. 18, 2003). 180. Nepal Medical Council Act, 2020, pmbl. 181. Id. art. 14(1), sched. 1. 182. Id. art. 14(2), sched. 1. 183. Id. art. 14, sched. 1. 184. Id. arts. 26(1), (3), 27(1), (2). 185. Ian Huntington, Code of Ethics, The Kathmandu Post, June 30, 2002, http://www.kantipuronline.com/archive/kpost/2002-6-30/kp_editorial.htm (last visited
Feb. 23, 2004). 186. Nepal Nursing Council Act, 2052, art. 16. 187. Id. art. 29. 188. Nepal Health Professional Council Act, 2053, art. 20. 189. See Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 20 n.7. 190. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 191. Muluki Ain, 2020 (1963), No. 1, Chapter on Treatment. 192. Suvecha Pant, Nepali ‘Test-tube baby’ could become a reality,The Kathmandu Post, July 10, 2002, http://www.nepalnews.com.np/contents/englishdaily/ktmpost/2002/jul/jul10/ (last visited Feb. 18, 2004). 193. See Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 60 n.18 (citing Muluki Ain (Eleventh Amendment), 2059 (2002), No. 28(A), Chapter on Homicide). 194. Forum for Women, Law and Development, Country Code (Eleventh Amendment) Bill and Women’s Right (translation) (on file with Center for Reproductive Rights). 195. Muluki Ain, 2020 (1963), Nos. 1, 8, Chapter on Treatment. 196. Consumer Protection Act, 1997, arts. 6(a), 10(e) (Nepal). 197. Id. arts. 18(e)(1)–(3), 18(f). 198. Id. art. 22. 199. Drugs Act and Regulations, 1979, art. 15 (Nepal). 200. Family Health Division, Department of Health Services, Ministry of Health, National Reproductive Health Strategy 1 (2000). 201. Id. at 4. 202. Id. at 5. 203. Id. at 7, annex 1. 204. Id. at 7. 205. Id. at 3. 206. Id. at 4. 207. National Health Policy 1991, supra note 133. 208. Tenth Plan, supra note 139, ch. 22, § 4.6. 209. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 88. 210. Id. 211. See National Reproductive Health Strategy, supra note 200, ¶ 3, at 2. 212. Id. at 2–3. 213. Ministry of Health Annual Report 1998/99, supra note 142, at 97; United States Agency for International Development (USAID), Leveraging the potential of local caretakers to provide immediate healthcare, http://www.usaid.gov/np/achievements_nanda.htm (last visited Feb. 19, 2004). 214. Ministry of Health Annual Report 1998/99, supra note 142, at 97. 215. Id. at 117. 216. Id. at 65. 217. Tenth Plan, supra note 139, ch. 22, § 4.6.1. 218. Id. ch. 20, § 4(c). 219. Nepal Demographic and Health Survey 2001, supra note 56, § 5.3, at 71. 220. Id. 221. Id. 222. See id. 223. Id. § 5.4, at 71. 224. See id. § 5.1, at 67. 225. Id. 226. Drugs Act, art. 27 (Nepal). 227. Id. art. 10. 228. Id. art. 30. 229. See Population Division, Department of Economic and Social Affairs, United Nations,Abortion Policies:A Global Review, Country Profile: Nepal, http://www.un.org/esa/population/publications/abortion/profiles.htm (last visited Feb. 19, 2004). 230. International Consortium for Emergency Contraception (ICEC), ECPs Status and Activity by Country, http://www.cecinfo.org/files/ecstatusavailability.pdf (last visited Feb. 19, 2004). 231. See Nepal Demographic and Health Survey 2001, supra note 56, § 5.19, at 95. 232. See id. 233. Id. 234. Id. 235. Id. § 5.3, at 71. 236. Id. tbl. 5.4.1, at 72. 237. Id. § 5.3, at 71. 238. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 239. National Reproductive Health Strategy, supra note 201,Annex 1, at 9. 240. Tenth Plan, supra note 139, ch. 22, § 4.6.1. 241. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 242. Nepal Demographic and Health Survey 2001, supra note 56, § 1.3, at 5. 243. Id. 244. Id. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.41. 245. Nepal Demographic and Health Survey 2001, supra note 56, § 5.12, at 85.
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246. Id. § 1, at 5. Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.40. 247. Nepal Demographic and Health Survey 2001, supra note 56, § 5.12, at 87; Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.40. 248. Nepal Demographic and Health Survey 2001, supra note 56, § 5.12, at 85; Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.40. 249. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 94. 250. Id. 251. Nepal Demographic and Health Survey 2001, supra note 56, at 5; Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.40. 252. Nepal Demographic and Health Survey 2001, supra note 58, § 5.12, at 85; Nepal: Operational Issues and Prioritization of Resources in the Health Sector, supra note 148, ¶ 5.40. 253. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 17 n.1. 254.Aruna Uprety, Abortion Laws in Nepal, 8 Body Politic 1 (1998). 255. Nepal Demographic and Health Survey 2001, supra note 56, § 9.1, at 141–142. 256. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 17 n.2. 257. Nepal Demographic and Health Survey 2001, supra note 56, § 9.3, at 153. 258. Id. at 139. 259. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 20. 260. Id. at 20 n.10. 261. Nepal Demographic and Health Survey 2001, supra note 56, at 139. 262. Id. 263. Ministry of Health Annual Report 1998/99, supra note 142, at 87. 264. See Tenth Plan, supra note 139, ch. 22, § 4.6.1. 265. Id. 266. Id. ch. 22, tbl. 2, § 4.3. 267. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, tbl. 7, at 19. 268. Ministry of Health Annual Report 1998/99, supra note 142, at 103. 269. Id. tbl. 3d.3, at 106. 270. Id. at 103. 271. Id. tbl. 3d.1, at 105. 272. Nepal Demographic and Health Survey 2001, supra note 56, at 139. 273. Id. 274. Ministry of Population and Environment, His Majesty’s Government of Nepal, Nepal Population Report 2002, ch. 6, § 6.3.4.3, http://www.mope.gov.np/population/demographic.php (last visited Feb. 19, 2004). 275. Id. ch. 6, § 6.3.4. 276. Id. ch. 6, § 6.3.4.2. 277. See id. ch. 6, tbl. 6.10. 278. See Center for Reproductive Rights & Forum for Women, Law and Development,Abortion in Nepal:Women Imprisoned 11, 12 n.19, 23 (2002). 279. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 280.Anand Tamang, Preventing Unsafe Abortions to Save Women’s Lives: Issues and Challenges,at 3–4 (presented at Meeting on Provision of Women’s Reproductive Rights in the Eleventh Amendment of Mulki Ain (Civil Code) 2020, Mar. 8, 2001),available at http://www.panasia.org.sg/nepalnet/mahilaweb/health/reports_summary/abortion_report_crehpa.htm (last visited Feb. 19, 2004). 281. Forum for Women, Law and Development, Shadow Report on Initial report of Government of Nepal on CEDAW, Briefing of Initial Report and Concluding Comments 33 (1999). 282. Communication with Melissa Upreti, Center for Reproductive Rights, Women of Nepal: Laws and Policies Affecting Their Reproductive Lives (review of draft) (on file with Center for Reproductive Rights). 283. Women’s groups hail passage of abortion bill, The Kathmandu Post, Sept. 28, 2002, http://www.nepalnews.com.np/contents/englishdaily/ktmpost/2002/sep/sep28/index.h tm#2 (last visited Feb. 19, 2004). 284. Muluki Ain, 2020 (1963), No. 28, Chapter on Homicide; Abortion in Nepal: Women Imprisoned, supra note 278, at 38–39. See Abortion Policies:A Global Review, supra note 229, at 157. 285. Muluki Ain, 2020 (1963), No. 28, Chapter on Homicide;Abortion in Nepal: Women Imprisoned, supra note 278, at 39. 286. Nepal Raj Patra (Official Gazette), Pt. 52,Additional issue 47, pt 2, at 22–23 (Sept. 26, 2002); Legal Aid and Consultancy Centre,The Eleventh Amendment of National Code of Nepal (Muluki Ain) on Women’s Right 6–7. 287. Communication with Melissa Upreti, supra note 282. See Email from Anand Tamang, Centre for Research, Environment and Population Activities, to Nile Park, Center for Reproductive Rights (Mar. 8, 2004, 02:43:00 EST). 288. Muluki Ain (Eleventh Amendment), 2059 (2002), No. 28(a), Chapter on Life (unofficial translation on file with Center for Reproductive Rights). 289. Id. 290. Id.
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345. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 41. 346. Id. at 42 n.1. 347. Beijing Plus Five Country Report, supra note 335, at 34; CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 13, ¶ 3. 348. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal,supra note 12, ¶ 145. 349. Id. ¶ 16. 350. Id. ¶ 3. 351. Id. 352. Id. 353. Id. ¶ 21. 354. Id. ¶ 22. 355. Id. ¶ 4. 356. Nepal Const., art. 9(1). 357. Id. art. 9(5). 358. See id. art. 9(5). 359. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 17. 360. Muluki Ain (Eleventh Amendment), 2059 (2002), No. 2, Chapter on Marriage. 361. Muluki Ain, 2020 (1963), No. 7, Chapter on Marriage. 362. Id. 363. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 364. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 134. 365. Muluki Ain, 2020 (1963), No. 9, Chapter on Marriage, No. 1, Chapter on Adultery. 366. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 367. Muluki Ain (Eleventh Amendment), 2059 (2002), No. 9, Chapter on Marriage. 368. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 369. Muluki Ain (Eleventh Amendment), 2059 (2002), No. 2, Chapter on Marriage. 370. Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 9. 371. Forum for Women, Law and Development, Special Measures for Women & Their Impact 97 (2003). 372. Muluki Ain, 2020 (1963), No. 6, Chapter on Adultery, No. 11, Chapter on Marriage. 373. Muluki Ain, 2020 (1963), No. 8, Chapter on Marriage. 374. Muluki Ain (Eleventh Amendment), 2059 (2002), No. 8, Chapter on Marriage. 375. Muluki Ain, 2020 (1963), No. 1, Chapter on Husband and Wife. 376. Id. Nos. 1–2, 4, 7. 377. Id. No. 1. 378. Id. Nos. 1, (1), 5. 379. Special Measures for Women & Their Impact, supra note 371, 66–67 n.84. 380. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 19. 381. Muluki Ain (Eleventh Amendment), 2059 (2002), No. 9, Chapter on Marriage; Forum for Women, Law and Development, Eleventh Amendment (translation), supra note 194. 382. Muluki Ain, 2020 (1963), No. 4(b), Chapter on Husband and Wife 134;Forum for Women, Law and Development, Eleventh Amendment (translation), supra note 194. 383. Id. 384. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 136. 385. Muluki Ain, 2020 (1963), No. 3(1), Chapter on Husband and Wife. 386. Id. No. 3(2). 387. Id. No. 3(2). 388. Id. No. 9, Chapter on Adoption. 389. Id. No. 2. 390. Id. No. 2(a); Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 6. 391. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 60 n.16. 392. Muluki Ain, 2020 (1963), No. 11, Chapter on Adoption. 393. Nepal Const., art. 17. 394. Muluki Ain, 2020 (1963), No. 4(a), Chapter on Husband and Wife; Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 5–6 . 395. Muluki Ain, 2020 (1963), No. 12, Chapter on Partition;Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 35. 396. Muluki Ain, 2020 (1963), No. 4, Chapter on Partition; Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 10. 397. Muluki Ain, 2020 (1963), No. 9(2), Chapter on Partition;Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 5–6. 398. Muluki Ain, 2020 (1963), No. 16, Chapter on Partition; CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal,supra note 12, ¶ 140. 399. Muluki Ain, 2020 (1963), No. 2, Chapter on Women’s Exclusive Property. 400. Id. No. 9, Chapter on Transactions. 401. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 19. 402. Id. ¶ 100. 403. Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 63 n.213.
404. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 17. 405. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 406. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 71. 407. Id. 408. Id. 409. Id. 410. Id. ¶ 73. 411. Id. 412. Tenth Plan, supra note 139, ch. 24, § 25.2, tbl. (citing Central Bureau of Statistics, Census 2001). 413. Nepal Const., art. 11(5), art. 12(2)(e). 414. Id. art. 26(6)–(7), (10). 415. Labour Act, 1991 (Nepal). 416. Labour Regulations, 1993, § 34 (Nepal); Special Measures for Women & Their Impact, supra note 371, 60 n.56. 417. Communication with Sonali Regmi,Women of Nepal: Laws and Policies Affecting Their Reproductive Lives (peer review of draft) (Oct. 14, 2003) (on file with Center for Reproductive Rights). 418. Labour Act, 1991, § 42(1), (3) (Nepal). 419. Id. ¶ 25. 420. Id. 421. Special Measures for Women & Their Impact, supra note 371, at 56 n.39. 422. Labour Act, 1991, § 5(2)–(3) (Nepal); Labour Regulations, 1993, § 4 (Nepal); Special Measures for Women & Their Impact, supra note 371, at 58 n.46. 423. Special Measures for Women & Their Impact, supra note 371, at 58 n.45. 424. Discriminatory Laws in Nepal and Their Impact on Women:A Review of the Current Situation and Proposals for Change, supra note 124, at 24 n.71 (citing Army Act, 1959, § 10 (Nepal)). 425. Id. at 24 n.75 (citing The Police Boy (Recruitment,Terms and Conditions) Rules, 1971 (Nepal)). 426. Foreign Employment Act, 1997, art. 12 (Nepal); Sabin Shrestha, Migration and Trafficking:Are They Same?, The Rising Nepal, Jan. 1, 2003, http://www.nepalnews.com.np/contents/englishdaily/trn/2003/jan/jan01/features1.htm (last visited Feb. 25, 2004). 427. See Discriminatory Laws in Nepal and Their Impact on Women:A Review of the Current Situation and Proposals for Change, supra note 124, at 24 n.73 (citing Foreign Employment Act, 1985, § 12 (Nepal)). 428. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 19. 429. Id. ¶ 105. 430. Id. 431. Id. ¶ 162. 432. Id. ¶ 10. 433. Id. ¶ 77. 434. Id. ¶ 10. Asian Development Bank (ADB), Nepal Agriculture Plan Gets US$850,000 ADB Grant, News Release, No. 088/96, July 30, 1996, http://www.adb.org/Documents/News/1996/nr1996088.asp. 435. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 62. 436. Id. ¶ 78. 437. Id. 438. Id. ¶ 117. 439. See id. ¶ 111. 440. Id. See Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 39. 441. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal,supra note 12, ¶¶ 112–113. 442. See CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 113. 443. Id. 444. Id. 445. Id. ¶ 114. 446. Id. ¶ 113. 447. Id. ¶ 115. 448. Id. 449. Id. 450. Id. ¶ 116. 451. Id. ¶ 118. 452. Id. ¶ 121. 453. Id. ¶ 56. 454. Id. 455. Id. 456. Id. ¶ 109. 457. Nepal Const., art. 18(2). 458. Id. art. 26(1), (7), (9), (10). 459. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 2. 460. Tenth Plan, supra note 139, ch. 21, §§ 3–4. 461. Id. ch. 21, § 4.4.
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462. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 150; Beijing Plus Five Country Report, supra note 348, § B(1), at 9. 463. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 171. 464. Id. ¶ 67. 465. Id. 466. Id. ¶ 2. 467. Id. ¶ 68. 468. Id. 469. Id. 470. Id. ¶ 2. 471. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 24. 472. Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 62. 473. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal,supra note 12, ¶ 154. 474. Muluki Ain, 2020 (1963), Nos. 1–2, Chapter on Rape. 475. Shilu Singh, Violence against Women with Special Reference to Laws on Rape and Abortion, 2 Reflections 21 (1998). 476. Forum for Women, Law and Development, Eleventh Amendment (translation), supra note 194. 477. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 26 n.13. 478. Muluki Ain, 2020 (1963), No. 3, Chapter on Rape; Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 8. 479. Muluki Ain, 2020 (1963), No. 3(a), Chapter on Rape;Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 8. 480. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 26 n.14. 481. Id. 482. Muluki Ain, 2020 (1963), No. 9, Chapter on Rape; Special Measures for Women & Their Impact, supra note 371, at 63. 483. Muluki Ain, 2020 (1963), No. 4, Chapter on Rape. 484. Id. 485. Special Measures for Women & Their Impact, supra note 371, at 63. 486. Id. 487. Muluki Ain, 2020 (1963), No. 11, Chapter on Rape. 488. Id. No. 10(a). Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 8. 489. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 25 n.8. 490. Muluki Ain, 2020 (1963), Chapter on Incest. 491. Id. No. 5(1). 492. Communication with Sonali Regmi, supra note 417. 493. Minnesota Advocates for Human Rights, DomesticViolence in Nepal 17–18 (1998). 494. Id. 17 n.64. 495. Id. 18–19. 496. Id. 18–19 n.69. 497. Id. 498. Id. 499. Id. 20. 500. Id. 18. 501. Communication with Premlata Prasai and Rakesh Chhetri, supra note 25. 502. Id. 503. Special Measures for Women & Their Impact, supra note 371, at 91. 504. Muluki Ain, 2020 (1963), No. 1, Chapter on Intention to Sex. See Special Measures for Women & Their Impact, supra note 372, at 62–63. 505. Muluki Ain, 2020 (1963), No. 5, Chapter on Intention to Sex. 506. Discriminatory Laws in Nepal and Their Impact on Women:A Review of the Current Situation and Proposals for Change, supra note 124, at 23. 507. Forum for Women, Law and Development & Women Cell, Nepal Police, Report on FGD on Harassment to Commercial Sex Workers and Homosexuals (Sept. 2003) (unpublished manuscript, on file with the Center for Reproductive Rights). 508. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 38. 509. Id. 510. Id. ¶ 28. 511. Nepal Const., art. 20. 512. Id. art. 20. 513. Muluki Ain, 2020 (1963), Nos. 1, 5, Chapter on Trafficking. 514. Id. No. 1. 515. Id. No. 3. 516. Id. 517. Id. No. 5, Chapter on Intention to Sex. 518. Id. 519.Traffic in Human Beings (Control) Act, 1986, § 4(a)–(d) (Nepal). 520. Id. § 2. 521. Id. § 8(1)–(4).
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522. Id. § 8(5). 523. Id. § 7. 524. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 36. 525. Id. ¶ 7. 526. Id. 527. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 25. 528. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 7. 529. Id. ¶ 35. 530. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 25. 531. Id. 532. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 31. 533. Id. 534. Id. 535. Id. 536. Id. 537. Id. ¶ 34. 538. Id. 539. Id. ¶ 35. 540. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 24 n.3. 541. Shadow Report on Initial report of Government of Nepal on CEDAW, Briefing of Initial Report and Concluding Comments, supra note 281, at 39. See Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 24. 542. Shadow Report on Initial report of Government of Nepal on CEDAW, Briefing of Initial Report and Concluding Comments, supra note 281, at 39. 543. Id. 544. Special Measures for Women & Their Impact, supra note 371, at 90. 545. Shadow Report on Initial report of Government of Nepal on CEDAW, Briefing of Initial Report and Concluding Comments, supra note 281, at 39. 546. Special Measures for Women & Their Impact, supra note 371, at 90. 547. See National Planning Commission, Government of Nepal, National Population Census 2001, Summary Sheet, tbl. 5., http://www.npc.gov.np/population/SummarySheet.jsp (last visited Feb. 22, 2004). 548. Nepal Demographic and Health Survey 2001, supra note 56, tbl. 5.3, at 70. 549. Id. § 4.6, at 65. 550. Id. 551. See Family Health Division, Department of Health Services, Ministry of Health, Government of Nepal, National Adolescent Health and Development Strategy, Annex II, at 16 (2000). 552. Id. 553. Id. 554. Id. 555. See id. Preface, at iii. 556. Id. 557. Id. ¶ 2.2, at 3. 558. Id. ¶ 3, at 3. 559. Id. ¶ 3.1, at 4. 560. Id. 561. Id. Annex I, at 15. 562. Id. ¶ 3.2, at 5. 563. Id. 564. Id. 565. Id. 566. Id. ¶ 3.3, at 5. 567. National Resource Centre for Non-Formal Education (NRC-NFE), Communication and advocacy strategies:Adolescent reproductive and sexual health 1 (2000). 568. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, tbl. 5, at 18. 569. Nepal Demographic and Health Survey 2001, supra note 56, § 6.3, at 105. 570. Id. 571. Muluki Ain, 2020 (1963), No. 2, Chapter on Marriage; Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 8. 572. Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 286, at 8. 573. Id. 574. Muluki Ain, 2020 (1963), No.2(1)–(4), Chapter on Marriage. 575. National Adolescent Health and Development Strategy, supra note 551. 576. Id. 577. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, tbl. 1, at 12. 578. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 58. 579. Nepal. Const., art. 26(8).
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580. Id. art. 26(9). 581. Implementation of the International Covenant on Economic, Social and Cultural Rights, Initial reports submitted by States parties under articles 16 and 17 of the Covenant,Addendum, Nepal, Economic and Social Council, 26th Sess., ¶¶ 161, 180, U.N. Doc. E/1990/5/Add.45 (2000). 582. Id. 583. Consideration of Reports Submitted by States Parties Under Article 44 of the Convention on the Rights of the Child, Initial reports of States parties due in 1992, Nepal, CRC Committee, 12th Sess., ¶ 287, U.N. Doc. CRC/C/3/Add.34 (1995) [hereinafter CRC Committee, Initial reports of States parties due in 1992, Nepal]. 584 Id. ¶ 230. 585. Department of Education, Nepal Education Information 2001, ¶¶ 3.1–3.2, at 4 (2001). 586. Tenth Plan, supra note 139, ch. 21, § 4. 587. Beijing Plus Five Country Report, supra note 335, § B(2), at 10. 588. Id. 589. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 67. 590. Id. 591. Beijing Plus Five Country Report, supra note 335, § B(2), at 10. 592. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 65. 593. Id. 594. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 14. 595. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 64. 596. Communication and advocacy strategies:Adolescent reproductive and sexual health, supra note 567, at 7. 597. Id. 598. Women’s Rehabilitation Centre, Nepali Rural Adolescent Girls Speak of Their Reproductive Health Concerns 38 (2000). 599. Communication and advocacy strategies:Adolescent reproductive and sexual health, supra note 567, at 7. 600. Nepal Demographic and Health Survey 2001, supra note 56, tbl. 11.1, at 197. 601. Id. 602. See Ministry of Health Annual Report 1998/99, supra note 142, at 177–178. 603. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 64. 604. National Safe Abortion Policy 2002 (draft), supra note 294, ¶ 4.1.3. 605. National Adolescent Health and Development Strategy, supra note 551, Annex II, at 17. 606. Id. 607. Muluki Ain, 2020 (1963), No. 3, Chapter on Rape; Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 287, at 8. 608. Muluki Ain, 2020 (1963), No. 9(a), Chapter on Rape; Legal Aid and Consultancy Centre,The Eleventh Amendment, supra note 287, at 8. 609. Id. 610. CRC Committee, Initial reports of States parties due in 1992, Nepal, supra note 583, ¶ 377. 611. Shadow Report on Initial report of Government of Nepal on CEDAW, Briefing of Initial Report and Concluding Comments, supra note 281, at 39. 612. Beijing Plus Five Country Report, supra note 335, § B(1), at 18. 613. Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172 , art. 6(c), at 17.
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4. Pakistan Statistics GENERAL
Population ■
Total population: 153,600,000.1
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Population by sex: 72,358,880 (female) and 76,362, 250 (male).2
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Percentage of population aged 0–14: 41.2.3
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Percentage of population aged 15–24: 19.4.4
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Percentage of population in rural areas: 67.5
Economy ■
Annual percentage growth of gross domestic product (GDP): 3.7.6
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Gross national income (GNI) per capita: USD 410.7
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Government expenditure on health: 0.9% of GDP.8
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Government expenditure on education: 2.3% of GDP.9
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Population below the poverty line: 32.6% (below national poverty line); 13.4% (below USD 1 a day poverty line); 65.6% (below USD 2 a day poverty line).10
WOMEN’S STATUS ■
Life expectancy: 60.9 (female) and 61.2 (male).11
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Average age at marriage: 21.7 (female) and 26.5 (male).12
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Labor force participation: 15.4% (female) and 84.6% (male).13
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Percentage of employed women in agricultural labor force: 66.3.14
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Percentage of women among administrative and managerial workers: 4.15
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Literacy rate among population aged 15 and older: 28.8% (female) and 57.4% (male).16
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Percentage of female-headed households: 7.17
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Percentage of seats held by women in national government: 2.18
CONTRACEPTION ■
Total fertility rate: 5.08 lifetime births per woman.19
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Contraceptive prevalence rate among married women aged 15–49: 28% (any method) and 20% (modern methods).20
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Prevalence of sterilization among couples: 5.0% (total); 5.0% (female); <0.1% (male).21
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Sterilization as a percentage of overall contraceptive prevalence: 28.1.22
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MATERNAL HEALTH ■
Lifetime risk of maternal death: 1 in 80 women.23
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Maternal mortality ratio per 100,000 live births: 476.24
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Percentage of pregnant women with anemia: 37.25
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Percentage of births monitored by trained attendants: 20.26
ABORTION ■
Information unavailable.
SEXUALLY TRANSMISSIBLE INFECTIONS (STIs) AND HIV/AIDS ■
Number of people living with sexually transmissible infections: Information unavailable.
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Number of people living with HIV/AIDS: 78,000.27
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Percentage of people aged 15–24 living with HIV/AIDS: 0.05 (female) and 0.06 (male).28
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Estimated number of deaths due to AIDS: 4,500.29
CHILDREN AND ADOLESCENTS ■
Infant mortality rate per 1,000 live births: 87.30
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Under five mortality rate per 1,000 live births by sex: 135 (female) and 121 (male).31
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Gross primary school enrollment ratio: 54 (female) and 93 (male).32
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Primary school completion rate: Information unavailable.33
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Number of births per 1,000 women aged 15–19: 50.34
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Contraceptive prevalence rates among married female adolescents: 2.4% (modern methods); 3.9% (traditional methods); 6.2% (any method).35
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Percentage of abortions that are obtained by women younger than age 20: Information unavailable.36
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Number of children under the age of 15 living with HIV/AIDS: 2,200.37
WOMEN OF THE WORLD:
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PAKISTAN
ENDNOTES 1. See United Nations Population Fund (UNFPA),The State of World Population 2003, at 75 (2003) [hereinafter The State of World Population 2003]. Estimates for 2003. 2. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003) [hereinafter UNFPA Country Profiles]. Estimates for 2001. 3. See THE WORLD BANK,WORLD DEVELOPMENT INDICATORS 2003, at 39 (2003) [hereinafter World Development Indicators 2003]. Estimates for 2001. 4. See UNFPA Country Profiles, supra note 2. 5. See The State of World Population 2003, supra note 1, at 75. 6. See World Development Indicators 2003, supra note 3, at 187. 7. See The World Bank,World Development Indicators 2003, Data Query, available at http://devdata.worldbank.org/data-query/ (last visited Feb. 24, 2004). The statistical figure was obtained through the Atlas method. Estimates for 2002. 8. See The State of World Population 2003, supra note 1, at 75. 9. See United Nations, Infonation, Government Education Expenditure, available at http://www.un.org/Pubs/CyberSchoolBus/infonation/e_infonation.htm (last visited Dec. 18, 2003). Estimates for 1990-99. 10. See World Development Indicators 2003, supra note 3, at 59. The statistical figures were based on 1998-99. 11. See The State of World Population 2003, supra note 1, at 71. 12. See UNFPA Country Profiles, supra note 2. 13. See id. 14. Information on file with the Center for Reproductive Rights. 15. See United Nations,The World’s Women 2000, at 147 (2000) [hereinafter The World’s Women 2000]. 16. See UNFPA Country Profiles, supra note 2. 17. See The World’s Women 2000, supra note 15, at 49. Estimates for 1985-1990. 18. See Save the Children, State of World’s Mothers 2003, at 40 (2003) [hereinafter State of World’s Mothers 2003]. This indicator represents the percentage of seats in national legislatures or parliaments occupied by women. 19. SeeThe State of World Population 2003, supra note 1, at 75. 20. See id. 21. See EngenderHealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002). Estimates for 1994-1995. 22. See id., tbl. 2.5, at 56. Estimates for 1994-1995. 23. See WHO et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), UNFPA 45 (2001). Estimates for 1995. 24. See The State of World Population 2003, supra note 1, at 71. 25. See State of World’s Mothers 2003, supra note 18, at 40. 26. See The State of World Population 2003, supra note 1, at 75. 27. See UNAIDS & World Health Organization (WHO), Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections Updated 18 August 2003: Pakistan 2 (2003) [hereinafter UNAIDS], available at http://www.who.int/GlobalAtlas/home.asp (last visited Aug. 18, 2003). Estimates for 2001. 28. See The State of World Population 2003, supra note 1, at 75. 29. See UNAIDS, supra note 27, at 2. 30. SeeThe State of World Population 2003, supra note 1, at 71. 31. See UNFPA Country Profiles, supra note 2. 32. See The State of World Population 2003, supra note 1, at 71. The ratios indicate the number of students enrolled per 100 individuals in the appropriate age group. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts, interrupted schooling or grade repetition. 33.While The State of World Population 2003 provides statistics for other countries, the information for Pakistan is unavailable in the report. 34. SeeThe State of World Population 2003, supra note 1, at 71. 35. See Saroj & K.G. Santhya, Reproductive Choices for Asian Adolescents:A Focus on Contraceptive Behavior, 28 Int’l Fam. Planning Persp. 186-195 (2002), available at http://www.agi-usa.org/pubs/journals/2818602t.html (last visited Aug. 21, 2003). Estimates for 1996-1997. 36.While the article Characteristics of women who obtain induced abortion:A worldwide review, in the International Family Planning Perspectives, provides statistics for other countries, the information for Pakistan is unavailable in the report. 37. See UNAIDS, supra note 27, at 2.
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P
akistan’s history dates back to the former IndusValley civilization, one of the world’s earliest civilizations.1 A succession of Hindu and Muslim rulers controlled the region comprising present-day Pakistan for many centuries until the rise of the British Empire in the eighteenth century, which ruled the Indian subcontinent for more than two hundred years.2 The British partition of the Indian subcontinent along religious lines at the time of independence in 1947 resulted in the creation of predominantly Muslim Pakistan, with Mohammed Ali Jinnah as governor-general,and largely Hindu India.3 Pakistan was initially comprised of two regions separated by more than 1,000 miles of Indian territory known as East and West Pakistan.4 Relations between the two regions, which were unique socially and culturally outside of religion,were strained from the beginning.5 Civil war erupted in 1971 and after months of widespread fighting,East Pakistan defeated West Pakistan (present-day Pakistan) to become the independent state of Bangladesh.6 Zulfikar Ali Bhutto took over as president of Pakistan and, in 1973,established a constitution that remains in force today.7 Bhutto, who governed Pakistan under civilian rule, was overthrown in a 1977 military coup led by General Mohammed Zia ul-Haq,who declared himself president in 1978 and ruled by martial law until 1985.8 His government announced a policy of Nizam-i-Islam, or Islamic rule.9 Following Zia’s death in a plane crash in 1988, Benazir Bhutto, daughter of Zulfikar Ali Bhutto, became prime minister; she ushered in a decade marked by a succession of unstable governments.10 On October 12, 1999, General Pervez Musharraf overthrew the government of then Prime Minister Nawaz Sharif in a bloodless military coup,suspending the 1973 constitution and once again imposing military rule on Pakistan.11 Assuming the title of chief executive, he appointed an eight-member National Security Council to govern the country.12 In 2000, the Supreme Court of Pakistan unanimously validated Musharraf ’s coup and granted him executive and legislative authority until 2002, ordering him to hold elections within three years.13 In June 2001, Musharraf declared himself president, and his presidency was extended to 2007 following an April 2002 referendum.14 In November 2002, a new civilian prime minister, Mir Zafarullah Khan Jamali, was elected, signaling the end of three years of purely military government.15 Pakistan’s population is an estimated 142.5 million, 48.1% of which is female.16 Urdu is the official language, although English is commonly used in the realms of government, military,business and higher education;other principal languages include Punjabi, Sindhi, Siraiki, Pashtu, Balochi, Hindko, Brahui and Burushaski.17 The major ethnic groups are Punjabi, Sindhi, Pashtun, Baloch and Muhajir.18 Islam is the state
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religion and is practiced by 97% of the population, 77% of whom are Sunni Muslims and 20% of whom are Shia Muslims.19 The remaining 3% of the population is comprised largely of Hindus, Christians, Buddhists and Parsis.20 As a border nation to Afghanistan,Pakistan historically has been a recipient of refugees fleeing military conflict. The Pakistani government estimates that there are some 3.3 million Afghan refugees living in Pakistan.21 International agencies estimate that about half of that population receives government assistance and that there may be some two million other undocumented Afghans in Pakistan.22 Pakistan has been a state party to the United Nations (UN) since 1947.23 It is also a member of the South Asian Association for Regional Cooperation (SAARC), the Organization of Islamic Conference and the Commonwealth of Nations, an organization of countries formerly part of the British Empire.24
I. Setting the Stage:
The Legal and Political Framework of Pakistan Fundamental rights are rooted in a nation’s legal and political framework, as established by its constitution. The principles and goals enshrined in a constitution along with the processes it prescribes for advancing them, determine the extent to which these basic rights are enjoyed and protected. A constitution that upholds equality,liberty and social justice can provide a sound basis for the realization of women’s human rights, including their reproductive rights. Likewise, a political system committed to democracy and the rule of law is critical to establishing an environment for advancing these rights. The following section outlines Pakistan’s legal and political framework. A. THE STRUCTURE OF NATIONAL GOVERNMENT
The Islamic Republic of Pakistan is a federal republic.25 The preamble to the 1973 Constitution of the Islamic Republic of Pakistan characterizes the country as a “democratic State based on Islamic principles of social justice.”26 It maintains that “sovereignty over the entire Universe belongs to Almighty Allah alone” and that the people of Pakistan are empowered to exercise authority within the limits prescribed by Islam.27 The constitution delineates three branches of government: executive, legislative and judicial. Executive branch The executive branch of government consists of the president,the prime minister and the Cabinet of Ministers.28 The
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president, who must be a Muslim, is the head of state.29 He or she is elected by members of both houses of parliament and the provincial assemblies.30 The president serves a five-year term, which is limited to two consecutive terms.31 The constitution requires the president to act in compliance with the recommendations of the cabinet or prime minister, although he or she may use his or her discretion regarding “any matter which he is empowered by the constitution to do so”and the validity of such actions “shall not be called in question on any ground whatsoever.”32 The president’s powers include granting pardons and remitting, suspending or commuting any sentence passed by any court.33 A president may be removed from office by a two-thirds parliamentary majority for reasons of physical or mental incapacity, for gross misconduct or for violating the constitution.34 The president appoints the parliamentarian holding the confidence of the majority of the lower house to the office of prime minister.35 The prime minister heads the Cabinet of Ministers and acts as a liaison between the cabinet and the president, communicating all cabinet decisions to the president and submitting presidential proposals to the cabinet.36 The prime minister can only be removed from office by a vote of no confidence issued by a simple majority of the lower house of parliament.37 The Cabinet of Ministers, which is comprised of federal ministers, ministers of state and advisers, aids and advises the president in exercising his or her functions.38 The president appoints members of parliament to the cabinet upon the advice of the prime minister.39 The cabinet together with the ministers of state are collectively responsible to the National Assembly.40 Legislative branch The Majlis-e-Shoora (parliament) consists of the president and two houses, known as the Senate (upper house) and the National Assembly (lower house).41 Pursuant to constitutional amendments issued in 2002 by President Musharraf in his Legal Framework Order, the number of seats in the Senate increased from 87 to 100.42 Of the 100 members, the order provides for the election of 22 members by each provincial assembly, four of whom are women and four of whom are technocrats including ulema (religious scholars).43 One woman and technocrat each, and two members on general seats, are elected from the Federal Capital Territory, and eight members are elected from the Federally Administered Tribal Areas.44 Members serve six-year terms, and the body is not subject to dissolution.45 The Legal Framework Order increased the number of seats in the National Assembly from 207 to 342, and candidates standing for election need not be Muslim as was pre-
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viously required.46 Of the total number of seats, the order provides for the reservation of 60 seats for women and ten seats for non-Muslims and persons belonging to the Quadiani or Lahori groups and scheduled castes.47 Members to fill general seats are elected by direct vote, while seats reserved for women and non-Muslims are allocated on the basis of proportional representation to political parties that win at least 5% of the directly elected general seats.48 Members serve for five years,with the entire assembly dissolving every five years.49 The National Assembly must convene at least three times a year.50 Seats are allocated to each province based upon the current population levels and are reallocated after each census.51 Subject to the constitution, all of the National Assembly’s decisions are ratified by a majority vote of members present during the session.52 The president has the authority to dissolve the National Assembly upon the advice of the prime minister, or at his discretion when the assembly has issued a vote of no confidence against the prime minister and no other member is likely to receive the support of the majority of the assembly.53 The constitution also authorizes the president’s unilateral dissolution of the National Assembly where the business of government “cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.”54 The constitution prescribes the separate and shared powers of parliament and the provincial governments in two separate lists:the Federal Legislative List and the Concurrent Legislative List.55 Parliament has exclusive legislative control over all subjects on the Federal Legislative List, which include national defense; nationality and citizenship; immigration; federal public services; national planning and national economic coordination;presidential,parliamentary and provincial assembly elections; taxation; jurisdiction and powers of all courts, except the Supreme Court; and enlargement of the Supreme Court’s jurisdiction.56 Both parliament and the provincial governments may legislate on subjects on the Concurrent Legislative List, which include criminal law and criminal and civil procedure; marriage and divorce; infants and minors; adoption; inheritance and succession, except with regard to agricultural land; transfer of property other than agricultural land; drugs and medicines; prevention of communicable disease transmission; population planning and social welfare; labor and employment; health insurance; education, including Islamic education; and legal and medical professions.57 Any legislation, with the exception of certain financial bills, may originate in either house.58 Once a house passes a bill that it introduced, the bill is sent to the other house for approval and passage before it reaches the president.59 If a
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house rejects the bill, calls for an amendment or fails to pass the bill within 90 days, the bill is referred to a Mediation Committee composed of members from both houses of parliament for consideration and resolution.60 The committee has 90 days to revise the bill so that both houses are likely to pass it.61 If both houses pass the bill, it is sent to the president for his or her signature.62 The president has the power to contest a proposed bill and return it to parliament with suggested changes. If the bill is then passed by a majority of both houses, the president is required to approve it.63 Financial bills originate in the National Assembly, and a copy is sent to the Senate, which has seven days to make recommendations to the other house. The National Assembly may pass the bill with or without incorporating the Senate’s recommendations and present it to the president for assent.64 Permanent Advisory Council of Islamic Ideology The constitution contains a distinct part, entitled Islamic Provisions, that provides for the creation of a Council of Islamic Ideology.65 The council is an advisory body that serves primarily to make recommendations to parliament and the provincial assemblies on ways to enable and encourage Pakistani Muslims to live in accordance with Islamic principles.66 The council also advises government officials such as the president, provincial governors and members of parliament or the provincial assemblies on whether a proposed law is or is not repugnant to the injunctions of Islam.67 The council is composed of eight to twenty members, including at least one woman, appointed by the president from various schools of thought.68 Each member serves for three years.69 All members must understand the principles and philosophy of Islam as articulated in the Quran and Sunnah, or understand the economic, political, legal and administrative problems facing Pakistan.70 B. THE STRUCTURE OF LOCAL GOVERNMENTS
Pakistan has four provinces:Baluchistan,North-West Frontier Province, Punjab, and Sindh.71 There are also seven tribal areas in the North-West Frontier Province, known as Federally Administered Tribal Areas.72 The constitution prescribes the structure and powers of the provincial governments. Executive branch Each province has a governor,a provincial cabinet of ministers headed by a chief minister and a provincial assembly.73 The president appoints a governor with the advice of the prime minister.74 The governor must act in accordance with the recommendations of the chief minister’s cabinet. All of the governor’s official powers—including issuing ordinances, calling upon the armed forces for assistance, dissolving the provincial assembly, appointing and removing the chief min-
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ister and dismissing the provincial cabinet—are subject to the prior approval of the president.75 The chief minister, who usually heads the body’s majority party, serves as a liaison to the governor. The provincial cabinet is collectively responsible to the provincial assembly.76 Legislative branch Each provincial assembly consists of general seats and seats reserved for women and non-Muslims.77 The general members of the provincial assemblies are elected by direct vote and serve a five-year term.78 Reserved seats are allocated on the basis of proportional representation to parties based on the total number of general seats they win in the provincial assembly.79 The governor may dissolve the provincial assembly upon the advice of the chief minister, or at his discretion under limited circumstances and subject to prior approval of the president.80 Provincial assemblies share legislative power with parliament with regard to subjects on the Concurrent Legislative List.81 (See “Legislative branch” under “The Structure of National Government” for more information.) The system of governance at the local level was restructured following the October 1999 coup and pursuant to the 2000 Local Government Plan.82 The plan creates a far greater political role for local bodies by devolving power to the grassroots level.83 It establishes a three-tier local government system at district, tehsil (subdistrict) and union levels throughout Pakistan.84 Thirty-three percent of seats at each of these levels are reserved for women, and additional seats are reserved for peasants, workers and minorities.85 The basic unit of this system is the union council, headed by the nazim (mayor) along with the naib nazim (deputy mayor).86 Non-party local elections were held from December 2000 to August 2001, and newly elected local governments assumed power on August 14,2001,in more than 100 districts in each of the four provinces.87 Pursuant to the Legal Framework Order, provinces are required to establish local systems of government but cede political, administrative and financial responsibility and authority to respective elected officials of local governments.88 C. THE JUDICIAL BRANCH
The constitution provides for a Supreme Court, which is the highest court in the country, high courts in each of the four provinces and other courts established by law as necessary.89 The Supreme Court has exclusive jurisdiction over disputes between the federal and provincial governments and between different provincial governments, and appellate jurisdiction over high court decisions.90 In addition,the president can ask
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the Supreme Court,in its advisory capacity,to render its opinion on questions of law that are of public importance.91 The court is headed by the Chief Justice of Pakistan, who is appointed by the president, and served by other judges as determined by an act of parliament or the president.92 The president appoints associate justices to the court upon the advice of the chief justice.93 The age of retirement for judges is 68 years.94 High courts also consist of a chief justice and any other judges deemed necessary by the president or mandated by law.95 The high court of each province has jurisdiction over civil and criminal appeals from lower courts within the province.96 All high court judges are appointed by the president upon the advice of the Chief Justice of Pakistan, the governor of the province and the chief justice of the high court to which the appointment is being made.97 High court judges may serve until the age of 65.98 Below high courts are district courts, which exist in every district.99 District courts have both civil and criminal jurisdiction, but deal mainly with civil matters.100 The 1964 West Pakistan Family Courts Act provides for at least one family court in each district, and requires that a female judge preside over at least one family court per district.101 Subject to provisions of the 1961 Muslim Family Laws Ordinance, family courts have exclusive jurisdiction over matters pertaining to the dissolution of marriage, dower (sum of money or other property given to the wife by the husband in consideration of Muslim marriage, also known as mahr), maintenance, the restitution of conjugal rights, the custody and guardianship of children, “jactitation of marriage” (false boasting by one party that he or she is married to another), and dowry (property or gifts given by either party to a marriage, or by his or her parents, to the other party, as distinguished from the Muslim dower).102 Appeals from family courts are solely made to the appropriate high court.103 The constitution additionally authorizes parliament to establish administrative courts and tribunals to hear disputes involving federal matters, claims arising from tortious acts of government or civil servants, and matters relating to the terms and conditions of service of civil servants.104 These courts operate under the administrative control of the federal government.105 Appeals of decisions issued by these courts and tribunals are made to the Supreme Court and considered only if the court deems the case to involve a substantial legal question of public importance.106 There are a number of judicial systems that operate parallel to the ordinary court system. Some of these systems apply exclusively to tribal areas while others apply through-
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out Pakistan. These systems have been incorporated into the constitution.107 The most notable courts within this system are the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, both of which have jurisdiction throughout the country.108 The Federal Shariat Court was established by presidential Order in 1980.109 The court has exclusive jurisdiction over questions relating to the conformity of a law with the injunctions of Islam.110 Such questions may be raised by the petition of any citizen, by the federal or provincial governments, or by the court itself.111 When the court pronounces a federal law to be inconsistent with Islamic principles, the president must attempt to bring the law into conformity with the injunctions of Islam; governors must do the same in cases involving provincial laws.112 A law or any portion of a law that the court deems “repugnant” to Islam ceases to have effect on the day the court’s decision takes effect.113 To ensure that the law has been correctly applied, the court also reviews criminal court decisions relating to the enforcement of Hudood Ordinances in Pakistan—Islamic penal laws that deal with offenses against property, adultery, rape and the prohibition of alcohol. The ordinances prescribe punishments that include stoning to death and public flogging.114 In 2002, the court overturned the decision of a lower court in the North-West Frontier Province that had sentenced a woman accused of adultery to death by stoning.115 Substantive provisions of the constitution are beyond the scrutiny of the court.116 However, with respect to matters within its power or jurisdiction, no other court or tribunal, including the Supreme Court and high courts, may interfere in its proceedings.117 The Federal Shariat Court is composed of eight Muslim judges including the chief justice, all of whom are appointed by the president.118 Of these eight judges, no more than four may be persons who are, have been, or are qualified to be, a judge of the Supreme Court or any high court.119 A maximum of three judges may be religious scholars selected from among those Ulema well-versed in Islamic law.120 The Federal Shariat Court’s decisions may be appealed to the Shariat Appellate Bench of the Supreme Court, which consists of three Muslim judges of the Supreme Court and up to two ulema (as ad hoc members) appointed by the president in consultation with the Chief Justice of Pakistan.121 An appeal is made to the Supreme Court in cases where the Federal Shariat Court has, on appeal, reversed an order of acquittal of an accused person and sentenced her or him to death, life imprisonment or imprisonment for more than 14 years; enhanced a sentence of such person; or imposed punishment for contempt of
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court.122 Appeal from other decisions is allowed only if the Shariat Appellate Bench grants leave to appeal.123 The decisions of the Shariat Appellate Bench, and non-appealed decisions of the Federal Shariat Court, are binding on the high courts and the subordinate judiciary.124 Customary forms of alternative dispute resolution Tribal councils—known as jirgas in some parts of the country—are an institution in rural Pakistan’s informal justice system.125 These councils have no legal standing and are not governed by any legislation.126 They are essentially councils of elders that issue informal judgments seeking to resolve local disputes such as those over land, water and breaches of honor.127 D. THE ROLE OF CIVIL SOCIETY AND NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
NGOs in Pakistan play a vital role in promoting and protecting human rights and contributing to the country’s social and economic development. They have made significant contributions in a number of fields, including promoting higher health standards; advancing women’s equality and empowerment; combating illiteracy; promoting the right to education of all Pakistani children, particularly girls; and advocating for legal reform.128 Although NGOs in Pakistan are generally not required to be registered before starting their advocacy work, registration gives them official status and renders them eligible to receive government financial support.129 NGOs may register under five different acts and ordinances, including the 1961 Voluntary SocialWelfare Agencies Registration and Control Ordinance.130 According to the 1997 directory of NGOs in Pakistan, there were 11,648 NGOs registered with the government’s Social Welfare Department.131 Of the Ministry of Women Development, Social Welfare and Special Education’s roughly 900 development projects, almost half are conducted by NGOs on behalf of the government.132 The Family Planning Association of Pakistan, founded in 1953, is the country’s largest NGO and has been a pioneer in the field of family planning and reproductive rights advocacy. It provides services through 131 community-based units and organizations throughout the country and has involved more than 55,000 volunteers in its projects.133 E. SOURCES OF LAW AND POLICY
Domestic sources English common law and Islamic law form the bedrock of Pakistan’s legal system.134 Commercial law matters are heavily influenced by English common law principles, while laws relating to personal status and,more recently,criminal and tax
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issues, are largely shaped by Islamic law.135 The constitution is the supreme law of the land and guarantees certain fundamental rights, including the freedom of thought, speech, worship, and expression.136 It forbids discrimination solely on the basis of gender.137 In addition to fundamental rights, the constitution contains several Principles of Policy, which offer authoritative guidance to state organs in policy matters, but are not enforceable like fundamental rights.138 Among other things, the principles discourage discrimination on the basis of race, tribe, sect, province, or religion.139 They also call for the full participation of women in national life and safeguard the rights and interests of minorities.140 The constitution’s Islamic Provisions require all existing laws to be brought in conformity with Islamic principles and prohibits the enactment of laws “repugnant” to such principles.141 The constitution specifically provides that the application of this mandate to the personal law of various Muslim sects shall respect each sect’s unique interpretation of Islamic principles as contained in the Quran and Sunnah.142 Subordinate to the constitution are a number of national codes and federal acts and ordinances. The major codes include the 1908 Code of Civil Procedure, 1898 Code of Criminal Procedure and 1860 Penal Code.143 Statutory rules and orders supplement federal acts. Religion-based personal laws generally govern matters relating to family and private life in each of Pakistan’s religious communities. Some of these laws have been codified, although Muslim personal law remains largely uncodified. In addition to personal laws, some legislation relating to marriage applies to all Pakistani citizens, regardless of religious affiliation. These secular laws include the 1872 Special Marriage Act and the 1929 Child Marriage Restraint Act.144 The provinces also have the authority to legislate and issue ordinances and statutory rules, which are subordinate to national codes and federal legislation.145 Parliament and the provincial assemblies share the power to legislate on matters including marriage, divorce, inheritance, population, social welfare, and education.146 Legislation is reviewed with a view to making recommendations for their modernization, unification and codification by the Law and Justice Commission of Pakistan, a statutory body established under the 1979 Law and Justice Commission of Pakistan Ordinance.147 The commission has 12 members, who include the Chief Justice of Pakistan, who chairs the committee, the chief justice of the Federal Shariat Court, chief justices of the provincial high courts, the secretary of the Ministry of Law, Justice and Human Rights, and chairperson of the Commission on the Status of Women.148
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So far, the commission has submitted 51 reports to the government commenting on and suggesting reforms relating to family courts, maternity benefits, family laws, and offenses against the human body.149 General Zia ul-Haq’s 1977 military coup marked the beginning of an official policy of Nizam-I-Islam (Islamic rule) and set in motion a sweeping process of Islamicization of the entire legal system.150 Although Islam had been a part of the country’s constitutional and legal framework prior to 1977, this policy was the first substantive official effort for Islamic legal reform.151 In 1985, a presidential order made the “Objectives Resolution” a substantive part of the constitution, establishing Islamic common law principles contained in the Quran and Sunnah as the framework for state policy.152 The process of Islamicization was accelerated with a series of shari’ah (injunctions of Islam as laid down in the Quran and Sunnah) acts beginning in 1988 and culminating with the Enforcement of Shari’ah Acts of 1990 and 1991.153 The 1991 act declared the shari’ah the supreme law of Pakistan.154 In cases where two or more interpretations of a law are possible but conflict, the 1991 act mandated courts to adopt the legal interpretation most consistent with Islamic principles and jurisprudence.155 Criminal law and procedure were also amended to bring them in conformity with Islamic injunctions as set forth in the Quran.156 Government policies in Pakistan are guided by the constitution and its Principles of Policy and are articulated and implemented within the framework of five-year strategic plans. The five-year plans are comprehensive national development plans that include goals, strategies and specific programmatic measures in areas such as economic infrastructure, urban and rural development, social development including health and population welfare, and issues specific to women and children. The Ninth Five Year Plan (1998–2003) is currently operative. International sources Pakistan is party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (Children’s Rights Convention),and the International Convention on the Elimination of All Forms of Racial Discrimination (Racial Discrimination Convention).157 Pakistan ratified CEDAW with a reservation to paragraph 1, article 29, pertaining to disputes and made a declaration that invokes the primacy and sovereignty of the constitution over and above all provisions of CEDAW.158 It has not ratified the Optional Protocol to CEDAW.159 The government also made a general reservation to the Children’s Rights Convention stating that Articles
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1–54 should be “interpreted in the light of Islamic laws and values.”160 The government has signed but not ratified the Optional Protocols to the Convention on the Rights of the Child regarding child prostitution and child pornography,and regarding children in armed conflict.161 Pakistan is not party to the International Covenant on Economic,Social and Cultural Rights (Economic, Social and Cultural Rights Covenant), the International Covenant on Civil and Political Rights (Civil and Political Rights Covenant) and its Optional Protocols,the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (Convention against Torture), or the Convention Relating to the Status of Refugees or Protocol Relating to the Status of Refugees.162 The government has also participated in key international conferences where it endorsed a series of consensus documents containing important principles of international human rights law and development goals. Pakistan is a signatory to the 1993 Vienna Declaration and Programme of Action; 1994 International Conference on Population and Development (ICPD) Programme of Action; 1995 Beijing Declaration and Platform for Action; and 2000 United Nations Millennium Declaration.163 Pakistan endorsed the ICPD Programme of Action without any reservations, but endorsed the Beijing Platform for Action with reservations to paragraphs 97 and 232(f ), relating to sexual and reproductive health issues.164 Pakistan is also a signatory to the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution and the SAARC Convention on Regional Arrangements for the Promotion of the Welfare of Children.165
II. Examining
Reproductive Health and Rights In general, reproductive health issues are addressed through a variety of complementary, and sometimes contradictory, laws and policies. The manner in which these issues are addressed reflects a government’s commitment to advancing reproductive health. The following section presents key legal and policy provisions that together determine women’s reproductive rights and choices in Pakistan. A. GENERAL HEALTH LAWS AND POLICIES
In its Principles of Policy, the constitution promotes state provision of the “… basic necessities of life, such as … med-
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nine critical issues of concern in its chapter on health, ical relief, for all such citizens, irrespective of sex, caste, which inform national health priorities during the plan’s creed, or race, as are permanently or temporarily unable to timeframe: earn their livelihood on account of infirmity, sickness or ■ organization, management and implementation of unemployment.”166 The federal government is responsible for the formulation of national health policies, the coordihealth services at the primary health-care and nation of provincial health services and the creation of referral levels; ■ sustainability of health services; health training standards.167 Until the country’s first health ■ development of human resources according to the policy was formulated in 1988, all health initiatives were needs of the health sector; issued through national five-year plans.168 Currently, both ■ the roles of the community, private sector and NGOs the Ninth Five Year Plan and the National Health Policy, in health care; issued by the Ministry of Health in 2001, provide the coun169 ■ rationalization of the private sector’s role, espetry’s policy framework on health. Objectives cially in curative services; ■ provision of primary health services, especially for The National Health Policy proclaims that its “overall the poor; national vision” for the health sector is based on a “health for ■ community involvement and financing; all” approach and aims to protect Pakistanis against hazardous ■ the focus on reducing female mortality and mordiseases, promote public health and upgrade curative care bidity; and facilities.170 It sets forth three key features, which are these: ■ to regard health sector investments as part of the gov■ provision of essential services in all priority areas preernment’s Poverty Alleviation Plan; viously neglected.174 ■ to prioritize the work of primary and secondary The plan also highlights several weaknesses in Pakistan’s health sectors; and existing health-care system, including poor organizational ■ to envisage good governance as the foundation for infrastructure; poorly defined job descriptions and proce171 health sector reform. dures; lack of accountability; disparities between urban and In order to realize its vision, the policy identifies specific rural health care; ineffective referral systems; gender imbalareas for reform, which are the following: ances; underdevelopment of human resources; ineffective ■ lowering the widespread prevalence of communihealth management information systems; inadequate funds; cable diseases; and highly centralized decision-making in administrative and ■ addressing inadequacies in financial matters.175 Infrastructure of health-care services primary and secondary Government facilities health-care services; RELEVANT LAWS AND POLICIES ■ removing professional and According to the National Health • National Health Policy, 2001 managerial deficiencies in Policy,implementation of health services • Ninth Five Year Plan, 1998–2003 the district health system; is a partnership between the Ministry of ■ promoting greater gender Health and the provincial departments equity; of health, and is undertaken in close collaboration with dis■ bridging basic nutrition gaps in the target populatrict health authorities under the local government struction; ture.176 The federal government plays a supportive and ■ correcting urban bias in the health sector; coordinating role, especially in priority health areas such as ■ introducing mandatory regulation in the private communicable disease control, while the provincial governmedical sector; ments are charged with primary responsibility for the actual ■ creating mass awareness of public health matters; delivery of health services.177 The policy acts as a collective ■ effecting improvements in the drug sector; and framework and provides guidelines to the provinces, which 172 ■ building capacity for health policy monitoring. are charged with the responsibility of developing implemenEach key area for reform is accompanied by a series tation plans in accordance with the requirements and prioriof implementation strategies and target goals. ties of their respective provinces.178 The Ministry of Population Welfare is another key instituThe goals and strategies of the National Health Policy tion in the government health infrastructure. Through the are connected to the health objectives set forth in the provincial departments of population welfare, it administers a Ninth Five Year Plan.173 The plan identifies the following
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system of family planning services separate from the Ministry of Health’s health-care system,mainly through family welfare centers.179 Its services include contraceptive distribution and sterilization, as well as some maternal and child health care. (See “Population” for more information on the Ministry of Population Welfare’s provision of family planning services.) The government’s health delivery system consists of the following tiers: ■ outreach and community-based activities, which consist of immunization, sanitation, malaria control, maternal and child health, and family planning; ■ primary-level health-care facilities, which include basic health units and rural health centers, mostly for outpatient, but some inpatient, services; ■ secondary-level facilities, which include tehsil headquarter hospitals and district headquarter hospitals and that provide secondary health services involving basic inpatient and outpatient care, referral services for primary-level care and some specialized services; and ■ teaching hospitals located in provincial headquarters or large cities that are equipped for tertiary-level health care involving specialized inpatient services.180 The government system lacks effective referral services linking the various tiers of health care, leading to over- or under-use of certain services.181 At the community level, a cadre of community-based workers, known as family health workers, provides family planning and primary health-care services mainly to women and children in villages and selected urban areas.182 (See “Population” for more information on family health workers.) At the primary level, there is a network of 5,230 basic health units, each of which serves a population of 10,000–20,000.183 Each unit is generally staffed by a medical officer and a small number of technical and nontechnical staff, including a female health worker.184 In addition, there are 541 rural health centers that provide primary health care to a population of 25,000–50,000 each, and are staffed by about 30 medical personnel that include several doctors and paramedics.185 At the secondary level, tehsil headquarter hospitals serve 100,000–300,000 people,while district headquarter hospitals serve populations of 1 million to 2 million.186 There is approximately one doctor for every 1,516 patients, and one nurse for every 3,639 patients.187 Female medical staff, in particular, are lacking in government healthcare facilities at all levels. one-third of government health facilities do not have any female staff.188 While almost onethird of physicians registered in 1993 were female—an
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increase from less than one-fourth in 1987—female physicians are concentrated in cities and are uncommon in rural areas.189 A sample survey of basic health units found that women constituted 36% of health workers but that none held medical officer positions.190 Among rural health centers, the survey found that women constituted 19% of health staff and 14% of medical officers;these percentages were slightly higher at surveyed tehsil and district headquarter hospitals.191 The government is the major source of hospital services in rural areas and of preventive services throughout the country.192 However, only 15–25% of the population uses public sector health services.193 Reasons cited by the general public for not using government health facilities for treatment of illness and injury include long distances (33%); unavailability of medicines (20%); uncooperative staff (11%); inability of providers to treat complications (8%); and unavailability of doctors (7%).194 Although the government and international aid agencies both have responsibilities for the provision of services to Afghan refugees in Pakistan, refugees do not have access to many basic government services, including health care.195 Rather,the NGO sector provides services such as health care, education and water to refugees.196 Privately run facilities The private health sector plays a significant role in the delivery of health care, providing services to 60–70% of the population.197 The National Health Policy recognizes the role of the private health sector in the implementation of key policy initiatives.198 Private sector facilities are comprised mostly of more than 20,000 small clinics of general practitioners.199 Government doctors often practice in private clinics, where they charge higher fees for providing the same services and drugs.200 Other small private facilities include dispensaries, maternity homes and laboratories.201 In addition, more than 500 small to medium-size private hospitals offer basic surgical,obstetric and diagnostic care, and there are a few large NGO-operated private hospitals in large cities.202 There are also more than 11,000 pharmacies and thousands more non-pharmacy retail outlets that sell drugs.203 Formal private health facilities are located mostly in urban areas and generally provide curative,as opposed to preventive, care.204 According to some studies, rural areas have only about 30% of private health facilities; in contrast, almost 70% of the population live in rural areas.205 Private reproductive health services are also very limited,especially in rural areas.206 Despite the uneven distribution of services, household surveys indicate that most people seek medical care in the private sector, at least for first consultations.207
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Informal health-care systems, including traditional forms of medicine such as homeopathic,unani and ayurvedic,comprise a significant portion of the private sector.208 The distinction between the private and public health sector is often blurred in Pakistan.209 As of 1998, there had been no survey of NGOs working in the health sector.210 However,NGOs in Pakistan are widely perceived as small in number and size and operating mostly in urban areas.211 An exception is the Aga Khan Health Services Program,which has been successful in providing primary health-care services at the community level in two northern districts of Pakistan.212 Financing and costs of health-care services Government financing Total public sector spending on health in 2001–2002 was 0.7% of GNP, most of which was for recurring expenditures.213 Public sector health spending as a percentage of GNP has remained relatively constant since 1995–1996, although the actual amount of spending in 2001–2002 was 4.6% more than the previous year.214 The Prime Minister’s Program for Family Planning and Primary Health Care, an important Ministry of Health program that provides community outreach health-care and family planning services, alone accounts for about 6% of total government health spending.215 (See “Population” for more information on the Prime Minister’s Program for Family Planning and Primary Health Care.) Provincial governments spend 5–9% of their annual budgets on health.216 Structural adjustment reforms advocated by the World Bank and the International Monetary Fund were introduced in 1988 and led to major cuts in public spending, causing an increase in poverty and a deterioration of public health.217 Structural adjustment programs have had a particularly adverse effect on women’s health.218 The government attempted to counter the negative impact of these economic reforms by launching the Social Action Program in 1993, which focused on improving access to primary health care and nutrition among other objectives. The program aimed to increase public sector spending in specific areas such as primary health care and family planning and succeeded in protecting its budget from the drastic cuts made in other public programs.219 Private and international financing The private sector is the major financer of health care in Pakistan, providing two-thirds of total healthcare expenditure.220 International assistance has also been important for Pakistan’s health programs, particularly in the area of population activities, most of which are focused on family planning and
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reproductive health services.221 From 1998–2000, the Asian Development Fund ranked as the largest donor (42% of all donated funds) in the health sector followed by the United Kingdom (35%) and the Netherlands (7%).222 The United States Agency for International Development (USAID), UNFPA and the Department for International Development (DFID) have been among important donors to the government’s population activities.223 In general, a poor global environment of international aid as well as economic sanctions caused a declining trend of foreign aid to Pakistan in the 1990s, leading to an all-time low for the decade of USD 665 million in 1999–2000.224 However, a recent restoration of relationships with international financial institutions has improved foreign aid commitments.225 In 2001–2002, international assistance was projected to increase to nearly USD 3.94 billion, mainly due to higher disbursements of non-food aid (USD 2.06 billion) and relief assistance for Afghan refugees (USD 20 million).226 The World Bank approved a second structural adjustment loan for Pakistan of USD 500 million in 2002, with the primary objective of improving governance and human development and enhancing social protection and employment opportunities for low-income groups.227 Costs While there is some variation among provinces in costs for public health-care services, a general structure of user charges and fees operates throughout government health-care facilities.228 User fees include nominal charges for outpatient consultations and inpatient admissions.229 Medical officers employed in medical clinics have the authority to waive such fees for certain patients, such as low-income individuals, after interviewing the patient or his or her relatives.230 User charges do not include patients’ out-of-pocket expenditures for the purchase of medical supplies or under-the-table payments.231 Patients must also pay for diagnostic services, including x-rays and laboratory tests.232 According to 1998 data from provincial health department in Sindh, patients were charged a standard outpatient fee of Rs 2, an inpatient bed fee of Rs 4, an x-ray fee of Rs 16, and laboratory fees of Rs 5–10.233 Drugs are provided free of charge.234 On average, 4% of the total income in urban areas and 5% in rural areas is spent on health care.235 In both areas, this constitutes more than 7% of the monthly household income of the low-income segments of the population.236 Private health insurance was recently introduced in Pakistan, although its approximately one-half million subscribers belong mostly to middle and upper-middle income brackets.237 Employee Social Security Institutions,which are managed at the provincial level and under the general supervision
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of the Ministry of Labor,Manpower and Overseas Pakistanis, provide private health insurance to lower-income employees.238 Each institution is authorized to establish its own health facilities,or use public and private agencies for the provision of medical services.239 Regulation of health-care providers Pakistan has established various statutory bodies to regulate the practice and training of health-care providers and the standards of medical education. The Pakistan Medical and Dental Council was established under the 1962 Medical Council Ordinance.240 The ordinance applies to all medical and dental institutions in Pakistan that provide training or grant degrees, diplomas or licenses in medicine or dentistry.241 Pursuant to the ordinance, the council has authority to certify individuals for the practice of medicine and dentistry, regulate curricula and examinations in medical schools, and maintain a medical register of qualified medical and dental practitioners.242 It may also make recommendations to the central government to withdraw recognition of a given medical school, as well as remove names from the register of qualified medical practitioners in Pakistan and take other disciplinary actions against practitioners for professional misconduct. (See “Patients’ rights” for more information.)243 The College of Physicians and Surgeons of Pakistan,established under the 1962 Pakistan College of Physicians and Surgeons Ordinance, regulates postgraduate medical education, with an emphasis on specialist training and research.244 The Pakistan Nursing Council, established under the 1973 Pakistan Nursing Council Act, regulates the registration and training of nurses, midwives, health visitors, and nursing auxiliaries.245 The council also has the authority to prescribe the standards for the curriculum and practice of nursing.246 In addition, pharmacy councils, established under the 1967 Pharmacy Act, regulate pharmaceutical practices in the country.247 Among other things, these councils set standards for the curriculum, examinations and practical training of pharmacy programs.248 Those practicing traditional medicine are also subject to statutory regulation and penalty. The law prohibits practitioners of allopathic, homeopathic, ayurvedic, unani, or other traditional systems of medicine from “misuse”of their professions.249 For example, such providers are prohibited from presenting themselves as doctors without a recognized medical degree and from prescribing certain drugs.250 The National Health Policy proposes introducing regulations in the private medical sector to ensure that hospitals, clinics, laboratories, and private medical colleges conform to prescribed standards of equipment and services.251 The poli-
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cy indicates that draft laws and regulations on accreditation of private hospitals, clinics and laboratories, and on the obligations of private medical colleges to adhere to standards prescribed by the Pakistan Medical and Dental Council before they admit students,have been circulated to all provincial governments and stakeholders.252 Regulation of reproductive health technologies Assisted reproductive technologies There is no central legislation that regulates the use of assisted reproductive technologies. Sex determination techniques There is no central legislation that prohibits the use of prenatal diagnostic testing for the purpose of determining fetal sex. However, the practice appears to be regulated through professional codes of conduct in some medical institutions.253 Patients’ rights There is no specific legislation that protects patients’rights or specifically addresses issues of medical malpractice. However,criminal proceedings may be instituted against a medical provider for certain types of medical negligence or malpractice under provisions of the penal code that deal with offenses against the human body.254 Providers are not liable for unintentional acts not known to cause death or grievous harm, or good faith acts intended to benefit the patient, provided that the patient consented to the act.255 Wrongful accidental acts that are without criminal intent are also exempt from punishment, even if there was no consent to the act.256 Civil proceedings for damages may also be brought against doctors by individual patients under certain provisions of the civil code.257 In addition, lawsuits for damages and compensation may be brought under tort law for claims of medical malpractice and for failure to exercise reasonable care and diligence. However, jurisprudence on tort law is not highly developed in Pakistan,so few cases of medical malpractice are actually brought or won.258 The contractual nature of the patient-doctor relationship may also give rise to a lawsuit for breach of contract under contract law.259 Complaints relating to professional misconduct may also be brought before the Pakistan Medical and Dental Council, which may conduct an inquiry into a complaint of professional misconduct.260 The council may thereafter cancel the registration of the practitioner found guilty of professional misconduct.261 The council has also issued a code of medical ethics for registered medical providers.262 Included in the code’s prescriptions are guidelines for ensuring patients’ confidentiality rights. According to the code, a patient’s private records should not be given to any person without the consent of the patient or his or her legal representative.263 Generally
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services, especially for the most vulnerable; speaking, the state does not have a right to demand infor■ address and enhance the quality and range of services mation from a doctor about a patient under his or her care, to meet minimum standards; except when required by the law, as in the case of commu■ increase awareness and ensure information about nicable diseases,to protect the interests of state security,or to reproductive health needs and services; and maintain law and order in the country.264 The guidelines ■ ensure reproductive rights for all.273 instruct doctors to supply a patient’s information only when The policy identifies several conditions required to create directed by a court order.265 While the code provides that doctors are not required by law to an “enabling environment”for its effecprovide information to the state contive implementation, which are the folcerning criminal abortion, venereal lowing: RELEVANT LAWS AND POLICIES ■ increased investment and spending diseases, attempted suicides, and con• National Health Policy, 2001 in health and related sectors; cealed births, the code does penalize • Ninth Five Year Plan, 1998–2003 ■ the active support and coordination practitioners that are found guilty of • National Reproductive Health of various government ministries causing illegal abortions by suspendPolicy, 2000 and departments in implementing ing their license, or canceling their • National Reproductive Health various aspects of the policy; registration.266 The code empowers Services Package ■ the repeal of all laws discriminatory the council to take disciplinary • National Health Policy, 2001 to women; actions, including those leading to • Ninth Five Year Plan, 1998–2003 ■ universal access to primary educacriminal conviction, against health• Drugs Act, 1976; and Drugs tion along with a narrowing of the care practitioners who violate its pre(Licensing, Registering and gender gap; scriptions.267 Advertising) Rules, 1976 ■ comprehensive data collection and B. REPRODUCTIVE HEALTH • TV Code of Advertising analysis to monitor progress in the LAWS AND POLICIES Standards and Practice in policy’s implementation and to set Pakistan, 1995 Reproductive health is addressed in national and local priorities; and • Qisas and Diyat Ordinance, 1990 whole and in part through various ■ promotion of the roles of the private • Pakistan Penal Code, 1860 national policies and legislation. Govsector, NGOs, professional bodies, • National HIV/AIDS Strategic ernmental policies addressing reproand civil society.274 Framework, 2001–2006 ductive health include the 2000 The policy further outlines these • Population Policy, 2002 National Reproductive Health Policy, five principles that serve as the basis for the National Health Policy and the the implementation of the policy: Ninth Five Year Plan. ■ ensure that reproductive health The National Reproductive Health Policy seeks to needs are identified and addressed improve the reproductive health status of Pakistanis within for people at all stages of the life their “cultural and religious milieu.”268 The government’s cycle, including adolescents and the existing commitments to citizens’health and welfare,women elderly; and development, and education serve as guiding pillars for ■ ensure the dissemination of knowledge and provithe policy.269 The policy defines reproductive health as statsion of services that respect all human rights, ed in the ICPD Programme of Action.270 Moreover, severincluding the “right to decide” and “right to al sections of the policy, including its overall vision, goals and choose”; principles,declare the need to ensure reproductive or human ■ ensure that women are empowered to participate in rights.271 The policy recognizes that one of the core proball aspects of reproductive decision-making on a basis lems in reproductive health in Pakistan is the low status of of equality with men and other household members; women, which requires that the “position and condition of ■ promote men’s understanding of their roles and women in Pakistan be radically improved.”272 responsibilities in respecting women’s reproductive The five aims of the policy are the following: rights; and ■ provide universal reproductive health services for all ■ discourage coercion and violence against women and ages and both genders; girls.275 ■ ensure equity in terms of access and affordability of The policy also calls for the establishment of a national
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steering committee on reproductive health to oversee the implementation of the policy at the national and provincial levels.276 In 1999, the Ministries of Health and Population Welfare jointly developed the Reproductive Health Services Package to cover reproductive health activities under the auspices of these two ministries. The package identifies the following nine components of reproductive health care: ■ comprehensive family planning services for males and females; ■ maternal health care, including services to ensure safe motherhood and pre- and post-abortion care for complications; ■ infant health care; ■ management of adolescents’ reproductive health problems; ■ prevention and management of reproductive tract infections and sexually transmissible infections (STIs), including HIV/AIDS; ■ management of infertility; ■ detection of breast and cervical cancers; ■ management of other women’s reproductive health problems; and ■ management of men’s reproductive health issues.277 The package describes service activities for different levels of institutions in the government’s health-care system.278 It emphasizes the importance of information, education and communication efforts, and collaboration with NGOs and the private sector.279 The National Health Policy also includes goals and strategies related to reproductive health. One of its key goals is to “promote greater gender equity in the health sector.”280 The strategies prescribed for implementation of this goal include the following: ■ provide focused reproductive health services to childbearing women through a life cycle approach at their doorsteps; ■ provide access to primary health services to the majority of women by expanding communitybased workers known as lady health workers at the grassroots level; ■ provide emergency obstetric care through the establishment of “women-friendly hospitals” in 20 districts of Pakistan under the Women Health Project; ■ establish a referral system between the village level and health-care facilities up to the district level under the Women Health Project; and ■ increase the enrollment of midwives, lady health workers, and nurses in schools for nursing, midwifery
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and public health.281 With respect to this goal, the policy aims to train and develop 100,000 community-based workers called family health workers by 2005, and increase the number of nurses from 23,000 to 35,000 by 2005, and to 55,000 by 2010.282 The Ninth Five Year Plan identifies the reduction of female mortality and morbidity as a national health priority.283 Although these policies do not specifically address the reproductive health needs of refugees in Pakistan, several international agencies have been actively involved in programs to improve the reproductive health of Afghan refugee women in Pakistan. These agencies include United Nations Population Fund (UNFPA), World Food Programme, International Red Cross Society, International Federation of Red Cross and Red Crescent Societies, and United Nations Children’s Fund (UNICEF).284 Family Planning The country’s first organized family planning activities began in 1953 with the founding of the Family Planning Association of Pakistan, a private NGO.285 In 1960, the government began providing some family planning services through public health clinics as part of a broader health policy framework.286 Since 1965,family planning in Pakistan has become more intertwined with the country’s population policies and, over the years, family planning policies and services have frequently been administered under the aegis of population programs.287 The introduction of the Reproductive Health Services Package in 1999 offered a different framework for the provision of family planning services. Under the package, comprehensive family planning services for men and women are included as a key component of reproductive health services, and the package’s services are administered by both the Ministry of Health and the Ministry of Population Welfare.288 (See “Population” for more information on the family planning component of Pakistan’s population policy and the delivery of public family planning services.) Contraception Although reliable statistics are difficult to obtain, studies reveal a wide gap between family planning knowledge and practice. Household surveys show that knowledge of family planning methods among currently married women exceeds 90% in most rural and urban areas.289 Knowledge of where to obtain a modern method is also high, at 70–77% for the pill, IUDs and injectables, and 76% for female sterilization.290 In contrast,only 27.6% of married women are currently using a method of family planning and 40.2% have ever used any method.291 The most commonly used methods of family
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planning are female sterilization (6.9%), condoms (5.5%), withdrawal (5.3%), IUDs (3.5%), injectables (2.6%), the pill (1.9%),and periodic abstinence (1.6%).292 Although the prevalence rate for current use has more than doubled in the past decade, 33% of currently married women still have an unmet need for family planning.293 Disparities in rates of current use exist both between urban and rural areas as well as among provinces. Among women living in urban areas,39.7% use contraception,compared with 21.7% of their rural counterparts.294 Women living in Baluchistan use contraception at about one-half the rate of their counterparts in Punjab, at 15.9% and 30%, respectively.295 Available government data on contraceptive use and knowledge does not reflect the experiences of unmarried women. Contraceptive use is even lower among Afghan refugee women in Pakistan. According to international sources of data on Afghan refugees in Pakistan,only an estimated 10% of women use any method of contraception.296 Oral pills and injectable contraceptives are the most widely available methods;between the two,continued use is significantly higher for injectable contraceptives than for oral pills.297 Contraceptive prevalence rates are higher among younger than older women.298 Contraception: legal status There is no specific law or policy that governs the use of contraceptives.299 The sale and distribution of contraceptives is governed by the 1976 Drugs Act, which regulates the import,manufacture and sale of all drugs generally.300 Among other provisions,the act states that no person can manufacture any drug without a license or sell any drug except in accordance with the conditions in the license.301 Pakistan has registered new products formulated as emergency contraception, including Postinor-2.302 Emergency contraception is available in pharmacies.303 Despite the lack of legal restraints on contraceptives, the popular perception, even among family planning service providers, is that laws regulating access do exist.304 Religious beliefs in particular influence the use of contraceptives in Pakistan. While Islam does not prohibit married couples from practicing family planning, this same protection does not extend to unmarried individuals—a belief that has been codified in the Hudood Ordinances, which forbid extramarital sexual relations.305 Consequently, in general, contraceptives are not readily available to unmarried individuals through government and NGO programs.306 Regulation of information on contraception Under the 1976 Drugs (Licensing,Registering and Advertising) Rules,the advertisement of contraceptives is subject to
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approval by the federal government upon the advice of a committee on advertising.307 The government retains the authority to approve the contents of the advertisement as well as the conditions under which the advertisement is seen or heard.308 For instance, television commercials featuring an image of a sealed packet of condoms are banned,and the promotion of family planning methods involving hormonal contraceptives had not been allowed previously, except for late at night, though they are now permitted.309 Applications for the advertisement of any “drug, substance, remdy [sic], treatment or offer of treatment for any disease” are made to the Secretary of the Commissioner on Advertising.310 Advertisements are also governed by the 1995 TV Code of Advertising Standards and Practice in Pakistan,which declares that advertising in any medium should be guided by the general principle that it “… confirm [sic] to the law of the country and the best traditions of our people.”311 Advertising should also be “legal,decent,honest,and truthful.”312 According to provisions of the code on the advertising of medicines and treatments, contraceptives are to be advertised as medicines and not as “brands or products.”313 Sterilization Female sterilization is the most popular form of family planning in Pakistan, used by 6.9% of married women and accounting for one-fourth of all contraceptive use.314 There is a zero prevalence rate of male sterilization.315 Sterilization: legal status There are no specific laws in Pakistan regulating sterilization. However, in the event of forced sterilization, remedies may be sought under the general penal code.316 Sterilization policies To be eligible for female sterilization, a woman must have at least two children, one of whom must be male. The younger of the two children must be over the age of one. Spousal consent from the husband is mandatory for female sterilization, but consent from the wife is not required for male sterilization.317 Clients for sterilization are paid nominal compensation for lost wages, which varies from Rs 75–100.318 Medical practitioners who perform sterilization procedures are also compensated by the government, regardless of whether they are in public or private practice.319 Their compensation ranges from Rs 250–350 per procedure.320 Government delivery of family planning services The government delivers family planning services through facilities such as hospitals, family welfare centers and mobile service units,as well as through community-based workers.321 IUDs, injectables, condoms, and pills are available in government hospitals and family welfare centers. Community-based workers also play an important role in the distribution of pills
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and condoms to women in underserved areas. Female sterilization services are generally provided in government hospitals.322 Vasectomies are generally unavailable at government clinics,and those seeking the service are often referred to private facilities run by NGOs.323 (See “Population” for information on the delivery of family planning services through the Ministry of Population Welfare and its provincial departments.) According to household surveys,government hospitals are the main source of modern contraceptive supplies for married women,providing supplies to 35% of all married female users of contraception.324 About 9% of current users rely on family welfare centers for their supplies and 3% on female outreach workers.325 Fewer than 1% rely on mobile service units.326 According to a recent study of reproductive health care in refugee settings in the North-West Frontier Province, Baluchistan and Punjab, very few lady health workers and medical officers know about emergency contraception.327 Family planning services provided by NGOs and the private sector Family planning services are provided by private facilities as well as NGOs. According to household surveys, 15% of current users of modern methods of contraception report getting their method from private hospitals or clinics, 11% from pharmacies or drug stores, 8% from private shops, and 1% from NGOs.328 Pakistan’s social marketing program plays an important role in complementing the goals and targets of the government’s population and development policies and programs.329 Social marketing of contraceptives involves using private sector resources such as marketing techniques and commercial distribution channels to increase the accessibility and quality of family planning services and information.330 Pakistan’s program has led to the establishment of two leading private sector organizations, Social Marketing Pakistan and Key Social Marketing, that use a network of private sector outlets to supply services.331 Key goals of social marketing projects include the following: ■ expanding the coverage of family planning services, especially in urban areas; ■ establishing trained staff for delivery of quality services; ■ enhancing the availability of products to improve choice and answer the unmet need for contraceptives; and ■ changing popular attitudes regarding payment for family planning services.332 In 1998, Social Marketing Pakistan provided family planning services to approximately 1.2 million couples,representing more than 20% of the government’s family planning
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program that year.333 The Family Planning Association of Pakistan,the country’s largest social sector NGO, is a significant provider of family planning services.334 Other NGOs working in family planning and reproductive health include the Pakistan Women’s Association,Behbud Association,Marie Stopes International, and Pakistan Voluntary Health and Nutrition Association.335 Maternal Health According to a national household survey using the “sisterhood method,”an indirect community-based method widely used in low-income countries for estimating maternal mortality,the maternal mortality rate in Pakistan in 1990 was an estimated 533 maternal deaths per 100,000 live births.336 One in every three births occurs within two years of the previous birth, increasing the risk of morbidity and mortality for both mother and infant.337 The rate of stillbirths among the general population is highest among women under the age of 20.338 According to household surveys, a little more than 50% of women received prenatal care in their last pregnancy.339 Postnatal care is less common, with only 27.6% of women receiving such care after their last pregnancy.340 Nearly 77% of deliveries occur at home,with most other deliveries occurring in government or private hospitals.341 Pakistan has the world’s third highest rate of infant mortality from neonatal tetanus, which is the leading cause of infant mortality in the country.342 Neonatal tetanus is often caused by non-sterile delivery procedures and can be prevented by immunizing the mother during prenatal care.343 In a study of 12 Afghan refugee settlements between January 1999 and August 2000,41% of deaths among women of reproductive age were due to maternal causes, and 60% of their infants either were born dead or died soon after birth.344 Policies Pakistan does not have a separate policy on safe motherhood, although it does address maternal health concerns through the National Reproductive Health Policy, the National Reproductive Health Services Package and the National Health Policy. The National Reproductive Health Policy is geared toward improving a number of reproductive health indicators, including reducing Pakistan’s maternal and infant mortality and morbidity rates, which it characterizes as “alarming[ly] high.”345 However, it does not include specific goals or strategies relating to maternal health. The provision of maternal health care, including services to ensure safe motherhood and pre- and post-abortion care, is among the priority areas of the National Reproductive Health Services Package.346 The package identifies several components of maternal health care,including the following:
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prenatal registration and care; treatment of existing conditions (e.g. anemia, malaria); ■ essential obstetric care; ■ clean and safe (atraumatic) delivery; ■ early detection and management of postpartum complications; ■ prevention and management of urinary and rectal fistulae and prolapse; ■ genetic counseling; ■ tetanus toxoid immunization; and ■ blood test during pregnancy to determine Rh incompatibility.347 The package also aims to provide services for the prevention, screening, early detection, and management of reproductive tract infections, including HIV/AIDS and cervical cancer.348 The package outlines a delivery infrastructure for reproductive health services. Maternal health services are to be provided at the community level by trained birth attendants, midwives, and community-based workers such as family planning workers and lady health workers, and through family welfare centers,maternal and child health centers,basic health units, reproductive health services centers, and rural health centers at the primary level of health facilities.349 The specific objectives of the National Health Policy relating to safe motherhood include delivering focused reproductive health services, including those for safe motherhood, to childbearing women at their doorsteps and providing emergency obstetric care through “women-friendly hospitals,” which are to be established in 20 districts.350 Pakistan’s population policy does not include specific goals or strategies relating to maternal health care. However,it does recognize the links between poverty, poor maternal health and nutrition, and maternal mortality, and aims to alleviate poverty by reducing population growth.351 International organizations that have provided technical assistance and funding to safe motherhood projects include UNFPA, World Food Programme and UNICEF. The UNFPA’s main project, Promoting Interventions for Safe Motherhood for 2000–2003, assists the government in training certain government community-based workers in midwifery skills and raising community awareness on maternal health issues.352 Nutrition According to a household survey, nearly one-third of pregnant women were diagnosed as anemic during their last pregnancy.353 Of these women, about half received treatment from a doctor and more than one-third received no treatment at all.354 ■ ■
The National Health Policy specifically addresses the problem of nutritional deficiencies in the population, especially among pregnant women. One of its objectives is to provide a health nutrition package,including vitamin-B complex syrup, ferrous fumerate and folic acid, to those in need through 100,000 family health workers.355 Childbearing women and sick family members are specific target groups.356 One of the priorities of the National Reproductive Health Services Package is to provide counseling on nutrition and diet, including iron/folate supplementation, for pregnant women.357 Abortion Official government statistics on abortion are not available.358 A 1997 study by the Family Planning Association of Pakistan found an abortion rate of 1.03 for every 100 deliveries.359 Another study the same year reported a figure of 25.5 abortions per every 1,000 women of reproductive age.360 Private organizations have also conducted some research that has focused largely on hospital or clinical settings in large urban areas. Estimated mortality rates due to unsafe abortion, in a study based on information gathered from hospital admissions to obstetrics and gynecology departments of urban tertiary hospitals, were estimated to be 4.5–15%.361 Another survey of 30 private and public hospitals in Pakistan estimated that 11% of maternal deaths were attributable to unsafe abortions.362 Estimates based on hospital admissions such as these are considered to be of limited value because they do not represent women who have not experienced complications,who cannot or do not want to go to hospitals, or who die before getting to a hospital.363 Abortion: legal status Abortion is illegal in Pakistan unless the procedure is necessary to save the woman’s life or provide “necessary treatment.”364 The law on abortion was amended in 1990 by the Qisas and Diyat Ordinance, an Islam-based law, which changed the penal code’s prescribed punishments for the crime of causing a miscarriage and created the “necessary treatment” exception.365 Previously under the penal code, abortion was only allowed for the purpose of saving the pregnant woman’s life.366 There is an absence of written law or policy regarding the requirements for obtaining an abortion under the “life” or “necessary treatment” exceptions. Practice indicates that physicians are left with the discretion to perform abortions, although they are reluctant to interpret the law liberally due to the risk of prosecution or of having their license suspended or revoked.367 There are doctors who perform abortions when the health of the woman is endangered by serious medical conditions such as heart disease or hypertension.368 Doc-
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tors have indicated that they would obtain a second opinion on the need for a therapeutic abortion or verify their decision with a medical board consisting of three experts.369 However,there are no national guidelines,whether from the medical profession or the government,mandating such verification.370 Mifepristone and misoprostol, two medicinal drugs commonly used for medical abortion, are available by prescription in Pakistan, although not for use as an abortifacient.371 The Qisas and Diyat Ordinance sanctions varying degrees of punishment under the penal code according to the developmental stage of the fetus and whether the woman consented to the abortion.372 The crime of Isqat–i-Haml occurs whenever a person (including the pregnant woman herself) causes a woman “with child whose organs have not been formed” to miscarry, if the miscarriage was not caused in good faith for the purpose of saving the woman’s life or providing necessary treatment.373 In such cases, the offender is subject to up to three years imprisonment if there was consent and up to ten years if there was no consent.374 The crime of Isqat-i-Janin occurs whenever a person (including the pregnant woman herself) causes a woman “with child some of whose limbs or whose organs have been formed” to miscarry, if the miscarriage was not caused in good faith for the purpose of saving the woman’s life.375 Punishment for Isqat-i-Janin consists of imprisonment that may extend to seven years or monetary compensation as set by the court.376 In cases of compensation, the payment is calculated as one-twentieth of diyat (compensation) if the “child”is born dead or full diyat if the “child” is alive but dies as a result of any act of the offender.377 If there is more than one fetus in the womb,the offender is subject to punishment for each fetus.378 If the woman suffers hurt or death as a result of the abortion, the offender is subject to punishment for such hurt or death.379 In a significant 1984 decision of the Federal Shariat Court, the court established an important precedent for findings of guilt in cases of illegal abortion. It held that the state has the burden of proving that an accused performed an illegal abortion, and that such proof must consist of more than simple medical evidence and the presence of a dead fetus.380 Regulation of information on abortion Advertisements on abortion in Pakistan are regulated by the TV Code of Advertising Standards and Practice in Pakistan.381 With respect to products offered for “disorders or irregularities peculiar to women,” it restricts the use of expressions (such as “female PILLS,” “[n]ot to be used in case of pregnancy,” “[t]he stronger the remedy the more effective it is,” and “[n]ever known to fail”) that may imply that the product can be effective in inducing miscarriage.382
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The code also warns that scenes depicting acts of “perversion, abortion, childbirth, and surgical operation beyond the limits of decency” should be avoided.383 Abortion: policies The National Reproductive Health Services Package includes pre- and post-abortion care among its service components.384 Specific goals for the provision of such services include the following: ■ creating awareness about the dangers of abortion; ■ promoting detection and early management of complications from abortion; and ■ counseling for post-abortion cases, including advice regarding family planning to avoid recurrence.385 The package also outlines a system of delivery for these services.Various community-based health workers, including trained birth attendants, midwives, lady health workers, and family welfare workers, are to provide counseling to women on the dangers and prevention of abortion, and referrals to higher-level facilities to women with abortion complications.386 Abortion complications are to be managed at basic health units and rural health centers, and affected women are to be referred to tehsil and district headquarter hospitals, tertiary care hospitals and teaching hospitals for treatment.387 Government delivery of abortion services Although abortion is legal in a few limited circumstances, abortion services are rarely available in government facilities.388 Some medical practitioners provide services for lifesaving abortions, but many more are unwilling to do so because of religious or personal beliefs or the fear of being labeled an “abortionist.”389 A recent study of reproductive health care in refugee settings in the North-West Frontier Province, Baluchistan and Punjab found that post-abortion care was available in all surveyed community labor rooms.390 However, such care does not always include counseling on family planning methods.391 Abortion services provided by NGOs and the private sector Due to Pakistan’s restrictive laws on abortion, the majority of abortions, if not self-induced, are performed in clandestine clinics in the urban areas and by midwives and traditional birth attendants in the rural areas.392 A 1997 urban study found that almost two-thirds of all abortions were carried out by inadequately trained individuals.393 Private clinics offering abortion services can be found in all of the major cities. However, the cost of services in private facilities varies greatly.394 Family planning NGOs such as the Family Planning Association of Pakistan and the Behbud Welfare Association do provide post-abortion care.395
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Sexually Transmissible Infections (STIs) and HIV/AIDS There is little research and information on the extent and nature of STIs in Pakistan, but health-care professionals caution that these infections are on the rise.396 With regard to HIV/AIDS, Pakistan is considered a highrisk/low-prevalence country.397 As of January 2000, the government officially had documented 1,436 cases of HIV and 187 cases of full-blown AIDS.398 However, unofficial estimates of persons infected and living with HIV/AIDS were close to 74,000.399 According to international estimates, as of December 2002, 78,000 Pakistani adults were infected with HIV and 16,000 of them were women aged 15–49.400 All four provinces of Pakistan report HIV/AIDS cases, with the majority occurring in urban areas.401 Quality services to prevent the spread of STIs and HIV/AIDS are often lacking for the Afghan refugee population. A recent study of reproductive health care in refugee settings in the North-West Frontier Province, Baluchistan and Punjab found that most health-care providers lack the appropriate training, equipment and supervision needed to offer help preventing the transmission of HIV/AIDS and other infections.402 Condoms, although widely available, are not always free,and safe sex practices are not promoted.403 Information, education and communication materials on the prevention of STIs and HIV/AIDS are also unavailable.404 Relevant laws There is no specific legislation on STIs or HIV/AIDS.405 However, the penal code makes it a crime for anyone to “unlawfully or negligently [do] any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life….”406 The punishment for this crime is a fine or imprisonment for a term which may extend to six months, or both.407 This provision has been interpreted by commentators to include STIs such as syphilis.408 Similarly, if any person does any act “maliciously”with the intention of spreading any disease dangerous to life, the penal code prescribes a fine or imprisonment for a term that may extend to two years, or both.409 No specific legislation prohibits discrimination against persons living with STIs or HIV/AIDS.410 Policies for the prevention and treatment of STIs and HIV/AIDS After the initial cases of AIDS were detected in Pakistan, the government established the Federal Committee on AIDS through the Ministry of Health in 1987.411 This initiative was followed in 1988 by the formation of the National AIDS Program, also under the Ministry of Health, to enhance and expand the nation’s response to the threat of HIV/AIDS.412 The government developed a National HIV/AIDS Strategic Framework for 2001–2006 based on
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HIV/AIDS findings by the National AIDS Program and other governmental, non-governmental and donor agencies, which includes provisions on STIs.413 The funding and plan for implementation of this framework have been completed and approved by the government.414 The strategic framework emphasizes that HIV/AIDS is not only a health issue, but also a development issue, and that combating the disease necessitates a broad and multisectoral approach.415 It lays out the following nine goals: ■ ensure an effective, well-coordinated and sustainable multisectoral response to HIV/AIDS in Pakistan; ■ reduce the risk of HIV infection among vulnerable and high-risk groups; ■ reduce the vulnerability of young people to HIV/AIDS; ■ expand the knowledge base in order to facilitate planning, implementation and evaluation of programs on HIV/AIDS and other STIs; ■ reduce the prevalence and prevent the spread of STIs as part of the effort to reduce HIV transmission; ■ reduce the risk of infection among the general public through an increase in awareness levels; ■ reduce the risk of transmission of HIV and other blood-borne infections through blood transfusion; ■ prevent transmission of HIV in formal and non-formal health-care settings through greater knowledge about and compliance with universal precautions; and ■ improve the quality of life for people living with HIV/AIDS through the provision of quality care and support (including meeting their medical, social and sometimes material needs), and ensuring a secure environment for all people infected with and affected by HIV/AIDS.416 STIs and HIV/AIDS are also addressed in the National Health Policy. The policy’s objectives include preventing transmission of HIV through education,improving the care of infected persons and increasing early detection of STIs.417 The objectives of the Reproductive Health Service Package also include providing services for the prevention, screening and management of STIs and HIV/AIDS.418 The government has also approved an ordinance on blood safety.419 The ordinance provides for the establishment of a regulatory body called the Islamabad Blood Transfusion Authority to regulate the operation of blood banks in the capital and to help ensure safe blood transfusions through various safety measures.420 Contravention of the ordinance’s provisions is punishable with imprisonment of one year and a fine of up to Rs 100,000.421
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Regulation of information on STIs and HIV/AIDS There is no specific law regulating information on STIs and HIV/AIDS. However,advertisements pertaining to STIs, and presumably HIV/AIDS, fall under the same advertising restrictions as contraceptives and abortions. Under the drugs’ rules, advertisers must apply to the government for permission to advertise for any “drug, or any substance or a remedy … or a treatment or offer of a treatment for any disease.”422 The advertisement of treatments for venereal diseases and diseases of “sexual importance” are specifically prohibited.423 C. POPULATION
In 1965, the government articulated its first explicit population policy, which became an integral part of Pakistan’s Third Five Year Plan (1965–70), and initiated a national population program.424 The original policy and its subsequent articulations expressed an apprehension about the impact of high population growth rates on development. As a result, population strategies have become an essential component of the government’s development policies over the years, serving as an important vehicle through which to deliver family planning services and further family planning goals.425 Population policy Objectives On World Population Day, July 11, 2002, President Musharraf announced Pakistan’s population policy,which was formulated by the Ministry of Population Welfare and approved by the cabinet.426 The policy claims to adopt a rights-based approach to achieving its goals and addresses a broad range of issues,including the impact of high population growth rates on poverty and sustainable development. 427 In particular, it identifies gender inequalities and the lack of access to quality services as core issues of concern.428 The policy’s provisions respond to Pakistan’s “demographic realities” and focus on the following four areas: ■ reduction in the rate of unwanted fertility; ■ promotion of the small family norm; ■ investment in youth; and ■ focus on male involvement.429 The policy’s “overall vision”is to achieve population stabilization by 2020 by reducing fertility and mortality rates.430 With this premise, it sets forth overarching goals, time-bound objectives in the short and long term, and specific strategies and areas of policy focus. The policy has the following general goals: ■ achieve a balance between resources and population in accordance with the broad parameters of the ICPD paradigm; ■ address population issues within national laws and
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development priorities while retaining social and cultural norms; ■ increase awareness of the adverse consequences of rapid population growth at the national, provincial, district and community levels; ■ promote informed and voluntary family planning as an entitlement; ■ reduce fertility rates by improving access to and quality of reproductive health services; and ■ slow population growth rates by promoting a delay in first birth, changing spacing patterns and promoting a desire for smaller families.431 The policy’s short-term objectives are as follows: ■ reduce the population growth rate to 1.9% by 2004; and ■ reduce fertility to four births per woman by 2004 by promoting voluntary contraception.432 The policy’s long-term objectives include the following: ■ further reduce the population growth rate from 1.9% in 2004 to 1.3% by 2020; ■ reduce fertility rates to the replacement level of 2.1 births per woman by 2020 by continuing to promote voluntary contraception; and ■ provide universal access to safe family planning methods by 2010.433 To achieve these short- and long-term objectives, one of the policy’s strategies is to develop advocacy campaigns that specifically target youth and adolescents.434 The policy also proposes using “innovative incentive schemes” targeted to both clients and service providers to promote the small family norm.435 A related strategy seeks to make quality family planning and reproductive health services available to all married couples with an unmet need for family planning, especially those who are “poor, under-served and un-served” in rural areas or urban slums.436 The policy emphasizes that reproductive health services should address the areas prioritized in the Reproductive Health Package, which include family planning,safe motherhood,infant health,reproductive tract infections, and STIs.437 It also advocates strengthening the role of civil society, particularly NGOs and the media, in population activities;expanding the private sector’s role in the social marketing and local manufacture of contraceptives;and involving men in family planning decisions.438 The population policy’s goals, objectives and strategies are encompassed within the Population Welfare Programme, Pakistan’s national,federally funded population program. The program focuses on the provision of family planning services and also offers limited maternal and child health services.439 Like the population policy,the Ninth FiveYear Plan estab-
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lishes time-bound objectives related to population. It calls for reducing the population growth rate from 2.3% to at least 1.9% between 1998 and 2003, and increasing the contraceptive prevalence rate from 27% to more than 40% during the same period.440 It also aims to provide universal coverage for family planning, with a particular emphasis on rural areas.441 The Interim Poverty Reduction Strategy Paper, prepared by the government in 2001, describes Pakistan’s existing strategies to alleviate poverty, which partly involve reducing population growth. Although the paper recognizes Pakistan’s progress in reducing population growth rates over the past decade, it characterizes the country’s total fertility rate as “one of the highest in Asia” and calls for raising awareness and expanding quality services in family planning and reproductive health care at the grassroots level to increase contraceptive prevalence rates, reduce fertility and improve maternal health care.442 Implementing agencies Overall government spending on population activities is 0.20% of GNP, one-fourth of which comes from international sources.443 Most government spending on population (95%) goes to reproductive health and family planning activities,while the remainder goes largely to STI and HIV/AIDS services.444 Only 1% of government population spending goes to research activities.445 In 1997, the government gave the Ministry of Population Welfare and Ministry of Health each about one-half of its total population activities budget.446 More than a quarter of the funding went to provincial departments of health, which operate under the federal Ministry of Health.447 Both the Ministry of Population Welfare and Ministry of Health play an important role in the country’s populationrelated activities.The Ministry of Population Welfare maintains primary responsibility for the formulation of national population policies and implementation of the Population Welfare Programme.448 It establishes and monitors standards for family planning service delivery, provides training for family planning service providers, and oversees the procurement, distribution and social marketing of contraceptives. In addition, it oversees the coordination and funding of NGOs, research and evaluation of existing programs, and national media campaigns.449 The Ministry of Population Welfare has its own service delivery system separate from the Ministry of Health,consisting of the following facilities and service providers: ■ 1,688 family welfare centers, extending temporary methods of family planning and maternal and child health services; ■ 276 reproductive health service centers based in
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public, private or NGO-run hospitals, offering contraceptive services, including sterilization, as well as other family planning and maternal and child health services; and ■ 131 mobile service units,providing a range of family planning services that include IUDs but not sterilization.450 Provincial population welfare departments are responsible for service delivery and local promotion and supervision of the facilities.451 The Ministry of Health provides family planning services through the Prime Minister’s Programme for Family Planning and Primary Health Care, which deploys communitybased health workers to villages and selected urban areas to provide family planning, health and nutrition education; health monitoring;and referral services mainly to women and children.452 This group of workers was expanded in September 2002, when the Ministries of Population Welfare and Health merged their pools of community-based health workers, combining more than 13,000 family planning workers under the Ministry of Population Welfare and 58,000 lady health workers under the Ministry of Health.453 This merger resulted in a new group of 71,000 family health workers under the Ministry of Health to help implement the Prime Minister’s Programme for Family Planning and Primary Health Care, which represents the country’s largest intervention for the delivery of integrated family planning and reproductive health services.454 The National Health Policy aims to increase this group of workers to 100,000 by 2005.455
III. Legal Status of Women Women’s health and reproductive rights cannot be fully understood without taking into account the legal and social status of women. Laws relating to women’s legal status not only reflect societal attitudes that shape the landscape of reproductive rights, they directly impact women’s ability to exercise these rights. Issues such as the respect and dignity a woman commands within marriage,her ability to own property and earn an independent income, her level of education, and her vulnerability to violence affect a woman’s ability to make decisions about her reproductive health-care needs and to access the appropriate services. The following section details the nature of women’s legal status in Pakistan. A. RIGHTS TO GENDER EQUALITY AND NONDISCRIMINATION
The constitution guarantees all citizens the rights to equality and equal protection of the laws.456 It specifically prohibits
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women’s rights; examining and recommending improvediscrimination on the sole basis of sex and authorizes the state ments to policies and programs related to women’s developto make any necessary special provisions for the “protection” 457 The constitution’s “Objectives ment;monitoring violence against women;and collaborating of women and children. Resolution,”which was made an enforceable part of the conwith NGOs at the national and international levels.466 Although the commission is authorized to make rules to carstitution in 1985 and mandates the observation of Islamic ry out its functions, it otherwise lacks an enforcement mechinjunctions in matters of state policy,further guarantees “funanism, and the government is not bound to implement its damental rights including equality of status, of opportunity recommendations.467 and before law, [and] social, economic and political justice … subject to law and public morality.”458 The constitution’s B. CITIZENSHIP Principles of Policy enjoin the state to ensure women’s full The principal law relating to Pakistani citizenship is the 1951 participation in all areas of national life.459 Pakistan Citizenship Act.468 The act was amended most recentFormal institutions and policies ly in 2000 with the Pakistan Citizenship (Amendment) OrdiThe Ministry of Women Development,Social Welfare and nance.469 Special Education, established in 1989, is the principal govUnder the act, any person who was born in Pakistan, or ernment institution charged with coordinating, monitoring any of whose parents or grandparents were born in Pakistan, and evaluating government efforts to after the commencement of the act is promote the advancement of a citizen of Pakistan.470 Pursuant to women.460 Its mandate includes forRELEVANT LAWS AND POLICIES the 2000 ordinance, a person born of mulating policy, recommending leg• National Plan of Action, 1998 wedlock between a Pakistani citizen islative reforms, and coordinating • Pakistan Citizenship Act, 1951; and and a foreign citizen is entitled to Pakadvocacy activities that help to ensure Pakistan Citizenship (Amendment) istani citizenship by descent,regardless equal opportunity and full participaOrdinance, 2000 of whether it is the mother or father tion for women in all aspects of who has Pakistani citizenship.471 Prilife.461 or to this amendment, only children of Pakistani fathers had One of the ministry’s major policy efforts is the National this right.472 The act permits the foreign wife of a Pakistani Plan of Action, announced in 1998. The plan was formulatman to acquire Pakistani citizenship, but a Pakistani woman ed with a view to translating commitments Pakistan made at who marries a foreign man cannot confer citizenship upon the 1995 Fourth World Conference on Women into concrete her husband.473 actions.462 The plan outlines strategies to achieve specific The 1946 Foreigners Act informs the current government objectives in the following 12 areas of concern: policy on the legal status of undocumented Afghan refugees ■ poverty; in Pakistan. Under the act, such individuals are considered ■ education and training; “aliens” and are subject to deportation.474 Under the 1951 ■ health; Foreigners Order, issued pursuant to the Foreigners Act, civil ■ violence against women; authorities at Pakistan’s border are authorized to refuse per■ armed conflict; mission to enter the country to foreigners who do not have a ■ economy; valid passport or visa.475 ■ power and decision-making; ■ institutional mechanisms; C. RIGHTS WITHIN MARRIAGE ■ human rights; The constitution’s Principles of Policy urge the state to “pro■ environment; tect … marriage, the family, the mother and the child.”476 ■ the girl child; and Family laws in Pakistan are an amalgam of religion-based per■ media.463 sonal laws and codified laws that may apply to specific comThe ministry has primary responsibility for implementamunities or all Pakistani citizens.477 Codified laws of general 464 tion of the National Plan of Action. application may allow religious communities to follow their In 2000, the government established the first permanent own personal laws.478 National Commission on the Status of Women, which serves Marriage laws as a watchdog for governmental activities related to Personal laws, some of which have been codified, largely women.465 Its specific responsibilities include reviewing and govern marriage in Pakistan’s various religious communities. recommending amendments to legislation that affects Since Pakistani independence,there have been no family laws
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enacted exclusively for non-Muslims.479 In addition to personal laws,there are a few key marriagerelated laws that apply to all Pakistani citizens, irrespective of their religious affiliation. One such law is the Child Marriage Restraint Act, which establishes the legal minimum age for marriage at 16 for females and 18 for males.480 Violations of the act are punishable, but do not render an underage marriage void.481 The Special Marriage Act allows individuals who do not ascribe to a particular faith or are not of the same faith to register their marriage legally.482 The act does not apply to Muslims.483 The act prescribes the following conditions for a valid marriage: ■ neither party may have a husband or wife living at the time of marriage; ■ the man must be at least 18 years of age and the woman at least 14 years of age; ■ each party, if he or she is not at least 21 years of age, must obtain the consent of his or her father or guardian to the marriage; and ■ the parties must not be within prohibited degrees of relationship.484 Bigamy is punishable under the act and renders the marriage void.485 In 1976, the government passed the Dowry and Bridal Gifts Restriction Act and accompanying rules to combat harassment for such types of property.486 The act defines “bridal gifts”as property given by the bridegroom or his parents to the bride and “dowry”as non-inherited property given to the bride by her parents.487 Both types of property must be given in connection with the marriage but may be given before, during or after the marriage ceremony.488 The act does not apply to the Muslim mahr (dower).489 The act restricts the amount of bridal gifts and dowry that can be given to a bride as well as the total expenses that may be incurred for the marriage itself.490 It also requires the person arranging the marriage to submit a declaration to a prescribed government official affirming that the total expenditure on the marriage,including dowry and bridal gifts,did not exceed the limits prescribed by the act.491 Violations of the act’s provisions are punishable with imprisonment or a fine.492 Laws governing Muslims Muslims in Pakistan belong to one of two distinct religious sects, namely Sunni and Shia. Islamic jurisprudence recognizes two broad strains of law based on the two sects. In the sphere of family law, the school of jurisprudence to which a Pakistani Muslim belongs determines which interpretation of the law applies to him or her.493 Sunni jurisprudence is further divided into four schools of law: Hanafi, Maliki, Hanbali,
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and Shafei.494 The 1962 West Pakistan Muslim Personal Law (Shariat) Application Act makes Muslim personal law applicable to all Pakistani Muslims in family law matters, including marriage, and subjects Muslims to the provisions of relevant acts already in force.495 Muslim personal law treats marriage as a civil contract.496 Therefore,all the requisites of a valid contract must be present, including a proposal and an acceptance in the presence of two Muslim male witnesses,or one Muslim male and two Muslim female witnesses,and the consent of both parties at the time of marriage.497 The parties to a marriage must also be of sound mind and have attained puberty, which is presumed to occur at the age of 15.498 Although the Muslim Family Laws Ordinance establishes the statutory age for marriage at 16 for girls and 21 for boys, the ordinance applies to Muslim Pakistanis “notwithstanding any law, custom or usage,” pointing to the authority of customary practices over personal matters.499 In 1991, the Federal Shariat Court declared that an adult Muslim woman could enter into marriage according to her free will,with or without the consent of her father or guardian. The Supreme Court affirmed this ruling in 2003, overturning an earlier verdict by the Lahore High Court that deemed marriages in the absence of such consent invalid.500 An essential element of a Muslim marriage contract, or nikahnama, is the transfer of property known as dower. Dower is the sum of money or property that a husband must give to his wife in consideration of marriage.501 Dower may be either stipulated in the marriage contract (“specified dower”) or unspecified in a contract but determined by a court on the principle of a wife’s entitlement to “proper” dower.502 While the giving of dower is common practice, there is disagreement about whether dower is always a wife’s unconditional right or necessary to a valid marriage.503 Pursuant to the Muslim Family Laws Ordinance, all Muslim marriages must be registered and offenders are liable to be punished with imprisonment or a fine, or both.504 Courts have held that where the fact of marriage is regarded with serious doubt between the parties,non-registration could cast further suspicion on its existence and solemnization.505 Since the introduction of the 1979 Offence of Zina (Enforcement of Hudood) Ordinance,couples whose marriage has not been registered face the possibility of the serious charge of zina (fornication or adultery), the maximum punishment for which is stoning to death.506 However, courts have also recognized that although non-registration of marriage is punishable under the ordinance, it does not invalidate an otherwise legal marriage.507 The Muslim Family Laws Ordinance restricts,but does not
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Marriages between Muslims of different sects or between ban, polygamy.508 In order to contract another marriage, a Muslims and non-Muslims may also be deemed valid, irregMuslim male must seek written permission from an arbitration ular or void, depending on the Muslim school of jurisprucouncil constituted under the ordinance,which must ascertain dence.Sunni Muslim men may contract valid marriages with whether the proposed marriage is “necessary” and “just,” 509 Muslims,Christians or Jews,but marriages with non-Muslims among other conditions. Grounds upon which the council such as Hindus are irregular.525 There is debate as to whether may authorize another marriage include “sterility, physical Sunni Muslim women’s marriages to non-Muslim males are infirmity, physical unfitness for the conjugal relation, willful irregular or void.526 According to the avoidance of a decree of restitution of Shia school of Islamic jurisprudence, conjugal rights,or insanity on the part RELEVANT LAWS AND POLICIES 510 all marriages between Muslims and The man of the existing wife.” • Child Marriage Restraint Act, 1929 non-Muslims are unlawful and must also obtain the consent of the • Special Marriage Act, 1872 void.527 existing wife or wives, and failing to • Dowry and Bridal Gifts Restriction Laws governing Hindus do so is punishable with imprisonAct, 1976 Hindu personal law governs marment or a fine, or both.511 He may • West Pakistan Muslim Personal Law riage among Pakistani Hindus. Codialso be ordered to pay the entire (Shariat) Application Act, 1962 fied Hindu laws in Pakistan relating to amount of dower due to the existing • Muslim Family Laws Ordinance, 512 marriage include the 1946 Hindu wife or wives. Despite these penal1961 Marriage Disabilities Removal Act ties, a second marriage contracted • Hindu Marriage Disabilities Removal and 1856 Hindu Widow’s Marriage without the requisite permission Act, 1946 Act.528 The former act legalizes marremains valid.513 • Hindu Widow’s Marriage Act, 1856 riage between two Hindu persons of At the time of marriage, a woman • Christian Marriage Act, 1872 the same gotra (clan) or different subdimust disclose in the nikahnama • Parsi Marriage and Divorce Act, visions of the same caste.529 The Hinwhether she has a husband from a 1936 514 du Widow’s Marriage Act legalizes the There is no previous marriage. • Dissolution of Muslim Marriages remarriage of a Hindu widow upon such requirement of disclosure of Act, 1939 515 her own consent, but requires the previous marriages for men. • Divorce Act, 1869 father’s consent where the widow is a Bigamy by a woman or man is pun• Hindu Married Women’s Right to minor.530 The provisions of both laws ishable with imprisonment of up to Separate Residence and 516 apply to Hindus notwithstanding any seven years and a fine. A woman Maintenance Act, 1946 contrary custom or interpretation of who remarries during the subsistence • Guardians and Wards Act, 1890 Hindu law.531 of a valid marriage may also be punHindu personal law does not ban polygamy.532 ished for zina.517 Laws governing Christians Marriages may be deemed valid,irregular or void,dependMarriage among Christians in Pakistan is governed by the ing on the specific school of Muslim jurisprudence. A valid 518 1872 Christian Marriage Act, which requires solemnization marriage satisfies all legal requirements. An irregular marand registration of Christian marriages in accordance with riage is not unlawful in and of itself but is impeded by a certhe act’s provisions.533 Marriages not solemnized in accortain condition, which, if changed, could make the marriage 519 dance with the act are void.534 Conditions for a valid marA marriage contracted without witnesses or a fifth valid. riage include the following: marriage by a man with four existing wives are examples of 520 ■ the man should be over the age of 16 and the woman A void marriage is unlawful in and of irregular marriages. should be over the age of 13; itself, and its prohibition is “perpetual and absolute.”521 It cre■ neither party should have an existing wife or husates no civil rights or obligations between parties, and any band; resulting children are considered illegitimate.522 A marriage ■ the parties should recite a specified oath in the preswith a woman who has a valid existing marriage with anothence of two witnesses and practictioner; and er man, or a marriage between persons who are related by ■ if either party is under the age of 18, that party’s certain degrees, is void.523 Prohibited relationships in marfather or guardian must consent to the marriage.535 riage include a man and his mother or grandmother, daughViolations of the act’s provisions are punishable with ter or granddaughter, sister, niece or great-niece, paternal or 524 imprisonment or a fine.536 maternal aunt or great-aunt, and certain in-laws.
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Laws governing Parsis Marriage between Parsis is governed by the 1936 Parsi Marriage and Divorce Act.537 The requirements for a valid marriage include these: ■ the parties must not be within prohibited degrees of relationship; ■ the marriage must be solemnized according to the Parsi form of ceremony called ashirvad by a priest and in the presence of two additional witnesses; ■ if either party has not completed 21 years of age, the consent of that party’s father or guardian must be obtained; and ■ neither party should have a husband or wife still living at the time of marriage.538 Additionally,all marriages must be registered wherever the The act prohibits marriage was first solemnized.539 540 bigamy. Divorce laws Laws governing Muslims Divorce among Muslims is governed by Muslim personal law. Two relevant codified laws are the Muslim Family Laws Ordinance and the 1939 Dissolution of Muslim Marriages Act.541 Under Muslim jurisprudence, there are several forms of divorce. Talaq traditionally refers to the right of the Muslim male to unilaterally and irrevocably repudiate the marriage contract without specifying any cause.542 Muslim jurisprudence recognizes three modes of talaq, dependent upon the number and occasions of the pronouncement of divorce.543 The husband’s prerogative of talaq may also be delegated to the wife (talaq-i-tafweez) either conditionally or unconditionally through a clause that may be inserted in the nikahnama.544 However, despite its inclusion in the standard nikahnama, the option of talaq-i-tafweez is trumped by customary practice and invariably removed at the time of signing.545 Generally, talaq is followed by a period of iddat, whereby the divorced wife is bound not to contract a new marriage if the existing marriage has been consummated.546 The period of iddat is three months, unless the wife is pregnant, in which case iddat continues until delivery of the child.547 The purpose of iddat is to avoid any confusion regarding paternity.548 Under the Muslim Family Laws Ordinance,any man who wishes to divorce his wife may pronounce talaq and must give written notice to the chairman of the Union Council and a copy to his wife.549 He does not have to specify any grounds for divorce or return any of the benefits gained by the marriage. The chairman is then bound to constitute an arbitration council, which is assigned the task of attempting reconciliation between the parties.550 However, even if an arbitration
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council is not constituted or steps are not taken for reconciliation,talaq automatically becomes effective upon the expiration of a period of 90 days from the date the chairman and the wife receive notice of talaq, unless it is revoked earlier.551 If the wife is pregnant at the time talaq is pronounced, talaq becomes effective upon delivery of the child or the expiration of the prescribed period of 90 days, whichever is later.552 In January 2000, the Federal Shariat Court declared the 90-day expiration requirement in the ordinance inconsistent with Islamic injunctions and directed the president of Pakistan to take steps to amend the provision.553 The Muslim Family Laws Ordinance recognizes delegated divorce, or talaq-i-tafweez.554 Khula is a form of divorce whereby the wife takes the initiative in dissolving the marriage. It is not a unilateral right and requires the wife to justify her desire for divorce and agree to forego her dower and other material benefits given by her husband at the time of marriage.555 If both spouses mutually agree to khula, the marriage is dissolved without court interference.556 If the husband does not consent to khula, a court may order dissolution of the marriage if it is convinced of the wife’s case.557 In addition, the woman must observe the period of iddat.558 Where the spouses mutually consent to terminate the marriage contract based on mutual aversion,the dissolution of marriage is termed mubarat. Contrary to the khula form of divorce,the wife is not bound to give benefits to the husband to be released from the marriage.559 Like khula, the woman must undergo a period of iddat.560 In addition to the above forms of divorce, the Dissolution of Muslim Marriages Act provides for dissolution of marriage by judicial decree of the court.561 The grounds for dissolution of marriage are as follows: ■ absence of the husband for four years; ■ neglect or failure of the husband to support his wife for two years; ■ addition of a new wife in contravention to the Muslim Family Laws Ordinance, which requires the consent of one’s current wife; ■ a sentence of imprisonment for the husband of seven years or more; ■ failure of the husband to perform, without reasonable cause, his marital obligations for three years; ■ continuing impotency of the husband from the time of marriage; ■ insanity of the husband for a period of two years, leprosy or contraction of a virulent venereal disease; ■ marriage of the woman before 16 years of age and her repudiation of the marriage before age 18 provided
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that the marriage has not been consummated; cruel treatment by the husband, the instances of which are listed in the statute; and ■ any other grounds recognized under Muslim law.562 The act defines cruelty by the husband as follows: ■ committing habitual assault or cruelty of conduct even if not amounting to physical ill-treatment; ■ associating with women of evil repute or leading an infamous life; ■ attempting to force the wife to lead an immoral life; ■ disposing of wife’s property or preventing her from exercising her legal rights over her property; ■ obstructing her religious profession or practice; and, ■ failing to abide by Quranic injunctions to treat a wife equitably in the context of a polygamous marriage.563 Other forms of divorce recognized under Muslim law, but rarely used, are ila, zihar and lian.564 Ila describes a situation in which the husband abstains from sexual intercourse with his wife for at least four months.565 Zihar is when the husband compares his wife with a woman (such as his mother) with whom he may not contract a legal marriage.566 In lian, the husband accuses his wife of adultery and has only his word against hers to support his claim.567 In all three forms, the woman is entitled to move the court for dissolution of marriage.568 Laws governing Hindus The concept of divorce does not exist in Hindu personal law.569 Laws governing Christians The 1869 Divorce Act governs divorce among Christians in Pakistan.570 Under the act,a husband may petition for dissolution of marriage on the ground that his wife has been guilty of adultery.571 A wife may petition for dissolution on the following grounds: ■ conversion of the husband to another religion and his subsequent marriage to another woman; ■ “incestuous adultery”; ■ bigamy coupled with adultery; ■ the husband’s marriage to another woman coupled with adultery; ■ rape, sodomy or bestiality; ■ adultery coupled with cruelty of a degree that, without adultery, would justify divorce a mensa et toro (the separation of a woman from the bed and board of her husband); and ■ adultery coupled with desertion, without reasonable excuse, for at least two years.572 Either party may also petition for a decree of nullity of the marriage on the following grounds: ■
impotence at the time of marriage and through the institution of the suit; ■ the parties are within prohibited degrees of relationship; ■ either party was a “lunatic” or an “idiot” at the time of marriage; and ■ either party had a living spouse at the time of marriage.573 Laws governing Parsis The Parsi Marriage and Divorce Act prescribes the grounds for divorce among Parsis.574 Either party may sue for divorce on the following grounds: ■ the marriage was not consummated within one year after its solemnization due to the willful refusal of the defendant; ■ unsoundness of mind of the defendant from the time of marriage through the date of the suit; ■ the wife was pregnant at the time of marriage by someone other than the husband; ■ adultery, fornication, bigamy, rape, or an unnatural offense; ■ grievous hurt; ■ infection with a venereal disease by defendant; ■ a husband who pressures his wife to prostitute herself; ■ seven or more years imprisonment for an offense under the penal code; ■ desertion for at least three years; ■ lack of marital intercourse for at least three years since a decree or order for judicial separation or separate maintenance; ■ failure to comply with a decree for restitution of conjugal rights for one year or more; and ■ defendant has ceased to be a Parsi.575 In cases where consummation of the marriage is impossible because of physiological reasons, either party may bring a petition to declare the marriage void.576 Continual absence of one spouse for a period of seven years is grounds for dissolution of the marriage by either party, provided that the missing spouse is not heard of as being alive during that period of time.577 Judicial separation Laws governing Muslims Judicial separation is not recognized as a matrimonial remedy. Laws governing Hindus See “Laws governing Hindus” under “Divorce Laws” for information. ■
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Laws governing Christians Under the Divorce Act,either party may obtain a decree of judicial separation on any of the grounds available for divorce under the act.578 Laws governing Parsis Under the Parsi Marriage and Divorce Act, either party to the marriage may bring a lawsuit for judicial separation on any of the grounds available for divorce under the act,in addition to the grounds of cruelty to the spouse or their children,“personal violence” or behavior that would make it “improper” for a court to order a spouse to cohabit with the defendant.579 Maintenance and support laws Laws governing Muslims Under the Muslim Family Laws Ordinance, women are entitled to adequate maintenance from their husbands. Where a husband fails to “adequately”or “equitably”maintain his wife or wives, legal remedies are available to the women.580 In addition, they may seek for an “arbitration council”constituted under the ordinance to issue an award for a specified amount of maintenance.581 As previously noted, the failure of a husband to maintain his wife for a period of two years is grounds for dissolution of the marriage by the wife under the Dissolution of Muslim Marriages Act.582 A woman’s right to maintenance is unaffected by her ability to support herself, but is contingent upon cohabitation with her husband.583 If she lives separately from him without reasonable cause, she loses her entitlement to maintenance.584 Laws governing Hindus Under the 1946 Hindu Married Women’s Right to Separate Residence and Maintenance Act,Hindu married women are entitled to separate residences and maintenance from their husbands on the following grounds,notwithstanding any custom or law to the contrary: ■ loathsome disease contracted from someone else; ■ cruelty, rendering continued cohabitation unsafe or undesirable; ■ desertion; ■ remarriage; ■ conversion to another religion; ■ maintaining a concubine in the house or habitually residing with a concubine; and ■ any other justifiable cause.585 A woman loses her right if she is unchaste, converts to another religion or fails to comply without sufficient cause with a decree for the restitution of conjugal rights.586 Laws governing Christians Under the Divorce Act, a court may, using its discretion upon a decree for dissolution of marriage or judicial separa-
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tion obtained by the wife,issue an order to a husband to make monthly or weekly payments for his wife’s maintenance.587 Laws governing Parsis Under the Parsi Marriage and Divorce Act,a court has discretion to order a husband to support his wife for a specified period.588 The court may order either payment of a gross sum, or monthly or otherwise regular payments that it considers reasonable. In determining the amount and schedule of payments, the court takes into consideration such factors as the wife’s property, the husband’s ability to pay and the conduct of the parties.589 Custody and adoption laws The personal laws and customary practices of Pakistan’s various religious communities govern matters relating to the custody of minor children. Personal laws do not generally address adoption, although all Pakistani citizens may seek “guardianship” of minor children under the 1890 Guardians and Wards Act.590 Under the Guardians and Wards Act, fathers are considered the primary guardians of minor children,and courts will not appoint another guardian unless the father is found to be unfit.591 In the case of married minor girls,the girl’s husband is considered her natural guardian, and courts will similarly not appoint another guardian unless he is found to be unfit.592 Where courts must appoint a guardian, the principle of the “welfare of the minor”is paramount in their determination of custody.593 Factors considered by courts when granting custody include the age,sex and religion of the minor;the “character and capacity” of the proposed guardian and his or her kinship to the minor; any wishes of a deceased parent; any existing or previous relations of the proposed guardian and the minor or his property; and the preference of the minor, if such minor is old enough to form an intelligent preference.594 Laws governing Muslims While a mother or other female relative generally has custody of her minor children early in their childhood, traditional Muslim jurisprudence reverts custody to the father after the children have attained a certain age.595 Under Sunni law,a mother has custody of her son until he attains the age of seven and her minor daughter until she attains puberty or until she is married,depending on the specific school of Muslim jurisprudence.596 Under Shia law, a mother has custody of her son until he reaches the age of two and of her daughter until the age of seven.597 There are several grounds for disqualification of a mother or female relative to the right of custody, including the following: ■ remarrying to a man not related to the child within the prohibited degree; ■ living far away from the child’s father;
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leading an immoral life or neglecting the child; or Under the draft law,any person who illegally deprives a woman changing religion.598 of her property may be punished with up to ten years imprisDespite traditional Muslim jurisprudence regarding custody, onment or a Rs 50,000 fine, or both. Pakistani courts consider the “welfare of the child”as paramount Laws governing Muslims and have deviated from standard Islamic rules in applying this While Muslim personal law confers property rights on 599 standard. There is a presumption that the responsibility for women, customary law has had a strong influence in this area the welfare of the child lies with the mother.600 However,courts and has led to the denial of women’s property rights.609 601 Unlike Muslim jurisprudence, which grants men as well as prefer to take a case-by-case approach. Laws governing Hindus women the ability to sell and transfer their property without Hindu personal law and customary practices generally govern restriction, customary law does not recognize the concept of matters relating to the custody of minor full ownership.610 The general rule of succession in customary law excludes children among Pakistani Hindus. RELEVANT LAWS AND POLICIES all females except widows and Under the Hindu Widow’s Mar• West Pakistan Muslim Personal Law daughters.611 Women who inherit riage Act,a Hindu widow may serve as (Shariat) Application Act, 1962 property are limited to “bare mainteguardian of any of her minor children if • Muslim Family Laws Ordinance, 1961 nance”or “lifetime interests,”and gifts her deceased husband expressly provid• Hindu Widow’s Marriage Act, 1856 602 or property obtained through inheried for such guardianship in his will. Where the will fails to name a guardian, tance revert back to the male heirs of UP AND COMING LEGISLATION the father, paternal grandfather or the last male owner upon termina• North-West Frontier Province grandmother, or any male relative of tion of the limited interest (i.e.,on the (NWFP) Protection of Women’s the deceased husband may petition a female’s marriage or death).612 CusProperty Ownership Rights Act, 2003 603 tomary laws throughout Pakistan court to appoint a guardian. Laws governing Christians prevent women from freely disposing Under the Divorce Act, upon or after issuing a decree for of immovable property (i.e.,land or buildings) they inherit by judicial separation, dissolution or nullity of marriage, a court making such transactions subject to the consent of male may in its discretion provide “as it deems proper” for the cusmembers of the family.613 A series of Shariat Application Acts were enacted begintody, maintenance and education of any minor children from 604 ning in the 1930s to replace customary law with Islamic law the marriage. Laws governing Parsis in certain specified areas.614 The West Pakistan Muslim PerUnder the Parsi Marriage and Divorce Act,a court may in sonal Law (Shariat) Application Act provides that Muslim its discretion upon issuing a final decree under the act provide personal law is the rule of decision in matters including inher“as it may deem just and proper”for the custody,maintenance itance, succession and women’s separate property, notwithand education of any children from the marriage under the standing “any custom or usage” and subject to the provisions age of 16.605 of any legislation in force.615 While there are exceptions,the general rule under Muslim D. ECONOMIC AND SOCIAL RIGHTS personal law is that a Muslim female gets half of what a male Property laws with an equivalent relationship would inherit.616 According The constitution provides that “every citizen of Pakistan shall to Sunni Hanafi law,a wife is entitled to a one-fourth share of have the right to acquire,hold and dispose of property … subthe husband’s property if there are no children or grandsons ject to the Constitution and any reasonable restrictions “however low-so-ever,” and one-eighth if there are chilimposed by law in the public interest.”606 It also affords spedren.617 If there is more than one wife, their share is equally cial protection to property rights by providing that no person divided among them.618 Daughters are entitled to inherit shall be unlawfully deprived of his or her property.607 only if there is no son.619 If there is only one daughter, her The North-West Frontier Province is currently drafting a share is one-half; if there are multiple daughters their colleclaw that punishes people who deprive a woman of her propertive share is two-thirds.620 When there is a son, the daughter ty or inheritance.608 The proposed 2003 NWFP Protection of becomes a “residuary,” meaning that she has no prescribed Women’s Property Ownership Rights Act recognizes that share and takes only the remainder of property after the claims women often are deprived of their property rights and that legal of prescribed sharers are satisfied.621 An illegitimate child protection is necessary to ensure their enjoyment of such rights. inherits only from the mother’s side.622 ■ ■
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Under Shia law, the wife is entitled to one-eighth of the value when reclaiming the goods upon dissolution of the husband’s property when there is a lineal descendant.623 If marriage.635 Laws governing Hindus there is more than one wife, this share is distributed equally No data is available on Hindu women’s exclusive properamong them.624 A Quranic provision states that daughters are entitled to succeed with the son; Shia law interprets this ty rights in Pakistan. tenet as applicable to all female heirs.625 Shia law does not Laws governing Christians recognize the inheritance rights of an illegitimate child.626 No data is available on Christian women’s exclusive propAdoption as a mode of filiation is not recognized under Muserty rights in Pakistan. lim personal law; therefore, no inheritance rights exist Laws governing Parsis 627 Similar between adoptive parents and the adopted child. No data is available on Parsi women’s exclusive property exclusions apply to stepchildren.628 rights in Pakistan. Under the Muslim Family Laws Ordinance, living chilLabor and employment dren of a predeceased son or daughter who would inherit Of the 39.4 million Pakistanis participating in the formal have a right to the share their parents would have received and informal employment sectors, only 6.2 million are had they been alive.629 Pursuant to the West Pakistan Muslim women.636 Most of the female workforce—some 79%—is Personal Law (Shariat) Application Act, Muslim personal law employed in the agricultural sector, compared with 57.3% of 630 is subject to this statutory provision. men.637 Of women who work in urban areas, 62.2% are Pakistani courts have consistently upheld the rights of employed in service jobs and the remainder are divided women to inherit immovable and movable property, includequally between the manufacturing and professional secing agricultural land.631 Although these courts have adopted tors.638 The majority of urban women’s jobs are in the infora protective attitude toward women’s mal sector, where standard or inheritance rights,social and customprotective labor legislation does not ary norms have inhibited women apply.639 Women generally comprise RELEVANT LAWS AND POLICIES 1–2% of lawyers in bar associations from taking inheritance matters • West Pakistan Minimum Wage across the country, peaking at 13.6% before the court, accounting for the Rules, 1962 in Karachi.640 Of 1,839 sanctioned minimal number of cases dealing • West Pakistan Maternity Benefit positions in the subordinate judiciary with women’s inheritance rights.632 Ordinance, 1958 Laws governing Hindus in 1998, there were only 76 female • Mines Maternity Act, 1941 Hindu personal law generally judges.641 Women hold 21% of seats • Provincial Employees Social Security in parliament and make up 9% of leggoverns Hindu women’s property Ordinance, 1965 islators, senior officials and managers rights in Pakistan. • Civil Servants Act, 1953 in government.642 Under the Hindu Widow’s Mar• Factories Act, 1934 The constitution guarantees the riage Act, all rights of a widow to her fundamental right of all citizens to deceased husband’s property extinengage in “any lawful profession or occupation, and to conguish upon her remarriage.633 Her share lapses to the next heirs of her deceased husband.634 duct any lawful trade or business”subject to any qualifications Laws governing Christians prescribed by law.643 It also prohibits gender discrimination No data is available on property laws governing Christians in the appointment of government jobs, except with respect in Pakistan. to those that “entail performance of duties or functions that Laws governing Parsis cannot be adequately performed by the other sex.”644 The constitution’s Principles of Policy enjoin the state to provide No data is available on property laws governing Parsis in for “just and humane” work conditions for all, ensuring that Pakistan. women and children are not employed in jobs “unsuited to Rights to agricultural land their age or sex.”645 The principles also urge the state to proNo data is available on laws governing Pakistani women’s vide for maternity benefits in the workplace.646 rights to agricultural land. The constitution does not guarantee the right to equal pay Women’s exclusive property for equal work. However, the 1962 West Pakistan Minimum Laws governing Muslims Wage Rules, which provide for the establishment of a MiniAll property given as dowry or bridal gifts is vested in the mum Wages Board to make recommendations regarding bride. Her interest is not limited by the statutory maximum
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minimum wage rates to the government, require that male poisoning or disease.662 and female workers be remunerated equally for work of equal Access to credit 647 value. The rules are applicable throughout Pakistan. Women face a number of legal and financial barriers to A number of labor laws provide for paid maternity leave obtaining credit from traditional financial institutions.663 and other maternity benefits to female employees. The 1958 Women often lack the necessary collateral to secure loans West Pakistan Maternity Benefit Ordinance permits all from conventional banks.664 They are also at a legal disadwomen employed in industrial, commercial or other estabvantage—in matters relating to written financial transac648 lishments a paid maternity leave of 12 weeks. The 1941 tions only, the testimony of two women is considered equal Mines Maternity Act provides similar benefits for women to that of one man.665 649 employed in mines. Women governed by the ordinance In an effort to improve women’s access to credit and promust work at least four months before they become eligible mote their economic participation, the government estabfor maternity benefits; under the Mines Maternity Act, the lished the First Women Bank in 1989, which is operated and prerequisite period of employment is six months.650 Both managed almost entirely by women.666 The bank offers spepieces of legislation make maternity leave, although paid, cial credit schemes for low-income women and students that 651 mandatory during the six-week period following delivery. provide group-based loans of up to Rs 25,000 without colThey also prohibit employers from terminating a female lateral requirements.667 By 2000, the bank had financed worker during a permitted period of leave, and the Mines 14,569 female entrepreneurs.668 In addition to supplying Maternity Act additionally prohibits termination on account credit, the bank offers entrepreneurial skills development and 652 of such leave. Contravention of these laws by employers is computer literacy programs,and it assists clients in displaying, punishable with a fine of up to Rs 500.653 Under the Mines promoting and identifying markets for their products.669 To Maternity Act, women may be punmake its services more accessible to ished with a fine of up to Rs 10 for women in rural areas, the bank working during the mandatory sixemploys 11 mobile credit officers and RELEVANT LAWS AND POLICIES week maternity leave period follownetworks with a number of NGOs in • West Pakistan Primary Education ing delivery and forfeit any further rural credit lending programs.670 Ordinance, 1962 654 payment of maternity benefit. In 2000, the government estab• National Education Policy, 1998–2010 The 1965 Provincial Employees lished the Khushhali Bank, or MicroSocial Security Ordinance also proFinance Bank, by presidential vides for a 12-week paid maternity leave period, but only for ordinance as part of its poverty reduction program.671 The women in industrial, commercial and other establishments of bank’s objective is to “provide micro-finance services in a sus655 at least ten employees. Beneficiaries are also entitled to pretainable manner to poor persons, particularly poor women, natal confinement and postnatal medical care.656 Female civwith a view to alleviating poverty.”672 As of 2002, some il servants are entitled to a similar leave period under the 1953 14,000 clients had received loans, 30% of whom were Civil Servants Act and accompanying rules, although such women.673 The bank’s lending programs are facilitated by leave is only permitted up to three times during a worker’s community organizations and NGOs.674 657 Under the 1934 Factories Act, provincial governcareer. Education ments are authorized to require factories employing more Some 37% of Pakistani women are literate,compared with than fifty female employees to establish crèches for workers 61% of men.675 Literacy rates are significantly higher in urban whose children are under the age of six.658 than in rural areas, especially with respect to women: 60% of Women who work in export processing areas and in the women in urban areas are literate,compared with 76% of men. informal sector are not entitled to maternity benefits. In rural areas, the female literacy rate is 25%, compared with Various federal labor statutes restrict women’s employ53% for men.676 Girls’ and women’s school enrollment rates ment in certain areas.659 Women workers in mines, factolag behind those of boys and men at all levels of education, ries and export processing zones are prohibited from with the widest gaps in enrollment at the primary school levworking at night.660 Under the Factories Act, women are el and in professional colleges.677 Almost three times as many prohibited from working on or near moving machinery.661 men than women are enrolled in professional colleges.678 The act also authorizes provincial governments to make The constitution prohibits discrimination in admission to rules barring women employed in factories from engaging any public educational institution on the sole basis of race, in work that may expose them to the risk of bodily injury, religion, caste, or place of birth, although the state may make
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provisions to promote the advancement of any “socially or educationally backward” group of citizens.679 The constitution’s Principles of Policy further encourage the state to promote the educational interests of “backward classes or areas.”680 They also enjoin the state to eliminate illiteracy,provide free and compulsory secondary education, and ensure the general availability of technical and professional education and the equal accessibility of higher education on a merit-based system.681 Importantly, the principles characterize education as a “basic necessity of life” that the state should strive to provide for citizens without regard to sex, caste, creed, or race.682 While the Ministry of Education plays a planning and coordinating role in the main components of primary education, implementation of primary education and literacy programs is mainly the responsibility of provincial departments of education and the Prime Minister’s Literacy Commission, and is facilitated by NGOs.683 Although some institutional mechanisms for the administration of primary education exist at the grassroots level,further decentralization is a priority for the government.684 The 1962 West Pakistan Primary Education Ordinance gave provincial governments the power to make primary education compulsory in any district, but did not require them to do so.685 Thus far, three of Pakistan’s four provinces have passed legislation making primary education compulsory: Punjab, North-West Frontier Province and, most recently, Sindh.686 The government of Sindh aims to implement compulsory primary education in all districts by April 2004.687 Having all of Pakistan’s provincial governments pass legislation providing for free and compulsory education is a key objective of the National Education Policy for 1998–2010, the federal government’s main policy on education.688 Other objectives of the National Education Policy include achieving the following goals: ■ primary school enrollment rates of 90% by 2002–2003 and 105% by 2010; ■ primary school retention and completion rates of 90% by 2010; ■ minimum education levels among 90% of primary school students by 2010; and ■ literacy rate of 70% by 2010.689 The policy also aims to eliminate existing urban/rural and gender disparities in education.690 Government strategies in this area include ensuring that all new schools are coeducational and have a 70% female teaching staff.691 Efforts to retain young female students in rural areas include providing free textbooks, stipends and meals.692 Non-formal education programs are a major compo-
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nent of government education initiatives.693 Several thousand Non-Formal Basic Education Schools, or home schools run by NGOs and community-based organizations, were established under a project launched by the Prime Minister’s Literacy Commission in 1995.694 The National Education Policy aims to expand this project by establishing 75,000 additional schools.695 The National Commission for Human Development, formed by presidential directive in 2002, serves as a coordinating body for public and private sector activities relating to human development in Pakistan, including those in the area of primary education and literacy.696 The commission aims to assist the government in attaining universal primary school enrollment in Pakistan and establishing public schools in areas where none exist.697 E. RIGHT TO PHYSICAL INTEGRITY
According to the National Commission on the Status of Women,violence against women in Pakistan is on the rise.698 Reports from domestic and international NGOs indicate that incidences of domestic violence, sexual assault, “honor killings” and other forms of violence against women are reaching alarming proportions in the country.699 NGO reports show that violence in the home is the most prevalent form of violence Pakistani women experience.700 Estimates indicate that 70–95% of all women in Pakistan experience domestic violence.701 Lahore’s national daily newspapers reported 266 “honor killings” between January and November 1999.702 About 31% of these murders, in which a woman is killed by her male relatives because of her perceived or actual involvement with a man who is not her husband,were committed by the victim’s brother and 21% by the victim’s husband.703 Minors were the victims in 15% of these cases.704 Domestic violence, incest and honor killing are reportedly commonplace in refugee camps, and domestic violencerelated deaths are also on the rise.705 In a sample survey of more than 200 women living in refugee camps outside of Peshawar, 79% reported being beaten by their husbands and 39% by other family members, and 13.4% believed that men have the right to beat their wives.706 Access to legal redress and health and social services is extremely restricted for Afghan refugee women victims of violence.707 Health-care providers working in refugee camps have no clear protocols for addressing violence, and there are no programs that provide counseling or other social services targeted to victims of gender-based violence living in refugee camps.708 Outside of camps, refugees may seek medical and social services from local NGO-run programs for victims of violence in the population at large.709
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The constitution guarantees all citizens’fundamental rights of tazir is imposed.721 The penalties for rape by a single to life,liberty and inviolability of human dignity.710 The govassailant under tazir can be up to 25 years in prison and 30 ernment also has promulgated some lashes.722 If rape is committed by two specific legislation addressing violaor more persons, each person receives RELEVANT LAWS AND POLICIES tions of women’s physical integrity. the death penalty.723 • Offense of Zina (Enforcement of Rape The ordinance also criminalizes Hudood) Ordinance, 1979 The offense of rape (Zina bil Jabr) zina (adultery).724 In light of the ordi• Offense of Qazf Ordinance, 1979 is dealt with under the Offence of nance’s strict evidentiary requirements • Qisas and Diyat Ordinance, 1990 Zina (Enforcement of Hudood) for rape, a woman who alleges, but 711 • Pakistan Penal Code, 1860 The ordinance Ordinance. fails to prove that she has been raped, • West Pakistan Suppression of repealed standing penal code provimay be subject to prosecution for Prostitution Ordinance, 1961 sions relating to rape and provided adultery, which carries penalties simifor stricter evidentiary requirements lar to those for rape: a maximum hadd in establishing the crime.712 Rape is defined as sexual interpunishment of stoning to death or 100 lashes if not Muslim, course by a person with a woman or man to whom he or she or lesser tazir punishment of up to ten years imprisonment is not validly married under any of the following circumand 30 lashes.725 The 1979 Offence of Qazf Ordinance aims stances: to protect individuals against false accusations of adultery by ■ against the victim’s will; criminalizing qazf (false imputation of adultery) with a hadd ■ without the victim’s consent; punishment of up to 80 lashes or a lesser tazir punishment of ■ with the victim’s consent, when such consent has 40 lashes and two years imprisonment.726 Some courts have been obtained by putting the victim in fear of death interpreted this law as meaning that a wife cannot accuse her or of hurt; or own husband of qazf.727 In practice, very few qazf cases are ■ with the victim’s consent, when the offender filed by women.728 knows that he or she is not validly married to the Incest victim and that consent has been given because There is no specific law on incest.729 However, the perthe victim believes that the offender is someone sonal laws of some religious communities prohibit marriage to whom the victim is or believes herself or himbetween certain closely related individuals. (See “Laws gov713 self to be validly married. erning Muslims” and “Laws governing Parsis” under “MarThe law does not recognize marital rape as a crime.714 The riage laws” for more information.) ordinance eliminated the crime of statutory rape, which the Domestic violence 715 penal code had previously criminalized. There is no specific legislation on domestic violence.730 Two different degrees of punishment, hadd and tazir, are However,the National Commission on the Status of Women prescribed as penalties for rape depending upon religious affilhas since its establishment in 2000 made recommendations to iation,marital status and other evidentiary factors. Under the the government for the enactment of specific legislation on maximum punishment of hadd, if the accused is a married domestic violence.731 Muslim, a conviction for rape of another woman results in Most acts of domestic violence are prosecuted under the death by stoning.716 However, this penalty can be awarded Qisas and Diyat Ordinance, which are Islamic criminal laws only if the evidence consists of a confession by the accused or dealing with the crimes of murder, attempted murder and a statement by four pious adult Muslim men who have witbodily harm that amended relevant provisions of the penal 717 nessed the act of penetration. If the accused is a non-Muscode.732 The Qisas and Diyat Ordinance defines and prelim,the punishment of hadd is carried out through whipping, scribes punishments for assault, criminal force (battery), murextending to 100 lashes in a public place, or a death sentence, der and other forms of bodily harm a woman may suffer in a if deemed fit by the court.718 Again, the crime must be marital conflict, such as permanent damage to eyesight, hearproven either through a confession by the accused or the tesing impairment, disfiguration of the head or face, and fractimonies of four male eyewitnesses;the witnesses need not be ture or dislocation of a bone or tooth.733 Under the Muslim.719 The testimony of a woman or the raped woman ordinance, punishment is determined by the victim or her 720 herself bears no legal weight in hadd punishments. wali (the victim’s legal heirs) who may choose either to In cases where rape is established by other evidence, such exact qisas (retribution) or diyat (compensation), or to paras the testimony of a woman, the class of lesser punishments don the accused altogether.734 If the victim or heir choos-
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es to waive qisas, or qisas is held to be inapplicable, a judge has discretion to order as punishment diyat, tazir, imprisonment or no punishment at all for the offender.735 An exception to this rule arises in cases of Qatl-i-amd (murder) when the wali is a direct descendant of the offender.736 In such cases, the offender is not liable for qisas.737 Consequently, if a woman were murdered by her husband, he would be exempt from capital punishment if the couple had any children, since the children, as the victim’s wali, would also be direct descendants of the offender.738 Although courts may impose tazir punishment in spousal murder cases of this kind, the maximum penalty they may award is 14 years imprisonment.739 Among the many forms of domestic violence affecting women in Pakistan is the widespread practice of stove-burning, the burning of a woman by her husband or in-laws because her dowry was not enough,or because of other marital disputes.740 Although there is no specific legislation dealing with stove-burning,the Lahore High Court took suo moto notice of the issue in 1991 and issued a directive on the procedure for investigating and addressing such incidents of violence.741 The National Commission on the Status of Women has issued a recommendation calling for specific legislation in accordance with the Lahore High Court’s directive.742 Sexual harassment There is no separate law dealing with sexual harassment. The penal code penalizes the offense of “insult[ing] the modesty of a woman” by prohibiting anyone from uttering any word, making any sound or gesture, or exhibiting any object with the intent to insult her modesty.743 The punishment in this case is simple imprisonment of one year or a fine, or both.744 Other penal code provisions criminalize certain types of behavior that could constitute sexual harassment, such as performing an obscene act in public, wrongfully restraining or confining a person, or assaulting a woman with an intent to “outrage her modesty,” and impose punishments of various terms or a fine depending upon the gravity of the offense.745 The National Commission on the Status of Women has since its establishment in 2000 recommended to the government that legislation be enacted whereby employers are required to respond to and monitor incidents of violence and harassment in the workplace.746 Commercial sex work Under the 1961 West Pakistan Suppression of Prostitution Ordinance, prostitution is illegal.747 The ordinance prescribes punishments for women who engage in prostitution and for those who procure or entice a woman or girl to become a prostitute.748
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Sex-trafficking The constitution prohibits “all forms of forced labour and traffic in human beings.”749 The West Pakistan Suppression of Prostitution Ordinance prescribes punishments for those who bring or attempt to bring any woman or girl into the country for purposes of prostitution by imprisonment of up to three years or a fine, or both; if the convicted person is male, he may also be whipped.750 Other laws that prescribe punishments for the trafficking of women include the Offence of Zina (Enforcement of Hudood) Ordinance,which criminalizes the acts of buying or selling a person for the purposes of prostitution,and “enticing, taking away or detaining” a woman for the purpose of “illicit intercourse.”751 The punishments prescribed for these offenses range from seven years to life in prison and may include whipping and a fine.752 The ordinance also criminalizes the abduction of any woman in order to force her into marriage or illicit intercourse, with the punishment being life imprisonment and whipping not exceeding 30 lashes.753 The punishment is raised to death or up to 25 years imprisonment and 30 lashes as well as a fine for kidnapping or abducting any person for the purpose of subjecting him or her sexually.754 The Qisas and Diyat provisions of the penal code also punish trafficking-related acts with imprisonment.755 Customary forms of violence Honor killing is not defined by law,but,according to practice, involves the murder of a woman by her male relatives because of her perceived or actual involvement with a man who is not her husband.756 Cases of honor killings are tried under the legal provisions on murder contained in the penal code, but sentences for this crime are generally reduced from those prescribed for murder to those specified for manslaughter through a provision of the penal code that makes exceptions for murder due to “grave and sudden provocation.”757 Honor killings are practiced in a variety of forms,of which “karo-kari” is one example. “Karo-kari” means “blackened man,blackened women”in Sindhi,a local language spoken in Pakistan.758 A woman suspected of immorality is called kari while her male partner is called karo.759 Karo-kari killings are carried out in the name of family “honor” to avenge the violation of tribal or cultural norms,including in instances when a woman and man have, or are suspected of having, an illicit relationship;when a woman wishes to seek a divorce;or when a woman “dishonors”her family by being raped. Based on all accounts,women are far more often the targets of the practice than men.760 Courts often give precedence to customary or social norms over statutory law and have handed down extremely lenient sentences for perpetrators.761 In rural areas, such cases are heard by tribal leaders.762
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In April 2000,the government declared that honor killings were equivalent to murder and would be treated as such.763 However,it has issued no ordinance to this effect.764 A recent judgment of the Supreme Court denounced the excuse of “grave and sudden provocation” in an honor killing, finding it to be murder and a violation of the fundamental rights declared in the constitution.765 Additional customary practices or traditions harmful to women that are prevalent throughout Pakistan include the selling of girls into marriage;the marriage of women and girls to the Quran so as to divest them of property or inheritance rights; badl-e-sulh, or the exchange or barter of girls to resolve disputes;and swara,or relinquishing a young girl to a rival party to settle a conflict.766
Focusing on the Rights of a Special Group:Adolescents IV.
The reproductive rights of adolescents, particularly the girl child, are often neglected.Adolescents face many age-specific disadvantages that are not addressed through formal laws and policies. The ability of adolescents to access the health system, their rights within the family, their level of education, and their vulnerability to sexual violence together determine the state of their reproductive health and their overall well-being. The following section presents some of the factors that shape adolescents’ reproductive lives in Pakistan. A. REPRODUCTIVE HEALTH
Pakistan does not have a specific law or policy addressing adolescents’ reproductive health. However, the National Reproductive Health Policy,Reproductive Health Services Package and Pakistan’s population policy include general and specific provisions relating to the reproductive health issues and needs of adolescents. The National Reproductive Health Policy generally aims to provide reproductive health services for individuals of all ages and either gender throughout their life cycles.767 It makes specific reference to the need for implementation strategies to identify and address the reproductive health needs of adolescents, but does not go beyond this directive.768 The Reproductive Health Services Package, which puts into operation the National Reproductive Health Policy, identifies the “management of reproductive health related problems of adolescents” as one of its nine key components.769 This component encompasses the following services:
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education regarding physiological changes during puberty; ■ management of problems such as dysmenorrhea, sexual abuse, substance abuse, and “abnormal” sexual behavior; ■ information about personal hygiene and nutrition; and ■ detection and management of developmental abnormalities such as imperforathymen, early and delayed menarche, and undescended testes.770 Pakistan’s population policy notes with concern that the country’s “ever-largest adolescent population … embodies potential population growth for several decades,”which holds serious consequences for the country’s national development and provision of basic services, including health services.771 The policy contains general strategies to develop and launch advocacy campaigns targeted to special groups, including youth and adolescents, but does not include more specific policy provisions addressing adolescent reproductive health care.772 Its strategies to reduce unmet need for family planning services target married couples.773 NGOs are playing a significant role in implementing these policy provisions through awareness-raising activities about adolescent reproductive health issues and the provision of services. NGO initiatives include providing youth counseling and launching youth help lines to answer reproductive health queries; recommending curriculum development for sexuality and reproductive health; and running youth centers.774 ■
B. MARRIAGE
The Child Marriage Restraint Act prohibits marriage of women below the age of 16 and men below the age of 18.775 However, while the act prescribes punishments in cases of underage marriage, it does not invalidate such marriages.776 Laws governing Muslims Under Muslim personal law, girls who have attained the age of puberty are eligible for marriage. A Muslim girl who entered into marriage before the age of 16 has the option of dissolving her marriage before attaining the age of 18, provided that the marriage has not been consummated.777 (See “Laws governing Muslims” under “Marriage laws” for more information.) Laws governing Hindus Hindu personal law governs marriage among Pakistani Hindus. Codified Hindu laws in Pakistan relating to marriage include the Hindu Marriage Disabilities Removal Act and Hindu Widow’s Marriage Act.778 Under the Hindu Widow’s Marriage Act, the widow’s father’s consent to remarriage is required if the widow is a minor.779 (See “Laws governing
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Hindus” under “Marriage laws” for more information.) Laws governing Christians Under the Christian Marriage Act, the legal age for marriage is 16 for men and 13 for women.780 Where either party to a marriage is under the age of 18,that party’s father must consent to the marriage.781 (See “Laws governing Christians” under “Marriage laws” for more information.) Laws governing Parsis Under the Parsi Marriage and Divorce Act, the minimum legal age for marriage is 21 for both men and women.782 Where either party to a marriage is below this minimum age, that party’s father or legal guardian must consent to the marriage.783 (See “Laws governing Parsis”under “Marriage laws” for more information.) C. EDUCATION
Female literacy rates among adolescents are higher than the national average for adult women. Among girls aged 10–14, 47.7% are literate, compared with 60.9% of boys.784 At 46.3%, the rate is slightly lower among girls aged 15–19, but higher among their male counterparts at 67%.785 Primary school enrollment is generally low among both boys and girls aged five to nine, although disparities exist by gender and among provinces. On average, 41% of girls in this age group are enrolled in primary school, compared with 61% of their male counterparts.786 Among the provinces, net enrollment rates for girls range from 46% in Punjab to 21% in Baluchistan.787 Among boys, enrollment rates peak in North-West Frontier Province at 72% and are lowest in Baluchistan at 49%.788 Enrollment rates steadily decline as students progress through higher stages of education.789 Young people aged ten to 18 of both genders cite cost as the most common reason they have never attended school.790 The second most common reason among girls, cited by 27.5% of the group, is that their parents do not allow them to attend.791 Among young Afghan refugees, many report that they have not attended school because of high costs,language barriers and discouragement by Pakistani communities.792 In 1997, home-based schools were instituted in refugee villages to provide education for girls up to the fifth grade.793 Primary school education is a top government priority in education.794 The National Education Policy reflects this focus, setting time-bound targets for attaining specified levels of primary school enrollment, completion and learning by 2010, and aiming to make primary education free and compulsory throughout Pakistan.795 A major initiative launched under the policy includes establishing 45,000 new primary schools.796 The provision of primary education through nonformal basic education schools and other alternative programs
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for out-of-school children and adolescents is also an important feature of the policy.797 The policy also aims to eliminate gender and urban/rural disparities in education and literacy rates.798 To help alleviate the financial burden of education on many low-income Pakistanis,the policy provides for free basic textbooks and learning materials for low-income children.799 Sexual and reproductive health education for adolescents is limited in national policies. Knowledge about sex is primarily viewed as a taboo topic and feared as a stimulant for increased premarital sex among adolescents.800 Even formal training for medical schools does not include sex education; however, population and family planning issues are generally included.801 Among recommendations noted in Pakistan’s population policy’s for addressing adolescent reproductive health needs and curbing population growth is the provision of “Population and Family Life Education” for students, including those in college.802 The goal of advocacy and education targeted to youth and adolescents is to raise awareness about “the wideranging consequences of rapid population growth for the individual, family and nation and, therefore the need to build a mindset for responsible parenthood.”803 In addition, the National Education Policy provides that secondary schools should incorporate information about HIV/AIDS.804 A few NGOs, such as the Family Planning Association of Pakistan,PakistanVoluntary Health and Nutrition Association and the Karachi Reproductive Health Project, are taking initiatives to provide sexual health education for adolescents.805 D. SEXUAL OFFENSES AGAINST MINORS
Laws prescribing punishments for sexual offenses against minors are contained in the penal code and Offence of Zina (Enforcement of Hudood) Ordinance, but as a general rule, federal laws provide limited coverage for crimes of abuse specifically against adolescents.806 Most legislation addressing abuses against minors exists at the provincial rather than federal level.807 However, an accused person can be charged under a provincial law only in addition to a federal charge.808 It has been noted that provincial legislation prescribes nominal fines of Rs 1,000 for serious offenses,reflecting the cursory attitude toward the whole issue of child sexual abuse and exploitation in Pakistan.809 Most federal laws recognize the age of majority as 16 or 18; for the purposes of establishing the crime of adultery, the Offence of Zina (Enforcement of Hudood) Ordinance curtails a girl’s status as a minor when she reaches the age of 16 or attains puberty.810 Therefore, adolescent girls who allege that they have been raped but cannot prove the allegation may
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subsequently be prosecuted as adults for the offense of adultery, depending on their age. Under the penal code, the act of inducing a girl under the age of 18 to go from any place or perform any act with the intent of seducing her or forcing her into illicit intercourse with another person is punishable with up to ten years imprisonment and a fine.811 Minor boys are not covered by this provision. Pakistan does not have any specific laws penalizing statutory rape or incest committed against minors, or for exploiting minors for the creation of pornographic material.812
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ENDNOTES 1. Federal Research Division, Library of Congress, Country Studies: Pakistan, ch. 1, Historical Setting (Peter Blood ed., 1994), http://memory.loc.gov/frd/cs/pktoc.html (last visited Jan. 6, 2004) [hereinafter Library of Congress Country Studies: Pakistan]. 2. Id. 3. See Time Almanac 2000: Millennium Edition 277–278 (Borgna Brunner ed., 1999) [hereinafter Time Almanac 2000]. 4. See id. at 278. 5. See id. 6. See id. 7. See id.; see Bureau of South Asian Affairs, U.S. Department of State, Background Notes: Pakistan (2003), http://www.state.gov/r/pa/ei/bgn/3453.htm (last visited Jan. 19, 2004). 8. SeeTime Almanac 2000, supra note 3, at 278. 9. See Pakistan, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World 4, vol. III-A (Thomas H. Reynolds & Arturo A. Flores eds., 1994). 10. SeeTime Almanac 2000, supra note 3, at 278. 11. SeeThe World Almanac and Book of Facts 2001, at 830 (William A. McGeveran, Jr., ed. director, 2001). 12. Central Intelligence Agency (CIA), U.S. Government, Pakistan, in The World Factbook (2003), http://www.cia.gov/cia/publications/factbook/geos/pk.html (last visited Jan. 5, 2004). 13. See id. 14. See id. 15. See Pakistan’s civilian PM sworn in, BBC News, Nov. 23, 2002, http://news.bbc.co.uk/1/hi/world/south_asia/2505547.stm (last visited Jan. 5, 2004). 16. See Population Association of Pakistan, Pakistan’s Population: Statistical Profile 2002, at 2 (2002), http://www.pap.org.pk/files/sp.pdf (last visited Aug. 29, 2002). 17. See Time Almanac 2000, supra note 3, at 277; see Library of Congress Country Studies: Pakistan, supra note 1, Country Profile: Society. 18. See Time Almanac 2000, supra note 3, at 277. 19. See Pak. Const., art. 2; see The World Almanac and Book of Facts 2001, supra note 11, at 829. 20. SeeTime Almanac 2000, supra note 3, at 277. 21. United Nations High Commissioner for Refugees (UNHCR), Global Report 2001, at 290 (2002). 22. Id.; U.S. Committee for Refugees, Country Report: Pakistan 2002, www.refugees.org/world/countryrpt/scasia/pakistan.htm (last visited Jan. 28, 2004). 23. See United Nations, List of Member States, http://www.un.org/Overview/unmember.html (last visited Sept. 22, 2003). 24. South Asian Association for Regional Cooperation, at http://www.saarcsec.org/ (last visited Jan. 9, 2004); Organization of Islamic Conference, Member States, at http://www.oic-oci.org/ (last visited Jan. 9, 2004); Commonwealth Secretariat, Commonwealth Countries, at http://www.thecommonwealth.org/dynamic/Country.asp (last visited Sept. 22, 2003). 25. See Pak. Const., art. 1. 26. See id. pmbl. 27. See id. pmbl. 28. See id. arts. 90–91. 29. See id. art. 41(1)–(2) . 30. See id. art. 41(3). 31. See id. art. 44(1)–(2). 32. See id. art. 48(1)–(2). 33. See id. art. 45. 34. See id. arts. 47(1), (8). 35. See id. art. 91(2A). 36. See id. arts. 46, 91(1). 37. See id. art. 95. 38. See id. arts. 91(1), 92(1), 93(1); see also Library of Congress Country Studies: Pakistan, supra note 1, ch. 4, Parliament and Federal Government. 39. See Pak. Const., art. 92(1). 40. See id. art. 91(4). 41. See id. art. 50. 42. See id. art. 59(1), amended by Chief Exec. Order No. 24, 2002, sched., art. 59 (Serial No. 5). 43. See id. art. 59(1), amended by Chief Exec. Order No. 24, 2002, sched., art. 59(1) (Serial No. 5). 44. See id. art.59(1), amended by Chief Exec. Order No. 24, 2002, sched., art. 59(1)(c), (b) (Serial No. 5). 45. Specified members serve staggered three-year terms. For details, see Pak Const., art. 59(3), amended by Chief Exec. Order No. 24, 2002, sched., art. 59 (Serial No. 5). 46. See id. art. 51(1), amended by Chief Exec. Order No. 24, 2002, sched., art. 51(1) (Serial No. 3). 47. See id. art. 51(2A), amended by Chief Exec. Order No. 24, 2002, sched., arts. 51(1), 51(1A) (Serial No. 3). 48. See Chief Exec. Order No. 24, 2002, sched., art. 51(4)(a), (d)–(e) (Serial No. 3).
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49. See Pak. Const., art. 52. 50. See id. art. 54(2). 51. See id. art. 51(3). 52. See id. art. 55(1). 53. See id. art. 58, amended by Chief Exec. Order No. 24, 2002, sched., art. 58 (Serial No. 4). 54. Chief Exec. Order No. 24, 2002, sched., art. 58 (Serial No. 4). 55. See Pak. Const., fourth sched. 56. See id. 57. See id. fourth sched., Concurrent Legislative List. See also art. 142(b). 58. See id. art. 70(1). 59. See id. 60. See id. art.70(2), amended by Chief Exec. Order No. 24, 2002, sched., art. 70(1) (Serial No. 9), pt. III ch. 2 (Serial No. 10). 61. See id. art. 70(3), amended by Chief Exec. Order No. 24, 2002, sched., art. 70(2) (Serial No. 9). 62. See id. 63. See id. art. 75. 64. See id. art. 73, amended by Chief Exec. Order No. 24, 2002, sched., art. 73(1A) (Serial No. 11). 65. See id. art. 228(1). 66. See id. art. 230(1)(a). 67. See id. art. 230(1)(b). 68. See id. arts. 228(2), (3)(d). 69. See id art. 228(5). 70. See id. art. 228(2). 71. See id. art. 1(2)(a). 72. See id. arts. 1(2)(c), 246(a). 73. See id. arts. 129–130. 74. See id. art. 101(1). 75. Id. art. 105; Modern Legal Systems Cyclopedia, ch. 7(A), § 1.2(G), vol. 9 revised (Kenneth Robert Redden, general ed. Emeritus, 2001). See Chief Exec. Order No. 11, 2000, art. 2; Chief Exec. Order No. 5, 1999, art. 2(2). 76. Pak Const., art. 130(4). 77. See id. art. 106, amended by Chief Exec. Order No. 24, 2002, sched., art. 106 (Serial No. 14). 78. See id. arts. 106–107. 79. See id. art. 106(3)–(6), amended by Chief Exec. Order No. 24, 2002, sched., art. 106(3), (4) (Serial No. 14). 80. See id. art. 112. 81. See id. fourth sched., Concurrent Legislative List. See also art. 142(b). 82. See National Reconstruction Bureau, Chief Executive Secretariat, Government of Pakistan, Local Government Plan 2000 (2000). 83. See id. at ¶ 4. 84. See id. at ¶ 7. 85. See id. at ¶¶ 18, 48, 66. 86. See id. at ¶¶ 61–64. 87. See Asian Development Bank (ADB), Country Strategy and Program 2002–2006: Pakistan, § 1(B)(1), ¶ 5, http://www.adb.org/documents/csps/pak/2002/csp0102.asp (last visited Jan. 6, 2004). 88. See Chief Exec. Order No. 24, 2002, sched., pt. IV, ch. 3 (Serial No. 16). The order inserts a new article 140(A) after art. 140 in Pakistan’s Constitution. See Pak Const., art. 140. 89. See Pak. Const., art. 175(1). 90. See id. arts. 184, 185(1). 91. See id. art. 186(1). 92. See id. arts. 176(1), 177(1). 93. See id. art. 177(1). 94. See id. art. 179(1), amended by Chief Exec. Order No. 24, 2002, sched., art. 179 (Serial No. 17A). 95. See id. art. 192(1). 96. See Modern Legal Systems Cyclopedia, supra note 75, § 1.4(B)(2). 97. See Pak. Const., art. 193(1). 98. See id. art. 195(1), amended by Chief Exec. Order No. 24, 2002, sched., art. 195 (Serial No. 17C). 99. See Law & Religion Program, Emory Law School, Legal Profiles: Pakistan, http://www.law.emory.edu/IFL/index2.html (last visited Oct. 23, 2003).The authors of the website indicate that its contents are still under revision. 100. See id. 101. See Family Courts Act, No. XXXV, 1964, § 3(1). 102. See id. § 5; see also Law & Religion Program, Emory Law School, supra note 99. 103. See LAW & RELIGION PROGRAM, Emory Law School, supra note 99. 104. See Dr. Fariq Hussain,The Judicial System of Pakistan, § 4(iii), www.paklawcom.gov.pk (last visited Aug., 16, 2002); see Pak. Const., art. 212(1)(a)–(b). For a list of federal subjects, see id. fourth sched., pt. I. 105. See Hussain, supra note 104, § 4(iii). 106. See Pak. Const., art. 212(3). 107. Shaheen Sardar Ali & Kamran Arif, Parallel Judicial Systems in Pakistan and Consequences for Human Rights, in Shirkat Gah Women’s Resource Centre, Shaping Women’s Lives: Laws, Practices & Strategies in Pakistan 32 (Farida Shaheed, et al.,
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eds., 1998). 108. Id. at 32, 36. 109. Id. at 36. 110. See Pak. Const., art. 203D(1). 111. See id. 112. See id. art. 203D(3)(a). 113. See id. art. 203D(3)(b). 114. See id. art. 203DD; see Library of Congress Country Studies: Pakistan, supra note 1, ch. 5, Islamic Provisions. 115. See Pakistan stoning sentence overturned, BBC News, June 6, 2002. 116. See Ahmer Fazeel,The Constitution of the Islamic Republic of Pakistan 416 (1997). 117. See Pak Const., art. 203G. 118. See id. art. 203C(1)–(2). 119. See id. art. 203C(3A). 120. See id. art. 203C(3A). 121. See id. art. 203F. 122. See id. art. 203F(2A). 123. See id. art. 203F(2B), (5). 124. See id. art. 203GG. 125. See Integration of the Human Rights of Women and the Gender Perspective:Violence Against Women,Written statement submitted by Asian Legal Resource Centre, a non-governmental organization in general consultative status, Commission on Human Rights, 59th Sess., ¶ 6, U.N. Doc. E/CN.4/2003/NGO/95 (2003) [hereinafter Written statement by Asian Legal Resource Centre to Commission on Human Rights, 59th Sess.]. 126. See News Release,Amnesty International,Tribal Councils Must Stop Taking Law Into Their Own Hands (July 5, 2002), http://www.amnestyusa.org/news/2002/pakistan07052002.html (last visited Oct. 23, 2003). 127. See id.; seeWritten statement by Asian Legal Resource Centre to Commission on Human Rights, 59th Sess., supra note 125; see Ela Dutt, Pakistan Tribal justice system must be curbed:Amnesty, News India-Times, Oct. 25, 2003, http://www.newsindiatimes.com/2002/09/06/sa-justice.html. 128. See generally Statement by the Delegation of Pakistan on Agenda Item 17: Human Rights Defenders, Commission on Human Rights, 57th Sess.,Apr. 17, 2001, http://mission.itu.ch/pakistan/agenda%20item%2017-human%20r-defenders%20(Final).html (last visited Nov. 11, 2003) [hereinafter Statement by Pakistan delegation to Commission on Human Rights, 57th Sess.]. 129. See Net-NGO.com, Guide to NGOs in Pakistan, Frequently Asked Questions, ¶ 3, http://www.net-ngo.com/faq/index.cfm (last visited Nov. 20, 2003). 130. See id. ¶ 4. 131. See Statement by Pakistan delegation to Commission on Human Rights, 57th Sess., supra note 128, ¶ 4. 132. See id. ¶ 4. 133. See Family Planning Association of Pakistan, Introduction, http://www.brain.net.pk/~fpapak/fpap2.htm (last visited Jan. 7, 2004). 134. See Law & Religion Program, Emory Law School, supra note 99, ¶ 1. 135. See id. ¶ 1; see also Pakistan, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 9. 136. See Pak. Const., art. 2A, annex. 137. See id. art. 25(2). 138. See id. art. 29. 139. See id. art. 33. 140. See id. arts. 34, 36. 141. See id. art. 227(1). 142. See id. art. 227(1), Explanation, as added by Chief Exec. Order No. 14, 1980, art. 2. 143. Law and Justice Commission of Pakistan, Government of Pakistan, Federal/Provincial Statutes, http://www.paklawcom.gov.pk. 144. Special Marriage Act, No. III, 1872 (Pak.); Child Marriage Restraint Act, No. XIX, 1929 (Pak.). 145. See Law and Justice Commission of Pakistan, supra note 143, Provincial Statutes. 146. See Pak. Const., arts. 137, 142, fourth sched., Concurrent Legislative List. 147. Law and Justice Commission of Pakistan, supra note 143. See Law and Justice Commission of Pakistan Ordinance, No. XIV, 1979, art. 6(1). 148. See Law and Justice Commission of Pakistan Ordinance, No. XIV, 1979, art. 3. 149. Law and Justice Commission of Pakistan, supra note 143, Report Nos. 10, 12, 27, 33 (entitled Offenses Against Human Body, Reformation of Family Laws, Legislation pertaining Maternity Benefits, andThe Family Courts (Amendment) Ordinance 2001, respectively). 150. See Pakistan, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 9. 151. Library of Congress Country Studies: Pakistan, supra note 1, ch. 2, Politicized Islam. 152. See Pak. Const., art. 2A.The Objectives Resolution became part of the constitution as a result of Exec. Order No. 14, 1985, art. 2 and sched. item 53. 153. See Pakistan, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 9. 154. See Enforcement of Shari’ah Act, No. X, 1991, art. 3(1) (Pak.). 155. See id. art. 4(a)–(b).
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156. See Pakistan, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 9. 157. Convention on the Elimination of All Forms of Discrimination against Women, adopted Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc.A/34/46 (1979) (entered into force Sept. 3, 1981) (ratified by Pakistan March 12, 1996); Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc.A/44/49, at 166 (1989) (entered into force Sept. 2, 1990) (ratified by Pakistan Nov. 12, 1990); International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) (ratified by Pakistan Sept. 21, 1966). 158. United Nations High Commissioner for Human Rights, Convention the Elimination of Discrimination Against Women, http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (last visited Jan. 7, 2003).The reservation states, “[t]he Government of the Islamic Republic of Pakistan declares that it does not consider itself bound by paragraph 1 of article 29 of the Convention.” Id. Reservation made by Pakistan.The declaration states,“[t]he accession by [the] Government of the Islamic Republic of Pakistan to the [said Convention] is subject to the provisions of the Constitution of the Islamic Republic of Pakistan.” Id. Declaration made by Pakistan. 159. See Office of the High Commissioner for Human Rights, United Nations, Status by Country, Pakistan, http://www.unhchr.ch/tbs/doc.nsf (last visited Jan. 7, 2004). 160. See United Nations Office of the High Commissioner for Human Rights, Convention on the Rights of the Child, Reservation made by Pakistan, available at http://www.unhchr.ch/tbs/doc.nsf/Statusfrset?OpenFrameSet. 161. See Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted May 25, 2000, G.A. Res. 54/263, U.N. G.A.O.R., 54th Sess., U.N. Doc.A/RES/54/263 (2000) (entered into force Jan. 18, 2002) (signature only); Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted May 25, 2000, G.A. Res. 54/263, U.N. G.A.O.R. 54th Sess., U.N. Doc.A/RES/54/263 (entered into force Feb. 12, 2002) (signature only). 162. See Office of the High Commissioner for Human Rights, United Nations, Status by Country, Pakistan, http://www.unhchr.ch/tbs/doc.nsf (last visited Jan. 7, 2004); United Nations Treaty Collection, Convention Relating to the Status of Refugees, Participants, http://www.unhchr.ch/html/menu3/b/treaty2ref.htm (last visited Jan. 22, 2004); United Nations Treaty Collection, Protocol Relating to the Status of Refugees, Participants, http://www.unhchr.ch/html/menu3/b/treaty5.htm (last visited Jan. 22, 2004). 163. Vienna Declaration and Programme of Action,World Conference on Human Rights,Vienna, Austria, June 14–25, 1993, U.N. Doc.A/CONF.157/23 (1993); Programme of Action of the International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 1994, U.N. Doc.A/CONF.171/13/Rev.1 (1995); Beijing Declaration and the Platform for Action, Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, U.N. Doc. A/CONF.177/20 (1995); Millenium Declaration, Millennium Assembly, New York, United States, Sept. 6–8, 2000, U.N. GAOR, 55th Sess., U.N. Doc.A/Res/55/2 (2000). 164. See NGO Coordinating Committee for Beijing + 5, Pakistan NGO Review Beijing +5,Women 2000: Gender Equality, Development and Peace for the 21st Century § II(C), http://www.un.org.pk/ngoreport.htm (last visited Oct. 23, 2003). 165. See SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, Jan. 5, 2002, http://www.saarc-sec.org/publication/conv-traffiking.pdf (last visited Jan. 7, 2004); see SAARC Convention on Regional Arrangements for the Promotion of child Welfare in South Asia, Jan. 5, 2002, http://www.saarcsec.org/publication/conv-children.pdf (last visited Jan. 7, 2004). For more information on SAARC, see http://www.saarc-sec.org/ (last visited Oct. 25, 2003). 166. See Pak. Const., art. 38(d) 167. See Statistics Division, Federal Bureau of Statistics, Government of Pakistan, Pakistan 2000:An Official Handbook on Statistics 67 (2000). 168. See Handout, Haq I, Health Care System In Pakistan, updated by Ali Mohammad Ansari 4 ( Apr. 24, 2001) (on file with Center for Reproductive Rights) [hereinafter Handout on Health Care System in Pakistan]. 169. See Ministry of Health, Government of Pakistan, National Health Policy 2001, at 4 (2001). 170. See id. 171. See id. 172. See id. at 5. 173. Planning Commission, Government of Pakistan, [Draft] Ninth Five Year Plan 1997/98–2002/2003, Ch. on Health Sector, ¶ 35 (1996). 174. See id. ¶ 35. 175. See id. ¶ 36. 176. See National Health Policy, supra note 169, Foreword, ¶ 3. 177. See id. 5. 178. See id. 6. 179. Government of Pakistan & United Nations Population Fund, Pakistan Population Assessment 55 (2003). See Health, Nutrition and Population Unit, South Asia Region,World Bank, Pakistan:Towards a Health Sector Strategy iv, Report No. 16695–PAK (1998); see also James E. Rosen & Shanti R. Conly, Population Action International, Pakistan’s Population Program:The Challenge Ahead 24, 27 (1996). 180. Pakistan:Towards a Health Sector Strategy, supra note 179, at 15. See [Draft] Ninth Five Year Plan, supra note 173, ¶ 12. 181.See [Draft] Ninth Five Year Plan, supra note 173, ¶ 12. 182. See National Health Policy, supra note 169, at 8.
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183. Ministry of Finance, Government of Pakistan, Economic Survey 2001–2002, ch. 12, http://www.finance.gov.pk/ (last visited August 20, 2002) [hereinafter Economic Survey 2001– 2002]; Handout on Health Care System In Pakistan, supra note 168, at 5; [Draft] Ninth Five Year Plan, supra note 173, ¶ 12 184. See Pakistan:Towards a Health Sector Strategy, supra note 179, at 15. 185. See id. [Draft] Ninth Five Year Plan, supra note 173, at 5; Economic Survey 2001–2002, supra note 183, at 2. 186. See Pakistan:Towards a Health Sector Strategy, supra note 179, at 15. 187. See Economic Survey 2001– 2002, supra note 183. 188. See Anne G.Tinker,World Bank, Improving Women’s health in Pakistan 19 (1998) (citing Federal Bureau of Statistics, Government of Pakistan, Pakistan Integrated Household Survey 1995–96 (1996)). 189. See id. 190. See id. (citing South Asian Region, Country Department I, Population and Human Resources Division, Pakistan Northern Health Program Project, Project Appraisal Document (1996)). 191. See id. at 19–20. 192. See [Draft] Ninth Five Year Plan, supra note 173, at 5. 193. See Handout on Health Care System in Pakistan, supra note 168, at 5. 194. See Pakistan:Towards a Health Sector Strategy, supra note 179, at 21. 195. United Nations High Commissioner for Refugees (UNHCR), 2002 Country Programme—Pakistan 2 (2002). 196. See Integration of the Human Rights of Women and the Gender Perspective:Violence Against Women, Report of the Special Rapporteur on violence against women, its causes and consequences, Commission on Human Rights, 56th Sess., U.N. Doc. E/CN.4/2000/68/Add.4, ¶ 47, Mar. 13, 2000. 197. See Handout on Health Care System in Pakistan, supra note 168, at 5. 198. See National Health Policy, supra note 169, at 3. 199. See Pakistan:Towards a Health Sector Strategy, supra note 179. 200. See United Nations Population Fund (UNFPA) & Netherlands Interdisciplinary Demo-raphic Institute (NIDI), Financial Resource Flows for Population Activities: Report of a case study in Pakistan 44 (1999), http://www.nidi.nl/resflows/rf_download/pakistan.pdf (last visited Jan. 8, 2004). 201. See id. at iv. 202. See id. 203. See id. 204. Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200. See Pakistan:Towards a Health Sector Strategy, supra note 179, at v. 205. Pakistan:Towards a Health Sector Strategy, supra note 179, ¶ 3.11. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 1. 206. See Asian Development Bank & Government of Pakistan et al., Final Report: Reproductive Health Project Pakistan i, ADB TA No. 3387 (2001). 207. See Pakistan:Towards a Health Sector Strategy, supra note 179, at v. 208. See Handout on Health Care System in Pakistan, supra note 168, at 5. 209. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200. 210. See Pakistan:Towards a Health Sector Strategy, supra note 179, ¶ 3.15 at 16. 211. See id. ¶ 3.15 at 16–17. 212. See id. 213. See Economic Survey 2001–2002, supra note 183, at 3. 214. See id. tbl. 12.4. 215. See Pakistan:Towards a Health Sector Strategy, supra note 179, ¶2.10. 216. See Handout on Health Care System in Pakistan, supra note 168, at 5. 217. Sandhya Srinivasan, Structural Adjustment Takes its Toll in Pakistan, http://www.infochangeindia.org/fetaures12print.jsp. See Zafar Iqbal & Rizwana Siddiqui, Pakistan Institute of Developing Economics, Distributional Impact of Structural Adjustment on Income Inequality in Pakistan:A SAM-based Analysis 6 (1999). See also Lorraine Corner, United Nations Development Fund for Women (UNIFEM), Why do we need to engender macroeconomic policy? (2002), www.unifem-eseasia.org/ecogov-apas/EEGKnowlegeBase/EEGwhyengenderpolicy.htm (last visited Aug. 1, 2002). 218. See Ministry of Women Development, Social Welfare and Special Education, Government of Pakistan, National Plan of Action, Strategic Objective A.2,Action #1 (1998), http://www.un.org.pk/undp/gender/npa.pdf (last visited Jan. 9, 2004). 219. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 14. 220. See id. at 5. 221. See id. at 25. 222. See Organisation for Economic Co-Operation and Development, Health Focus for Pakistan, http://www1.oecd.org/dac/images/AidRecipient/pak_h.gif (last visited Jan. 9, 2004). 223. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 25. 224. See Economic Survey 2001–2002, supra note 183, ch. 10, at 1. 225. See id. 226. See id. 227. See World Bank, DevNews Media Center, Pakistan: Second Structural Adjustment Credit (June 11, 2002),
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http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20049721~menuPK:34471~page PK:40651~piPK:40653~theSitePK:4607,00.html (last visited Jan. 9, 2004). 228. See Pakistan:Towards a Health Sector Strategy, supra note 179, ¶3.76. 229. See id. 230. See id. 231. See Memorandum from Meeting with Inam-ul Haq, Health Specialist,World Bank, regarding Health & Population Policies (July 24, 2001) (on file with Center for Reproductive Rights). 232. See Pakistan:Towards a Health Sector Strategy, supra note 179, ¶ 3.76. 233. See Multi-Donor Support Unit for the Social Action Programme, Social Action Programme, Pricing Reproductive Health Services in Pakistan 10 (2000). 234. See Pakistan:Towards a Health Sector Strategy, supra note 179, ¶ 3.76. 235. See Mehtab S. Karim, Disease Patterns, Health Services Utilization and Cost of Treatment in Pakistan, 43 J. Pak. Med.Ass’n. 8, abstract (1993). 236. See id. 237. See Memorandum from Meeting with Saifuddin Zoomkawala, Chairman, EFU Allianz, regarding Health Insurance in Pakistan (Aug. 31, 2001) (on file with Center for Reproductive Rights). 238. Pakistan:Towards a Health Sector Strategy, supra note 179, ¶ 5.22. See Social Security Administration, U.S. Government, Social Security Online, Social Security Programs Throughout the World, Pakistan, http://www.ssa.gov/policy/docs/progdesc/ssptw/1999/pakistan.htm (last visited Sept. 26, 2003). 239. See Pakistan:Towards a Health Sector Strategy, supra note 179, ¶ 5.22. 240. See Medical Council Ordinance, 1962, Ordinance No. XXXII of 1962 (Pak.). 241. See id. arts. 1(2), 2(c)–(d). 242. See Pakistan Medical and Dental Council, http://www.pmdc.org.pk (last visited Jan. 9, 2004). 243. See Medical Council Ordinance, 1962, arts. 22(1), 31 (Pak.). 244. See Pakistan College of Physicians and Surgeons Ordinance, No. XX, 1962, pmbl. (Pak.). 245. See Pakistan Nursing Council Act, No. XXVI, 1973 (Pak.). 246. See id. § 26(g)–(j). 247. See Pharmacy Act, No. XI, 1967 (Pak.). 248. See id. §§ 17–19, 21. 249. See Allopathic System (Prevention of Misuse) Ordinance, No. LXV, 1962 (Pak.). 250. See id. §§ 3, 7. 251. See National Health Policy, supra note 169, ¶ 7.1.1. 252. See id. ¶ 7.1.1. A draft of the Regulation of Medical Education and Training in Pakistan Ordinance, 2000 may be consulted in Ministry of Health, Government of Pakistan, Health Legislation on the Anvil 3–7 (2000). 253. See DAWN Group of Newspapers, Doctors urged not to help female infanticide, Sept. 28, 2001, www.dawn.com/2001/09/28/local8.htm (last visited July 14, 2003). 254. See Pak. Pen. Code §§ 302, 316, 319, 322, 324, 329, 337L, 338-A. 255. See id. §§ 87–88. 256. See id. § 80. 257. See Code of Civil Procedure § 9 (Pak.). 258. See Letter from M.L. Shahani, Former Judge, High Court of Sindh,Advocate, Supreme Court, to Seema Shairf, Senior Programme Officer, Reproductive Health (July 19, 2001) (copy on file with Center for Reproductive Rights). 259. See Contract Act, No. IX, 1872, § 73 (Pak.). 260. See Medical Council Ordinance, No. XXXII, 1962, art. 31(1) (Pak.); see also Pakistan Medical and Dental Council, at http://www.safety.net.pk/pmdc/ (last visited Jan. 22, 2004). 261. See id. 262. See Pakistan Medical & Dental Council, Code of Medical Ethics (1968) (revised 1974). 263. See id. § 4(b). 264. See id. § 4(b),(d). 265. See id. § 4(c). 266. See id. §§ 3, 4(e). 267. See id. at 1. 268. See Planning and Development Division, Government of Pakistan, National Reproductive Health Policy ¶ 7 (2000). 269. See id. 270. See id. 271. See id. ¶¶ 7, 8, 10. 272. See id. ¶¶ 2, 3. 273. See id. ¶ 8. 274. See id. ¶ 9. 275. See id. ¶ 10. 276. See id. ¶ 11. 277. See Ministry of Health & Ministry of Population Welfare, Government of Pakistan, Pakistan Reproductive Health Service Package 8 (1999). 278. See id. at 8–13, 15–26. 279. See id. at 35. 280. See National Health Policy, supra note 169, § 4.1, at 12. 281. See id. 282. See id. § 4.2, at 13.
WOMEN OF THE WORLD:
283. See [Draft] Ninth Five Year Plan, supra note 173. 284. See Asia and the Pacific Division, United Nations Population Fund (UNFPA), Afghanistan Project:AFG/98/P03: Improving Reproductive Health of Afghan People Living in Refugee Camps in Pakistan, www.unfpa.org/regions/apd/countries/afghanistan/afg98p03.htm (last visited July 25, 2002); see World Food Programme (WFP), WFP in Afghanistan, www.un.org.pk/wfp/pak-fact-sheet.htm (last visited Jan. 8, 2002); see Bureau of Population, Refugees and Migration, U.S. Department of State, Response to the Afghan Crisis, Fact Sheet (Apr. 12, 2002), www.state.gov/g/prm/rls/fs/9321.htm (last visited Jan. 8, 2004). 285. See Rosen & Conly, supra note 179, at 9 286. See id. 287. Id. 288. See Reproductive Health Service Package, supra note 277. 289. See National Institute for Population Studies (NIPS), Government of Pakistan, Preliminary Finings [sic] of Pakistan Family Planning and Reproductive Health Survey 2001, tbl. 5.2. 290. See id. tbl. 5.3. 291 See id. tbls. 5.7, 5.8. 292. See id. tbl. 5.8. 293. See id. tbls. 5.8, 6.3. 294. See id. tbl. 5.9. 295. Id. 296. See Center for Reproductive Rights, Displaced and Disregarded, Refugees and Their Reproductive Rights 5 (2001) (citing UNFPA, Humanitarian Crisis in Afghanistan, Fact Sheet: Reproductive Health Indicators for Afghanistan), http://www.unfpa.org/tpd/emergencies/afghanistan/factsheet.htm (last visited Jan. 10, 2004)). 297. See Women’s Commission for Refugee Women and Children, Still in Need: Reproductive Health Care for Afghan Refugees in Pakistan 4, 7 (2003). 298. See id. at 4. 299. Drugs Act, No. XXXI, 1976, § 23 (Pak.). See Communication with Seema Sharif, Shirkat Gah, CRLP Study, Health Policies (draft) 13 (Oct. 19, 2001) (on file with Center for Reproductive Rights) [hereinafter CRLP Study, Health Policies (draft) from Seema Sharif]. 300. See Drugs Act, No. XXXI, 1976, § 23 (Pak.). 301. See id. § 23(b). 302. See Consortium for Emergency Contraception, ECP Status and Activity by Country, http://www.cecinfo.org/files/ecstatusavailability.pdf (last visited Jan. 10, 2004). 303. See id. 304. Cassandra Balchin & Khawar Mumtaz, et al., The Woman Not the Womb: Population Control vs.Women’s Reproductive Rights 21, Mar. 1994. See also CRLP Study, Health Policies (draft) from Seema Sharif, supra note 299. 305. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979 § 4 (Pak.). 306. Memorandum on Meeting with Dr. Jabeen Abbas, Programme Officer, Pakistan Voluntary Health and Nutrition Association, regarding Adolescent Reproductive Health (May, 21, 2001) (on file with Center for Reproductive Rights). 307. See Drugs (Licensing, Registering and Advertising) Rules, 1976, § 31(1)(8) (Pak.). 308. See id. § 31. 309. Naziha Syed Ali, See No Evil?, Newsline, May 2001, at 89. 310. See Drugs (Licensing, Registering and Advertising) Rules, 1976, § 31(1-A) (Pak.). 311. See Pakistan Television Corporation Limited,TV Code of Advertising Standards & Practice in Pakistan § 1 (1995). 312. See id. 313. See id. § 1(ii). 314. See Pakistan’s Population: Statistical Profile 2002, supra note 16, at 15, n.4. 315. See id. at 15 (citing National Institute of Population Studies, Pakistan Reproductive Health and Family Planning Survey 2000–2001 (2000)) 316. See Pak. Pen. Code §§ 332–36. 317. See Memorandum from Interview with Dr. Khwaja Shoab, Joint Secretary, Ministry of Population Welfare, Government of Pakistan, regarding Ministry of Population Welfare policies, programs and implementation 2 (Apr. 18, 2001) (on file with Center for Reproductive Rights); see also CRLP Study, Health Policies (draft) from Seema Sharif, supra note 299, at 18. 318. See Memorandum from Interview with Dr. Khwaja Shoab, supra note 317. 319. See id. 320. See id. 321. See Abdul Hakim, et. al, National Institute of Population Studies, Islamabad & Centre for Population Studies, London School of Hygiene & Tropical Medicine, Pakistan Fertility and Family Planning Survey 1996–97, at 149 (1998). 322. See id. 323. See Rosen & Conly, supra note 179, at 36. 324. See id. at 149. 325. See id. 326. See id. 327. See Still in Need: Reproductive Health Care for Afghan Refugees in Pakistan, supra note 297, at 1, 7. 328. See Pakistan Fertility and Family Planning Survey 1996–97, supra note 321. 329. See Multi-Donor Support Unit for the Social Action Programme, Social Action Programme, Situation Analysis of Social Marketing of Contraceptives in
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Pakistan, preface (2000). 330. See id. at 1. 331. See id. at 2–3. 332. See id. at 3. 333. See Posting of Muhammad Tariq,Trainer, Social Marketing Pakistan,
[email protected], to
[email protected] at 1 (Sept. 28, 1999) (copy on file with Center for Reproductive Rights). 334. See International Planned Parenthood Federation, Country Profiles, Pakistan, http://ippfnet.ippf.org/pub/IPPF_Regions/IPPF_CountryProfile.asp?ISOCode=PK (last visited Oct. 24, 2003). 335. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 40–44. 336. See Preliminary Findings of Pakistan Family Planning and Reproductive Health Survey, supra note 289, tbl. 3.23. 337. See Tinker, supra note 188, at 8. 338. See Preliminary Findings of Pakistan Family Planning and Reproductive Health Survey, supra note 289, at tbl. 3.5. 339. See id. tbl. 3.1. 340. See id. tbl. 3.6. 341. See id. tbl. 3.4. 342. See Tinker, supra note 188, at 1, 8. 343. See id. at 8. 344. See Still in Need: Reproductive Health Care for Afghan Refugees in Pakistan, supra note 297, at 4. 345. See National Reproductive Health Policy, supra note 268, ¶ 1. 346. See Reproductive Health Service Package, supra note 277, at 39–40. 347. See id. ¶ 2(a)–(k), at 9. 348. See id. ¶¶ 6(a)–(b), 8(a)–(b), at 10. 349. See Reproductive Health Service Package, supra note 277, at 13. 350. See National Health Policy, supra note 169, ¶¶ 4.1.1, 4.1.3. 351. See Ministry of Population Welfare, Government of Pakistan, Population Policy of Pakistan, pmbl. (2002). 352. See UNFPA Pakistan, Summary of Project: Promoting Interventions for Safe Motherhood (PRISM) PAK/01/Po1-01/P01, http://www.un.org.pk/unfpa/PAK-01-P01-01P01.htm (last visited July 24, 2002). 353. See Preliminary Findings of Pakistan Family Planning and Reproductive Health Survey, supra note 289, at tbl. 3.3. 354. See id. 355. See National Health Policy, supra note 169, ¶ 5.1.4. 356. See id. 357. See Reproductive Health Service Package, supra note 277, at 9. 358. See Preliminary Findings of Pakistan Family Planning and Reproductive Health Survey, supra note 289, § 3.7. 359. See Family Planning Association of Pakistan, Unsafe Abortion: Magnitude and Perceptions, at vi (1998). 360. See Sarah Saleem, Determinants of Unsafe Abortion in Three Squatter Settlements in Karachi 1 (1998) (unpublished Masters Thesis,Aga Kahn University) (on file with the Center for Reproductive Rights). 361. See id. A Karachi-based study in 1985 estimates the maternal mortality rate due to abortion at 12.6%, while a 1995 Lahore based study estimates maternal mortality due to abortion at 4.7%. See Unsafe Abortion: Magnitude and Perceptions, supra note 359, at 7. Community-based data from squatter settlements of Karachi estimates the maternal mortality rate to be 281 per 100,000 per live births, meaning 8.8% of all maternal deaths are due to induced abortions. See Saleem, supra note 360, at 5. 362. See Reproductive Health Service Package, supra note 277, at 40 (citing Aga Khan University 1996). Another study based on urban squatter settlements in Karachi also places maternal mortality due to abortion at 11%. Saleem, supra note 360, at 5. 363. See Shirkat Gah,Women Living Under Muslim Laws,Time to Speak out: Illegal Abortion and Women’s Health in Pakistan 15 (Dec. 1996) (Special Bulletin). 364. Pak. Pen. Code § 338. See also Time to Speak out: Illegal Abortion and Women’s Health in Pakistan, supra note 363, at 23. 365. Anika Rahman, A View Towards Women’s Reproductive Rights Perspective on Selected Laws and Policies in Pakistan, 15 Whittier L. Rev. 4, 981, 992 (1994); United Nations, Abortion Policies:A Global Review, Pakistan 20, http://www.un.org/esa/population/publications/abortion/profiles.htm, (last visited Jan. 11, 2004). See Time to Speak out: Illegal Abortion and Women’s Health in Pakistan, supra note 363, at 24. The amendment was made after the Shariat Appellate Bench (of the Supreme Court) upheld a decision by the Federal Shariat Court that found provisions of the Pakistan Penal Code affecting the human body as repugnant to Islam. Now, under the Qisas and Diyat Ordinance, all offences against the human body, including murder, are compoundable. See id. 366. See Time to Speak out: Illegal Abortion and Women’s Health in Pakistan, supra note 363, at 23. 367. Rahman, supra note 365, at 995. 368. See id. 369. See id. 370. See id. 371. See E-mail from Azeema Faizunnisa (Oct. 31, 2003) (on file with Center for Reproductive Rights); see also Lester R. Brown, Earth Policy Institute, Eco-Economy: Building an Economy for the Earth 221(2001); see also Email from Ayesha Ahmed, Drug Information Helpline, regarding misoprostol/diclofenac combination (2),
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(Jan. 25, 2001 10:19:44 EST), www.essentialdrugs.org/indices/archive/200101/msg00010.php (on file with Center for Reproductive Rights). 372. See Pak. Pen. Code § 338C. 373. See id. § 338; see also Rahman, supra note 365, at 993 (arguing that this crime seeks to punish early attempts to induce abortion that are performed neither to save the woman’s life nor provide “necessary treatment” and, since the term “child” is undefined,” that it remains unclear whether early abortions are even theoretically permitted under the penal code). 374. See Pak. Pen. Code § 338A. 375. See id. § 338B; see also Rahman, supra note 365, at 993 (arguing that because organs begin forming and functioning as early as five weeks, this crime would occur any time an abortion is induced after the fetus is five weeks old). 376. See Pak. Pen. Code § 338-C; see also Rahman, supra note 365, at 993. 377. See Pak. Pen. Code §§ 323, 338C(a), (b). 378. See Pak. Pen. Code § 338C. 379. See Pak. Pen. Code § 338C. 380. See Time to Speak out: Illegal Abortion and Women’s Health in Pakistan, supra note 363, at 26. 381. See TV Code of Advertising Standards & Practice in PakistanTV, supra note 311, § 13(vii). 382. See id. app. II § 1(xi). 383. See id. app. II § 13(viii). 384. See Reproductive Health Service Package, supra note 277, at 9. 385. See id. 386. See id. at 15–19. 387. See id. at 22, 24, 26. 388. See Unsafe Abortion: Magnitude and Perceptions, supra note 359, at 43. 389. See id. at 14, 44. 390. See Still in Need: Reproductive Health Care for Afghan Refugees in Pakistan, supra note 297, at 9. 391. See id. 392. See Time to Speak out: Illegal Abortion and Women’s Health in Pakistan, supra note 363, at 18–22. 393. See Unsafe Abortion: Magnitude and Perceptions, supra note 359, at vii. 394. See id. at vii–viii. 395. See Ayesha Khan, UNFPA & Population Council,Adolescents and Reproductive Health in Pakistan:A Literature Review 45, Research Report No. 11 (2000). 396. See Ministry of Health, Government of Pakistan & UNAIDS, HIV/AIDS in Pakistan a Situation & Response Analysis 2 (2001). 397. See id. at 3. 398. See id. at 2. 399. See id. 400. Joint United Nations Programme on HIV/AIDS (UNAIDS), et al., Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections: Pakistan 2002 Update 2 (2000), http://www.unaids.org/hivaidsinfo/statistics/fact_sheets/pdfs/Pakistan_en.pdf. 401. See HIV/AIDS in Pakistan a Situation & Response Analysis, supra note 396. 402. See Still in Need: Reproductive Health Care for Afghan Refugees in Pakistan, supra note 297, at 7. 403. See id. 404. See id. 405. See UNAIDS, National Response Brief: Pakistan, at http://www.unaids.org/nationalresponse/result.asp (last visited Jan. 21, 2004) [hereinafter UNAIDS, Pakistan Response Brief]. 406. See Pak. Pen. Code § 269. 407. See Pak. Pen. Code § 269. 408. See Fazeel, supra note 116, at 334. 409. See Pak. Pen. Code § 270. 410. See UNAIDS, Pakistan Response Brief, supra note 405. 411. See Sharaf Ali Shah, et al., HIV Working Group,AIDS in Pakistan 15 (1998); see also Joint United Nations Programme on HIV/ AIDS (UNAIDS),The United Nations System in Pakistan, United Nations Statement on HIV/AIDS in Pakistan 11 (2002). 412. See United Nations Statement on HIV/AIDS in Pakistan, supra note 411. 413. See Ministry of Health,The National HIV/AIDS Strategic Framework:An Overview 1 (2001). 414. UNAIDS, Pakistan Response Brief, supra note 405. 415. See The National HIV/AIDS Strategic Framework:An Overview, supra note 413. 416. See id. 417. See National Health Policy, supra note 169, ¶ 1.1–1.1.8, at 6–7. 418. See Reproductive Health Service Package, supra note 277, §§ 6(a)– (b), at 10. 419. UNAIDS, Pakistan Response Brief, supra note 405. 420. Islamabad: Safe blood transfusion Ord promulgated: Regulatory authority to be set up in Capital, Dawn, Oct. 16, 2002, at http://www.dawn.com/2002/10/16/local26.htm (last visited Oct. 14, 2003). 421. Id. 422. See Drugs (Licensing, Registering and Advertising) Rules, 1976, § 31 (Pak.).
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423. See id. sched. E. 424. Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 7. See Rosen & Conly, supra note 179, at 9. 425. See generally Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 7–11. 426. Pakistan Population Assessment, supra note 179, at 53. See Population Policy of Pakistan, supra note 351; 427. See Population Policy of Pakistan, supra note 351, Introduction. 428. See id. 429. See id. 430. See id. at 4. 431. See id. at 5. 432. See id. at 6. 433. See id.. 434. See id. at 6, 14–15. 435. See id. at 6. 436. See id. at 7. 437. See id. at 8. 438. See id. at 7–8. 439. See Final Report: Reproductive Health Project Pakistan, supra note 206, ¶ 5. 440. See Ministry of Population Welfare, Government of Pakistan, Population and Development: Pakistan Country Report for ICPD+5, at 20 (1999). 441. See id. 442. See Policy Wing, Finance Division & Poverty Reduction Cell, Planning Commission, Government of Pakistan, Pakistan: Interim Poverty Reduction Strategy Paper, ¶¶ 159–160 (2001). 443. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 24. 444. See id. 445. See id. 446. See id. 447. See id. 448. See id. at 12; Rosen & Conly, supra note 179, at 24; Population Policy of Pakistan, supra note 351, at 12–13; Final Report: Reproductive Health Project Pakistan, supra note 206, ¶ 5. 449. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 12; Rosen & Conly, supra note 179, at 24; Population Policy of Pakistan, supra note 351, at 12–13. 450. Final Report: Reproductive Health Project Pakistan, supra note 206, ¶¶ 62–63; See also Rosen & Conly, supra note 179, at 25, 28; Pakistan Population Assessment, supra note 179. 451. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 12; Rosen & Conly, supra note 179, at 8. 452. Pakistan:Towards a Health Sector Strategy, supra note 179, ¶ 3.20. See Financial Resource Flows for Population Activities: Report of a case study in Pakistan, supra note 200, at 12. 453. Pakistan Population Assessment, supra note 179, at 52; National Health Policy, supra note 169, ¶ 2.1.1., at 8. For information on lady health workers previously under the Ministry of Population Welfare, See Final Report: Reproductive Health Project Pakistan, supra note 206, ¶ 6. 454. National Health Policy, supra note 169, ¶ 2.1.1, at 87; Pakistan Population Assessment, supra note 179, at 2. 455. See National Health Policy, supra note 169, ¶ 2.1.1, at 8. 456. See Pak. Const., art. 25(1). 457. See id. art. 25(2), (3). 458. See id. art. 2(a), annex. 459. See id. art. 34. 460. NGO Coordinating Committee for Beijing+5, Pakistan NGO Review Beijing+5,Women 2000: Gender Equality, Development and Peace for the 21st Century 71 (2000). See National Plan of Action, supra note 218, § H. 461. See Women 2000: Gender Equality, Development and Peace for the 21st Century, supra note 460. 462. See National Plan of Action, supra note 218, Preface. 463. See id. Table of Contents. 464. See id. Implementation Plan: Roles and Responsibility, at vi. 465. See National Commission on the Status of Women Ordinance, No. XXVI, 2000 (Pak.); see also E.quity@work:An Information Base on Equal Opportunities for Women and Men, International Labor Organization, National Commission on the Status of Women–Pakistan http://www.ilo.org/public/english/employment/gems/eeo/law/pakistan/i_ncsw.htm (last visited Nov. 25, 2003). 466. See National Commission on the Status of Women Ordinance, No. XXVI, 2000 § 7 (Pak.); see National Commission on the Status of Women–Pakistan, supra note 465. 467. See National Commission on the Status of Women Ordinance, No. XXVI, 2000, § 18 (Pak.); Reports on status of women submitted, Dawn—Internet Edition,Apr. 29, 2002, http://www.dawn.com/2002/04/29/nat12.htm. 468. Citizenship Act, No. II, 1951 (Pak.). 469. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Second periodic reports of States parties due in 1997: Pakistan, 34th Sess., ¶ 114, U.N. Doc. CRC/C/65/Add.21 (2003) [hereinafter CRC Committee, States parties second periodic reports, Pakistan].
WOMEN OF THE WORLD:
470. See Citizenship Act, No. II, 1951, § 3(a) (Pak.). 471. See National Commission on the Status of Women,Annual Report,Amendments to the Citizenship Act,http://www.ncsw.gov.pk/annual_report/annual_report_01_13.htm (last visited Nov.25,2003). 472. See id. 473. See id. 474. [155] U.S. Department of State, Pakistan: Country Reports on Human Rights Practices 2001 24 (2002). See Report of the Special Rapporteur on violence against women, supra note 196, ¶ 41. 475. [156] See Human Rights Watch,Afghanistan, Iran and Pakistan, Closed Door Policy:Afghan Refugees in Pakistan and Iran 20, vol. 14, No. 2(G) (2002). 476. See Pak. Const., art. 35. 477. See Commission of Inquiry for Women, Report on the Commission of Inquiry for Women: Pakistan 19 (2nd ed. 1998). 478. See id. 479. See id. at 20. 480. See Child Marriage Restraint Act, No. XIX, 1929, §§ 2(a), 4 (Pak.). 481. See id. as construed in Muhammad Aslam hayat,The Manual of Family Laws in Pakistan 135. 482. See Special Marriage Act, No. III, 1872, art. 2 (Pak.). 483. See Shirkat Gah & Women Living Under Muslim Laws, A Handbook on Family Law in Pakistan 52 (Cassandra Balchin ed., 1994). 484. See Special Marriage Act, No. III, 1872, art. 2(1)–(4) (Pak.). 485. See id. arts. 15–16. 486. See A Handbook on Family Law in Pakistan, supra note 483, at 41; see Dowry and Bridal Gifts (Restriction) Act, No. XLIII, 1976 (Pak.). 487. See Dowry and Bridal Gifts (Restriction) Act, No. XLIII, 1976, § 2(a)–(b) (Pak.). 488. See id. § 2(a), (b). 489. See id. § 2(a). 490. See id. §§ 3–4, 6. 491. See id. § 8. 492. See id. § 9. 493. See Communication with Seema Sharif, Shirkat Gah, CRLP study part 2, Legal Status of Women (draft) 1 (Oct. 19, 2001) (on file with Center for Reproductive Rights) [hereinafter CRLP study part 2, Legal Status of Women (draft) from Seema Sharif]. 494. See id. 495. Punjab/Sind/N.W.F.P./Baluchistan Muslim Personal Law (Shariat) Application Act, No.V, 1962 (Pak.), http://www.lawfirm.org.pk/shar.html (last visited Nov. 25, 2003). This act was first adopted as the West Pakistan Muslim Personal Law (Shariat) Application Act, No.V, 1962 (Pak.). The Adaptation of Laws Order, 1975 caused the provisions of this first act to be incorporated into the Punjab/Sindh/N.W.F.P/Baluchistan Muslim Personal Law (Shariat) Application Act, as noted in A Handbook on Family Law in Pakistan, supra note 483, at 265. See also Law & Religion Program, Emory Law School, supra note 99. 496. See Asma Jahangir et al., Ministry of Women Development, Government of Pakistan, Muslim Family Laws and their Implementation in Pakistan 13 (1988). 497. M. Hidayatullah & Arshad Hidayatullah, Mulla’s Principles of Mahomedan Law § 252 (19th ed. N. M.Tripathi Private Ltd. 2003). See A Handbook on Family Law in Pakistan, supra note 483, at 35. 498. M. Hidayatullah & Arshad Hidayatullah, supra note 497, § 251. 499. Kausar S. Khan & Fariyal F. Fikree, Legislation and Policies, in Gender, Sexuality and Reproductive Health in South Asia 83–84 (Pilar Ramos-Jimenez & Celeste Maria V. Candor eds., 2001). 500. Zaffar Abbas, Pakistani Women to Marry Freely, BBC News, Dec. 19, 2003. 501. M. Hidayatullah & Arshad Hidayatullah, supra note 497, § 285. 502. Id. §§ 286, 289. 503. See A Handbook on Family Law in Pakistan, supra note 483, at 42–43. 504. See Muslim Family Laws Ordinance, No.VIII, 1961, § 5(1)(4) (Pak.), http://www.vakilno1.com/saarclaw/pakistan/muslim_family_laws_ordinance.htm (last visited Nov. 26, 2003). 505. See Shirkat Gah & Women Living Under Muslim Laws,Women & Law Country Project,Women, Law and Society:An Action Manual for NGOs 54 (Cassandra Balchin ed., 1996). 506. Id. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979, § 5. 507. See Habib v. State XXXII PLD 796. 508. See Muslim Family Laws Ordinance, No.VIII, 1961, § 6 (Pak.). 509. See id. Shaukat Mahmood & Nadeem Shaukat, Muslim Family Laws 22 (12th ed., rev. 1996). 510. See W.P. Rules Under the Muslim Family Laws Ordinance R. 14, reprinted in Shaukat Mahmood & Nadeem Shaukat, supra note 509. 511. See Muslim Family Laws Ordinance, No.VIII, 1961, §§ 6(2), 6(5)(b).W.P. Rules Under the Muslim Family Laws Ordinance R. 15, reprinted in Shaukat Mahmood & Nadeem Shaukat, supra note 509. 512. See Muslim Family Laws Ordinance, No.VIII, 1961, § 6(5)(a). 513. See Shaukat Mahmood & Nadeem Shaukat, supra note 509, at 23. Zulaikhan v. Noor Muhammad XXXVII PLD 1986 Quetta 290. 514. Women, Law and Society:An Action Manual for NGOs, supra note 505, at 67. CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 3. 515. Id. 516. See Pak. Pen. Code § 494.
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517. See CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 3. 518. See Asma Jahangir et al., supra note 496. 519. See id. 520. See Shaheen Sardar Ali & Rukhshanda Naz, Marriage, Dower and Divorce: Superior Courts and Case Law in Pakistan, in Shirkat Gah Women’s Resource Centre, Shaping Women’s Lives: Laws, Practices & Strategies in Pakistan 111–112 (Farida Shaheed, et al., eds., 1998). 521. See Asma Jahangir et al., supra note 496. 522. See id. 523. See Shaheen Sardar Ali & Rukhshanda Naz, supra note 520, at 111. 524. M. Hidayatullah & Arshad Hidayatullah, supra note 497, §§ 260–262. 525. Shaheen Sardar Ali & Rukhshanda Naz, supra note 520, at 112. See also CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 4. 526. See Shaheen Sardar Ali & Rukhshanda Naz, supra note 520, at 112; see also A Handbook on Family Law in Pakistan, supra note 483, at 49. 527. M. Hidayatullah & Arshad Hidayatullah, supra note 497, § 259. 528. See Hindu Marriage Disabilities Removal Act, No. XXVIII, 1946 (Pak.). Hindu Widow’s Marriage Act, No. XV, 1856 (Pak.). 529. See Hindu Marriage Disabilities Removal Act, No. XXVIII, 1946, § 2(a)–(b) (Pak.). 530. See Hindu Widow’s Marriage Act, No. XV, 1856, §§ 1, 7 (Pak.). 531. See Hindu Marriage Disabilities Removal Act, No. XXVIII, 1946, § 2. Hindu Widow’s Marriage Act, No. XV, 1856, § 1. 532. See Report on the Commission of Inquiry for Women: Pakistan, supra note 477, at 20 (citing Rochi Ram,Advocate of High Court of Sindh, Papers on Family Laws for Hindus in Pakistan; Kishanchand L. Bharvani,Advocate, Paper on Hindu Family Laws). 533. See Christian Marriage Act, No. XV, 1872, §§ 4–9, 27–59 (Pak.). 534. See id. § 4. 535. See id. §§ 19, 60. 536. See id. §§ 66–75. 537. See Parsi Marriage and Divorce Act, No. III, 1936 (Pak.). 538. See id. §§ 3–4. 539. See id. § 6. 540. See id. § 4. 541. See Muslim Family Laws Ordinance, No.VIII, 1961 (Pak.). Dissolution of Muslim Marriage Act, No. 8, 1939, reprinted in Shaukat Mahmood & Nadeem Shaukat, supra note 509. 542. See A Handbook on Family Law in Pakistan, supra note 483, at 43. 543. See id. at 43–44.The three forms of talaq are: (i) talaq-i-ahsan, which consists of a single pronouncement of divorce made during a period of tuhr (the period between menstruation) followed by abstinence from sexual intercourse for the period of iddat (period during which woman must refrain from marrying another in order to ascertain whether she is pregnant so as to avoid confusion of paternity); (ii) talaq-i-hasan, which consists of three pronouncements of divorce during three successive tuhrs with no intercourse during any of the three tuhrs; and (iii) talaq-i-bidat, which consists of three pronouncements of divorce either in one sentence or in three sentences on a single occasion with the intention of pronouncing an irrevocable divorce. 544. Muslim Family Laws Ordinance, No.VIII, 1961, § 8 (Pak.). See W.P. Rules Under the Muslim Family Laws Ordinance Form II, cl. 18, reprinted in Shaukat Mahmood & Nadeem Shaukat, supra note 509, at 92. 545. See A Handbook on Family Law in Pakistan, supra note 483, at 65. 546. See id. at 47. 547. See id. 548. See A Handbook on Family Law in Pakistan, supra note 483, at 43–44. 549. See Muslim Family Laws Ordinance, No.VIII, 1961, § 7(1) (Pak.). 550. See id. § 7(4). 551. See id. § 7(2). 552.See id. § 7(5). 553. R.M. Pal, Women’s Movement in Islamic Countries, People’s Union for Civil Liberties, Bulletin, Dec. 2000 (citing Shirkat Gah,Women's Rights in Muslim Family law in Pakistan: 45 years of Recommendations vs the FSC Judgement, Special Bulletin, Feb. 2000; Shirkat Gah, News Sheet, vol. XI, No. 4). 554. See Muslim Family Laws Ordinance, No.VIII, 1961, § 8 (Pak.). 555. See Shaheen Sardar Ali & Rukhshanda Naz, supra note 520, at 120; see also CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 5. 556. See A Handbook on Family Law in Pakistan, supra note 483, at 45. 557. Muslim Family Laws Ordinance, No.VIII, 1961, § 7(6) (Pak.); A Handbook on Family Law in Pakistan, supra note 483, at 45. 558. See A Handbook on Family Law in Pakistan, supra note 483, at 45. 559. See id. at 44. 560. See id. 561. See Shaheen Sardar Ali & Rukhshanda Naz, supra note 520, at 120. 562. See Dissolution of Muslim Marriage Act, No. 8, 1939, § 2 (Pak.). 563. See id. § 2. 564. A Handbook on Family Law in Pakistan, supra note 483, at 45. See Shaheen Sardar Ali & Rukhshanda Naz, supra note 520, at 120. 565. See id. 566. See id. 567. See id. 568. See id.
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569. See Report on the Commission of Inquiry for Women: Pakistan, supra note 477, at 20 (citing Rochi Ram,Advocate of High Court of Sindh, Papers on Family Laws for Hindus in Pakistan; Kishanchand L. Bharvani,Advocate, Paper on Hindu Family Laws). 570. See Divorce Act, No. IV, 1869, pmbl. (Pak.). 571. See id. § 10. 572. See id. § 10; see also Webster’s Dictionary,“divorce” (1913). 573. See Divorce Act, No. IV, 1869, §§ 18–19 (Pak.). 574. See Parsi Marriage and Divorce Act, No. III, 1936, pmbl. (Pak.). 575. See id. § 32. 576. Id. § 30. 577. See id. § 31. 578. See Divorce Act, No. IV, 1869, § 23 (Pak.); see also id. § 10. 579. See Parsi Marriage and Divorce Act, No. III, 1936, § 34 (Pak.). 580. See Muslim Family Laws Ordinance, No.VIII, 1961, § 9 (Pak.). 581. See id. 582. See Dissolution of Muslim Marriage Act, No. 8, 1939, § 2(ii) (Pak.). 583. See id. § 4. 584. See id. § 6. 585. See Hindu Married Women’s Right to Separate Residence and Maintenance Act, No. XIX, 1946, art. 2 Pak.). 586. See id. 587. See Divorce Act, No. IV, 1869, § 37 (Pak.). 588. See Parsi Marriage and Divorce Act, No. III, 1936, § 40(1) (Pak). 589. See id. 590. See Shaheen Sardar Ali & Mohammad Nadeem Azam, Custody and Guardianship: Case Law 1947–1997, in Shirkat Gah Women’s Resource Centre, Shaping Women’s Lives: Laws, Practices & Strategies in Pakistan 143 (Farida Shaheed, et al., eds., 1998); see also CRC Committee, States parties second periodic reports, Pakistan, supra note 469, ¶¶ 204–205. 591. See Guardians and Wards Act, No.VIII, 1890, § 19 (Pak.). 592. See id. 593. See id. § 17(1). 594. See id. § 17(2), (3), (5). 595. See CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 6. 596. See CRC Committee, States parties second periodic reports, Pakistan, supra note 469, ¶ 89. A Handbook on Family Law in Pakistan, supra note 483, at 150. 597. See CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 6. 598. See A Handbook on Family Law in Pakistan, supra note 483, at 152–153. 599. See id. at 158. 600. See id. at 160. 601. See id. at 162. 602. See Hindu Widow’s Marriage Act, No. XV, 1856, § 2 (Pak.). 603. See id. § 3. 604. See Divorce Act, No. IV, 1869, §§ 41–44 (Pak.). 605. See Parsi Marriage and Divorce Act, No. III, 1936, § 49 (Pak). 606. See Pak. Const., art. 23. 607. See id. art. 24(1). 608. See Draft law on women ownership rights prepared, Dawn—Internet Edition,Aug. 23, 2003, www.dawn.com/2003/08/23/nat10.htm (last visited Nov. 26, 2003). 609. See A Handbook on Family Law in Pakistan, supra note 483, at 262.; see also CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 6–7. 610. See A Handbook on Family Law in Pakistan, supra note 483, at 263; see also CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 7. 611. See A Handbook on Family Law in Pakistan, supra note 483, at 262. 612. See id. 613. See id. at 194. 614. See Kamran Arif & Shaheen Sardar Ali, The Law of Inheritance and Reported Case Law Relating to Women, in Shirkat Gah Women’s Resource Centre, Shaping Women’s Lives: Laws, Practices & Strategies in Pakistan 163–167 (Farida Shaheed, et al., eds., 1998). 615. SeeWest Pakistan Muslim Personal Law (Shariat) Application Act, No.V, 1962, § 2 (Pak.) (later adapted as the Punjab/Sind/NWFP/Baluchistan Muslim Personal Law (Shariat) Application Act, 1962 by the Adaptation of Laws Order, 1975); see A Handbook on Family Law in Pakistan, supra note 483, § 3.5, n.4; see also Kamran Arif and Shaheen Sardar Ali, supra note 614, at 167. 616. See Mahbub ul Haq Human Development Centre, Human Development in South Asia 2000:The Gender Question 89 (2000). 617. See Kamran Arif and Shaheen Sardar Ali, supra note 614, at 174. 618. See A Handbook on Family Law in Pakistan, supra note 483, at 269. 619. See id. 620. See id. 621. See id. 622. See id. at 276. 623. See id. at 274. 624. See id. 625. See id. 626. See id. at 276. 627. See id.
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628. See id. 629. See Muslim Family Laws Ordinance, No.VIII, 1961, § 4 (Pak.). 630.West Pakistan Muslim Personal Law (Shariat) Application Act, No.V, 1962, § 2 (Pak.). See also Kamran Arif and Shaheen Sardar Ali, supra note 614, at 166–167. 631. See Women, Law and Society:An Action Manual for NGOs, supra note 505, at 149. 632. Id. at 149. See Kamran Arif and Shaheen Sardar Ali, supra note 614, at 171–72. 633. See Hindu Widow’s Marriage Act, No. XV, 1856, § 2 (Pak.) 634. See id. § 2. 635. Dowry and Bridal Gifts (Restriction) Act, No. XLIII, 1976, § 5 (Pak.). 636. Pakistan’s Population: Statistical Profile 2002, supra note 16, at 12. 637. See Programs Department (West) & Office of Environment and Social Development, Asian Development Bank, Country Briefing Paper:Women in Pakistan 8 (2000). 638. See id. at 9. 639. See id. 640. See id. tbl. 6. 641. See id. tbl. 7. 642. See Program in Pakistan to Promote Women’s Political Participation, U.N.Wire, Nov. 7, 2003, http://www.unwire.org/UNWire/20031107/449_10216.asp. 643. See Pak. Const., art. 18. 644. See id. art. 27. 645. See id. art. 37(e). 646. Id. 647. See West Pakistan Minimum Wages Rules, 1962, R. 14–15 (Pak.). 648. See West Pakistan Maternity Benefits Ordinance, No. XXXIII, 1958, § 4 (Pak.). 649. See Mines Maternity Benefit Act, No. XIX, 1941, § 5 (Pak.). 650. See West Pakistan Maternity Benefits Ordinance, No. XXXIII, 1958, § 4 (Pak.); see Mines Maternity Benefit Act, No. XIX, 1941, § 5 (Pak.). 651. SeeWest Pakistan Maternity Benefits Ordinance, No. XXXIII, 1958, § 3 (Pak.); see Mines Maternity Benefit Act, No. XIX, 1941, § 3(1) (Pak.). 652. SeeWest Pakistan Maternity Benefits Ordinance, No. XXXIII, 1958, § 7(1) (Pak.); see Mines Maternity Benefit Act, No. XIX, 1941, § 10(1) (Pak.). 653. SeeWest Pakistan Maternity Benefits Ordinance, No. XXXIII, 1958, § 9(1) (Pak.); see Mines Maternity Benefit Act, No. XIX, 1941, § 13(1) (Pak.). 654. See Mines Maternity Benefit Act, No. XIX, 1941, § 12 (Pak.). 655. Board of Investment, Government of Pakistan, Human Resources- Minimum conditions of Employment, http://www.pakboi.gov.pk/html/human_resources.html (last visited Jan. 20, 2004). See Provincial Employees Social Security Ordinance, No. X, 1965, § 36 (Pak.). A “secured person” is defined as “a person in respect of whom contributions are or were payable” under the ordinance. Id. § 2(25). 656. See Provincial Employees Social Security Ordinance, No. X, 1965, § 38(2) (Pak.). 657. See Law and Justice Commission of Pakistan, Legislation Pertaining to Maternity Benefits, ¶ 3, Report No. 27, supra note 143. 658. See Factories Act, No. XXV, 1934, § 33(2)(a) (Pak.). 659. See e.g., Mines Act, No. 35, 1923, § 23-C (Pak.); Factories Act, No. XXV, 1934, §§ 27(2), 32, 33(2) (Pak.);West Pakistan Hazardous Occupations (Lead) Rules, 1963, § 5; West Pakistan Hazardous Occupations (Sand Blasting) Rules, 1963, § 4;West Pakistan Hazardous Occupations (Petrol Gas Generating Plant) Rules, 1963, § 3. 660. See Mines Act, No. 35, 1923, § 23-C(2); Factories Act, No. XXV, 1934, § 45(b); Export Processing Extra Zone (Control of Employment Rules), 1998. 661. See Factories Act, No. XXV, 1934, § 27 (Pak.). 662. See id. § 33-Q(4)(b). 663. See First Women Bank, Ltd., About Us, http://www.fwbl.com.pk (last visited Jan. 20, 2004). 664. See id. 665. See Qanun-e-Shahadat (The Islamic Law of Evidence), Chief Exec. Order No. 10, 1984, § 17(2). 666. See First Women Bank, Ltd., supra note 663. 667. See id. 668. See id. 669. See id. 670. See id. 671. See Micro-finance Bank Ordinance, No. XXXII, 2000 (Pak.), amended by Microfinance Bank (Amendment) Ordinance, No. LX, 2000. 672. Id. § 5. 673. See Posting of Seema Javed Amin,
[email protected],SaminaWaqas,Poverty:A Pressing Challenge,The Nation,Jan.21,2002,http://www.nation.com.pk/daily/today/business/bn2.htm, to Econo-list (Jan. 21, 2002, 17:44:33), http://lists.isb.sdnpk.org/pipermail/econolist/2002-January/001923.html (copy on file with Center for Reproductive Rights). 674. See First Women Bank, Ltd., supra note 663.Asian Development Bank, Pakistan: Microfinance Sector Development Program, 2000, available at http://www.adb.org/gender/practices/microfinance/pak001.asp (last visited Jan. 20, 2004). 675. See Dawood Shah, Ministry of Education, Government of Pakistan, Decentralization in the Education System of Pakistan: Policies and Strategies 3 (2003). 676. See id. 677. See id. 678. See id. 679. See Pak. Const., arts. 22(3)(b), 22(4).
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680. See id. art. 37(a). 681. See id. art. 37(b)–(c). 682. See id. art. 38(d). 683. See Ministry of Education, Government of Pakistan & UNESCO, et al., Education for All 2000 Assessment Country Report: Pakistan 6 (2000), http://unesdoc.unesco.org/images/0012/001215/121541eo.pdf; see also West Pakistan Primary Education Ordinance, No. XXIX, 1962, § 4 (Pak.). 684. See id. 685. See West Pakistan Primary Education Ordinance, No. XXIX, 1962, § 17(1). 686. Bureau of International Labor Affairs, U.S. Department of Labor, Pakistan, available at http://www.dol.gov/ILAB/media/reports/iclp/Advancing1/html/pakistan.htm (last visited Nov. 30, 2003); Sindh Education Department, Compulsory Primary Education, http://www.sindhedu.gov.pk/Links/cpe.htm (last visited Jan. 20, 2004). See Education for All 2000 Assessment Country Report: Pakistan, supra note 683, at 25; see West Pakistan Primary Education Ordinance, No. XXIX, 1962, § 17(1). 687. See Sindh Education Department, supra note 686. 688. See Education for All 2000 Assessment Country Report: Pakistan, supra note 683, at 25. 689. See id. at 67, 69. 690. Id. at 67. 691. See id. at 25. 692. See id. 693. See id. at 67. 694. See id. at 49–50. 695. See id. at 50. 696. See National Commission for Human Development, About NCHD, http://www.nchd.org.pk/nchd/nchd.asp (last visited Jan. 20, 2004). 697. See id. 698. Violence against women increasing: NCSW, Dawn—Internet Edition, Sept. 29, 2002. 699. See Human Rights Watch, Crime or Custom? Violence against Women in Pakistan 29–32 (1999) (citing frequently the non-governmental Human Rights Commission of Pakistan); see also Yasmeen Hassan,Women Living Under Muslim Laws,The Haven Becomes Hell:A Study of Domestic Violence in Pakistan, Special Bulletin, Aug. 1995. 700. See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 29 (citing Human Rights Commission of Pakistan, State of Human Rights in I997); Yasmeen Hassan, supra note 699, at 3. 701. See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 100. 702. See Human Development in South Asia 2000:The Gender Question, supra note 616, at 92. 703. See Yasmeen Hassan, supra note 699, at 22; Human Development in South Asia 2000:The Gender Question, supra note 616, at 92. 704. See Human Development in South Asia 2000:The Gender Question, supra note 616. 705. See Report of the Special Rapporteur on violence against women, supra note 196, ¶ 46. 706. Jeanne Ward,Women’s Commission for Refugee Women and Children, If Not Now,When? Addressing Gender-based Violence in Refugee, Internally Displaced, and Post-conflict Settings:A Global Overview 47–78 (2001), http://www.womenscommission.org/reports/ifnotnow/index.html (last visited Nov. 14, 2003). 707. See id. at 49. 708. See id. 709. See id. 710. See Pak. Const., arts. 9, 14. 711. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979, § 6 (Pak.). 712. See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 33. 713. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979, § 6 (Pak.). 714. See Yasmeen Hassan, supra note 700, at 31 (citing Pak. Const., § 375). 715. See Pak. Pen. Code § 375(5) (repealed). The penal code criminalized sexual intercourse with a girl under the age of 14, with or without her consent. See also Jeanne Ward, supra note 706. Crime or Custom? Violence against Women in Pakistan, supra note 699, at 33. 716. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979, §§ 6, 2(b), (d) (Pak.). 717. See id. § 8. 718. See id. § 6. 719. See id. § 8. 720. Human Rights Watch, Discrimination under the Hudood Ordinances, in Human Rights Watch,The Human Rights Watch Global Report on Women’s Human Rights (1995). 721. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VIII, 1979, §§ 9–10 (Pak.). Discrimination under the Hudood Ordinances, supra note 720. 722. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979, § 10(2)–(4) (Pak.). 723. See id. §§ 10(4), 12. 724. See id. § 4.
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725. See id. §§ 5, 8, 10. 726. See Offence of Qazf (Enforcement of Hadd) Ordinance, No.VII, 1979, §§ 3, 7, 10 (Pak.). 727. See Women, Law and Society:An Action Manual for NGOs, supra note 505, at 239. 728. See id. 729. Pilar Ramos-Jimenez & Celeste Maria V. Condor eds., supra note 499, at 86. 730. See Human Development in South Asia 2000:The Gender Question‚ supra note 616, at 93. Crime or Custom? Violence against Women in Pakistan, supra note 699, at 41 (citing Yasmeen Hassan, supra note 699, at 57, 60). 731. See National Commission on the Status of Women, Recommendations,Violence against Women, at http://www.ncsw.gov.pk/archive/document_002_08.htm (last visited Jan. 18, 2004) [hereinafter Recommendations of the National Commission of the Status of Women on Violence against Women]. 732. See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 40, n.92. The Qisas and Diyat Ordinance amends sections 299 to 388 of the Pakistan Penal Code. The ordinance was introduced by President Ghulam Ishaq Khan in 1990 and kept in force through the president’s power to reauthorize it every four months, bypassing the national legislature and parliamentary debate. The ordinance was formally enacted into law by the Criminal Law (Amendment) Act, No. II, 1997 (Pak.). See Pak. Pen. Code §§ 299-318, § 299 n.23. 733. See e.g,. Pak. Pen. Code §§ 332–335. See also Yasmeen Hassan, supra note 698, at 58–59. 734. See e.g., Pak. Pen. Code §§ 305–307. For a definition of the terms diyat, qisas, and wali, see Pak. Pen. Code § 299(e), (k), (m). 735. Pak. Pen. Code §§ 308, 311. See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 41. 736. Pak. Pen. Code § 306(c). See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 42. 737. See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 42. Pak. Pen. Code § 306(c). 738. See Crime or Custom? Violence against Women in Pakistan, supra note 699, at 42. 739. See Pak. Pen. Code § 308(1). 740. See e.g., Human Development in South Asia 2000:The Gender Question‚ supra note 616, at 93. Yasmeen Hassan, supra note 699, at 41. 741. See CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 14. 742. See Recommendations of the National Commission of the Status of Women on Violence against Women, supra note 731. 743. See Pak. Pen. Code § 509. 744. See id. 745. See e.g., id. §§ 294, 339, 341, 350, 352, 354. 746. See Recommendations of the National Commission of the Status of Women on Violence against Women, supra note 731. 747. See West Pakistan Suppression of Prostitution Ordinance, No. II, 1961, §§ 3–4, 7–10 (Pak.). 748. See id. 749. See Pak. Const., art. 11(a). 750. See West Pakistan Suppression of Prostitution Ordinance, No. II, 1961, § 9 (Pak.). 751. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979, §§ 13–14, 16. 752. See id. 753. See id. § 11 754. See id. § 12. 755. See Pak. Pen. Code § 366-A–B. See relatedly §§ 367,370–371, 340. 756. See Yasmeen Hassan, supra note 699, at 22. 757. See id. at 23. 758. See id. at 22. 759. See Human Development in South Asia 2000:The Gender Question‚ supra note 616, at 92.This practice originated in Baluchistan but has spread to Sindh and Punjab. 760. See id. 761. See id. 762. See Yasmeen Hassan, supra note 699, at 23. 763. See Human Development in South Asia 2000:The Gender Question‚ supra note 616, at 92. 764. See id. 765. See CRLP study part 2, Legal Status of Women (draft) from Seema Sharif, supra note 493, at 13. 766. See Report on the Commission of Inquiry for Women: Pakistan, supra note 477, at 88. 767. See National Reproductive Health Policy, supra note 268, §10. 768. See id. 769. Reproductive Health Service Package, supra note 277, at 8, 10. 770. See id. at 10. 771. See Population Policy of Pakistan, supra note 351, at 2. 772. See id. at 6. 773. See id. at 7.
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774. Adolescents and Reproductive Health in Pakistan:A Literature Review, supra note 395, at 24. Memorandum from Interview with Dr. Noor Elahi Arain, Regional Director, Family Planning Association of Pakistan, regarding Family Planning, Contraception, Sterilization,Abortions and Adolescent and Reproductive Health, June 4, 2001 (on file with Center for Reproductive Rights). See Interview with Dr. Jabeen, Pakistan Voluntary Health & Nutition Association, Karachi, May 21, 2001. 775. See Child Marriage Restraint Act, No. XIX, 1929, §§ 2(a), 4 (Pak.). 776. See id. as construed in Muhammad Aslam Hayat,The Manual of Family Laws in Pakistan 135. 777. See Dissolution of Muslim Marriage Act, No. 8, 1939, § 2(vii) (Pak.). 778. See Hindu Marriage Disabilities Removal Act, No. XXVIII, 1946 (Pak.); Hindu Widow’s Marriage Act, No. XV, 1856 (Pak.). 779. See Hindu Widow’s Marriage Act, No. XV, 1856. art. 7 (Pak.). 780. See Christian Marriage Act, No. XV, 1872, § 60(1) (Pak.). 781. See id. §§ 19, 60. 782. See Parsi Marriage and Divorce Act, No. III, 1936, § 3(c) (Pak). 783. See id. § 3(c). 784. See Pakistan’s Population: Statistical Profile 2002, supra note 16, at 7. 785. See id. 786. Education for All 2000 Assessment Country Report: Pakistan, supra note 683, tbls. 21–22. 787. See id. tbl. 21. 788. See id. tbl. 22. 789. See id. at 74. 790. See Pakistan’s Population: Statistical Profile 2002, supra note 16, at 7. 791. See id. 792. See Women’s Commission for Refugee Women and Children, Fending for Themselves:Afghan Refugee Children and Adolescents Working in Urban Pakistan 16 (2002). 793. See Report of the Special Rapporteur on violence against women, supra note 196, ¶ 41. 794. Education for All 2000 Assessment Country Report: Pakistan, supra note 683, at 22. 795. See id. at 67–68. 796. See Government of Pakistan, National Education Policy 1998–2010: Pakistan, http://www.saarcnet.com/newsaarcnet/govtpolicies/Pakistan/educationpolicy.html (last visited Oct. 24, 2003). 797. Education for All 2000 Assessment Country Report: Pakistan, supra note 683, at 69. 798. See id. at 67. 799. See id. at 68. 800. Adolescents and Reproductive Health in Pakistan:A Literature Review, supra note 395, at 23–24. 801. See id. at 24. 802. See Population Policy of Pakistan, supra note 351, at 8. 803. See id. at 14–15. 804. See Adolescents and Reproductive Health in Pakistan:A Literature Review, supra note 395, at 24. 805. See Memorandum from Interview with Dr. Noor Elahi Arain, supra note 774. Email from Dr.Yasmeen Sabeeh Qazi, Executive Director, Pakistan Voluntary Health and Nutrition Association, to Seema Sharif, Shirkat Gah, (Aug. 28, 2001, 10:29:40-0700 E.S. T.) (on file with Center for Reproductive Rights); Adolescents and Reproductive Health in Pakistan:A Literature Review, supra note 395, at 24. 806. Sahil, Child Sexual Abuse & Exploitation in Pakistan:An Overview 9 (on file with Center for Reproductive Rights). 807. See id. 808. See id. 809. See id. 810. See Offence of Zina (Enforcement of Hudood) Ordinance, No.VII, 1979, § 2(a) (Pak.). 811. See Pak. Pen. Code § 366-A. 812. Pak. Pen. Code § 375(5) (repealed). See Child Sexual Abuse & Exploitation in Pakistan:An Overview, supra note 806, at 11.
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5. Sri Lanka Statistics GENERAL
Population ■
Total population: 19,100,000.1
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Population by sex: 9,406,580 (female) and 9,880,490 (male).2
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Percentage of population aged 0–14: 26.0.3
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Percentage of population aged 15–24: 19.1.4
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Percentage of population in rural areas: 77.5
Economy ■
Annual percentage growth of gross domestic product (GDP): 5.0.6
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Gross national income per capita: USD 840.7
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Government expenditure on health: 1.8% of GDP.8
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Government expenditure on education: 2.9% of GDP.9
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Population below the poverty line: 25.0% (below national poverty line); 6.6% (below USD 1 a day poverty line); 45.4% (below USD 2 a day poverty line).10
WOMEN’S STATUS ■
Life expectancy: 75.9 (female) and 69.9 (male).11
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Average age at marriage: 24.4 (female) and 27.9 (male).12
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Labor force participation: 41.6% (female) and 82.4% (male).13
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Percentage of employed women in agricultural labor force: 48.8.14
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Percentage of women among administrative and managerial workers: 15.15
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Literacy rate among population aged 15 and older: 89% (female) and 94% (male).16
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Percentage of female-headed households: Information unavailable.17
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Percentage of seats held by women in national government: 4.18
CONTRACEPTION ■
Total fertility rate: 2.01 lifetime births per woman.19
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Contraceptive prevalence rate among married women aged 15–49: 66% (any method) and 44% (modern methods).20
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Prevalence of sterilization among couples: 27.2% (total); 23.5% (female); 3.7% (male).21
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Sterilization as a percentage of overall contraceptive prevalence: 41.1.22
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MATERNAL HEALTH ■
Lifetime risk of maternal death: 1 in 610 women.23
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Maternal mortality ratio per 100,000 live births: 92.24
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Percentage of pregnant women with anemia: 39.25
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Percentage of births monitored by trained attendants: 94.26
ABORTION ■
Total number of abortions per year: Information unavailable.27
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Annual number of hospitalizations for abortion-related complications: Information unavailable.28
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Rate of abortion per 1,000 women aged 15-44: 8.3.29
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Breakdown by age of women obtaining abortions: 5.0% (under 20); 26.0% (between 20–24); 28.0% (between 25–29); 26.0% (between 30–34); 15.0% (between 25–39).30 Percentage of abortions that are obtained by married women: 98.0.31
SEXUALLY TRANSMISSIBLE INFECTIONS (STIs) AND HIV/AIDS ■
Number of people living with sexually transmissible infections: Information unavailable.
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Number of people living with HIV/AIDS: 4,800.32ss
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Percentage of people aged 15–24 living with HIV/AIDS: 0.04 (female) and 0.03 (male).33
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Estimated number of deaths due to AIDS: 250.34
CHILDREN AND ADOLESCENTS ■
Infant mortality rate per 1,000 live births: 20.35
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Under five mortality rate per 1,000 live births: 16 (female) and 30 (male).36
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Gross primary school enrollment ratio: 104 (female) and 107 (male).37
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Primary school completion rate: 102% (female) and 98% (male).38
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Number of births per 1,000 women aged 15–19: 22.39
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Contraceptive prevalence rates among married female adolescents:10.7% (modern methods);9.5% (traditional methods);20.2% (any method).40
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Percentage of abortions that are obtained by women younger than age 20: 5.0.41
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Number of children under the age of 15 living with HIV/AIDS: <100.42
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ENDNOTES 1. See United Nations Population Fund (UNFPA),The State of World Population 2003, at 75 (2003) [hereinafter The State of World Population 2003]. Estimates for 2003. 2. See United Nations Population Fund (UNFPA), UNFPA Country Profiles, available at http://www.unfpa.org/profile/default.cfm (last visited Aug. 12, 2003) [hereinafter UNFPA Country Profiles]. Estimates for 2001. 3. See The World Bank,World Development Indicators 2003, at 40 (2003) [hereinafter World Development Indicators 2003]. Estimates for 2001. 4. See UNFPA Country Profiles, supra note 2. 5. See The State of World Population 2003, supra note 1, at 75. Estimates for 2001. 6. See World Development Indicators 2003, supra note 3, at 188. Estimates for 19902001. 7. See The World Bank,World Development Indicators 2003, Data Query, available at http://devdata.worldbank.org/data-query/ (last visited Feb. 24, 2004). The statistical figure was obtained through the Atlas method. Estimates for 2002. 8. See The World Bank,World Development report 2004, at 257 (2003). Estimates for 2000. 9. See United Nations, Infonation, Government Education Expenditure, available at http://www.un.org/Pubs/CyberSchoolBus/infonation/e_infonation.htm (last visited Dec. 18, 2003). Estimates for 1990-99. 10. See World Development Indicators 2003, supra note 3, at 60. The statistical figures were based on 1995-96. 11. See The State of World Population 2003, supra note 1, at 71. 12. See UNFPA Country Profiles, supra note 2. 13. See id. 14. Information on file with the Center for Reproductive Rights. 15. See United Nations,The World’s Women 2000, at 147 (2000). 16. See The State of World Population 2003, supra note 1, at 71. 17.While The World’s Women 2000 provides statistics for other countries, the information for Sri Lanka is unavailable in the report. 18. See Save the Children, State of World’s Mothers 2003, at 41 (2003) [hereinafter State of World’s Mothers 2003]. This indicator represents the percentage of seats in national legislatures or parliaments occupied by women. 19. See The State of World Population 2003, supra note 1, at 75. 20. See id. 21. See EngenderHealth, Contraceptive Sterilization: Global Issues and Trends, tbl. 2.2, at 47 (2002). Estimates for 1993. 22. See id., tbl. 2.5, at 56. 23. See WHO et al., Maternal Mortality in 1995: Estimates Developed by WHO, United Nations Children’s Fund (UNICEF), UNFPA 46 (2001). Estimates for 1995. 24. See The State of World Population 2003, supra note 1, at 71. 25. See State of World’s Mothers 2003, supra note 18, at 41. 26. See The State of World Population 2003, supra note 1, at 75. 27.While the article, The Incidence of Abortion Worldwide in International Family Planning Perspectives, provides statistics for Bangladesh and India, the information for Sri Lanka is unavailable. 28.While the article, The Incidence of Abortion Worldwide in International Family Planning Perspectives, provides statistics for Bangladesh, the information for Sri Lanka is unavailable. 29. See World Health Organization South-East Asia Region (WHOSEA),Women’s Health in South-East Asia,Women’s health and development indicators- Sri Lanka, at http://w3.whosea.org/women/srilanka_1.htm (last visited Aug. 19, 2003). Estimate for 1995. 30. See Akinrinola Bankole et al., Characteristics of Women Who Obtain Induced Abortion:A Worldwide Review, 25 Int’l Fam. Planning Persp. 68-77 (1999) [hereinafter Akinrinola Bankole et al.], available at http://www.agi-usa.org/pubs/journals/2506899.html (last visited Aug. 21, 2003). The statistical figures were obtained through ad hoc surveys and hospital records. The statistic for age-group 40 and older is included in the age-group 35-39. Estimate for 1991-1992. 31. See id. The statistical figures were obtained through ad hoc surveys and hospital records. Estimates for 1991-1992. 32. See UNAIDS & World Health Organization (WHO), Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections Updated 18 August 2003: Sri Lanka 2 (2003) [hereinafter UNAIDS], available at http://www.who.int/GlobalAtlas/home.asp (last visited Aug. 18, 2003). Estimates for 2001.
33. See The State of World Population 2003, supra note 1, at 75. 34. See UNAIDS, supra note 32, at 2. 35. See The State of World Population 2003, supra note 1, at 71. 36. See UNFPA Country Profiles, supra note 2. 37. See The State of World Population 2003, supra note 1, at 71. The ratios indicate the number of students enrolled per 100 individuals in the appropriate age group. The ratio may be more than 100 because the figures remain uncorrected for individuals who are older than the level-appropriate age due to late starts, interrupted schooling or grade repetition. 38. See id., at 70. 39. See id., at 71. 40. See Saroj Pachauri & K.G. Santhya, Reproductive Choices for Asian Adolescents:A Focus on Contraceptive Behavior, 28 Int’l Fam. Planning Persp. 186-195 (2002), available at http://www.agi-usa.org/pubs/journals/2818602t.html (last visited Aug. 21, 2003). Estimates for 1987. 41. See Akinrinola Bankole et al., supra note 30. The statistical figures were obtained through ad hoc surveys and hospital records. The statistic for age-group 40 and older is included in the age-group 35-39. 42. See UNAIDS, supra note 32, at 2.
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T
he first inhabitants of Sri Lanka were ethnic Sinhalese who arrived from northern India around 500 B.C. A rich civilization flourished in the north-central region of the country between 300 B.C. and 1200 A.D., and became known for its state sponsorship of Buddhism.1 The political support for Buddhism led to its entrenchment and dominance within Sri Lankan society, marking a contrast to the diminution of the religion in neighboring India.2 During this era, Sinhalese kingdoms moved south due to internal conflicts and invasions from predominantly Hindu Tamils in southern India.3 Although precisely when the Tamils began settling on the island is unclear, historical evidence clearly shows that they were a part of Sri Lanka’s earliest multiethnic civilization.4 Portuguese traders captured much of the island in the early sixteenth century when Sri Lanka was still known as Ceylon.5 In the mid-seventeenth century,the Dutch arrived with the advent of the Dutch East India Company.6 The British followed in the late eighteenth century and, like their predecessors, ruled for nearly 150 years.7 On February 4, 1948, Ceylon gained its independence from the British as a selfgoverning state.8 Postindependence politics have been dominated by communal tensions between the Sinhalese and the Tamils. While the first prime minister after independence, Stephen Senanayake, tried to steer the country toward a multiethnic, secular state, his vision did not last.9 Communal tensions erupted in 1956 when the government of prime minister S.W.R.D. Bandaranaike declared Sinhala the sole official language.10 Communal riots ensued and Bandaranaike was assassinated in 1959.11 One year later, the deceased prime minister’s widow, Sirimavo Bandaranaike, won the general election and became the country’s seventh prime minister and the world’s first female one.12 The following four decades saw an escalating cycle of communal violence that was marked by terrorist attacks, political assassinations, internal displacement, and human rights atrocities by Tamil separatist groups and government military forces.13 In 1972, a new constitution was adopted under the government of Sirimavo Bandaranaike and the country became a republic with a largely ceremonial president who was appointed by the prime minister.14 In addition, Buddhism acquired constitutional protection, as Sri Lanka abandoned the principle of a secular state.15 Meanwhile, there were widespread calls for a separate Tamil state, some made forcefully by groups such as the Liberation Tigers of Tamil Eelam (LTTE).16 A new government came to power following elections in 1977 and promulgated a new constitution in 1978.17 This document replaced the former British model of parlia-
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mentary government with a new system of government, modeled after France, with a strong presidency.18 The new constitution also addressed Tamil concerns through several important changes, such as the recognition of Tamil as a “national language.”However,as in the previous constitution, Sinhala remained the sole official language, Buddhism retained the “foremost place” under the law, and Tamil areas were denied federal autonomy.19 Tamil political disillusionment grew after the 1977 elections and gained momentum after anti-Tamil riots in 1981 and 1983.20 Since the 1980s, both Tamil and Sinhalese extremist groups have been a growing threat to political stability and the power of the government.21 In 1995, peace negotiations between the government and the LTTE led to a formal cease-fire under President Chandrika Bandaranaike Kumaratunga,daughter of Sirimavo Bandaranaike.22 However, the LTTE unilaterally broke the cease-fire and fighting resumed several months later.23 Offensive fighting on both sides of the conflict have continued ever since. On May 3, 2000, Kumaratunga declared a state of war, invoked an ordinance that endowed the government with expansive powers of arrest and confiscation, banned strikes and political rallies, and imposed censorship of news reporting.24 Peace negotiations began again in 2002, resulting in a cease-fire and political agreement between the government and the LTTE in late 2002.25 Sri Lanka has a population of 18,732,000 and is composed of three major ethnic and religious groups: Sinhalese (74.0%),Tamils (18.2%), and Moors (7.1%), most of whom are Buddhist, Hindu and Muslim, respectively.26 Buddhism is the most common religion (69.3%), followed by Hinduism (15.5%), Islam (7.6%), and Christianity (7.5%).27 Sinhala is the official language, although Sinhala and Tamil are both national languages.28 English is also widely used as a third unofficial language.29 Sri Lanka has been a member of the United Nations (UN) since 1955.30 It also belongs to the South Asian Association for Regional Cooperation (SAARC) and the Commonwealth of Nations,an organization of countries formerly part of the British Empire.31
I. Setting the Stage:
The Legal and Political Framework of Sri Lanka Fundamental rights are rooted in a nation’s legal and political framework, as established by of a nation is established by its
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constitution. The principles and goals enshrined in a constitution along with the processes it prescribes for advancing them, determine the extent to which these basic rights are enjoyed and protected. A constitution that upholds equality, liberty and social justice can provide a sound basis for the realization of women’s human rights, including their reproductive rights. Likewise, a political system committed to democracy and the rule of law is critical to establishing an environment for advancing these rights. The following section outlines Sri Lanka’s legal and political framework. A. THE STRUCTURE OF NATIONAL GOVERNMENT
The constitution of September 7, 1978, establishes Sri Lanka as a republic and a unitary state.32 Its preamble assures “… to all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary … for the creation and preservation of a just and free society.”33 The constitution establishes three branches of government: executive, legislative and judicial. Executive branch The president of Sri Lanka serves as head of state, head of the executive branch and commander in chief of the armed forces.34 He or she holds substantial powers and duties that far exceed those of the prime minister.35 The president appoints the prime minister, who usually leads the ruling party in parliament.36 The president consults with the prime minister to appoint a cabinet of ministers from the parliament, and determines the number and functions of the ministers.37 The president, who is a member of the cabinet, also heads the body, which is collectively responsible to parliament.38 The president makes the Statement of Government Policy at the commencement of each parliamentary session.39 This address broadly outlines the government’s policy positions and future activities,and gives parliament an opportunity to contest the statement and make recommendations.40 The president also has the power to summon, prorogue and dissolve parliament, though parliament may not be dissolved for rejecting the president’s Statement of Government Policy.41 The president has the discretion to submit for popular referendum any bill that is rejected by parliament or is of national importance to the public.42 Other presidential powers include the authority to declare war and peace, grant pardons or respites, and commute or remit sentences for anyone convicted of any crime in any Sri Lankan court.43 The president also has broad emergency powers, which include the discretion to issue emergency regulations to preserve national security, public order or the maintenance of essential public supplies.44 These powers override all other laws aside from
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the constitution.45 The president is elected by popular vote for a six-year term and may serve a maximum of two terms.46 While in office,he or she is immune from lawsuits for acts performed in an official or private capacity.47 The president may be removed from office by a two-thirds parliamentary vote and the approval of the Supreme Court.48 Grounds for impeachment include mental or physical infirmity, intentional constitutional violations, treason, bribery, abuse of powers, and moral offenses.49 The president may appoint the prime minister to assume the functions of the presidency if the president is unable to discharge them due to absence, illness or other causes.50 Legislative branch Sri Lanka has a unicameral parliament of 225 members.51 There are no seats reserved in the body for any particular group, including women.52 Parliamentary members are elected for six-year terms by popular vote.53 The entire body is dissolved at the end of each six-year term, unless the president dissolves it first.54 Although the president has the power to dissolve parliament, he or she may not dissolve parliament a second time, unless the body has been in session for one year since new elections and did not itself request the dissolution.55 New parliamentary elections must be held and the newly elected parliament must meet within three to six months from the date of the president’s dissolution of the former body.56 The constitution vests parliament with the power to make laws. Parliament may not vote on any matter unless a quorum, or 20 members of parliament, is present.57 Bills or resolutions are passed by a majority of present members.58 For a bill passed by parliament to become law,the speaker of parliament must endorse the bill once the legislation has passed.59 Bills passed by popular referendum require the endorsement of the president to become law.60 Once a law is duly endorsed, no court or tribunal can inquire into or question the validity of such a law on any ground; lawsuits challenging the constitutionality of laws in force are thus not permitted.61 Parliament also has the power to repeal, amend or add to any provision of the constitution,provided that the body does not suspend the operation of the constitution or repeal it without providing a replacement.62 Constitutional amendments require a two-thirds vote of all members of parliament.63 B. THE STRUCTURE OF LOCAL GOVERNMENTS
Sri Lanka is subdivided into nine provinces and 25 administrative districts.64 Provincial councils are the principal bodies of local governance; these were established by the Thirteenth Amendment to the constitution and the Provincial Councils Act,
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both of which were enacted in 1987.65 There are currently seven functioning councils, which are autonomous bodies not under the authority of any ministry.66 They consist of a governor, legislative body, chief minister, four provincial ministries,the Provincial Public Service Commission,and the chief secretary.67 The powers of the councils are subject to national policies and are enumerated in the ninth schedule to the constitution. They include: ■ maintaining public order and exercising police powers within the province; ■ implementing provincial economic plans; ■ monitoring educational systems, including the supervision of all preschools and most state schools; ■ identifying local authorities to maintain local government and village administration in accordance with the law; ■ implementing, coordinating, supervising and monitoring housing development programs and projects; ■ instituting social services to rehabilitate destitute persons; physically, mentally and socially handicapped persons; and those who are “disabled and unemployable”; ■ improving agriculture and agrarian services; ■ encouraging rural development; ■ establishing and maintaining public and rural hospitals and maternity homes; providing public health services, such as health education, nutrition services, family health, environmental health, maternity and child care, and food and food sanitation; and formulating and implementing health plans for the province; ■ establishing Ayurvedic dispensaries and hospitals; ■ managing provincial food supply and distribution within the province; ■ administering matters relating to land rights, transfers, use, settlement and improvement; and ■ promoting, establishing and engaging in incomegenerating projects, subject to national policies.68 Executive branch The president appoints a governor, who serves a five-year term, to head each provincial council.69 The governor must act in accordance with the advice of a board of ministers, which is made up of a chief minister and four other ministers, and is collectively responsible to the council.70 The governor appoints the chief minister from members of the council.71 If more than half of council members come from one political party,the governor must appoint the leader of that party to the post of chief minister.72 The governor, in consultation with the chief minister, appoints other board ministers from the
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remaining members of the council.73 The governor’s powers include the authority, subject to the advice of the chief minister, to summon, prorogue or dissolve the council.74 He or she must endorse statutes passed by the council before they become law.75 Legislative branch The number of members elected to each council is proportional to the area and population of each province.76 Members serve five-year terms, after which the entire council is dissolved.77 There are no seats reserved for women or any other specific group.78 The council may enact laws concerning any matter for which it is given authority under the constitution.79 Laws passed by parliament take precedence over provincial statutes whenever any inconsistency arises between the two.80 C.THE JUDICIAL BRANCH
The constitution provides for the creation of a Supreme Court, a Court of Appeal, High Courts, and other courts and tribunals that parliament deems necessary.81 The Supreme Court and Court of Appeal collectively form the Superior Court.82 Parliament has the power to create, replace, amend or abolish all courts other than the Supreme Court, and to determine their powers,duties,procedures,and jurisdiction.83 The Supreme Court is the highest court in the country. The court exercises jurisdiction in the following areas:constitutional matters;protection of fundamental rights;final appellate jurisdiction in civil and criminal matters; consultative jurisdiction; election petitions; breach of the privileges of parliament; and other matters that parliament may ordain according to law.84 The right to seek redress from the court for violations of fundamental rights is limited to persons who have actually suffered a violation; individuals may not invoke the court’s jurisdiction by raising issues that affect the interest of the general public, as is possible in judicial systems that permit “public interest litigation.”85 The court generally has exclusive jurisdiction to determine whether any bill or provision thereof is inconsistent with the constitution.86 When the cabinet of ministers certifies a bill,the court may decide only whether the bill should be submitted for a popular referendum or requires a special majority vote in parliament.87 In cases involving a bill to amend, repeal or replace the constitution,the court’s jurisdiction is limited to deciding if the bill should be submitted for a popular referendum.88 The court has no jurisdiction when the cabinet of ministers certifies a bill to amend, repeal or replace the constitution.89 The president appoints a chief justice and six to ten other judges to serve on the court.90 Supreme Court judges may serve until the age of 65,and may be removed from office for misbehavior or incapacity on an order of the presi-
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dent and a majority vote of all members of parliament.91 The Court of Appeal is an intermediate appellate court with a limited right of appeal to the Supreme Court.92 The president of Sri Lanka appoints a president to head the court and six to eleven judges; judges may serve until the age of 63 and may be removed from office on the same grounds as Supreme Court judges.93 Below the Court of Appeal are eight provincial high courts with original jurisdiction over major crimes,including crimes against the state,public tranquility,the body and property, as well as crimes relating to religion. Like judges on the Supreme Court and Court of Appeal, high court judges are appointed by the president.94 The president also has the power to remove and discipline high court judges on the recommendation of a judicial service commission,which is made up of the chief justice and two Supreme Court judges appointed by the president.95 The commission also has authority over the appointment, dismissal and discipline of judicial officers other than those on the Superior and High Courts, and may establish rules governing these procedures.96 Below high courts are district courts in each of the 25 administrative districts that act as civil courts of general jurisdiction.97 District courts also have jurisdiction over matters relating to family law.98 Primary and magistrate’s courts occupy the lowest rung of the formal court hierarchy.99 Primary courts,of which three are functioning in Sri Lanka,have both civil and criminal jurisdiction.100 Magistrate’s courts have only criminal jurisdiction.101 In addition to the traditional hierarchy of courts, there are local courts with jurisdiction over matters involving Muslim personal law, such as divorce, maintenance, mahr (in Muslim personal law, a sum of money or property given to a bride by the bridegroom in consideration of marriage), and kaikuli (bride price).102 These courts, known as Quazi courts, were established under the 1951 Muslim Marriage and Divorce Act.103 Decisions of Quazi courts may be appealed to the board of Quazis, and board decisions may be appealed to the Court of Appeal, and ultimately to the Supreme Court. Labor and agricultural tribunals and mediation boards are other judicial bodies established by statute through which local disputes can be resolved.104 Customary forms of alternative dispute resolution There are no customary or extra-legal tribunals in Sri Lanka for settling local disputes. D. THE ROLE OF CIVIL SOCIETY AND NON-GOVERNMENTAL ORGANIZATIONS (NGOS)
The National Secretariat for Non Governmental Organizations under the Ministry of Social Welfare is a regulatory body
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that aims to mobilize and coordinate the efforts of NGOs in Sri Lanka in order to advance national policies and development.105 Its functions include registering NGOs and monitoring their activities, as well as serving as a general clearinghouse of information for NGOs in Sri Lanka, donor agencies and members of the public.106 NGOs in Sri Lanka work independently and in coordination with government programs in providing a range of services and advocating for legal reform and equality on behalf of marginalized groups on various issues. The Family Planning Association of Sri Lanka, established in 1953, is the oldest and largest NGO in the country in the field of sexual and reproductive health.107 It is recognized as the “mother NGO” and works closely with several smaller NGOs in Sri Lanka, as well as with the Ministry of Health and decentralized government agencies.108 It provides a comprehensive range of services, with an emphasis on meeting the needs of underserved groups,including factory workers,internally displaced persons, and adolescents and youth.109 E. SOURCES OF LAW AND POLICY
Domestic sources Sri Lanka’s legal system is based on British common law and Roman-Dutch, statutory, personal and customary law.110 The constitution is the supreme law of the land. It guarantees certain fundamental rights, including the rights to equality before the law and equal protection of the law,and to nondiscrimination on grounds of race, religion, language, caste, sex, political opinion, or place of birth.111 It also guarantees the rights to freedom of thought, conscience, religion, speech, peaceful assembly, association, and movement; and freedom from torture, cruel, inhuman or degrading punishment, and arbitrary deprivation of personal liberty.112 The constitution allows restrictions on certain fundamental rights in the interests of national security or “racial and religious harmony.”113 In addition to enforceable fundamental rights, the constitution issues several Directive Principles of State Policy that are intended to guide the government in discharging its duties, but do not confer enforceable legal rights.114 One such principle directs the state to ensure equality of opportunity for all citizens,so that no citizen suffers discrimination on the basis of sex.115 Other instructive but unenforceable constitutional provisions are contained in an article on fundamental duties of citizens;one such duty is to respect the rights and freedoms of other citizens.116 Second to the constitution,legislation is the most important source of domestic law, followed by case law, which operates on the basis of precedent, stare decisis.117 Major codifications of law include the 1883 Penal Code, the 1889
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Civil Procedure Code and the 1979 Code of Criminal Procedure.118 British common law is the primary source of criminal and administrative law, while Roman-Dutch law has a heavy influence on matters of personal relations.119 Specifically, Roman-Dutch law applies to family law, property, succession, obligations, delicts, and noncommercial contracts.120 Sri Lanka’s colonial past and varied ethnic makeup have yielded a system that is marked by laws with differing applicability. There are, however, two general systems of law: the general law and customary laws. The general law is the “residuary law of the land” and is made up of statutes, jurisprudence and Roman-Dutch law.121 The general law applies to the entire country, although parliament may pass legislation specific to certain communities or territories.122 The three major bodies of customary law are Kandyan law, Muslim law and Tesawalamai law. These laws lack uniform application and have varying degrees of influence on family law.123 Customary laws apply either as personal laws (e.g., religious-based laws that deal with matters of personal status, such as marriage, divorce, custody, and inheritance) or as an amalgam of personal and territorial laws.124 The areas of marriage, divorce and inheritance are especially influenced by customary laws.125 Kandyan law applies only to Sinhalese people in the Kandy region of Sri Lanka and has the characteristics of both personal and territorial law.126 Kandyan law applies mostly in the area of personal law and is now consistently recognized by Sri Lankan courts as a system of personal law.127 Muslim law is purely personal law,applicable to all persons professing the Muslim faith, whether by birth or conversion. In determining the applicability of Muslim law to an individual, courts require at a minimum a belief in the essential doctrine of Islam as articulated in the Indian court case, Narantakath v.Parakkat,which characterized that doctrine as belief in one God whose prophet is Muhammed.128 A significant feature of Muslim law in Sri Lanka is the Quazi courts, which were established by the Muslim Marriage and Divorce Act to deal specifically with disputes involving Muslim law.129 (See “The Judicial Branch” for information on Quazi courts.) Tesawalamai law is a mixture of personal and territorial law and is applicable to the Malabar inhabitants of the Jaffna province of Sri Lanka.130 “Malabar” has been judicially recognized as meaning “Tamil,” and the province of Jaffna as denoting the Jaffna peninsula,its surrounding islands and the district of Mannar.131 Tesawalamai law applies mostly in the area of property.132
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International sources Sri Lanka is a state party to several international conventions. These include the following: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);the Convention on the Rights of the Child (Children’s Rights Convention); the International Convention on the Elimination of All Forms of Racial Discrimination (Racial Discrimination Convention); the International Covenant on Civil and Political Rights (Civil and Political Rights Covenant) and the Optional Protocol to the Civil and Political Rights Covenant;and the International Covenant on Economic,Social and Cultural Rights (Economic,Social and Cultural Rights Covenant).133 The government made no reservations to any of these conventions.134 The government of Sri Lanka has also participated in several key international conferences and endorsed the development goals and human rights principles contained in the resulting consensus documents. International consensus documents the government has adopted include the 1993 Vienna Declaration and Programme of Action; the 1994 International Conference on Population and Development (ICPD) Programme of Action; the 1995 Beijing Declaration and Platform for Action; and the 2000 United Nations Millennium Declaration.135 Sri Lanka is also a signatory to the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, and the SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia.136
II. Examining
Reproductive Health and Rights In general,reproductive health issues are addressed through a variety of complementary, and sometimes contradictory, laws and policies. The manner in which these issues are addressed reflects a government’s commitment to advancing reproductive health. The following section presents key legal and policy provisions that together determine women’s reproductive rights and choices in Sri Lanka. A. GENERAL HEALTH LAWS AND POLICIES
The National Health Policy, formulated by the Ministry of Health in 1996, provides the general policy framework for the development and delivery of public health programs and services in Sri Lanka.
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Objectives The National Health Policy has two broad goals aimed at raising the health status of the people of Sri Lanka: ■ to increase life expectancy by reducing preventable deaths due to both communicable and noncommunicable diseases; and ■ to improve the quality of life by reducing preventable diseases, health problems and disabilities, and by emphasizing the positive aspects of health through health promotion.137 The policy identifies the following areas of health as requiring focused government attention: ■ maternal and child health; ■ adolescent health; ■ malnutrition and micronutrient deficiencies; ■ emerging health issues caused by a fast-aging population; ■ malaria; ■ oral health; ■ bowel disease; ■ respiratory disease; ■ mental health problems; ■ physical disabilities; ■ deliberate self-harm and intentional and accidental injuries; ■ traffic accidents; ■ rabies; ■ coronary heart disease; ■ diabetes; ■ hypertension and cerebrovascular disease; ■ renal disease; ■ malignancies; ■ sexually transmissible infections (STIs) and HIV/AIDS; ■ substance abuse; and ■ problems related to the family unit.138 The policy also proposes several strategies to raise the health status of the population in general,and to minimize the impact of the above-mentioned diseases and health problems. They are the following: ■ improve existing preventive health programs and develop more comprehensive, coordinated and focused programs to reduce the burden of disease in the community; to enable early detection of preventable diseases, health problems and their complications; and to focus on promoting positive health behavior; ■ improve existing medical facilities and develop additional institutional- and community-based services to
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meet a wider range and higher level of medical needs (including rehabilitation and continuing care); ■ make health care more accessible to the community on an equitable basis with provisions for meeting specific health needs; ■ improve the quality of health care to a level acceptable to both the community and service providers; ■ ensure respect for the dignity of the individual at all times in providing health-care services and patient care; ■ continue the government’s commitment to providing free basic health care in public health facilities; ■ ensure the rights of men and women to information about and access to their choice of safe, effective, affordable, and acceptable methods of family planning; ■ make health care more efficient and cost-effective; ■ develop and implement a national drug policy for the rational use and distribution of drugs; ■ promote the involvement of the community in health care; ■ allocate resources to provinces and districts on the basis of their health needs and national priorities; ■ integrate the efforts of the Ministry of Health with other governmental and non-governmental agencies to facilitate greater coordination for better health care; ■ facilitate the development and regulation of the private health sector and promote better coordination between the public and private sectors; ■ encourage health systems research and its application; ■ support and strengthen human resource development; ■ introduce services and programs to meet the emerging health needs of the elderly, displaced populations, and those affected by physical disabilities and mental health disorders; ■ encourage the development of indigenous systems of medicines and homeopathy; and ■ allocate additional funds from government and other sources for priority health needs, particularly in the areas of health promotion and prevention.139 In 1997,the president appointed a presidential task force to formulate strategies to tackle some of the major health problems in Sri Lanka such as inequities in the provision of health services, substance abuse, malnutrition, care of the elderly and disabled, accidents and suicides, noncommunicable diseases, and others as identified in the National Health Policy.140 On the basis of the recommendations of the task force,the follow-
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ing strategies were identified as priorities for implementation: works closely with the National Cancer Control Programme ■ improvement of one hospital in each district to and the National STD/AIDS Control Programme.151 The reduce inequities in the distribution of health-care main activities of the Health Education Bureau include eduservices and to provide high-quality health-care facilcation and training; distribution of health information, eduities to people living in remote areas; cation and communication materials; and health advocacy.152 ■ expansion of services to special groups, such as the The Department of Health Services,a separate body withelderly, disabled, victims of war and conflict, and in the central health bureaucracy, was established as a result of those with occupational or mental health problems, restructuring of the Ministry of Health in 1999.153 A director general of health heads the department and is responsible and expansion of health-care services in the estate for the management of health services at the central level. He sector; ■ development of health promotion programs with a or she answers to the secretary of the Ministry of Health.154 The director general is supported by deputy directors generspecial emphasis on revitalizing school health proal, each of whom is responsible for a special program area.155 grams; ■ reform of the health bureaucracy to improve effiEach province has its own ministry of health, which is ciency and effectiveness; and responsible for health care planning and service provision in ■ improved resource mobilization and management the province.156 A provincial director of health services heads through greater resource sharing between private and each provincial ministry of health and is responsible for the public sectors and increased focus on professional management and implementation of health services in the 141 development of health-care personnel. province.157 He or she reports to the secretary of health of the Infrastructure of health-care services provincial ministry of health.158 At the district level, there are 25 deputy directors who Government facilities assist the provincial directors.159 District health institutions Almost 60% of Sri Lanka’s population relies on the public report to deputy directors.160 Each area served by a deputy health-care system.142 Some 95% of inpatient health care is 143 Health care in the public provided by the public sector. director is further staffed with medical officers of health,each sector comprises both Western and Ayurvedic systems of of whom is responsible for the provision of comprehensive medicine, though the majority of the population seeks treathealth care (preventive and curative) in a defined area with a ment from Western medicine.144 population of 60,000–80,000.161 The constitution charges the cenEach medical officer is assisted by RELEVANT LAWS AND POLICIES tral government with primary trained staff working at the field lev• National Health Policy, 1996 responsibility for the formulation of el.162 Three tiers of public medical instinational policies on primary health tutions provide curative health care.163 care and “population control and District hospitals, peripheral units, rural hospitals, central disfamily planning.”145 Pursuant to the Thirteenth Amendment to the constitution,the provinces are responsible for the delivpensary and maternity homes, and central dispensaries pro146 ery of services related to these subjects. vide primary health care.164 District hospitals are typically Within the central administration, the Ministry of Health the largest of these facilities.165 Central dispensary and materis the apex body responsible for protecting and promoting the nity homes are the smallest facilities with inpatient services, 147 health of the people of Sri Lanka. Government health serwhereas central dispensaries are the smallest outpatient facilivices function under a cabinet minister.148 The responsibilities.166 There are some 156 157 district hospitals,102 periphties of the ministry include formulating policy guidelines, eral units,167 173 rural hospitals,65 83 central dispensary and regulating medical and paramedical education, managing maternity homes, and 404 385 central dispensaries.167 Within the category of rural hospitals,there are some 15 estate hosteaching and specialized medical institutions, and purchasing pitals,most of which do not function effectively because they medical supplies.149 The ministry also oversees the management of the Family Health Bureau, the Health Education lack adequate facilities and equipment.168 Provincial and base hospitals provide secondary health Bureau and special programs on malaria, tuberculosis, and care.169 There are some seven provincial hospitals and 39 STIs and HIV/AIDS, among others.150 The Family Health Bureau is the main body in the central government charged base hospitals.170 These facilities are located in large towns and most are managed by the provincial ministries of with responsibility for monitoring the country’s maternal and health, though the central Department of Health Services child health and family planning programs; the bureau also
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manages a few of these hospitals.171 Teaching and specialty hospitals provide tertiary health care.172 There are some 18 teaching hospitals, including one specializing in Ayurvedic medicine, which is managed by the central Ministry of Indigenous Medicine.173 The largest hospital in the country is the National Hospital of Sri Lanka in Colombo, which provides specialized health care not including pediatrics, obstetrics, ophthalmology, and dental surgery.174 For these services, there are separate children’s, maternity, eye, and dental hospitals also located in Colombo.175 There is currently no functioning medical referral system.176 In addition to the three-tiered public health-care system of curative health services, there are 26,552 health units headed by medical officers that deliver preventive health services.177 The estate sector has its own health-care system and provides health-care services including maternal and child health care and family planning services, under the purview of the Ministry of Health.178 The Plantation Housing and Social Welfare Trust coordinates health and welfare activities in 466 estates that employ a total population of 870,000, and maintains liaisons with NGOs and donor agencies.179 The trust collects data and health statistics, monitors health services on the estates and helps train health personnel.180 Privately run facilities Private health practitioners provide mostly curative care.181 At least half of outpatient curative health care in urban and suburban areas is provided by the private sector.182 Although there are some full-time, private general practitioners, the majority of doctors in the private sector are also government doctors who work from home, clinics or private hospitals.183 There are also a number of traditional practitioners in the private sector, mostly in Ayurvedic medicine, and a small number of homeopathic practitioners.184 Financing and cost of health-care services Government financing Total expenditure on health is about 3.2% of GDP, or USD 26 per capita.185 Government expenditure currently accounts for about half of this amount, at 1.6% of GDP (Rs 24,946 million),an increase from 1.3% (Rs 18,772 million) in 2001.186 The central government—the Ministry of Health, specifically—accounts for more than two-thirds of publicsector expenditures, with the provincial councils accounting for the remaining third.187 The public sector funds the majority of preventive health expenditures and inpatient expenditures.188 There is no specific tax that finances the public health-care system;rather,general revenues of the public sector are the pri-
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mary sources of government financing of health-care services.189 Private and international financing Private sources account for half of the total expenditure on health.190 The largest share of private spending on health comes from household out-of-pocket spending, accounting for 43% of total spending on health.191 Most private expenditure on health is for outpatient primary care services and purchases of medicines from pharmacies and shops.192 Employer-based schemes and private insurance expenditures make up less than 5% of total spending.193 In 2001, international aid accounted for 3.6% of total expenditure on health (Rs 501 million), which represented a decrease from previous years.194 International financing constituted 10% and 5% of total health expenditures in 1998 and 1999, respectively.195 In 2002, the United Nations Population Fund (UNFPA) began a joint project with the government of Sri Lanka called “Support to Advocacy for Reproductive Health and Gender.” Contributions from the government and UNFPA amounted to Rs 1,600,000 (USD 33,200) and USD 499,990, respectively.196 The project is due to end in 2006. Costs The public health-care system provides health care free at the point of use through a network of national and base hospitals around the island.197 There is no imposition of user fees.198 Although the government provides health care free of charge, substantial costs in the health-care system are still privately borne.199 Private health-care facilities provide services for a fee. As previously noted,almost half (43%) of total health expenditure comes from household out-of-pocket spending on health, mostly for outpatient services and drugs. Regulation of health-care providers There are several laws and corresponding statutory bodies that regulate health-care providers in Sri Lanka,including their education,qualifications,registration,and professional conduct. The 1927 Medical Ordinance regulates medical practitioners,pharmacists,midwives,dentists,apothecaries,and paramedical assistants.200 Although the ordinance formerly applied to nurses,the 1988 Sri Lanka Nurses Council Act has regulated the nursing profession since its enactment.201 The Medical Ordinance sets forth certain degree, training and character requirements for medical practitioners to be registered in Sri Lanka.202 A registered medical practitioner may lose his or her approved status on grounds set forth in the ordinance, including conviction for an offense that “shows him to be unfit to practisse as a medical practitioner,” conviction under provisions of the 1951 Births and Deaths Registration Act, or guilt of “infamous conduct in any professional respect.”203
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The ordinance also provides for the creation, duties and powers of the Sri Lanka Medical Council.204 The council is charged with maintaining minimum standards of medical education with regard to courses of study, examinations, staff, equipment, and training and facilities; also, it may authorize investigations of universities and medical institutions to ascertain conformity with prescribed educational standards.205 In 2003,the council issued ethical guidelines for registered medical and dental practitioners. (See “Patients’ rights” for information on the guidelines.) Ayurvedic practitioners and institutions are regulated by the 1961 Ayurveda Act.206 The act provides for the creation of an Ayurvedic Medical Council to register Ayurvedic practitioners, pharmacists and nurses, and deal with matters relating to their professional conduct.207 The registration of such individuals may be cancelled or suspended upon conviction of an offense that “shows him to be unfit” to practice his or her trade, or for any professional misconduct.208 The 1970 Homeopathy Act similarly provides for the establishment of a Homeopathic Council that is charged with registering homeopathic practitioners and regulating the importation,sale and distribution of their medicines.209 The act provides for the suspension or cancellation of these practitioners’ registrations on similar grounds as those for Ayurvedic practitioners.210 Regulation of reproductive health technologies Assisted reproductive technologies Existing Sri Lankan law does not regulate the use and management of assisted reproductive technologies, including in vitro fertilization and embryo transfer.211 There is also no apex body in Sri Lanka that oversees the introduction and practice of assisted reproductive technologies in research and clinical settings, which contributes to a general lack of regulation in this area.212 However, a 1995 amendment to the penal code does have a bearing on surrogate motherhood, prescribing penalties for the act of recruiting women or couples to bear children.213 Also,a study group commissioned by the National Science and Technology Commission of Sri Lanka formulated a policy on biomedical ethics that is currently before the legislature.214 The study makes recommendations for the use and regulation of assisted reproductive technologies, including in vitro fertilization and embryo transfer. In vitro fertilization is available only in the private sector. Advisory services on assisted reproductive technologies are provided at a few private centers in Colombo and Kandy, a major city in Central Province. These centers also provide in vitro fertilization services. Sex determination techniques
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No data is available on how sex determination techniques are regulated in Sri Lanka. Patients’ rights There is no specific legislation on the rights of patients and remedies for medical malpractice. However, the penal code and some actions available under the civil law of negligence provide recourse for breaches of medical duty. The National Health Policy calls for the government to adopt a health strategy that ensures “respect [for] the dignity of the individual at all times” in the provision of health-care services.215 Under the penal code, provisions relating to offenses against the body may apply in cases of bodily injury caused by a medical practitioner. Such offenses include grievous hurt, negligent homicide, culpable homicide, murder, and inducing miscarriage.216 Consent of the patient and acts done in good faith for the benefit of the patient are available defenses.217 Consent is not a defense if it has been obtained through fear or misunderstanding or if it was given by a person of unsound mind or by a child under the age of 12 who is unable to understand the nature and consequences of consenting to a medical procedure.218 Under civil law,doctors owe a duty of care to their patients in providing diagnosis and treatment, and informing them of the risks involved.219 In determining the precise standard of care that a practitioner owes a patient, judges consider the expert opinions of similar practitioners and make the final determination as to what constitutes the standard given the circumstances of the case. A “delictual”action,or an action for damages arising from a breach of legal duty, is the only civil remedy available to a patient for medical negligence under Sri Lanka’s civil law of negligence.220 In such an action, a plaintiff may recover: ■ actual expenses (i.e., medical bills); ■ damages for pain and suffering; ■ expenses incurred in the future as a result of any disablement; ■ loss of earnings during the period of incapacity; and ■ loss of future earnings if disability is permanent.221 To date,only one case of medical negligence has been in Sri Lankan courts. In Priyani Soysa v. R.A. F.Arsecularatne, a 1999 Supreme Court case involving a young patient’s death as a result of a doctor’s alleged negligence in her treatment, the court found that the doctor was indeed guilty of medical negligence, but that the plaintiff had failed to prove that the doctor’s negligence had caused or materially contributed to the patient’s death.222 Although many reported incidents of medical malpractice followed the decision, the impact of the court’s ruling and its revelation led to a drop in public confidence in litigation for remedying medical malpractice. As the case highlighted,
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solely establishing a doctor’s negligent conduct without proving causation may not necessarily lead to a favorable ruling for the patient or injured party.223 Another source of patients’rights is the Guidelines on Ethical Conduct for Medical and Dental Practitioners Registered with the Sri Lanka Medical Council. Key rights set forth in the guidelines include those to dignity, privacy, information, informed consent, confidentiality, and nondiscrimination.224 The guidelines provide that individuals above age 18 are presumed to have the capacity to give consent in the absence of evidence to the contrary.225 For minors, the “central test” for determining capacity is whether the minor has “sufficient understanding and intelligence to understand fully what is proposed.”226 When the minor lacks capacity, a parent or other authority may give consent on behalf of the minor.227 When the minor has capacity but refuses treatment, doctors may override the minor’s decision if a parent or other authority provides consent.228 The guidelines specifically provide for a patient’s right to confidentiality of information obtained during the course of “a medical consultation, investigation, or treatment.”229 Although there are no specific statutory protections with regard to the right to confidentiality, the guidelines provide that “confidentiality is implied in the contract between doctor and patient and any unauthorized disclosure ...would constitute a breach of contract, with grounds for civil proceedings against the doctor.”230 The issue of confidentiality has never been contested in any Sri Lankan court.231 The conduct specifications also provide that ordinary principles of ethics apply to information about patients with HIV/AIDS.232 (See “Policies for the prevention and treatment of STIs and HIV/AIDS” for information on the provisions of the guidelines relating to HIV/AIDS.) Several patients’ rights and civic action groups recently formed the National Association for the Rights of Patients. The association’s mandate includes the following goals: ■ empowerment of patients; ■ formulation of a patients’ charter; ■ provision of quality drugs at affordable prices; ■ monitoring of the quality of health-care services provided by the private sector; ■ provision of legal aid with medical advice in cases of medical negligence; and ■ provision of health services based on the welfare of the patient.233 B. REPRODUCTIVE HEALTH LAWS AND POLICIES
The Population and Reproductive Health Policy, formulated by the Ministry of Health and approved by the government in
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1998, is Sri Lanka’s main policy on reproductive health. The ICPD Programme of Action was a guiding source for the policy,which sets forth a holistic definition of reproductive health as “a state of complete physical, mental and social well-being in all matters relating to the reproductive system, its functions and processes.”234 Implicit in that definition is the ability of couples “to have a satisfying and safe sex life, … the capability to reproduce and the freedom to decide responsibly on the number of children they may have.”235 There are eight goals that constitute the Population and Reproductive Health Policy in the medium term.236 Each goal is accompanied by a rationale and a set of strategies to achieve the expected outcome. The goals are the following: ■ maintain current declines in fertility to achieve a stable population by the middle of the twenty-first century; ■ ensure safe motherhood and reduce reproductive health–related morbidity and mortality; ■ achieve gender equality; ■ promote responsible adolescent and youth behavior; ■ provide adequate health care and welfare services for the elderly; ■ promote the economic benefits of migration and urbanization and alleviate their adverse social and health effects; ■ increase public awareness of population and reproductive health issues; and ■ improve population planning and the collection of quality population and reproductive health statistics at the national and local levels.237 Within the goal of ensuring safe motherhood and reducing reproductive health–related morbidity and mortality, the policy identifies several reproductive health problems that it pledges to address with “increasing vigor.” They are the following: ■ anemia; ■ “subfertility”; ■ unwanted pregnancies; ■ induced abortion; ■ reproductive tract infections; ■ STIs and HIV/AIDS; and ■ breast, pelvic and prostate cancers.238 In 1999, the Ministry of Health formulated an action plan to implement the Population and Reproductive Health Policy for 2000–2010. The plan outlines the specific roles and responsibilities of various governmental, civil society and private-sector actors and contains specific strategies for the policy’s integration in local-level plans and policies.239 The provinces are charged with primary
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responsibility for the policy’s implementation, while the Family Health Bureau and population division of the Ministry of Health are responsible at the central level for monitoring and evaluating activities under the policy.240 In addition to the Population and Reproductive Health Policy and its implementing action plan,there are several other national policies that include provisions addressing women’s reproductive health. They are the SixYear Development Programme on Family Health, the National Plan of Action for Women and the Women’s Charter. The SixYear Development Programme on Family Health, formulated by the Ministry of Health and Indigenous Medicine and operative in 1999–2004, outlines long-term goals and specific strategies and programs in maternal health and nutrition, health education, adolescent health care and family planning services.241 (See “Family Planning,” “Maternal Health” and “Focusing on the Rights of a Special Group: Adolescents” for specific strategies.) The 2002–2007 National Plan of Action for Women, formulated by the Ministry of Women’s Affairs, identifies specific goals and strategies to advance women’s rights in the areas of education, health care and violence against women.242 Within the area of health care, the plan addresses maternal health and nutrition, adolescent sexual and reproductive health, people with physical and mental disabilities, STIs and HIV/AIDS, and breast and cervical cancers.243 (See “Maternal Health,” “Sexually Transmissible Infections (STIs) and HIV/AIDS”and “Focusing on the Rights of a Special Group: Adolescents” for specific strategies.) The Women’s Charter, formulated by the Ministry of Women’s Affairs and approved by the government in 1993, enjoins the government to take specific actions to advance women’s rights in several areas, including health care and nutrition. The charter specifically calls on the government to ensure women’s rights and access to services with respect to family planning, maternal health and STIs. Among other things, it highlights the need for programs that promote and protect the mental and physical health of women, and the needs of specific groups, such as women with physical disabilities and the elderly. (See “Family Planning,” “Maternal Health,” and “Sexually Transmissible Infections (STIs) and HIV/AIDS” for specific strategies related to reproductive health. See “Legal Status of Women” for specific strategies related to other women’s rights.) Family Planning There are no laws or policies that require individuals to accept family planning measures.244 However, the National Health Policy, the Population and Reproductive Health Policy,the SixYear Development Programme on Family Health,
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and the Women’s Charter contain specific provisions that promote the right to family planning. The National Health Policy calls for the government to ensure the right of men and women to be informed about and have access to their choice of safe,effective,affordable,and acceptable methods of family planning.245 The Population and Reproductive Health Policy outlines several family planning–related strategies to stabilize the population by at least the middle of this century, one of the policy’s eight medium-term goals.246 The strategies are as follows: ■ continue to provide comprehensive family planning information, education, communication, and services through government, NGO and private-sector sources; ■ improve the quality of family planning service delivery, which includes offering a wide range of contraceptive methods, to enable couples to decide freely and responsibly the number and spacing of their children; ■ focus attention on pockets of unmet need, such as the urban slums, estates, internally displaced populations, factory labor and underserved rural areas; and ■ effectively reach out to youth as they come of reproductive age (estimated to be 500,000 young people over the next ten years).247 Specific programs proposed in the policy’s implementing action plan aim to improve the quality of family planning services by providing “user-friendly services” at locations and times that suit the needs of clients in different communities, and follow-up care in homes and clinics,including home visits by field staff.248 The SixYear Development Programme on Family Health lists a number of activities to improve family planning services. These include training nonspecialist medical officers in female and male surgical sterilization; training providers in IUD services; and improving family planning facilities and contraceptive provision.249 The Women’s Charter issues several directives to the state with regard to women’s right to family planning. It enjoins the state to ensure: ■ women’s right to control their reproduction and their equal access to information, education, counseling, and services in family planning, including the provision of safe family planning devices and the introduction and enforcement of regulations relating to their safety; and ■ family planning policies are equally focused on men and women.250
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Contraception Regulation of information on contraception The contraceptive prevalence rate among married women The Cosmetics, Devices and Drugs Act regulates the of reproductive age for any method was 70% in 2000,up from advertisement of approved contraceptives. The act provides about 66% in 1993.251 Nearly one-half of currently married that “no person shall … advertise any device in a manner that women use modern methods, while about one-fifth rely on is false, misleading, deceptive or likely to create an erroneous 252 traditional methods. The injectable is the most widely used impression regarding its composition, merit or safety.”264 A modern temporary method (10.8%).253 Among traditional similar provision regulates the advertisement of drugs.265 Sterilization methods, the “rhythm/safe period” The number of male and female method is the most prevalent 254 sterilizations has declined significantly (11.9%). Nearly all currently marRELEVANT LAWS AND POLICIES ried women know about modern over the past two decades.266 There • Population and Reproductive Health were less than 21,000 sterilizations methods of contraception, while a Policy, 1998 performed in 1997.267 There are curlittle over three-fourths know about • Population and Reproductive Health rently some 14,000–15,000 women traditional methods.255 Policy Action Plan, 2000–2010 Contraception: legal status who undergo sterilization per year.268 • Six Year Development Programme This decline is attributable by some to The 1980 Cosmetics, Devices on Family Health, 1999–2004 the increasing average age at marriage and Drugs Act, an act of general • National Plan of Action for Women, in Sri Lanka as well as a shortage of application to all drugs, governs the 2002–2007 sterilization services.269 manufacture, importation, sale, and 256 • Women’s Charter, 1993 Still, sterilization is currently the distribution of contraceptives. • National Health Policy, 1996 The act defines “device” as “any most widely used contraceptive • Cosmetics, Devices and Drugs Act, article, instrument, apparatus or method among married women of 1980 contrivance, including any comporeproductive age; overall, 23.1% rely • Eligibility for Sterilization, nent, part or accessory thereof, on the method—21.0% on female Government Circular, 1988 manufactured or sold for use in … sterilization and 2.1% on vasecto• Penal Code, 1883 the care of human beings or animals my.270 Use of female sterilization • Venereal Disease Ordinance, 1938 peaks at 34.3% among married during pregnancy and at and after • National Strategic Plan for women aged 40–44.271 birth of the offspring, including care Prevention and Control of Sterilization: legal status of the offspring and includes a conHIV/AIDS, 2002–2006 The government does not regutraceptive device but does not 257 “Drug” is late sterilization through any include a drug.” UP AND COMING POLICIES: defined as “any substance or mixlaws.272 HIV/AIDS Policy • National Sterilization policies ture of substances manufactured, The eligibility requirements for sterilization in the public sold, offered for sale or represented for use in the diagnosis, sector are prescribed in a government circular and the Handtreatment, mitigation or prevention of disease, abnormal book on Contraceptive Technology. physical state or the symptoms thereof … [and] restoring, As per the circular,clients seeking government sterilization correcting or modifying organic functions in man or ani258 services must be over age 26 with at least two living chilmal.…” Only licensed persons may manufacture or import dren, and the youngest child must be above the age of 259 Contraceptives must contraceptive drugs or devices. two.273 Clients over age 26 with three or more living chilbe registered with a government regulatory body prior to dren are eligible for sterilization without restriction.274 260 Where the client is under age 26 and his or her spouse sale and distribution. Dedicated products for emergency contraception are insists on sterilization, the medical officer may exercise dis261 available in Sri Lanka. The first such products were regiscretion in performing the procedure, provided that the tered in April 1997.262 In the Handbook on Contraceptive Techcouple has at least three living children and the officer has nology issued by the Family Health Bureau, the government personally verified this information.275 Where sterilization is required for medical reasons, the client should be referred advocates the use of emergency contraception to prevent an to a specialist for a final decision.276 The circular states that unwanted pregnancy after unprotected sex,contraceptive fail263 medical officers in the public and NGO sectors must ure or in the event of rape.
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ensure that all requirements are met prior to performing sterilization.277 Spousal consent is also required for government sterilization services and both spouses must complete a prescribed form.278 Prior court approval is required for the sterilization of minors and mentally incompetent adults.279 Unmarried males and females are not sterilized.280 The government pays individuals who undergo sterilization a sum of Rs 500.281 The Handbook on Contraceptive Technology emphasizes the need for proper counseling of both parties prior to sterilization.282 Such counseling should include information on issues such as operative procedure, permanence of the method,benefits,alternatives,failure rate,pre- and post-operative instructions, and the availability of an “out-of-pocket allowance” for clients who accept sterilization.283 NGOs such as the Family Planning Association of Sri Lanka have their own set of guidelines for sterilization. The association requires that clients have at least two children, and that the youngest child be at least one year old.284 Spousal consent is not required for sterilization.285 Discretion is used in deciding whether to provide sterilization services to those who request it.286 The association also requires clients to complete a consent form attesting that they understand the implications of sterilization on their ability to have children in the future, and have been informed about temporary methods of contraception.287 The signature of a witness of the same sex and who speaks the same language as the client is required where the client cannot read and understand the consent statement.288 Generally, clients who obtain sterilization in the NGO sector are paid a sum of Rs 500, as they are in the public sector.289 The state reimburses the NGOs for this sum.290 Despite the requirement in both the public and NGO sectors that clients have at least two living children, this requirement is not strictly enforced in current practice, and women who have only one child may obtain sterilization services in both sectors.291 Government delivery of family planning services The Thirteenth Amendment to the constitution devolves the responsibility for the delivery of family planning services to the provincial governments.292 The central government retains responsibility for the formulation of national policy on family planning.293 Within the central government,the Family Health Bureau is charged with the responsibility for planning, coordinating, directing, monitoring, and evaluating maternal and child health and family planning programs throughout the country.294 It also oversees the distribution of contraceptives and related equipment and supplies.295 The Health Education Bureau coordinates and implements health
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education programs in family planning.296 About 70% of current users of oral pills, injectables and condoms, and 88% of those who rely on IUDs and sterilization,obtain their method from government facilities and family health workers.297 Unmarried youth are not directly targeted for contraceptive services under government programs, though contraceptives are provided on request.298 Spousal information is not collected by government sources of family planning,although it was under a previous policy.299 There are about 850 registered family planning clinics in the government sector that offer temporary modern methods of contraception.300 Family planning clinics and general practitioners also provide emergency contraception.301 The government has also established method-specific clinics,such as 865 registered IUD clinics, although they do not appear to function effectively.302 The Family Health Bureau and large hospitals have sterilization facilities and about 80 district hospitals have been upgraded to provide sterilization.303 Public-sector midwives are among the frontline health workers who provide family planning care in a community.304 There are roughly 5,000 such workers in service,each serving a population of 2,000–4,000.305 Their duties include offering family planning counseling,providing assistance at family planning clinics,distributing oral contraceptives and condoms,and providing follow-up to family planning users.306 The government provides family planning services, including sterilization, free of charge.307 Oral pills and condoms are sold at highly subsidized prices.308 In the north and east, the government’s ability to deliver family planning services has been severely restricted by civil conflict and unrest.309 Family planning services provided by NGOs and the private sector Approximately 17% of current users of oral pills, injectables and condoms,and 6% of current users who rely on IUDs or sterilization obtain their method from private sources.310 Emergency contraception can be obtained over the counter at pharmacies and from private practitioners.311 NGOs are a significant provider of family planning services, including sterilization. Almost 4% of current users obtain their contraceptives from the NGO sector.312 The Family Planning Association of Sri Lanka is the major source of contraceptives in the NGO sector and provides almost all forms of family planning.313 It also operates a condom distribution program that sells condoms to retail outlets, which in turn sell them to the public.314 Currently 8,000 such outlets sell condoms and 5,000–6,000 outlets sell oral pills.315 Approximately 20,000 packets of condoms are sold each month.316 The association no longer provides female steriliza-
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tion services, though it continues to perform vasectomies.317 On average, 3–4 operations are carried out daily.318 The association charges a sum of Rs 350 for sterilization services.319 Between 1998 and 2000,the association conducted a general and reproductive health program for people living in refugee camps in the Anuradhapura,Polonnaruwa and Puttalam districts.320 About 3,163 couples were inspired to practice family planning as a result,increasing the family planning prevalence rate in the camps from 41% to 69%.321 Other NGOs that provide family planning services include Sarvodaya, Lanka Mahila Samithi, Saukyadana, the Social and Economic Development Center, the Sri Lanka Association for Voluntary Surgical Conception, and Population Services International.322 Maternal Health The maternal mortality rate in Sri Lanka is about 26 maternal deaths per 100,000 live births.323 In the conflict areas of the north and east, the rate is about three times the national average.324 Most pregnant women receive prenatal care, either at a maternity clinic or through a home visit by a family health worker. However, the proportion is significantly lower among pregnant women in the estate sector than among those in the urban or rural sectors.325 Almost all pregnant women receive tetanus toxoid vaccination.326 A high percentage of women deliver in either government hospitals or maternity homes—95.9% in the rural sector and 75.8% in the urban sector, excluding Colombo.327 Although few women in general deliver at home, the proportion who do so is highest among women in the estate sector (12.6%) and among women under age 20 (3.6%).328 A small proportion of women rely on traditional birth attendants for assistance during delivery.329 Screening tests for STIs are conducted, but not among all pregnant women. Colombo has the highest rate of such screening (71% of pregnant women), compared with 56% of pregnant women in other urban areas,46% of women in rural areas and 26% of women in the estate sector.330 Policies The Population and Reproductive Health Policy, the Six Year Development Programme on Family Health, the National Plan of Action for Women, and the Women’s Charter provide the policy framework for the development and delivery of maternal health programs and services. One of the goals of the Population and Reproductive Health Policy is to “ensure safe motherhood and reduce reproductive health system related morbidity and mortality.”331 The policy lists the following strategies to achieve this goal: ■ expand reproductive health–care services while
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improving their quality; provide affordable, accessible and acceptable family planning services to protect against unplanned pregnancy; ■ promote family planning so that pregnancies do not take place too early or too late in life, are appropriately spaced, and are not too many; ■ provide all men and women with information, education, communication, counseling, and access to safe and effective reproductive health care; ■ empower women to make responsible decisions with regard to reproductive health care and ensure male participation in the process; and ■ improve communication between men and women on issues of sexuality and reproductive health.332 The SixYear Development Programme on Family Health sets forth long-term objectives relating to maternal health, including the reduction of infant, childhood and maternal morbidity and mortality through higher quality maternal and child health services.333 Proposed programs to improve the quality of maternal care, further reduce maternal mortality and raise the status of breast-feeding include: ■ development of standard indicators and guidelines on the quality of maternal care; ■ training of health staff, including workshops for hospital and other health staff in the public sector; ■ provision of low-cost equipment to public health facilities; ■ provision of comprehensive essential obstetric care in each district; ■ strengthening of district and provincial health reviews; ■ confidential inquiries into national maternal death rates, with a corresponding report; ■ lactation management courses to train health staff; and ■ development and printing of information, education and communication materials on breast-feeding.334 The National Plan of Action for Women identifies several key issues relating to maternal health and develops goals, strategies and activities on the basis of these concerns.335 (See “Nutrition” for information on specific strategies to improve maternal health and nutrition.) To address women’s lack of adequate information relating to pregnancy, the plan calls for the development of Management Information Systems on women’s health and the publication of a women’s health bulletin biannually by the central and provincial ministries of health.336 With regard to maternal health, the Women’s Charter ■
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enjoins the state to ensure the “provision of … quality services in connection with pregnancy,confinement and the post-natal period”and “sufficient rest during pregnancy and lactation.”337 Nutrition The Six Year Development Programme on Family Health specifically addresses nutrition in its long-term objectives related to maternal health. It aims “to improve the nutritional status of pregnant women, infants, preschool[ers] and adolescents through nutrition education, community-based interventions and supplementary feeding programs.”338 Specific programmatic activities to improve maternal nutrition and prevent anemia include: ■ training of all public-sector health staff to implement a new strategy of prevention of anemia among pregnant women; ■ development of indicators to monitor implementation of the anemia prevention program; ■ development and printing of information, education and communication materials on prevention of anemia during pregnancy; ■ distribution of scales to monitor weight gain during pregnancy; ■ distribution of iron folate, calcium and mebendazole to pregnant women; and ■ distribution of a megadose of vitamin A to all postpartum mothers.339 The National Plan of Action for Women identifies poor information about maternity and nutrition,inadequate nutrition (especially during pregnancy and lactation) and a high incidence of anemia as key health issues of concern.340 Strategies and programs to combat these problems include implementation of community nutrition education programs and the provision of low-cost foods to low-income families.341 Rural women and women in urban slums and in the estate sector are special target groups.342 Abortion Abortion, which is illegal in Sri Lanka, is the single most important reproductive health problem in the country.343 Unsafe abortion is a leading cause of maternal death among women in Sri Lanka.344 An estimated 10% of maternal deaths are abortion related.345 There are currently no national-level statistics on the incidence of induced abortion, although unofficial reports estimate that 500–1,200 induced abortions occur every day.346 A study conducted at a government hospital reported that of 1,638 gynecological admissions over a six-month period, 25–30% involved cases of abortion complications.347 Survey data shows that the incidence of induced abortion is highest among women in the Colombo metropolitan area.348
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Abortion: legal status Abortion is a criminal offense under the penal code, except to save the woman’s life.349 The penal code does not provide any procedural requirements for the legal termination of pregnancy,except that the woman’s consent is necessary.350 It also does not specify the qualifications of those authorized to perform abortions or the type of facilities in which abortions may be performed. As a matter of practice,however,the concurrence of two obstetrician-gynecologists is required in cases where an abortion is necessary to save the woman’s life.351 No data is available on the legal status of medical abortion. Under the penal code, any person who voluntarily causes a pregnant woman to miscarry may be punished with up to three years of prison, a fine or both, unless the miscarriage was caused in good faith in order to save the woman’s life.352 If the woman is “quick with child,”punishment may be up to seven years of prison, a fine or both.353 Under these penal code provisions, a woman who causes her own miscarriage is liable for the same punishment as a provider or other individual who causes her to miscarry.354 An individual who causes a woman to miscarry without her consent, whether or not the woman is “quick with child,”may be punished with up to 20 years of prison and a fine.355 According to the Guidelines on Ethical Conduct for Medical and Dental Practitioners Registered with the Sri Lanka Medical Council, a registered medical practitioner found guilty of performing an illegal abortion may additionally lose his or her medical registration.356 If a medical practitioner learns that an illegal abortion has taken place, his or her obligations depend on the circumstances. When the woman has self-induced the abortion, the doctor’s obligation is to treat her as a patient and provide all necessary medical care.357 The guidelines state that it is “unethical” for the doctor to report the woman to the police,unless her life is in danger or death occurs.358 However, the doctor may be compelled to report the woman to the police if she “seeks treatment repeatedly after illegal abortion.” A doctor cannot be compelled to perform an abortion to save a woman’s life if he or she objects on religious or moral grounds.359 A bill to amend some penal code provisions relating to abortion was introduced in parliament in 1995.360 One amendment proposed to legalize abortion where pregnancy is a result of rape or incest,or where there is a risk of serious fetal abnormalities.361 In the ensuing parliamentary debate,several members of parliament vehemently opposed decriminalizing abortion on religious grounds.362 Those in support of the bill used concepts of gender equality and women’s freedom of choice.363 The proposed amendments on abortion were not
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adopted as a result of the controversy. However, a few attempts have been made to revive the debate. Regulation of information on abortion No data is available on how information on abortion is regulated in Sri Lanka. Abortion policies The Population and Reproductive Health Policy identifies induced abortion as a “crucial emerging”reproductive health issue that must be addressed with “increasing vigor” in the future.364 The policy does not include provisions relating to postabortion care. The National Plan of Action for Women aims to eliminate unsafe abortion by legalizing the procedure, especially in cases of rape, incest, sever fetal impairment, and pregnancies to women below the statutory age of marriage.365 Government delivery of abortion services Legal abortions are usually performed in the government sector.366 The Family Health Bureau does not provide counseling services before or after an abortion.367 Abortion services provided by NGOs and the private sector Abortions are carried out in the informal and private sector by private physicians or by clandestine abortion providers.368 Providers can charge more than Rs 1,000 per abortion, depending on the gestational age of the fetus.369 The Family Planning Association of Sri Lanka offers counseling to women on the dangers of illegal abortion, but does not offer abortion services.370 The joint “Support to Advocacy for Reproductive Health and Gender” project between the government and UNFPA focuses on the prevention of unsafe abortion through improved reproductive health and family planning services.371 Sexually Transmissible Infections (STIs) and HIV/AIDS STIs in Sri Lanka are highly stigmatized; accurate figures regarding their incidence and prevalence are not available because of underreporting. In 2001,a total of 7,345 new cases of STIs were reported to the National STD/AIDS Control Programme from all government STI clinics.372 International sources of data on Sri Lanka indicate that some 200,000 STIs are contracted every year.373 Between 1987 and 2001, the government documented 405 cases of HIV.374 In 2001,there were 47 new reported cases of HIV and 10 reported deaths from AIDS.375 Of the new HIV cases,almost half were individuals aged 30–39,and none were in the 10–19 age-group.376 A National Working Group on HIV Estimates convened by the government estimated that 4,700–7,200 people were living with HIV/AIDS in Sri Lanka by the end of 2001.377 The government attributes the discrepancy between the reported and estimated cases of HIV/AIDS to underreporting,delays in reporting and under-
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diagnosis.378 Available data on the prevalence of HIV/AIDS in Sri Lanka shows that the extensive spread of the virus had not occurred as of 2001.379 Heterosexual transmission is the predominant mode of HIV transmission.380 Mother-to-child transmission, homosexual/bisexual transmission,and transmission through blood transfusions are also reported modes of transmission.381 Most of the Sri Lankan women diagnosed with HIV infection are migrant workers in the Middle East who, when home for a visit, underwent mandatory HIV screening as a condition for their return to their jobs overseas.382 Relevant laws There is some specific legislation on STIs. The 1938Venereal Diseases Ordinance prohibits unauthorized persons from providing treatment to persons infected with a venereal disease.383 Under the ordinance, the definition of venereal disease includes syphilis, gonorrhea or soft chancre, and any related complication.384 The definition does not include HIV/AIDS. There is no specific legislation on HIV/AIDS. However, the penal code makes unlawful, negligent or malicious acts likely to spread the infection of a disease “dangerous to life” punishable with imprisonment, a fine or both.385 In addition, the 1897 Quarantine and Prevention of Diseases Ordinance deals with the prevention and control of the plague and “any disease of a contagious, infectious, or epidemic nature” in Sri Lanka.386 The ordinance authorizes the government to “make … revoke or vary” any necessary regulations to comply with the ordinance, including isolating infected persons; removing them from infected localities to places of observation, hospitals or other facilities for medical treatment; and detaining them “until they can be discharged with safety to the public.”387 Pursuant to the ordinance, the government issued regulations in 1987 that included HIV/AIDS on a list of diseases requiring notification to specified government health officials. The regulations required every medical practitioner attending any person suffering from HIV/AIDS to report the nature of the disease and the patient’s name, race, sex, age, and place of residence to the proper authority within 12 hours.388 In May 2000, the government issued an amended list that omitted HIV/AIDS and notified all institutions of the revision by government circular.389 Patients’ rights and human rights groups had lobbied for this revision, in part because of the stigma attached to those infected with HIV.390 No specific legislation prohibits discrimination against persons living with STIs or HIV/AIDS. Policies for the prevention and treatment of STIs and HIV/AIDS Government efforts to prevent the spread of STIs and
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HIV/AIDS in Sri Lanka have been underway since at least the mid-1980s.391 In 1985, the government incorporated programs for the prevention and control of HIV/AIDS into its already well-developed STI control program to form the National STD/AIDS Control Program under the Ministry of Health.392 The general objective of the program is to prevent and control STIs and HIV/AIDS and provide care to infected persons.393 Its specific objectives are: ■ provide care and counseling services for all persons with STIs or HIV/AIDS; ■ conduct information, education and communication activities targeting the general public and specific risk groups; ■ establish and maintain an effective surveillance system; ■ promote the use of condoms in the prevention of STI and HIV infections; ■ establish adequate laboratory facilities at central and provincial levels for the diagnosis of STI and HIV infections; ■ ensure the safety of blood and blood production by mandatory testing for HIV; ■ mobilize public participation through intersectoral and NGO participation; ■ institute infection control measures and universal precautions in all medical institutions and in field services; and ■ expand the clinical services to primary health care institutions by adopting the syndromic approach to management of STIs.394 There is currently no comprehensive national policy on STIs and HIV/AIDS.395 However, the government has formulated several strategic plans for the prevention and control of STIs and HIV/AIDS in Sri Lanka. The current plan, which covers 2002–2006, emphasizes changing high-risk sexual behaviors among vulnerable groups, given that predominant mode of HIV transmission in Sri Lanka is heterosexual transmission.396 The plan has the following objectives, each of which is accompanied by a series of proposed interventions: ■ to prevent the sexual transmission of HIV; ■ to prevent transmission of HIV through blood; ■ to prevent mother-to-child transmission of HIV; ■ to provide care and support to persons living with HIV/AIDS; and ■ to reduce the social and economic impact of HIV/AIDS.397 The plan aims to achieve the following targets by 2006: ■ 95% of the population will have knowledge of meth-
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ods to prevent HIV transmission; 80% of acts of sexual intercourse between “non-regular partners” will involve the use of condoms; ■ 95% of patients with STIs will receive treatment on the basis of the “syndromic management approach”; ■ all blood donations will be voluntary and remuneration will not be provided; ■ all blood donations will be screened for HIV and syphilis; ■ 80% of injecting drug users will use clean syringes and needles; ■ 90% of pregnant women infected with HIV will receive antiretroviral therapy for the prevention of mother-to-child transmission; and ■ all districts will have voluntary counseling and testing services.398 The plan aims to decentralize the implementation of prevention and control activities, which will be carried out by provincial- and district-level health authorities.399 In addition to these efforts, a draft national HIV/AIDS policy is currently under review.400 A National Blood Policy has also been formulated and approved by the Cabinet of Ministers.401 The Guidelines on Ethical Conduct for Medical and Dental Practitioners Registered with the Sri Lanka Medical Council provide guidance on issues relating to confidentiality for health providers dealing with HIV/AIDS patients. Given that health providers do not currently have to notify authorities about a patient with HIV/AIDS, as they do with certain other diseases, the guidelines state that ordinary legal principles of ethics apply to disclosing information about patients with HIV/AIDS.402 The guidelines emphasize that particular care is necessary in dealing with the issue of confidentiality because of the severe repercussions such disclosure may have on an HIV/AIDS patient.403 If a doctor is the family physician for both husband and wife or sexual partners, one of whom is infected with HIV/AIDS, the doctor has an obligation to persuade that individual to disclose his or her HIV status to the other spouse or partner. The doctor may disclose such information him or herself with the patient’s consent. If the patient refuses to make the disclosure, the doctor may disclose the patient’s status to the spouse or partner after informing the patient, provided that the doctor is the physician for both parties.404 NGOs play a vital role in implementing government HIV/AIDS initiatives, in addition to carrying out their own prevention and support activities. The government’s strategic plan for 2002–2006 provides for the active participation of the NGO sector in the implementation of public-sector ■
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interventions. The Family Planning Association of Sri Lanka has carried out programs in some refugee camps to educate youth on STIs and HIV/AIDS.405 The World Bank has helped fund a pilot project at the Kandy Teaching Hospital, located in the Central Province,to provide medication,counseling and information to pregnant women infected with HIV.406 The aim of the project is the prevention of motherto-child transmission of the virus. Regulation of information on STIs and HIV/AIDS The Venereal Diseases Ordinance restricts the advertisement of venereal disease treatments, remedies and advice, and prescribes penalties for contravention of its provisions.407 However, print and electronic media are being used to disseminate information and educate people on how to prevent STIs and HIV/AIDS under the National STD/AIDS Control Programme.408 C. POPULATION
The annual population growth rate is 1.1%.409 By 2010, the population is estimated to reach 20.7 million.410 Women of reproductive age make up 54.6% of the current population.411 The country’s total fertility rate has steadily declined over the past half century, from 6.0 births per woman in 1950 to 1.9 in 2001.412 This decline is attributed to a number of factors, including government and NGO provision of family planning services beginning in the 1950s, state-sponsored incentives, women’s greater understanding and acceptance of contraceptive methods, and their rising average age at first marriage, due largely to increased female participation in the labor force.413 As a result of changing fertility and mortality patterns,a significant shift has occurred in the age structure of the population; the proportion of persons of working age has increased and that of young children and youth has declined.414 Since the 1950s, the government has adopted a policy of reducing the birth rate by introducing a wide range of family planning services in all regions.415 To encourage the use of contraceptives,the state provided financial incentives to those who practiced family planning.416 In 1965, family planning became a national program and was integrated into the maternal and child health program under the Ministry of Health.417 Population policy Objectives The operative government policy on population is the Population and Reproductive Health Policy.418 In the policy, the government recognizes that despite declining fertility rates, Sri Lanka persists as “one of the most densely
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populated countries in the world.”419 The policy aims to “maintain current declining trends in fertility so as to achieve a stable population size at least by the middle of the 21st century.”420 To achieve this goal, the policy outlines several strategies relating to the provision of family planning. (See “Family Planning” for information on specific strategies.) Current government policy on population favors a twochild family.421 Noncompliance is not punished.422 Implementing agencies The population division of the Ministry of Health is the main governmental body charged with formulation of population policies.423 This division serves as the secretariat to the National Coordinating Council on Population, chaired by the secretary of the Ministry of Health, which facilitates the coordination and monitoring of the population and reproductive health program.424 Pursuant to the Thirteenth Amendment to the constitution, the provinces have responsibility for implementation of population activities. Although national policies provide guidance and direction to the provinces, the provincial councils may develop and enact their own statutes and plans for the implementation of population-related activities.425 Both the central and provincial governments provide funding for population programs.426 International donors are also important sources of funding in this area. UNFPA is the main international donor.427 The World Health Organization,World Bank and United Nations Children’s Fund (UNICEF) also fund various population activities, including those relating to maternal and child health care, cancer control, HIV/AIDS, and reproductive health.428 The Population Division of the Ministry of Health conducts, and has commissioned, policy- and program-oriented research on population and reproductive health issues.429 Population-related research topics include aging, female migrant workers and violence against women.430
III. Legal Status of Women Women’s health and reproductive rights cannot be fully understood without taking into account the legal and social status of women. Laws relating to women’s legal status not only reflect societal attitudes that shape the landscape of reproductive rights, they directly impact women’s ability to exercise these rights. Issues such as the respect and dignity a woman commands within marriage,her ability to own property and earn an independent income, her level of education,
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and her vulnerability to violence affect a woman’s ability to make decisions about her reproductive health-care needs and to access the appropriate services. The following section details the nature of women’s legal status in Sri Lanka.
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rights within the family; right to education and training; ■ right to economic activity and benefits; ■ right to health care and nutrition; ■ right to protection from social discrimination; and A. RIGHTS TO GENDER EQUALITY AND ■ right to protection form gender-based violence. (See NONDISCRIMINATION “Reproductive Health Laws and Policies” and “EcoThe constitution guarantees the rights to equality, equal pronomic and Social Rights” for specific strategies.) tection of the law,and nondiscrimination on grounds of race, The charter provides for the establishment of a 15-memreligion, language, caste, sex, political opinion, or place of ber National Committee on Women to monitor progress and birth, and grants them the status of fundamental rights.431 achievement of the charter’s objectives.436 Among other The constitution also authorizes the state to make “special functions,the committee is charged with receiving and referprovisions … by law, subordinate legislation or executive ring complaints of gender discrimination from the public to action” for the advancement of women, children or “disabled the relevant governmental or non-governmental organizagroups.”432 The constitution’s Directive Principles of State tions for redress, legal aid or mediaPolicy enjoin the state “[to] ensure tion.437 In May 1999, the committee equality of opportunity to citizens,so established a Center for Gender that no citizen shall suffer any disabilRELEVANT LAWS AND POLICIES Complaints. The Committee is also ity on the grounds of … sex.”433 • National Plan of Action for Women, authorized to require annual progress In addition to the constitution, a 2002–2007 reports from relevant governmental number of laws contain provisions • Women’s Charter, 1993 authorities, though it has never exerpromoting greater gender equality in • Citizenship Act, 1948; amended in cised this power. The committee is matters of inheritance, employment, 2003 currently drafting a law on women’s marriage, and citizenship.434 rights to replace the Women’s CharFormal institutions and policies ter.438 Legislation is being prepared to convert the commitThe Ministry of Women’s Affairs, statutory bodies created tee to a National Commission on Women, a statutory body within the ministry,the Women’s Bureau of Sri Lanka,and the with much broader proposed powers. National Committee on Women are the main institutional B. CITIZENSHIP mechanisms charged with implementation of policies and 435 The 1948 Citizenship Act is the primary central legislation on programs for the promotion of gender equality. There are also specific national policies for the advancecitizenship. The act was amended in 2003 to allow both parment of women’s rights. The National Plan of Action for ents to confer citizenship upon their children. Prior to the Women aims to implement the goals of the Beijing Declaraamendment,only a father could pass Sri Lankan citizenship to tion and Platform for Action. The plan identifies a number of his children.439 The amendment has retroactive effect, granting the right to Sri Lankan citizenship to all children born issues of concern with regard to women’s rights and sets forth after November 15, 1948, even if only the mother is a citizen goals, strategies and activities to advance its objectives within of Sri Lanka.440 the time frame of 2002–2007. It addresses issues including Changes to regulations under the act have also been access to education, health care and related issues, and viorecently approved by the Cabinet of Ministers; these changes lence against women. (See “Reproductive Health Laws and permit foreign spouses of Sri Lankan women to obtain citiPolicies”, “Education”and “Focusing on the Rights of a Spezenship on the same basis as foreign spouses of Sri Lankan cial Group:Adolescents”for specific goals,strategies and activmen. Previously, foreign spouses of male citizens of Sri Lanities.) ka were able to obtain citizenship after meeting a one-year The Women’s Charter calls for gender equality and freeprerequisite of residency in the country, while the citizenship dom from gender discrimination in recognition of Sri Lanka’s or visa applications of foreign nationals married to female citobligations under its own constitution and international izens of Sri Lanka were considered on a case-by-case basis.441 human rights law, notably CEDAW, although it has no enforcement mechanism. It enjoins the state to take certain C. RIGHTS WITHIN MARRIAGE measures to ensure women’s rights within seven broad areas: The body of law relating to marriage consists of the general ■ political and civil rights; law, customary law and personal law. Tamils are governed by ■ ■
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the general law in most marriage-related matters, whereas as valid despite the fact that they are unregistered.457 Kandyan Sinhalese can choose to be governed by the generThe law recognizes a rebuttable presumption of maral law or their customary laws. Muslims are governed by riage by habit and repute. Thus, upon proof that a man and Muslim personal law. woman have cohabited as husband and wife, the law preMarriage laws sumes that they are living together in a valid marriage, The 1907 Marriage Registration Ordinance constitutes unless the contrary is proved.458 Courts have emphasized the general law on marriage in Sri Lanka. The ordinance that cohabitation does not conclusively prove the fact of applies to marriage between Tamils marriage, thus emphasizing the and between individuals of differing rebuttable nature of the presump442 ethic and religious communities. tion.459 RELEVANT LAWS AND POLICIES Kandyan Sinhalese may choose to be Laws governing Kandyan Sinhalese • Marriage Registration Ordinance, governed by the general law or Persons subject to Kandyan law 1907; and Marriage Registration Kandyan law.443 The ordinance does may be married under the Marriage (Amendment) Act, 1995 not govern marriages contracted Registration Ordinance or the 1952 444 • Kandyan Marriage and Divorce Act, between Muslims. Kandyan Marriage and Divorce 1952; and Kandyan Marriage and Pursuant to a 1995 amendment to Act.460 Divorce (Amendment) Act, 1995 the ordinance, the minimum age of Pursuant to a 1995 amendment to • Muslim Marriage and Divorce Act, marriage was raised to 18 for both the Kandyan Marriage and Divorce 1951 men and women.445 A subsequent Act, the minimum age of marriage • Civil Procedure Code, 1889 provision, however, authorizes parwas raised to 18 for both sexes.461 • Maintenance Act, 1999 ents to consent to a marriage involvMarriages in violation of this age 446 • Adoption of Children Ordinance, If a parent ing a minor. requirement are void unless the parties 1941; amended in 1992 unreasonably withholds consent, a cohabit as husband and wife for one 447 court may authorize the marriage. year after attaining the legal age, or if a UP AND COMING LEGISLATION: Courts have held, however, that a child is born within marriage before • Matrimonial Causes Act parent’s refusal to give consent will either party has attained the legal only be overruled if the court is satisage.462 The act prohibits marriage fied that the refusal is without cause and contrary to the interbetween certain closely related individuals.463 It renders a 448 est of the minor. second marriage invalid if the first is not legally dissolved.464 Despite the requirement of parental consent for a minor As opposed to the general law’s lack of a registration requireto marry, the ordinance provides that lack of proof of such ment, registration is a crucial aspect of the act.465 consent does not render invalid marriages registered under The consequences flowing from a Kandyan marriage 449 This exception does not apply to custhe ordinance. depend on whether the marriage is contracted in diga or bintomary marriages because such marriages would not have na. In a diga marriage, which derives from a patriarchal sys450 However, courts satisfied the registration requirement. tem,the bridegroom brings his bride to his own house or that have held in cases of unregistered marriages as well that of his parents,and she becomes a member of his family for the want of consent would not invalidate such a marriage after duration of the marriage.466 In a binna marriage, which is 451 it had been consummated. perhaps older in origin and derives from a matriarchal system, The ordinance renders marriage between two individuals the husband is brought to the house of his wife or her fami452 Marriage or within prohibited degrees of kinship void. ly.467 Whether the marriage is binna or diga depends on the cohabitation between such parties is punishable with imprisintention of the parties. A marriage is presumed to be diga if 453 onment. Provisions in the penal code regarding incest furthere is no evidence as to its character.468 ther enhance the penalty for such marriages.454 The act specifies that a valid Kandyan marriage renders 455 The ordinance prohibits polygamy. legitimate any children born to the parties prior to such a Registration of marriages is not mandatory under the marriage.469 This means that any premarital offspring are ordinance. An entry made in the marriage register is simply automatically legitimized if the parents subsequently enter 456 Thus, customary the “best evidence” of the marriage. into a valid Kandyan marriage. Children so legitimized are marriages, including those solemnized according to Hindu, entitled to the same rights as those born subsequent to a Buddhist and Christian rites and rituals, have been accepted marriage.470
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Laws governing Muslims The Muslim Marriage and Divorce Act governs marriage between Muslim parties. The act specifies some requirements for a valid marriage; those requirements left unspecified are governed by the law of the sect to which the parties belong.471 The act does not specify a minimum age for valid marriage. However, where a marriage involves a girl below age 12, the act requires consent of the Quazi (similar to a judicial officer, though legal training is not required) to register the marriage.472 Also,under Islamic law,a minor girl has the right to repudiate the marriage upon attaining puberty.473 Although courts have recognized this right, the issue of whether it is an unconditional right or available only when the marriage can be proved to be against the child’s interest remains open to debate.474 Furthermore, under the penal code, sexual intercourse with one’s wife who is under age 12 constitutes rape, though this provision has not been consistently applied by the courts.475 In Muslim law,prohibited relationships in marriage include affinity,consanguinity and fosterage (i.e.,if a woman has suckled another’s child, that child cannot contract a marriage with the woman or her natural children).476 The Muslim Marriage and Divorce Act requires the consent of a wali (guardian) to the marriage for women of the Shafi sect, though the Quazi may dispense with the consent requirement if it is unreasonably withheld.477 The act also requires that the wali communicate the bride’s consent to the marriage to the Quazi, though it does not provide for a mechanism to actually manifest such consent.478 A woman of the Hanafi sect is permitted to enter into a marriage contract on her own, as she is freed from guardianship upon attaining puberty.479 Polygamy is permitted under the Muslim Marriage and Divorce Act. The act imposes an obligation on the husband to give notice to the Quazi of his intention to contract a subsequent marriage.480 Courts have stressed that co-wives must receive equal treatment in relation to material goods, though the Quazi have no duty to determine the actual ability of the husband to provide for his wives equally and justly.481 In an attempt to curb the practice of non-Muslim males converting to Islam merely to circumvent stringent divorce laws under the general law, a 1998 landmark Supreme Court decision held that a second marriage upon such conversion would be void, unless the first marriage was legally dissolved.482 Non-registration of a marriage does not affect validity under the Muslim Marriage and Divorce Act.483 However, the act does impose a duty to register a marriage on specified persons, the failure of which constitutes an offense.484
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Laws governing Tamils The Marriage Registration Ordinance governs marriage among Tamils. Divorce laws The Marriage Registration Ordinance and the Civil Procedure Code constitute the general law on divorce.485 The provisions of the ordinance firmly establish divorce as faultbased and case law has reaffirmed this concept. Grounds for divorce under the ordinance are the following: ■ adultery; ■ malicious desertion; and ■ incurable impotence at the time of marriage.486 Cruelty is not a ground for divorce, although it may be a factor in determining malicious desertion.487 Physical illtreatment per se is also not a ground for divorce under the general law, but it is a cause for legal separation.488 In cases of adultery,courts have required proof beyond reasonable doubt as the standard of proof;they also have required the specification of the date and place of the act.489 An aggrieved spouse may recover damages from the person with whom adultery is committed.490 Malicious desertion has been judicially defined as “the deliberate and unconscientious,definite and final repudiation of the obligations of the marriage state … and it clearly implies something in the nature of a wicked mind.”491 The intent to terminate the marital relationship and the actual termination of cohabitation are both necessary elements. The law also recognizes constructive desertion,whereby the innocent spouse is forced to leave because of the behavior of the other spouse. In addition to the grounds for divorce under the Marriage Registration Ordinance, the Civil Procedure Code permits either spouse to petition for dissolution of marriage two years from the date of a decree of judicial separation or, notwithstanding such decree,where there has been a separation a mensa et thoro (from bed and board) for seven years.492 However, courts have not been consistent in applying this provision,and the current law holds that separation alone is an insufficient ground for divorce.493 The general law on divorce as it stands is thus firmly fault based. However, the law is currently under scrutiny and a draft Matrimonial Causes Act, which explicitly introduces irretrievable breakdown of marriage as a new ground of divorce, is under consideration. Laws governing Kandyan Sinhalese The Kandyan Marriage and Divorce Act governs divorce among only those Kandyans married under the act. The act recognizes some differing grounds of divorce for men and women. Divorce may be sought on the following grounds:
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adultery by the wife; adultery by the husband, coupled with incest or gross cruelty; ■ continued and complete desertion for two years; ■ inability to live together, of which actual separation from bed and board for one year is the test; and ■ mutual consent.494 Under the act, an application for divorce is made to the district registrar, who may use discretion in granting or refusing to grant the divorce.495 The Marriage Registration Ordinance governs divorce between Kandyans who choose to be married under the general law. Laws governing Muslims Muslim personal law recognizes different grounds of divorce for the husband and the wife; spouses do not have equal rights to divorce. It also recognizes grounds for divorce on fault- and non-fault–based grounds. The rights and duties of the parties are determined according to the sect to which the person belongs.496 Divorce by the husband is known as talak. This is the “repudiation of the marital tie by the unilateral act of the husband,” by making a pronouncement that the marriage is dissolved.497 The husband may pronounce talak without following any prescribed judicial procedures.498 Furthermore, the pronouncement need not be made in the presence of or communicated to the wife.499 The board of Quazis and the Supreme Court share the view that pronouncement of talak need not be communicated to the wife.500 The Muslim Marriage and Divorce Act specifies the procedure in the event of divorce by the husband. These rules are comparable to the most progressive legislation on talak in the Muslim world.501 A significant feature of the procedure is the duty of the Quazi, who receives notice of the intention to pronounce talak, to attempt to reconcile the parties with the assistance of relatives and elders of the community.502 Divorce by the wife is known as fasah divorce in Muslim law, and although the term is not used in Sri Lanka, the Muslim Marriage and Divorce Act recognizes the right of the wife to divorce on the grounds identified with fasah divorce.503 The availability and scope of fasah divorce depends on the sect to which the parties belong.504 Maliki law, which applies to the Maliki sect, is the most liberal in this regard.505 The grounds available to the wife for fasah divorce include: ■ failure or inability of the husband to provide support; ■ malicious desertion; ■ cruelty and ill-treatment; ■ “continued dissension and quarrels”; ■ husband’s leprosy; ■ ■
husband’s insanity; and impotence.506 Divorce on the ground of ill-treatment includes mental ill-treatment as well as slanderous and false accusations of adultery.507 Courts have also noted that in assessing cruelty, factors such as social conditions and actual life circumstances will be considered.508 The most common grounds upon which fasah divorce is sought are failure to maintain and desertion.509 In fasah divorce, the Quazi must serve notice of the hearing for divorce on the husband.510 The wife’s evidence must be corroborated by at least two witnesses,the failure of which may be fatal to the case.511 Divorce is granted only after the maximum efforts at reconciliation have failed.512 Other forms of divorce under Muslim personal law include khula and mubarat. The former is initiated by the wife and generally involves a monetary payment by the wife to the husband for her release from the marriage; the return of the woman’s mahr is usually considered sufficient.513 The mubarat form of divorce is based on mutual consent and does not require such payment to the husband. A woman who has been falsely accused of adultery by her husband has the right to a form of divorce called lian. However, if at a hearing the husband rescinds his statement, lian is no longer available.514 Laws governing Tamils The Marriage Registration Ordinance and the Civil Procedure Code apply to Tamils in matters of divorce.515 Judicial separation The Civil Procedure Code constitutes the general law on judicial separation.516 The code provides that either party may petition for separation “on any ground on which by the law applicable to Sri Lanka such separation may be granted.”517 Thus, Roman-Dutch law grounds for separation are applicable, the essential feature of which is proof that further cohabitation has become dangerous or intolerable due to unlawful conduct by the defendant.518 Laws governing Kandyan Sinhalese The Kandyan Marriage and Divorce Act does not include judicial separation as a matrimonial remedy. However, Kandyan Sinhalese married under the general law may seek judicial separation under the Civil Procedure Code. Laws governing Muslims The concept of judicial separation does not exist under Muslim law.519 Laws governing Tamils The Civil Procedure Code applies to Tamils in matters of judicial separation.520 ■ ■
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Maintenance and support laws The 1999 Maintenance Act is the general law on maintenance during marriage. Instituting proceedings under the act does not preclude a person from also initiating a civil action for maintenance,in which case common law principles of maintenance would apply.521 The act requires any spouse with sufficient means to maintain the other spouse, if such individual is unable to maintain him or herself.522 The law in place prior to the act imposed a duty of maintenance only on a husband.523 An order for maintenance will not be awarded if the applicant spouse is living in adultery or both spouses are living separately by mutual consent.524 This constitutes a departure from the common law, which provides that the obligation of support continues during a period of consensual separation.525 In cases where a wife is precluded from receiving an award for maintenance under the Maintenance Act, she may still bring a civil action to enforce her husband’s common law obligation of support for her personal necessaries.526 The Maintenance Act also imposes a duty on a parent to provide for the maintenance of all minor children, needy adult offspring (ages 18–25) and disabled offspring.527 The Civil Procedure Code recognizes the right of either spouse to enforce the other’s obligation of support while an action for divorce is pending.528 The primary objective of the action is to enable the spouse in need to live without hardship during the litigation, and proceed with the action.529 The applicant-spouse need only prove financial need and the other spouse’s ability to provide the required support.530 On the dissolution of marriage, courts have broad discretionary powers regarding maintenance awards under the Civil Procedure Code.531 A court may issue any order it thinks fit with regard to conveyances of property or monetary payments of maintenance for the benefit of either spouse.532 Laws governing Kandyan Sinhalese The Maintenance Act applies to Kandyans in matters of maintenance obligations during marriage.533 The Kandyan Marriage and Divorce Act includes provisions on maintenance in cases of divorce. The act provides that a district registrar, in granting the dissolution of a marriage, may order the husband to pay a certain amount of money or provide other support for the maintenance of his wife, children or both.534 The act does not stipulate what factors the registrar should take into account in making the award, although such factors generally include the husband’s ability to pay,the wife’s needs, the degree of fault attributed to each party,the duration of the marriage, and the couple’s standard of living.535 Laws governing Muslims The Muslim Marriage and Divorce Act provides that any
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claim for maintenance by or on behalf of a wife, legitimate child or illegitimate child (where both parents are Muslims) falls within the exclusive jurisdiction of the Quazi.536 The act does not specify the principles pertaining to maintenance; instead, it provides that the law of the sect to which the parties belong should apply.537 A Muslim woman’s right to maintenance during marriage is derived from the concept of nafaqa,which encompasses the provision of basic needs such as food, clothing and accommodation to the wife.538 In contrast to the Maintenance Act, the husband has the primary obligation of providing support and a wife’s own financial means are irrelevant in determining her claim for maintenance.539 Maintenance after divorce is not recognized under Muslim personal law. However, the Muslim Marriage and Divorce Act provides three situations in which a divorced wife may claim maintenance: ■ until registration of the divorce; ■ during iddat (the period of time that a divorced wife must remain unmarried); and ■ if such woman is pregnant at the time of registration of the divorce, until she delivers the child.540 Laws governing Tamils No data is available on maintenance and support laws governing Tamils. Custody and adoption laws The general law regarding custody in Sri Lanka has received little legislative attention. Those laws that do exist do not address the substantive rights of parents and deal primarily with the procedural aspects of custody cases.541 The principles of custody are thus governed by the residuary Roman-Dutch law. The predominant feature of the common law is the preferential custodial right given to the father,which may be denied only in instances of danger to the “life, health and morals” of the children.542 A mother who seeks custody therefore has the onus of displacing the father’s right.543 It should be noted that the general law principles of fault-based divorce have carried over into the area of custody, tipping the scale in favor of the innocent spouse.544 However, case law has reiterated that the paramount concern in determining custody is the child’s welfare.545 There is lack of guidance, statutory or otherwise, with regard to what criteria should be considered in determining the best interests of the child. Courts have in the past emphasized the “Asiatic” value system, giving primacy to maintaining family links over enhancing the mental health of the child.546 Recently, however,courts have also considered the child’s sense of security as a factor.547 The general law on adoption is the 1941 Adoption of
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Children Ordinance, which provides that adoption will only be permitted for the “welfare of the child.”548 The ordinance also takes into consideration the adoptee’s wishes according to the child’s age and level of understanding.549 The ordinance was amended in 1992 to put an end to the commercialization of adoption by intermediaries who facilitate the adoption of young Sri Lankan children by foreign parents from highincome countries.550 The amendments prohibit giving or receiving payments as consideration for an adoption,and provide that a child may be considered for adoption by a foreign family only if no local family is available to adopt the child.551 Laws governing Kandyan Sinhalese No data is available on custody and adoption laws governing Kandyan Sinhalese. Laws governing Muslims Under Muslim personal law, the mother has preferential custodial rights to minor children. The duration of this right differs among sects and is also affected by the gender and age of the child in question. Under Shafi law, a female child remains with the mother until she marries, whereas under Hanafi law, custody is with the mother only until the girl reaches puberty.552 Custody of male children in both Shafi and Hanafi sects is with the mother until the child reaches age seven.553 Under Shafi law, the boy may choose which parent to live with after age seven until puberty.554 Under Hanafi law, custody automatically passes to the father after the age of seven.555 Upon the mother’s death or a determination of her unsuitability, custody devolves to the maternal relatives.556 Despite a mother’s preferential custodial rights, a father’s guardianship rights include the rights to visit the child,supervise upbringing, act as a marriage guardian, and control and manage the child’s property.557 A mother may lose her preferential rights in special circumstances, which include the following events: ■ her marriage to a complete stranger to her child, unless the man she marries is related to the child within certain close degrees of kinship; ■ her misconduct, cruelty toward the child or both, which have been interpreted to include physical and moral harm; ■ her apostasy or conversion of faith; or ■ her change of residence, which prevents the father from supervising the children.558 Despite the jurisdiction of Quazi courts in the Muslim legal system, ordinary courts have exercised jurisdiction in custody matters. In this way, they have modified some principles of Muslim law on the basis of the “welfare of the child” standard derived from the general law.559 The Supreme Court
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has held that although it would consider preferential rights in customary laws, such rights are not conclusive in custody determinations.560 In departing from Muslim law,courts have recognized exceptions, based on the welfare of the child, to the principle that the mother loses custody upon remarriage to a nonrelative of the child.561 These exceptions are: ■ where it is in the interests of the child that he or she remain with the mother; ■ where remarriage was motivated by the security and comfort of the minor; and ■ where the father does not claim the child after the woman’s second marriage. Laws governing Tamils No data is available on custody and adoption laws governing Tamils. D. ECONOMIC AND SOCIAL RIGHTS
Property laws Roman-Dutch law forms the bedrock of the general law on property in Sri Lanka. The 1923 Married Women’s Property Ordinance constitutes the general law on matrimonial property rights. Under the ordinance, a married woman is capable of holding, acquiring and disposing of any movable or immovable property or of contracting as if she were a femme sole, without the consent or intervention of her husband.562 This applies to all property belonging to her at the time of marriage and property acquired or devolved to her after marriage.563 She also has the same remedies and redress by way of criminal proceedings for the protection and security of her separate property.564 The 1876 Matrimonial Rights and Inheritance Ordinance constitutes the general law on inheritance rights. The ordinance provides for equal rights to inheritance for male and female spouses:upon the death of either spouse,the surviving spouse inherits half of the deceased spouse’s property.565 The extent of the general law’s application has been limited by legislation,judicial decisions and the system of customary laws that are operative in the island. The matrimonial property and inheritance rights of Kandyan Sinhalese and Tamils are governed by their own systems. Muslims are governed by Muslim personal law. Laws governing Kandyan Sinhalese The 1938 Kandyan Law Ordinance as amended, commonly known as the Kandyan Law Declaration and Amendment Ordinance, applies to Kandyan Sinhalese in property matters.566 Women do not have equal intestate rights with men under Kandyan law.567 Under the ordinance,legitimate sons and daughters inherit their parents’ property in equal shares, although a daughter
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husband cannot donate the wife’s share of thediatheddam under who marries in diga after the death of her father must transfer any circumstances, he may sell or mortgage it for consideraany immovable property she inherited from him to her tion.582 If either spouse dies intestate, the surviving spouse’s brothers or binna-married sisters, upon their request for such 568 share of thediatheddam remains his or her property.583 Under property. (See “Marriage laws”for information on diga and binna forms of marriage.) an amendment to the ordinance, half of the deceased’s share Laws governing Muslims devolves to the surviving spouse, resulting in ownership of Under Muslim law, women are capable of independently three-fourths of thediatheddam by the surviving spouse.584 The 569 other half of the deceased’s share devolves to his or her heirs. acquiring, holding and dealing with property. The 1931 Muslim Intestate SucThe ordinance provides that cession Ordinance applies to MusTesawalamai law ceases to apply to lims in inheritance matters. The a Tamil woman during the course RELEVANT LAWS AND POLICIES ordinance provides that the applicaof her marriage to a foreign man, • Married Women’s Property ble law is that of the sect to which the but the law applies to both husOrdinance, 1923 party belongs.570 With respect to band and wife in cases of marriage • Matrimonial Rights and Inheritance almost all sects, female heirs inherit a between a Tamil man and a foreign Ordinance, 1876 lesser share than male heirs of the woman.585 • Kandyan Law Declaration and Rights to agricultural land same degree of relationship to the Amendment Ordinance, 1938 The 1935 Land Development decedent.571 A widow inherits half • Muslim Intestate Succession the portion that a widower would Ordinance as amended provides for Ordinance, 1931 inherit.572 The mother of a decedent the distribution of land to landless • Matrimonial Rights and Inheritance is entitled to half of the share of the farmers and enables such farmers to (Jaffna) Ordinance, 1911 573 Although father of the decedent. ultimately acquire absolute title to • Land Development Ordinance, 1935 daughters are not excluded from land initially granted to them under 586 inheritance, their rights are diminished when sons are also a permit. The ordinance entitles the surviving spouse of a deceased present to inherit the property.574 Laws governing Tamils permit holder to succeed to the alienated land and possess it The 1911 Matrimonial Rights and Inheritance (Jaffna) under the terms and conditions of the permit.587 The surviv575 ing spouse has this right even if she or he has not been nomOrdinance applies to Tamils in property matters. Under the ordinance, movable or immovable property a inated by the original permit-holder to be the successor, woman acquires during or before marriage remains her provided that she or he does not remarry.588 Upon the 576 remarriage of a spouse who was not nominated as the successeparate property after marriage. A woman has the power to deal with her movable property during her lifetime sor, the land devolves to the person who was nominated by without the consent of her husband. However, a married the deceased or, if no person has been nominated, according woman may deal with or dispose of any immovable propto the third schedule of the ordinance.589 The third schedule of the ordinance, which lists the order of inheritance, gives erty to which she is entitled at the time of marriage or precedence to the male heir over the corresponding female acquires as her separate estate during marriage only with heir.590 the written consent of her husband, except in the case of 577 The ordinance provides several instances Draft amendments to discriminatory provisions in the last wills. where such consent could be waived, including: Land Development Ordinance are currently being con■ where the wife has been deserted by her husband; sidered.591 ■ consent is withheld unreasonably; or Women’s exclusive property ■ it is in the interests of the wife, her children or both No data is available on laws governing women’s exclusive to waive consent.578 property in Sri Lanka. Property acquired by either spouse during marriage using Labor and employment the couple’s shared funds or estate is called thediatheddam.579 Women’s labor force participation rate is 35.9%,nearly half The underlying concept of thediatheddam is that both spouses the rate for men.592 However, women’s employment rates are increasing.593 are equally entitled to the property from the moment of The manufacturing and service sectors are the largest source acquisition.580 An undivided half-share of thediatheddam vests 581 Although a automatically in the non-acquiring spouse. of female employment.594 About 70% of workers in factories
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overall are women, mostly in semiskilled and unskilled posiThe Maternity Benefits Ordinance allows for employers tions; moreover, some 90% of garment factory workers are in the estate sector to arrange for the provision of “alternative women.595 More than a quarter of female workers are maternity benefits” to their female workers.607 Women who employed in the informal sector as casual laborers,agriculturrefuse to accept the alternative benefits are not entitled to al workers and workers in home-based industries.596 Women receive the standard benefits provided under the ordinance.608 Studies have revealed varying degrees of compliance with also constitute 60% of Sri Lankans who obtain employment provisions on maternity benefits, with some showing signifiabroad, where the demand for Sri Lankan labor is largely for cant noncompliance.609 However,the government maintains unskilled workers, particularly domestic workers.597 The constitution guarantees the right of every citizen to that labor inspections have failed to reveal noncompliance and engage individually or in association in “any lawful occupathat it has not received complaints from any person.610 Certain labor legislation excludes or restricts women from tion, profession, trade, business or enterprise.”598 Other related constitutionally protected rights include those to freedom some types of employment. Under the 1937 Mines (Prohiof association and freedom to form and join a trade union.599 bition of Female Labour Underground) Ordinance, women There are various laws that provide are excluded from working in underfor paid maternity leave and other ground mines, with some excepThe 1942 Factories maternity benefits to female employtions.611 RELEVANT LAWS AND POLICIES Ordinance was recently amended to ees. The Establishments Code stipulates • Establishments Code increase the number of overtime conditions of maternity leave for • Shop and Office Employees 600 hours women and young persons employees in the public sector. Pur(Regulation of Employment and suant to government regulations passed may work; however, such employRemuneration) Act, 1957 in 1992 and amended in 1997, publicment may be prohibited or restricted • Maternity Benefits Ordinance,1939 sector female employees are entitled to “if it appears that such overtime • Mines (Prohibition of Female a 12-week maternity leave irrespective Labour Underground) Ordinance,1937 employment will prejudicially affect • Factories Ordinance, 1942; and of marital status, cause of pregnancy or the health of such women or young Factories (Amendment) Act, 2002 duration of employment.601 Maternity person.”612 Until amendments were • Employment of Women,Young benefits include two daily half-hour made in 1984 to the 1956 EmployPersons and Children Act, 1956; nursing breaks for a six-month period. ment of Women,Young Persons and and Employment of Women,Young Maternity leave is available for permaChildren Act and the Shop and Persons and Children, the nent, seasonal and part-time female Office Employees (Regulation of Factories and the Shop and Office workers in the public sector. Employment and Remuneration) Employees (Regulation of Two separate laws govern maternity Act, women were prohibited from Employment and Remuneration) benefits for female workers in the priworking at night, subject to certain (Amendment) Act, 1984 vate sector. The 1957 Shop and Office exceptions.613 Under the amended acts, the prohibition was lifted.614 • Women’s Charter, 1993 Employees (Regulation of EmployThe Women’s Charter calls for ment and Remuneration) Act applies women’s equality in employmentto workers in shops and offices and perrelated matters, both in the formal and informal sectors. The mits a 12-week maternity leave for the first two pregnancies 602 charter enjoins the state to take “appropriate measures” to and a six-week leave for subsequent pregnancies. The 1939 Maternity Benefits Ordinance provides for similar leave, but ensure women’s equal rights to: ■ economic activities for financial benefits; applies to female workers in any “trade,”excluding employees ■ opportunities in employment in the public, private covered under the Shop and Office Employees (Regulation and informal sectors at all levels of employment of Employment and Remuneration) Act and “those whose without gender-based discrimination in recruitment, employment is of a casual nature.”603 The ordinance also provides for nursing breaks and the establishment of crèches for placement, promotions, conditions of service, and job female workers with children under age five.604 Both laws security; ■ remuneration, including benefits; prohibit employers from terminating their female employees ■ treatment with respect to the value of their work and on the basis of pregnancy, confinement or any related illin evaluating the quality of their work; ness.605 Employers may also not give notice of termination to 606 ■ social security, particularly in cases of retirement, a woman while she is on maternity leave.
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granting credit to women. According to such institutions, unemployment, sickness, old age, and other incapacigender is not a criterion for granting loans and women are ty to work; ■ leave and re-entry after a period of leave for child not barred from existing credit schemes.619 However,women care and fulfillment of family obligations or any other often lack the collateral, namely land title, for obtaining credreasons recognized by law; it because of land alienation policies that favor male heads of ■ protection of health and safety in working conditions households.620 In the case of married women governed by devoid of all health hazards,including the provision of Tesawalamai law, banks sometimes require spousal consent safe and protective equipment in workplaces;and before granting credit.621 ■ access to a healthy working environment,including safe In order to promote women’s rights to economic activity drinking water,adequate sanitary facilities,and basic and benefits, the Women’s Charter enjoins the state to: ■ ensure equal access to resources such as agricultural medical and welfare facilities.615 The charter also recognizes the problem of employment credit and loans, other forms of credit, marketing discrimination against women based on marriage or maternifacilities, and extension services; and ■ eliminate discrimination against women in other ty. It calls upon the state to ensure women’s de facto right to areas of economic and social life to ensure the same work through the following measures: ■ ensure that the granting and rights to women and men, in particuenjoyment of maternity lar the right to bank loans, mortgages RELEVANT LAWS AND POLICIES leave and benefits is considand other forms of financial credit.622 • Women’s Charter, 1993 As part of a national povertyered a fulfillment of parental • National Plan of Action for Women, reduction program known as Samurdand community responsibili2002–2007 hi, microcredit and other financial ty; ■ work toward the granting of services are provided to low-income parental leave; individuals through Samurdhi Banking Societies.623 By the ■ encourage and implement legal provisions on materend of 2001, 970 such societies had been set up in 278 divinity leave with pay or comparable social benefits withsional secretariat divisions.624 Women make up a large number of the beneficiaries of this program.625 out loss of existing or current employment, seniority Education or social allowances; ■ make provisions for breast-feeding; The overall literacy rate in Sri Lanka is almost 92%.626 Lit■ prohibit and impose sanctions for dismissal on the eracy rates by gender in 1996 were about 89% among grounds of marriage, pregnancy or maternity leave, women, compared with about 94% among men, with little and discrimination in dismissals based on marital stavariation by residence in the urban or rural sector.627 However, the literacy rate among women in the estate sector was tus; ■ encourage and implement legal provisions on necessignificantly lower, at about 67%.628 Only 7% of women and sary supporting social services to enable parents to 6% of men have received at least 12 years of schooling, and combine family obligations with work responsibiliabout 10% of women and 6% of men have not received any ties and participation in public life, in particular schooling.629 Although the fundamental rights guaranteed in the conthrough promoting the establishment and developstitution do not include a right to education,state policy since ment of a network of child care facilities; ■ ensure whenever possible that both spouses are enti1945 has been to provide free primary,secondary and univertled to work in the same geographical location; and sity education to all citizens.630 According to the constitu■ prohibit the employment of women during pregnantion’s Directive Principles of State Policy, “the complete cy in types of work proven to be harmful to them eradication of illiteracy and the assurance to all persons of the and the unborn child.616 right to universal and equal access to education at all levels” The charter also calls for a minimum age for employment are among the objectives of a “democratic socialist society,” of 15 years and protections for migrant and industrial workwhich the government pledges to establish.631 The Women’s Charter enjoins the government to take ers.617 It also enjoins the state to ensure that employers direct618 ly pay a woman her salary and other benefits. measures to ensure males and females equal access to the folAccess to credit lowing: ■ the same educational opportunities in pre-schools There are no laws that prohibit financial institutions from
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and primary, secondary, tertiary, technical, vocational and professional education, including co-educational, non-formal and continuing education, and training and extension programs; ■ 10 years of compulsory education; ■ the same opportunities to benefit from scholarships and study grants; ■ the same curricula, examinations and, certification procedures; ■ teaching staff with qualifications of the same standard and facilities in schools and training programs; ■ equipment of the same quality; ■ the same opportunities to participate actively in physical and aesthetic education; and ■ career and vocational guidance and counseling programs.632 The charter also addresses the need to eliminate gender stereotyping in educational material.633 The National Plan of Action for Women also identifies several objectives relating to women and education. They include the following: ■ equal access to all technical and, vocational, training programs and to skills in demand in the labor market; ■ equal access to early childhood centers for parents who need such services; and ■ reduction in female illiteracy countrywide and its elimination among the population below age 65.634 E. RIGHT TO PHYSICAL INTEGRITY
Incidents of violence against women have been on the rise over the past few years throughout the country, although there is a lack of systematic data collection in this area.635 According to reports of incidents of violence against women in the conflict areas of the north and east, women and young girls have been raped by government security forces at checkpoints in several instances.636 During the first half of 2001,the police reported a total of 36 rape cases,five of which involved security personnel.637 Widespread protests took place in response to the gang rape of a 28-year-old Tamil woman in Colombo by police and army personnel at a security checkpoint. Another gang rape involved two women who were arrested and raped repeatedly by naval and police personnel in Mannar.638 Rape Amendments to the penal code in 1995 radically changed provisions relating to rape and other forms of gender-based violence. As amended, the code defines rape as sexual intercourse between a man and woman under several specified circumstances; penetration is sufficient to constitute an act of
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sexual intercourse.639 Sexual intercourse is considered rape when it occurs in the following circumstances: ■ without the woman’s consent, where such woman is the man’s wife and she is judicially separated from him; ■ with the woman’s consent, while she was in lawful or unlawful detention or when her consent was obtained by use of force or intimidation, by threat of detention or by putting her in fear of death or hurt; ■ with the woman’s consent, where her consent was obtained when she was of unsound mind or in a state of intoxication induced by alcohol or drugs administered to her by the man or some other person; ■ with the woman’s consent, where the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is, or believes herself to be, lawfully married; or ■ with or without the woman’s consent when she is under age 16, unless she is the man’s wife, is not judicially separated from him, and is over age 12.640 For a man to be accused of raping his wife,the couple must be judicially separated by court order. Living separately as a result of a breakdown in the marriage does not constitute the necessary separation. Where the spouses cohabit,the husband may not be accused of rape.641 The exception to statutory rape when the girl is the man’s wife, above the age of 12 and not judicially separated from him was designed to cater to the views of a strong Muslim lobby at the time the 1995 amendments were introduced. Muslim law does not recognize a minimum age of marriage and the Muslim lobby was concerned that the statutory rape provision would preclude Muslim marriages where the girl was under the age of 16.642 Except in cases of statutory rape, the prosecution has the burden of proving beyond a reasonable doubt both the act of nonconsensual sexual intercourse and the defendant’s intent to commit the act with knowledge of, or reckless or willful blindness to, the woman’s lack of consent.643 Physical evidence of struggle or resistance is not essential to prove that sexual intercourse took place without consent.644 In addition to imprisonment and a fine as punishment for rape, those convicted must also pay compensation of an amount determined by the court to the victim.645 The code enhances punishment for custodial rape; rape involving a woman who is pregnant, under age 18, or mentally or physically disabled; gang rape; and rape of a woman under age 16 who is too closely related to the man (i.e., her relationship to him is within the prohibited degrees of kinship).646
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Incest range of interpersonal relationships.658 The relationships The penal code criminalizes incest,defined as an act of sexencompassed by the draft law, which offers broad remedies, ual intercourse between persons who are related within cerinclude those between husband and wife, same- sex and tain degrees.647 Sexual intercourse is prohibited between unmarried persons, former spouses, parent and child, and parents/grandparents and their children; brothers and sisters; extended family members living in the same household or aunts/uncles and nieces/nephews; sharing the same residence. Houseand some in-laws.648 Punishment hold workers are not included. ranges from imprisonment of 7 to 20 The draft law provides for broad RELEVANT LAWS AND POLICIES years and a fine.649 Attempted incest remedies such as interim and perma• Penal Code, 1883; and Penal Code is punishable with up to two years’ nent protection orders; emergency (Amendment) Act, 1995 imprisonment.650 monetary relief and compensation; • Marriage Registration Ordinance, 1907 Cases of incest may also be proseand an order of arrest where the pro• Prohibition of Ragging and other Forms cuted under the Marriage Registratection order is breached by the of Violence in Educational Institutions tion Ordinance, which criminalizes abuser.659 A magistrate may not refuse Act, 1998 marriage or cohabitation between to issue a protection order on the basis • Women’s Charter, 1993 parties within certain prohibited that only a single threat or act of vio651 degrees of relationship. However, lence has been committed.660 UP AND COMING LEGISLATION: attempts for prosecution under the An important feature of the draft • Law on Domestic Violence ordinance have not been successful. law requires the inspector general of In Dole v. Romanis Appu, a man was police to publish an annual domestic 661 charged with incest with his 15-year-old daughter, who gave violence report. The draft law specifically allows courts birth to a child as a result of the relationship.652 On appeal of to use international and comparative law in interpreting its the defendant’s conviction by the magistrate judge, the provisions.662 Supreme Court found that the victim’s evidence had not Sexual harassment been corroborated by any independent source and acquitted The penal code criminalizes sexual harassment, defined as 653 the defendant. The court likened the victim’s testimony to assault or the use of criminal force, words or actions to cause the “uncorroborated evidence of an accomplice.”654 A simi“sexual annoyance or harassment” to another person.663 The lar verdict was reached in Benedict Perera v. Siriwardena, where offense is punishable with imprisonment and a fine, and a a man was charged under the Marriage Registration Ordidefendant may additionally be ordered to pay compensation nance with incest with his stepsister’s 14-year-old daughter.655 to the victim. The burden of proof rests on the prosecution, Domestic violence which must prove its case beyond a reasonable doubt. There is no separate legislation on domestic violence. Sexual harassment may also be prosecuted under the 1998 However,acts of domestic violence may be prosecuted under Prohibition of Ragging and other Forms ofViolence in Eduprovisions of criminal and civil law. cational Institutions Act.664 Ragging that involves the sexual Under the penal code,provisions relating to murder,misharassment of a student or staff member at an educational carriage, hurt, wrongful confinement, assault, sexual harassinstitution is punishable with up to ten years’ imprisonment ment, rape or grave sexual abuse, and criminal intimidation and payment of compensation to the victim.665 Covered 656 may be invoked to prosecute acts of domestic violence. educational institutions include schools,universities,technical Under the civil law, a victim may bring an action for institutes, and pirivenas (places of instruction and teaching for injuria (loss of dignity) in district court. This is a personal ordained Buddhist priests and laymen).666 action to recover damages for medical expenses, loss of earnIn the private sector or in cases of employment in certain 657 ings and “pain and suffering,” among other things. A vicstatutory bodies, a woman who is compelled to leave her job tim may also seek an injunction against a perpetrator of because of sexual harassment may seek redress from a labor domestic violence. tribunal for constructive termination.667 The employer has A proposed draft law, modeled largely on the South the burden of disproving sexual harassment. A lower standard African DomesticViolence Act of 1998 and model legislation of proof of “a balance of probability” applies in cases involvproposed by the UN Special Rapporteur onViolence against ing labor law.668 Women,defines domestic violence broadly;its definition covCommercial sex work ers physical, sexual, psychological, and economic abuse in a The penal code prohibits the act of procuring a person of
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either gender and of any age to become a prostitute within Sri Lanka or in another country, regardless of whether such person’s consent has been obtained.669 Punishment for this offense is two to ten years’ imprisonment and a fine.670 The code also prohibits the acts of removing a person from Sri Lanka for purposes of prostitution, procuring a person for employment in a brothel, and detaining a person without consent in a brothel for purposes of sexual intercourse or sexual abuse.671 There are no specific government policies on commercial sex work.672 However,the Women’s Charter enjoins the government to take measures to eliminate all forms of exploitation of women and children, such as prostitution and trafficking.673 Sex-trafficking Sri Lanka is a country of origin for the traffic of women and children for the purposes of sexual exploitation.674 The law prohibits trafficking in persons. Pursuant to 1995 amendments to the penal code, it is a crime to buy or sell a person for money or other consideration, or promote, facilitate or induce the buying, selling or placing for adoption of a person for money or any other consideration; these crimes are punishable with 2 to 20 years’imprisonment and a fine.675 The government of Sri Lanka expects to ratify the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, the first subregional treaty addressing trafficking in persons, in the year 2004.676 Customary forms of violence The practice of female circumcision on newborns is fairly widespread among the Muslim community in Sri Lanka; the practice is not prohibited or regulated by law. A 1996 survey by the Muslim Women’s Research and Action Forum confirmed that female circumcision is practiced in all parts of the country.677 The practice involves a symbolic incision on the clitoris of the girl child on or before the 40th day after birth.678
IV. Focusing on the
Rights of a Special Group:Adolescents The reproductive rights of adolescents, particularly the girl child, are often neglected.Adolescents face many age-specific disadvantages that are not addressed through formal laws and policies. The ability of adolescents to access the health system, their rights within the family, their level of education, and their vulnerability to sexual violence together determine the state of their reproductive health and their overall well-being.
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The following section presents some of the factors that shape adolescents’ reproductive lives in Sri Lanka. A. REPRODUCTIVE HEALTH
Adolescents in Sri Lanka face several reproductive and sexual heath risks, including teenage pregnancies, illegal abortion, reproductive tract infections, and STIs.679 However, information on these issues is largely anecdotal and based on smallscale studies.680 Most adolescents, both married and unmarried, have information on the different methods of contraception and their benefits, and contraceptive use is relatively high among married adolescents.681 Prevalence rates are much lower among unmarried adolescents because of difficulties in obtaining contraception and cultural taboos.682 Births to women aged 15–24 accounted for about one-fourth of all live births in 2000; fertility rates among this age-group are lower today than they were a decade ago and are expected to continue to decline in the future.683 According to nationallevel data, most adolescent women who give birth receive prenatal care (95%) and deliver at a health-care facility with trained assistance (96%).684 The incidence of unwanted pregnancies among adolescents is low compared to international standards.685 However, studies show that many of those that occur among unmarried adolescents end in illegal abortion.686 Almost 1 in 5 women seeking abortion interviewed in two sample surveys were aged 15–24.687 According to national-level data, 70% of married adolescents aged 15–19 know about HIV/AIDS and other STIs,and can name at least one method of prevention.688 However, only 20% are aware of the symptoms of STIs.689 The constitution’s Directive Principles of State Policy enjoin the state to “promote with special care the interests of the children and youth,so as to ensure their full development, physical, mental, moral, religious and social, and to protect them from exploitation and discrimination.”690 There is no organized program to provide reproductive health information and services to adolescents.691 However, adolescent reproductive health concerns are incorporated into the country’s primary health policies,including the Population and Reproductive Health Policy, Six Year Development Programme on Family Health and National Health Policy. Policies specifically for the advancement of women, including the National Plan of Action for Women,also address adolescent reproductive health issues. One of the main goals of the Population and Reproductive Health Policy is to promote responsible behavior among adolescents and youth.692 By working toward this goal, the policy hopes to mitigate the effects of pressing
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“social problems” affecting young people such as adolescent One of the long-term objectives of the Six-Year Developpregnancies, STIs and HIV/AIDS, sexual harassment, child ment Programme on Family Health is “[t]o educate adolesprostitution, drug abuse, and suicide.693 Specific strategies to cents for responsible parenthood on reproductive health, safe achieve this goal include: motherhood, substance abuse and sexually transmitted dis■ ensure that adolescents receive adequate information eases.”700 Another objective is to improve the nutritional staon population, family life (including ethical human tus of adolescents, along with several vulnerable groups, behavior), sexuality, and drug abuse in school curricthrough nutrition education,community-based interventions ula at the appropriate levels; and supplementary feeding programs.701 ■ strengthen youth-worker education by including Adolescent health is also identified in the National Health information about drug abuse and sex related probPolicy as a priority area requiring special government attenlems at vocational training centers, institutions of tion.702 The National Plan of Action for Women identifies adoleshigher learning, work places, and other venues; and ■ encourage counseling on drug and substance abuse, cents’ poor knowledge of sexual and reproductive health as a human sexuality and psychosocial problems, especialroot cause of unwanted pregnancies. The plan’s goals with ly by NGOs, community-based organizations and respect to addressing this problem include: ■ eliminate unsafe abortions by legalizing abortion, the National Youth Services Council.694 The policy’s implementing especially in circumstances of rape, action plan specifically aims to incest, fetal abnormalities, and preginclude reproductive health infornancies to women who are below RELEVANT LAWS AND POLICIES mation in youth-worker education the statutory age of marriage; • Code of Criminal Procedure, 1979; ■ eliminate unwanted pregnancies programs. Specific target groups for and Code of Criminal Procedure and septic abortions; and counseling and rehabilitation pro(Amendment) Act, 1998 ■ make family planning services easgrams include out-of-school adoles• Children’s Charter ily available at the community levcents and youth.695 • National Plan of Action to Combat Raising awareness among adolesel.703 Trafficking of Children, 2002 Existing family and reproductive cents about reproductive health issues health services are targeted toward married couples; no prois also a strategy for achieving the Population and Reproducgram provides reproductive health information and services tive Health Policy’s goal of maintaining declining fertility to unmarried adolescents.704 trends and stabilizing the population by mid-century. The policy’s action plan proposes the following concrete actions to B. MARRIAGE implement this strategy: During the past century,women’s median age at marriage in ■ strengthen reproductive health education programs Sri Lanka increased by almost seven years.705 In 1987, 3.4% in schools; of ever-married women reported that they were under the ■ provide information and services to out-of-school age of 15 at the time of their first marriage; by 2000, the adolescents and youth; and proportion had dropped to 1.3%.706 Similarly, the propor■ provide information to youth in tertiary education tion of ever-married women who reported that they were and vocational training institutes.696 aged 15–19 at the time of their first marriage was 24.4% in The government has initiated several programs to imple1987 and 19.7% in 2000.707 ment the policy’s objectives. One specific program is aimed The legal age of marriage under the Marriage Registraat adolescents and youth as well as adult men and women of tion Ordinance,which constitutes the general law,is 18 years reproductive age. The program aims to integrate adolescent for both men and women.708 The ordinance requires health into the health delivery system, by providing counparental consent for the marriage of any person under 18 seling services for adolescents and youth on reproductive years of age.709 The courts, however, have discretion to subhealth and strengthening NGO capacity for service provistitute their consent for that of a parent if consent is unreasion.697 Specific activities include training 6,000 public-secsonably refused.710 There is no legal indication as to what tor health and estate staff in counseling adolescents in would constitute an unreasonable refusal, thus, courts have reproductive health.698 An output of the project has been discretion in interpreting the statute according to the cirthe development of a training manual for counseling adocumstances of each case. Courts have held that a parental lescents on reproductive health.699
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decision to withhold consent will only be overruled if the court is satisfied that the refusal is without cause and contrary to the interest of the minor.711 (See “Marriage laws” for more information on the general law on marriage.) Laws governing Kandyan Sinhalese The legal age of marriage under the Kandyan Marriage and Divorce Act is 18 years for both men and women.712 (See “Marriage laws” for more information.) Laws governing Muslims Muslim personal law does not specify a minimum age for marriage. In an effort to discourage child marriages,the Muslim Marriage and Divorce Act requires the consent of the Quazi for the registration of a marriage of a girl under the age of 12.713 However, a minor girl who marries has the right to repudiate her marriage upon attaining puberty.714 Although courts have recognized this right, the question of whether it is an unconditional right or available only where it can be proved that the marriage entered on the child’s behalf is not in her interest remains discretionary.715 (See “Marriage laws” for more information.) Laws governing Tamils The Marriage Registration Ordinance applies to marriage among Tamils and requires that both parties be at least 18 years of age. C. EDUCATION
Almost 90% of girls aged 5–14 were in school in 1994 (the last year in which such age-specific data was calculated),with virtually the same rate among boys.716 Among 15–19 year-olds, the participation rate falls dramatically to 55.3% among girls and 53.4% among boys.717 The Ministry of Education reports that among children entering first grade in 1995, 96.2% of girls and 96.7% of boys had reached fifth grade by 1999.718 However, fewer than 25% of children entering the school system eventually reach 12th grade.719 The proportion of female students in the school system has been growing. About half of all students in the school system were female in 1998,a slight increase from 1993 estimates.720 There have also been increases in the percentage of female students in estate schools (from 45% in the late 1980s to about 47% in 1996), and in the enrollment of boys and girls in preschool (from 20% for both sexes in the 1980s to 44% for girls and 42% for boys in 1994).721 Part of the rise in school enrollment rates is attributed to women’s increasing participation in the workforce and the need for child care outside the home.722 In 1998, the National Education Commission formulated educational reforms that make compulsory education a fundamental right for children aged 5–14. The reforms also call
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for a more equitable distribution of education facilities, improvements in the curriculum, and management reforms in educational institutions.723 While the primary motivation for these reforms was to protect the large number of child laborers who are not in school, the reforms also been conducive to increasing girls’ enrollment in schools.724 Adolescents have poor knowledge of sex and contraception, and they also widely lack information on reproductive health services.725 Surveys have revealed that adolescents also lack awareness of sexuality and STIs,including HIV/AIDS.726 Education programs on adolescent reproductive health are implemented through the Department of Education, the NationalYouth Services Council (established in 1979 to promote the participation of youth aged 15–29 in national development schemes), and NGOs working in the field, such the Family Planning Association of Sri Lanka.727 The Health Education Bureau conducts programs on reproductive health targeted at youth, school children and teachers, among other groups.728 The bureau has established 1,074 school health clubs with the support of UNICEF and in collaboration with regional health authorities.729 These clubs encourage young adults to discuss issues related to sexual behavior and expand their knowledge of reproductive health issues,including STI and HIV prevention,through lectures and seminars.730 The National Institute of Education launched a population and family life education project in 1993 with UNFPA funding to promote reproductive health education in schools. The program aims to include selected reproductive health components in school curricula in different grades.731 It also provides for a training program for teachers of social studies, science, health, and physical education was set up under this project in how to address newly emerging population and reproductive health issues in their classes. The teachers also receive practical and specialized training on how to counsel adolescents on issues related to reproductive health.732 In the NGO sector,the Family Planning Association of Sri Lanka has been in the forefront of reproductive health education.733 It provides educational programs on population and sexual health for school children and youth out of school, reaching about 100,000 annually.734 One of its projects— which has been implemented in 312 locations in 17 districts, including those in the north and east—provides communitybased sexual and reproductive health information and counseling to adolescents and youth,among other services. About 120,000 youth received services during the first phase of the project. In another project—the Peer Education Project— 600 youth leaders have been trained and mobilized to disseminate sexual and reproductive health information to their
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peers, who in turn educate about 30,000 adolescents and youth every year.735 The Reproductive Health Information, Counseling, and Services to Adolescents and Youth Project was implemented by seven NGOs: the Family Planning Association of Sri Lanka, Sarvodaya,World View Sri Lanka, the Sri Lanka Association for Voluntary Surgical Contraception, the Center for Development Studies,Vinivida Federation of Community Based Organizations, and the Society for the Prevention of Cancer and AIDS–Northern Province.736 These NGOs have been conducting programs to train peer counselors on reproductive health issues,with the objective of improving knowledge on reproductive health and sexuality, providing skills in sexual health–related communication, and fostering attitudes that support low-risk behaviors. D. SEXUAL OFFENSES AGAINST MINORS
Nearly 20% of boys and 10% of girls are sexually abused in their own homes and schools by parents, teachers or someone known to them.737 Of the child abuse cases reported to the government during January–May 2003, there were 100 sex abuse cases out of a total of 179 cases.738 According to international sources of data on Sri Lanka,there are nearly 40,000 child prostitutes in the country,and 5,000 to 30,000 Sri Lankan boys are used by Western pedophile sex tourists in Sri Lanka. Nearly 10,000 to 12,000 children from rural areas are trafficked and prostituted to pedophiles by organized crime groups.739 The penal code was amended in 1995 to criminalize several sexual abuses against children.740 The procurement of children for prostitution; sexual exploitation of children; indecent exhibition of children; publication of obscene photographs of children; trafficking of children; incest; and cruelty to children in one’s custody are offenses under the new amendment.741 An additional amendment to the code in 1998 enhances penalties for the exploitation of children.742 This amendment criminalizes the acts of procuring or causing any child to beg; hiring or employing children to act as procurers for sexual intercourse; and hiring or employing children for trafficking in restricted articles.743 The penal code criminalizes sexual intercourse with a girl is under the age of 16,regardless of consent,provided that she is not married to the man or judicially separated from him.744 Sexual intercourse with one’s wife is only considered rape if she is under the age of 12.745 Even though the Supreme Court chose to ignore this provision in an early case,the Muslim Law Research Committee, a group of NGO representatives that has recommended reforms to Muslim personal law, expressed the view that this provision of the code is the governing legal provision in Muslim marriages of girls under
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twelve years of age, meaning that sexual intercourse with a wife younger than 12 years of age is rape and can be prosecuted as such.746 The penal code provides that a person convicted of rape, gross sexual abuse or acts of gross indecency with a person under the age of 16 may be punished with a minimum prison term of 10 years. Monetary compensation for victims of sexual abuse, acts of gross indecency, rape, and gang rape are imposed by the court and vary according to the injuries caused to the victim of the offense. An amendment to the Code of Criminal Procedure in 1998 brought expanded the definition of “child abuse.”747 The amendment also introduces special provisions to deal with those arrested on suspicion of child abuse, and provides for a victim of abuse to be kept in a place of safety.748 The amendment also stipulates that courts must give priority to trials and appeals in cases of child abuse.749 The 1999 Evidence Act (Special Provisions) deals with evidentiary issues in cases involving children.750 Under the act, the unsworn testimony of a child is admissible evidence.751 The act also provides that a video-recorded interview with a child may be admitted as evidence in cases of child abuse.752 The government formed the National Child Protection Authority in 1998 to formulate a national policy on the prevention of child abuse and the protection and treatment of child abuse victims, and to coordinate and monitor action against all forms of abuse. The authority’s mandate includes: ■ advising the government on the formulation of national policy; ■ creating public awareness and providing information on child abuse to the public; ■ monitoring the implementation of laws and the monitoring of criminal proceedings relating to child abuse; ■ recommending legal and administrative reforms to implement national policies on child abuse; and ■ ensuring the protection and rehabilitation of child victims. The government has formulated a Children’s Charter and a National Plan of Action for the Children of Sri Lanka in an effort to protect children from abuse and neglect, child labor, trafficking, sexual exploitation, and other offenses.753 A National Monitoring Committee was established under the charter to monitor child rights. In 2002, the government formulated a national plan to combat the trafficking of children.754
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ENDNOTES 1. Kelly Coate,The Far East and Australsia 2001, at 1202 (32nd ed. 2001) [hereinafter Coate]; Federal Research Division, Library of Congress, Country Studies: Sri Lanka, ch. 1, Historical Settings (Russell R. Ross & Andrea Matles Savada eds., 1988), http://memory.loc.gov/frd/cs/lktoc.html (last visited Jan. 28, 2004)[hereinafter Library of Congress Country Studies, Sri Lanka]. 2. Coate, supra note 1. 3. Id. 4. Id. 5. Whitaker’s Almanack 1023 (2000). 6. Id. 7. Id. 8. Id. 9. Coate, supra note 1. See Library of Congress Country Studies, Sri Lanka, supra note 1. 10. Coate, supra note 1, at 1203. 11. Library of Congress Country Studies, Sri Lanka, supra note 1. 12. Coate, supra note 1, at 1203. See Library of Congress Country Studies, Sri Lanka, supra note 1. 13. Coate, supra note 1, at 1203. 14. Id. at 1203–1204. 15. Bureau of South Asian Affairs, Department of State of the United States of America, Background Notes: Sri Lanka (1995), http://dosfan.lib.uic.edu/ERC/bgnotes/sa/srilanka9501.html (last visited Jan. 28, 2004) [hereinafter Background Notes: Sri Lanka]. 16. Id. 17. Library of Congress Country Studies, Sri Lanka, supra note 1. 18. Coate, supra note 1, at 1204. 19. Id. Library of Congress Country Studies, Sri Lanka, supra note 1. 20. Library of Congress Country Studies, Sri Lanka, supra note 1, ch. 5, National Security. 21. Id. ch. 4, Government and Politics. 22. Whitaker’s Almanack, supra note 5. 23. Id. 24. Id. 25. Country profile: Sri Lanka, BBC News (Nov. 4, 2003), at http://news.bbc.co.uk/2/hi/south_asia/country_profiles/1168427.stm (last visited Jan. 28, 2004). 26. Publications Division, Department of Census and Statistics, Ministry of Interior, Government of Sri Lanka, Sri Lanka Statistical Data Sheet,Year 2002 (2002). See Whitaker’s Almanack, supra note 5, at 1022; see also Library of Congress Country Studies, Sri Lanka, supra note 1, ch. 2,The Society and Its Environment. 27. Whitaker’s Almanack, supra note 5, at 1022. 28. Time Almanac 2001 843 (Borgna Brunner ed., 2000); Central Intelligence Agency (CIA), U.S. Government, Sri Lanka, in The World Factbook (2003), http://www.cia.gov/cia/publications/factbook/geos/ce.html (last visited Feb. 23, 2004) [hereinafter The World Factbook]. 29. Id. 30. United Nations, List of Member States, http://www.un.org/Overview/unmember.html (last visited Jan. 28, 2004). 31. Library of Congress Country Studies, Sri Lanka, supra note 1, ch. 4, Government and Politics; Commonwealth Secretariat, Commonwealth Countries, at http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=20724 (last visited Jan. 28, 2004). 32. Sri Lanka Const., art. 2 (accessed on The Official Website of the Government of Sri Lanka, http://www.priu.gov.lk/Cons/1978Constitution/Introduction.htm). See also The Official Website of the Government of Sri Lanka, Provincial Councils, at http://www.priu.gov.lk/ProvCouncils/ProvicialCouncils.html (last visited Jan. 28, 2004). 33. Sri Lanka Const., Svasti. 34. Id. art. 30. 35. Interview with V.T.Thamilmaran, Senior Lecturer, Faculty of Law, University of Colombo (Oct. 25, 2003). See also Communication with Shyamala Gomez, University of Colombo, CRLP—L&P section (draft), at 5 (Nov. 21, 2003) (on file with Center for Reproductive Rights) [hereinafter, Communication with Shyamala Gomez, CRLP— L&P section (draft)]. 36. Sri Lanka Const., art. 43(3). 37. Id. art. 44(1)(a)–(b). 38. Id. art. 43(1)–(2). 39. Id. art. 33(a). 40. See Communication with Shyamala Gomez, CRLP—L&P section (draft), supra note 35, at 4. 41. Sri Lanka Const., art. 70. 42. Id. arts. 85(2), 86. 43. Id. arts. 33(e), 34. 44. Id. arts. 70(7), 76(2); Public Security Ordinance, No. 25, 1947, pt. 2, § 5 (Sri Lanka). 45. Sri Lanka Const., art. 155. 46. Id. arts. 30(2), 31(2). See also The World Factbook, supra note 28. 47. Sri Lanka Const., art. 35(1).
48. Id. art. 38(2). 49. Id. art. 38(2)(a). 50. Id. art. 37(1). 51. See The World Factbook, supra note 28. 52. See Communication with Shyamala Gomez, CRLP—L&P section (draft), supra note 35. 53. Sri Lanka Const., arts. 62, 99. See also The World Factbook, supra note 28. 54. Sri Lanka Const., art. 62(2). 55. Id. art. 70(1). 56. Id. art. 70(5). 57. Id. art. 73. 58. Id. art. 72(1). 59. Id. art. 80(1). 60. Id. art. 80(2). 61. Id. art. 80(3). See Communication with Shyamala Gomez, CRLP—L&P section (draft), supra note 35, at 6. 62. Sri Lanka Const., art. 75. 63. Id. art. 82(5). 64. See The Official Website of the Government of Sri Lanka, Sri Lanka in Brief, at http://www.priu.gov.lk/TourCountry/Indextc.html (last visited Jan. 29, 2004). 65. See The Official Website of the Government of Sri Lanka, Provincial Councils, supra note 32. 66. See id. 67. See id. 68. Sri Lanka Const., 9th sched., List 1. 69. Id. art. 154B(1)–(2), (5) 70. Id. art. 154F. 71. Id. art. 154F(4). 72. Id. 73. Id. art. 154F(5). 74. Id. art. 154B(8). 75. See The Official Website of the Government of Sri Lanka, Provincial Councils, supra note 32. 76. Sri Lanka Const., art. 154D. 77. Id. art. 154E. 78. See Communication with Shyamala Gomez, CRLP—L&P section (draft), supra note 35. 79. See The Official Website of the Government of Sri Lanka, Provincial Councils, supra note 32. 80. See id. 81. Sri Lanka Const., art. 105(3). 82. Id. art. 105. 83. Id. art. 105(2). 84. Id. art. 118. 85. See Consideration of Reports Submitted by States Parties under Article 18 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Initial reports of States parties, Sri Lanka, CEDAW Committee, 26th Sess., ¶ 13, U.N. Doc. CEDAW/C/LKA/3–4 (1999) [hereinafter CEDAW Committee, States parties initial reports, Sri Lanka]. 86. Sri Lanka Const., art. 120. 87. Id. art. 120(c)–(d). 88. Id. art. 120(a). 89. Id. art. 120. 90. Id. arts. 107(1), 119. 91. Id. art. 107(2), (5). 92. Id. art. 128. 93. Id. arts. 107(1)–(2), (5), 137. 94. Id. art. 111(2). 95. Id. arts. 111(2), 112(1). 96. Id. arts. 112(8)(a)–(b), 114(1), (6). 97. See Sri Lanka, in Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World 4 (Thomas H. Reynolds & Arturo A. Flores eds., 1994). 98. See Interview with Lalani Perera,Additional Secretary, Ethics Affairs and National Integration, Constitutional Affairs, Ministry of Justice (Nov. 12, 2003). 99. See Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 97. 100. Judicature Act, No. 2, 1978, §§ 32–36 (Sri Lanka). See Interview with Lalani Perera, supra note 98. 101. Judicature Act, No. 2, 1978, §§ 30, 58, 63 (Sri Lanka). 102. See Chulani Kodikara, Muslim Family Law in Sri Lanka: Theory, Practice and Issues of Concern to Women 115–124 (1999). 103. Muslim Marriage and Divorce Act, No. 13, 1951, §§ 12–15, 40–59 (Sri Lanka). 104. See Interview with Lalani Perera, supra note 98. 105. See National Secretariat for Non Governmental Organizations, Ministry of Social Welfare, Government of Sri Lanka, http://www.gov.lk/social/NSNGOraganisation.htm (last visited Jan. 290, 2004). Quazi courts are staffed by judges (Quazis) appointed by the Judicial Services Commission. Male Muslims of good character and position and suitable attainments are eligible for appointment as Quazis.
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106. See id. 107. Family Planning Association of Sri Lanka (FPASL), FPASL Overview, http://www.fpasl.net/overview.htm (last visited Jan. 29, 2004) [hereinafter FPAJL Overview]. 108. See International Planned Parenthood Federation, Country Profiles, Sri Lanka, http://ippfnet.ippf.org/pub/IPPF_Regions/IPPF_CountryProfile.asp?ISOCode=LK (last visited Jan. 29, 2004). 109. FPASL Overview, supra note 107. 110. See Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 97, at 1–3; see also Law & Religion Program, Emory Law School, Legal Profiles: Sri Lanka, http://www.law.emory.edu/IFL/index2.html (last visited Feb. 10, 2004). The authors of the website indicate that its contents are still under revision. 111. Sri Lanka Const., art. 12. 112. Id. arts. 10–11, 13–14. 113. Id. art. 15. 114. Id. arts. 27, 29. 115. Id. art. 27(6). 116. Id. art. 28. 117. See Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 97, at 3. 118. See id. at 5–6; see Library of Congress Country Studies, Sri Lanka, supra note 1, ch. 5,The Penal Code. 119. See Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 97, at 2. 120. See id. at 3. 121. L.J.M. Cooray,An Introduction to the Legal System of Sri Lanka 75 (2nd ed. Lake House, 1992) [hereinafter L.J.M. Cooray]. 122. E.g., Muslim Marriage and Divorce Act, No. 13, 1951, amended by Muslim Marriage and Divorce Law, No. 41, 1975 (Sri Lanka); e.g., Jaffna Matrimonial Rights and Inheritances Ordinance, No. 1, 1911 (Sri Lanka), amended by Jaffna Matrimonial Rights and Inheritances Ordinance, No. 58, 1947 (Sri Lanka). 123. See L.J.M. Cooray, supra note 121, at 112–113. 124. See id. 125. See Background Notes: Sri Lanka, supra note 15. 126. Kandyan Marriage and Divorce Act, No. 44, 1952 (Sri Lanka).The Kandy region is comprised of the Central, North-Central, Uva and Sabaragamuwa provinces of Sri Lanka. 127. See L.J.M. Cooray, supra note 121, at 117; see Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 97, at 3; see J. Mervyn Canaga Retna, J.P., Modern Legal Systems Cyclopedia,The Legal System of Sri Lanka, vol. 9, § 1.1, at 9A.20.8 (Kenneth Robert Redden & Linda L. Schlueter eds., 1990) [hereinafter Modern Legal Systems Cyclopedia]. 128. Narantakath v. Parakkat, 1922, 45 Madras 986 (Sri Lanka). See L.J.M. Cooray, supra note 121, at 137. 129. Muslim Marriage and Divorce Act, No. 13, 1951, §§ 12–15, 40–59 (Sri Lanka). 130 Tesawalamai Code Ordinance, No. 5, 1896, § 3 (Sri Lanka);Tharmalingam Chetty v. Arunasalam Chettiar, 1944, 45 NLR 414 (Sri Lanka). 131. Chetty v. Chetty, 1935, 37 NLR 253 (Sri Lanka); Marisal v. Savari, 1878, 1 SCC 9 (Sri Lanka). 132. See Foreign Law: Current Sources of Codes and Basic Legislation in Jurisdictions of the World, supra note 97, at 3; see Modern Legal Systems Cyclopedia, supra note 127. 133. See CEDAW, adopted Dec. 18, 1979, U.N. GAOR, 34th Sess. Supp. No. 46, U.N. Doc.A/34/46, at 193 (1979) (entered into force Sept. 3, 1981) (ratified by Sri Lanka Oct. 5, 1981); Convention on the Rights of the Child, adopted Nov. 20, 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc.A/44/49, at 166 (1989) (entered into force Sept. 2, 1990) (ratified by Sri Lanka June 12, 1991); International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 3 (entered into force Mar. 23, 1976) (ratified by Sri Lanka June 11, 1980); Optional Protocol to the International Covenant on Civil and Political Rights,Aiming at Abolition of the Death Penalty, adopted Dec. 15, 1989, G.A. Res. 44/128, U.N. GAOR, 44th Sess., Supp. No. 49, at 207, U.N. Doc.A/44//49 (entered into force July 11, 1991) (ratified by Sri Lanka Oct. 3, 1997); International Covenant on Economic, Social, and Cultural Rights, adopted Dec.16, 1966, 993 U.N.T.S. 3, (entered into force Jan. 3, 1976) (ratified by Sri Lanka June 11, 1980); International Covenant Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted Dec. 10, 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc.A/39/51 (1984) (entered into force June 26, 1987) (ratified by Sri Lanka Jan. 3, 1994); International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec.21, 1965, 660 U.N.T.S. 195 (entered into force Jan.4, 1969) (ratified by Sri Lanka Feb. 18, 1982). 134. See Communication with Shyamala Gomez, CRLP—L&P Section (draft), supra note 35, at 15. 135. Vienna Declaration and Programme of Action,World Conference on Human Rights,Vienna, Austria, June 14–25, 1993, U.N. Doc.A/CONF.157/23 (1993); Programme of Action of the International Conference on Population and Development, Cairo, Egypt, Sept. 5–13, 1994, U.N. Doc.A/CONF.171/13/Rev.1 (1995); Beijing Declaration and the Platform for Action, Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, U.N. Doc. A/CONF.177/20 (1995); Millennium Declaration, Millennium Assembly, New York, United
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States, Sept. 6–8, 2000, U.N. GAOR, 55th Sess., U.N. Doc.A/Res/55/2 (2000). 136. South Asian Association for Regional Cooperation (SAARC), SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002), available at http://www.saarc-sec.org/publication/conv-traffiking.pdf (last visited Jan. 29, 2004); South Asian Association for Regional Cooperation (SAARC), SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, available at http://www.saarc-sec.org/ (last visited Jan. 29, 2004). See also The Official Website of the Government of Sri Lanka, Latest News, SAARC moves to fight abuse of women, children, Jan. 6, 2002, at http://www.priu.gov.lk/SAARC2002/index_saarc_summit_2002.htm (last visited Jan. 29, 2004). 137. Highway and Social Services, Ministry of Health, Government of Sri Lanka, National Health Policy 1996, at 11 (1996). 138. Id. 139. Id. at 12–13. 140. See Ministry of Health,Welfare and Nutrition, Annual Health Bulletin 2001 § 2.1, http://www.health.gov.lk/ www.health.gov. (last visited Jan. 30, 2004) [hereinafter Ministry of Health Annual Health Bulletin 2001]. 141. Id. 142. Id. 143. See id. 144. See id. 145. United Nations Population Fund (UNFPA), Sri Lanka: Country Population Assessment Report 2000, at 39 (2000). 146. Id. 147. Ministry of Health Annual Health Bulletin 2001, supra note 140. 148. Id. § 2.2. 149. Id. 150. Lucien Jayasuriya, Organisational Structures and Management, in Health Sector in Sri Lanka: Current Status and Challenges 55 (Health Development and Research Programme, University of Colombo & University of Bergen eds., 2002). 151. Id. at 59. See Sri Lanka: Country Population Assessment Report, supra note 145. 152. Jayasuriya, supra note 150, at 59. 153. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.2. 154. Id. Jayasuriya, supra note 150, at 61. 155. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.2. 156. Jayasuriya, supra note 150. 157. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.2. 158. Jayasuriya, supra note 150, at 62. 159. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.2. 160. Jayasuriya, supra note 150, at 62. 161. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.2. See also World Health Organization (WHO), Country Health Profile: Sri Lanka, http://w3.whosea.org/cntryhealth/srilanka/srisystem.htm (last visited Jan. 30, 2004). 162. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.2. 163. Id. § 2.3. 164. Id. 165 Id. 166. Id. 167. Ministry of Health,Welfare and Nutrition, Curative Services & Hospital Information Page, http://www.health.gov.lk (last visited Feb. 10, 2004). 168. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.3. 169. Id. § 2.2. 170. Ministry of Health,Welfare and Nutrition, Curative Services & Hospital Information Page, supra note 167. 171. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.3. 172. Id. 173. Id. Ministry of Health,Welfare and Nutrition, Curative Services & Hospital Information Page, supra note 167. See Jayasuriya, supra note 150. Teaching hospitals are those that engage in the teaching of medical students. 174. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.3. 175. Id. 176. Jayasuriya, supra note 150. 177. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.3. 178. See Sri Lanka: Country Population Assessment Report, supra note 145, at 40. 179. Id. 180. Id. 181. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2. 182. Id. 183. Ravi P. Rannan-Eliya et al., Expenditure for Reproductive Health Services in Egypt and Sri Lanka, 13 Inst. of Pol’y Stud. Health Pol’y Prog. Occasional Paper 12 (2000). 184. Id. 185. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.8.1. 186. Central Bank of Sri Lanka,Annual Report 2002, Stat. app. tbl., tbl. 30., http://www.centralbanklanka.org/AR02_index(1).html (last visited Jan. 30, 2004). See also Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.8.2. 187. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.8.2. 188. See id. § 2.8.3. 189. Nishan de Mel, Finance and Financial Management, in Health Sector in Sri Lanka: Current Status and Challenges 69 (Health Development and Research Programme,
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University of Colombo & University of Bergen eds., 2002) [hereinafter Nishan de Mel]. 190. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 2.8.2. 191. Id. 192. Id. § 2.8.3. 193. Id. § 2.8.2. 194. Id. § 2.9. 195. Id. 196. The Government of Sri Lanka & UNFPA, Support to Advocacy for Reproductive Health and Gender 1 (2001). 197. Nishan de Mel, supra note 189. 198. Id. at 72. 199. Id. 200. Medical Ordinance, No. 26, 1927, §§ 33, 41, 43, 51, 56, 60A (Sri Lanka). 201. Sri Lanka Nurses Council Act, No. 19, 1988. 202. Medical Ordinance, No. 26, 1927, §§ 29–32 (Sri Lanka). 203. Id. § 33. 204. Id. §§ 12–19(E). 205. Id. § 19(A)–(E). 206.Ayurveda Act, No. 31, 1961 (Sri Lanka). 207. Id. §§ 11–19. 208. Id. § 57. 209. Homeopathy Act, No. 7, 1970 (Sri Lanka). 210. Id. § 28. 211. Indunil Abeysekara, Standards in the Health Sector:A Legal Perspective, in Health Sector in Sri Lanka: Current Status and Challenges 35 (Health Development and Research Programme, University of Colombo & University of Bergen eds., 2002). 212. See generally Bob Simpson, Ethical Regulation and the New Reproductive Technologies in Sri Lanka: Perspectives of Ethical Committee Members (2001), http://www.slmaonline.org/cmj/CMJ4602/54.htm (last visited Feb. 10, 2004). 213. See Penal Code (Amendment) Act, No. 22, 1995, § 360C(1)(b)(iii) (Sri Lanka). 214. Kushani Ratnayake, Nastec hands over two policy documents to government, Daily News, June 17, 2003, at http://www.dailynews.lk/2003/06/17/new18.html (last visited Feb. 10, 2004). 215. National Health Policy, supra note 137, at 12. 216. Penal Code, No. 2, 1883, §§ 293–294, 298, 303–307, 311 (Sri Lanka). 217. Id. §§ 80–82, 85–86 (Sri Lanka). 218. Id. § 83 (Sri Lanka). 219. See Communication with Shyamala Gomez, University of Colombo, CRLP—Draft Patients Rts (July 7, 2003) (on file with Center for Reproductive Rights) [hereinafter Communication with Shyamala Gomez, CRLP—Draft Patients Rts]. 220.The law of negligence in Sri Lanka is governed by British law and Roman-Dutch law. 221. Ruana Rajepakse,An Introduction to Law in Sri Lanka 86–87 (1989). 222. Priyani Soysa v. R.A. F.Arsecularatne (1999) 2 Sri LR 179. See also Ravindra Fernando, A landmark case of medical negligence in Sri Lanka, 47 Ceylon Medical Journal 128–130 (2002). 223. See Communication with Shyamala Gomez, CRLP—Draft Patients Rts, supra note 219. 224. Ethics Committee, Sri Lanka Medical Council, Guidelines on Ethical Conduct for Medical and Dental Practitioners Registered with the Sri Lanka Medical Council 8 (2003). 225. Id. at 21. 226. Id. 227. Id. at 23. 228. Id. at 24. 229. Id. at 43. 230. Id. 231. Id. 232. Id. at 50 233. Ban Strikes by Doctors, The Daily Mirror, June 13, 2003, at 6. 234. Ministry of Health and Indigenous Medicine, Government of Sri Lanka, Population and Reproductive Health Policy, pmbl., ¶ 4 (1998). See Communication with Dula de Silva,World Health Organization, Center for Reproductive Rights—RH section (Nov. 21, 2003) (on file with Center for Reproductive Rights) [hereinafter Communication with Dula de Silva, Center for Reproductive Rights—RH section]. 235. Population and Reproductive Health Policy, supra note 234. 236. Id. pmbl., ¶ 6. 237. Id. 238. Id. Goal 2 (1998). 239. Ministry of Health and Indigenous Medicine, Government of Sri Lanka, Action Plan to Implement Sri Lanka's Population and Reproductive Health Policy During the Period 2000–2010, Goal 8, Strategy (c) (1999) [hereinafter Population and Reproductive Health Policy Action Plan 2000–2010]. 240. See Communication with Dula de Silva,World Health Organization, Center for Reproductive Rights—RH section, supra note 234. 241. Ministry of Health and Indigenous Medicine, Government of Sri Lanka, Six Year Development Programme 1999–2004 (rev. in 1998). 242. Ministry of Women’s Affairs, Government of Sri Lanka, National Plan of Action for Women (Five Year Plan for Sri Lanka) 2002–2007 (1995).
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243. Id. § 3, Issues 1–6. 244. Centre for Women’s Research (CENWOR), Sri Lanka Shadow Report on the UN Convention on the Elimination of All Forms or Discrimination Against Women 31 (2001). 245. National Health Policy, supra note 137, at 12. 246. Population and Reproductive Health Policy, supra note 234, Goal 1. 247. Id. Goal 1, Strategies (a)–(d); Population and Reproductive Health Policy Action Plan 2000–2010, supra note 239, Goal 1, Strategy (b),Action 1. 248. Population and Reproductive Health Policy Action Plan 2000–2010, supra note 239, Goal 1, Strategy (b),Actions 2–3. 249. Six Year Development Programme, supra note 241, § 9. 250. Office of the Minister of State for Women’s Affairs, Ministry of Health & Women’s Affairs, Government of Sri Lanka,Women’s Charter, § 13(iii)(a)–(b) (1993)[hereinafter SRI LANKA DEMOGRAPHIC AND HEALTH SURVEY 2000]. 251. Department of Census and Statistics, Ministry of Finance & Ministry of Health, Nutrition and Welfare, Government of Sri Lanka, Sri Lanka Demographic and Health Survey 2000 94, tbl. 5.9 (2002) [hereinafter SRI LANKA DEMOGRAPHIC AND HEALTH SURVEY 2000]. 252. Id. 253. Id. 254. Id. 255. Id. at 85, tbl. 5.2. 256. Cosmetics, Devices and Drugs Act, No. 27, 1980 (Sri Lanka). 257. Id. § 40. 258. Id. 259. Id. §§ 2, 6, 9. 260. See Interview with Sriyani Basnayake, Family Planning Association of Sri Lanka (June 13, 2003). 261. International Consortium for Emergency Contraception (ICEC), ECPs Status and Activity by Country, http://www.cecinfo.org/files/ecstatusavailability.pdf (last visited Feb. 2, 2004)[hereinafter ICEC]. 262. Id. 263. Family Health Bureau, Ministry of Health, Government of Sri Lanka, Handbook on Contraceptive Technology 22 (1996). 264. Cosmetics, Devices and Drugs Act, No. 27, 1980, § 7 (Sri Lanka). 265. Id. § 11. 266. Sri Lanka: Country Population Assessment Report, supra note 145, at 43. 267. Id. 268. See Interview with Daya Abeywickrama, Executive Director, Family Planning Association of Sri Lanka (Jan. 14, 2003). 269. See id. Sri Lanka: Country Population Assessment Report, supra note 145, at 43. 270. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 94, 98, tbls. 5.9, 5.11. 271. Id. at 98, tbl. 5.11. 272. CENWOR, supra note 244, at 32. 273. Office of the Director General of Health Services, Family Health Bureau, Ministry of Health, Government of Sri Lanka, Eligibility for Sterilization (1988). 274. Id. 275. Id. 276. Id. 277. Id. 278. See Interview with Sarath Wijemanne, Family Health Bureau, Ministry of Health, Government of Sri Lanka (June 13, 2003). 279. Guidelines on Ethical Conduct for Medical and Dental Practitioners Registered with the Sri Lanka Medical Council, supra note 224, at 23. 280. See Interview with Sriyani Basnayake, supra note 260. 281. Interview with Malathy Weerasooriya, United Nations Population Fund (June 12, 2003); Interview with Sriyani Basnayake, supra note 260. 282. Handbook on Contraceptive Technology, supra note 263, at 26. 283. Id. 284. See Interview with Sriyani Basnayake, supra note 260. 285. See id. 286. See id. 287. Family Planning Association of Sri Lanka,Voluntary Sterilization—Consent Record (on file with Center for Reproductive Rights). 288. Id. 289. See Interview with Malathy Weerasooriya, supra note 281. 290. See Interview with Sriyani Basnayake, supra note 260. 291 See Interview with Daya Abeywickrama, supra note 268. 292. Sri Lanka: Country Population Assessment Report, supra note 145. 293. Id. 294. Department of Health Services, Ministry of Health, Government of Sri Lanka,Administrative Report of the Department of Health Services 41–42, http://www.helath.gov.lk/Administrative Report/ADReport.pdf. 295. Sri Lanka: Country Population Assessment Report, supra note 145. 296. Saroj Jayasinghe, Structure of Health Services, in Health Sector in Sri Lanka: Current Status and Challenges 34 (Health Development and Research Programme, University of Colombo & University of Bergen eds., 2002).
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297. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 104. 298. Sri Lanka: Country Population Assessment Report, supra note 145, at 55. 299. Id. 300. Id. at 42. 301. ICEC, supra note 261. 302. Sri Lanka: Country Population Assessment Report, supra note 145, at 44. 303. Id. at 43. 304. Id. at 40. 305. Id. at 39–40. 306. Id. at 40. 307. Interview with Malathy Weerasooriya, supra note 281; Interview with Sriyani Basnayake, supra note 260. 308. Sri Lanka: Country Population Assessment Report, supra note 145, at 43. 309. See International Planned Parenthood Federation, supra note 108. 310. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 105, fig. 5.6. 311. ICEC, supra note 261. See Interview with Sriyani Basnayake, supra note 260. 312. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 104, tbl. 5.16. 313. Id. at 104–105. 314. See Interview with Daya Abeywickrama, supra note 268. 315. See id. 316. See id. 317. See Interview with Sriyani Basnayake, supra note 260. 318. See Interview with Daya Abeywickrama, supra note 268. 319. See Interview with Sriyani Basnayake, supra note 260. 320. Nadira Gunatilleke, Reproductive health program in refugee camps a success, Daily News, Mar. 29, 2000. 321. Id. 322. Joel Fernando, Functional Perspective, in Health Sector in Sri Lanka: Current Status and Challenges 43 (Health Development and Research Programme, University of Colombo & University of Bergen eds., 2002). 323. Ministry of Health Annual Health Bulletin 2001, supra note 140; Communication with Dula de Silva,World Health Organization, Center for Reproductive Rights— RH section, supra note 234. 324. JOICFP Works with World Bank in Sri Lanka, JOICFP News (Japanese Organization for International Cooperation in Family Planning, Inc.,Tokyo, Japan), Oct. 2003, at 3. 325. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 163, tbl. 8.7. Eighty-eight percent of pregnant women in the estate sector visited maternity clinics, compared to 92.9% of pregnant women in Colombo, 95.2% of women in other urban areas and 95.4% of women in rural areas. About 42.3% of pregnant women in the estate sector were visited at home by a family health worker, compared to 73.5% of women in Colombo, 86.2% of women in other urban areas and 89.9% of women in rural areas. Id. 326. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 166–167, tbl. 8.9. 327. Id. at 168, tbl. 8.10. 328. Id. 329. Id. at 170, tbl. 8.11. 330. Id. at 166. 331. Population and Reproductive Health Policy, supra note 234, Goal 2. 332. Id. Goal 2, Strategies 1–6. 333. Six Year Development Programme, supra note 241, Long Term Objectives 1. 334. Id. §§ 1, 3, 5.The program states that these activities are to be funded by UNICEF and the WHO. 335. National Plan of Action for Women, supra note 242, § 3, Issue 1. 336. Id. 337. Women’s Charter, supra note 250, § 13(ii)(b). 338. Six Year Development Programme, supra note 241, Long Term Objectives 2. 339. Id. 340. National Plan of Action for Women, supra note 242, § 3, Issue 1. 341. Id. 342. Id. 343. Support to Advocacy for Reproductive Health and Gender, supra note 196, at 2; P. Hewage, Induced Abortion in Sri Lanka: Opinions of Reproductive Health Care Providers, in Abortion in the Developing World 322 (Axel Mundigo & Cynthia Indriso eds., 2001). 344. Id. 345. Population Division, Ministry of Health, Nutrition and Welfare, Government of Sri Lanka, Sri Lanka Country Report 17 (2002) (presented at Fifth Asian and Pacific Population Conference, Bangkok,Thailand, Dec. 11–17, 2002). 346. Women’s Environment and Development Organization, Sri Lanka: S.Asia’s Best Health Shows Signs of Wear, in Risks, Rights and Reforms: A 50 Country Survey Assessing Government Actions Five Years After the International Conference on Population and Development 135 (1999); 1,200 illegal abortions daily, The Island, Oct. 8, 2002, at 4. 347. Hewage, supra note 343. 348. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 63. 349. Penal Code, No. 2, 1883, § 303 (Sri Lanka). 350. Id. § 304. 351. See Interview with Terrence de Silva, Ministry of Health (June 24, 2003). 352. Penal Code, No. 2, 1883, § 303 (Sri Lanka).
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353. Id. “Quick with child” is not defined in the law. It is interpreted as referring to an advanced stage of pregnancy where there is fetal movement. 3 Population Division, Department of Economic and Social Affairs, United Nations,Abortion Policies: A Global Review 106 (2002). 354. Penal Code, No. 2, 1883, § 303 (Sri Lanka). 355. Id. § 304 (Sri Lanka). 356. Guidelines on Ethical Conduct for Medical and Dental Practitioners Registered with the Sri Lanka Medical Council, supra note 224, at 52. 357. Id. 358. Id. 359. Id. 360. Savitri Walatara, Abortion:The Right to Choose, 2 Mootpoint 3 n.6 (1998). 361. Id. at 3. 362. Id. at 4 n.17. 363. Id. at 3 n.6. 364. See Population and Reproductive Health Policy, supra note 234, pmbl., Goal 2. 365. National Plan of Action for Women, supra note 242, § 3, Issue 2, Goal 1. 366. Hewage, supra note 343, at 321. 367. See Interview with Sriyani Basnayake, supra note 260 (July 4, 2003). 368. Hewage, supra note 343, at 321. 369. Abortion clinic raided: 20 women in custody, The Island, May 8, 2003, at 4. 370. See Interview with Sriyani Basnayake, supra note 260 (July 4, 2003); Communication with Dula de Silva,World Health Organization, Center for Reproductive Rights—RH section, supra note 234. 371. Support to Advocacy for Reproductive Health and Gender, supra note 196, at 6. 372. Iyanthi Abeyewickreme, Sexually transmitted infections—2001, STD/AIDS News (National STD/AIDS Control Programme of the Ministry of Health, Government of Sri Lanka), Jan. 2002. 373. Ministry of Health, Government of Sri Lanka, National Strategic Plan for Prevention and Control of HIV/AIDS in Sri Lanka 2002–2006, § 1.1 (2002). 374. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 5.2.4.2. 375. Central Bank of Sri Lanka,Annual Report 2001, at 101, http://www.centralbanklanka.org/annual.html (last visited Feb. 3, 2004) [hereinafter Central Bank of Sri Lanka,Annual Report 2001]. 376. Id. 377. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 5.2.4.2. 378. Id. 379. UNAIDS & WHO, Epidemiological Fact Sheets on HIV/AIDS and Sexually Transmitted Infections: Sri Lanka 2002 Update 2 (2002), http://www.who.int/emchiv/fact_sheets/pdfs/Srilanka_EN.pdf (last visited Feb. 3, 2004). 380. National Strategic Plan for Prevention and Control of HIV/AIDS in Sri Lanka 2002–2006, supra note 373. 381. Ministry of Health Annual Health Bulletin 2001, supra note 140, § 5.2.4.2; Iyanthi Abeyewickreme, HIV/AIDS by end 2001, STD/AIDS News (National STD/AIDS Control Programme of the Ministry of Health, Government of Sri Lanka), Jan. 2002. 382. Prasanna S. Cooray, Right to Health, in Sri Lanka: State of Human Rights 2000, at 268 (Law & Society Trust ed., 2000). 383.Venereal Diseases Ordinance, No. 27, 1938, § 2 (Sri Lanka). 384. Id. § 5. 385. Penal Code, No. 2, 1883, §§ 262–263 (Sri Lanka). 386. Quarantine and Prevention of Diseases Ordinance, No. 3, 1897, § 13 (Sri Lanka). 387. Id. § 3(1)(f), (k)–(l). 388. Extraordinary Gazette of the Democratic Socialist Republic of Sri Lanka, No. 473/22 (Oct. 2, 1987). 389. Extraordinary Gazette of the Democratic Socialist Republic of Sri Lanka, No. 1131/24 (May 10, 2000); Epidemiological Unit, General Circular No. 01–13/2000 (Aug. 21, 2000). 390. See Interview with Sudath Peiris,Assistant Epidemiologist, Ministry of Health (July 4, 2003). 391. National Strategic Plan for Prevention and Control of HIV/AIDS in Sri Lanka 2002–2006, supra note 373, § 1.2. 392. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 208. 393. Administrative Report of the Department of Health Services, supra note 294, at 11. 394. Id. 395. Ministry of Health, Government of Sri Lanka, National Strategic Plan for HIV/AIDS Prevention and Control in Sri Lanka (2001–2005), Draft 12.1.2001, at 25 (2001). 396. National Strategic Plan for Prevention and Control of HIV/AIDS in Sri Lanka 2002–2006, supra note 373, § 2.3. 397. Id. 398. Id. § 5.1. 399. Id. § 6.4. 400. See Interview with Iyanthi Abeyewickreme, Consultant Venereologist and Director, STD/AIDS Control Programme (June 24, 2003); see Interview with Terrence de Silva, supra note 351. 401. National Strategic Plan for Prevention and Control of HIV/AIDS in Sri Lanka 2002–2006, supra note 373, § 3.2.1.
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402. Guidelines on Ethical Conduct for Medical and Dental Practitioners Registered with the Sri Lanka Medical Council, supra note 224, at 50. 403. Id. 404. Id. 405. Gunatilleke, supra note 320. 406. Damitha Hemachandra, AIDS patients to get WB aid, Daily Mirror, May 29, 2003. 407.Venereal Diseases Ordinance, No. 27, 1938, § 3 (Sri Lanka). 408. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 208. 409. Sri Lanka Country Report, supra note 345, at 3. 410. Id. at 8. 411. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 19. 412. Id. at 5–6. 413. Id. at 6. 414. Id. at 5. 415. Id. 416 Id. 417 See A.T.P.L.Abeykoon, The Contribution of the Family Planning Association of Sri Lanka to the National Population and Reproductive Health Programme, Daily News, FPASL Golden Jubilee Supplement (The Family Planning Association of Sri Lanka, Colombo, Sri Lanka), July 18, 2003, at 7. 418. See Interview with A.T.P.L.Abeykoon, Director, Population Division, Ministry of Health (Sept. 2, 2003). 419. Population and Reproductive Health Policy, supra note 234, Goal 1. 420. Id. 421. CENWOR, supra note 244, at 32. 422. Id. 423. Sri Lanka: Country Population Assessment Report, supra note 145, at 26. 424. Id. at 26–27. 425. See Communication with Dula de Silva,World Health Organization, Center for Reproductive Rights—RH section, supra note 234; see Sri Lanka: Country Population Assessment Report, supra note 145. 426. See Interview with A.T.P.L.Abeykoon, supra note 418. 427. See id. 428. See id. 429. Sri Lanka: Country Population Assessment Report, supra note 145, at 26. 430. Id. 431. Sri Lanka Const., art. 12. 432. Id. art. 12(4). 433. Id. art. 27(6). 434. SeeWills Ordinance, No. 21, 1884 (Sri Lanka); see Sex Disqualification Removal (Legal Profession) Ordinance, No. 25, 1933 (Sri Lanka); see Industrial Disputes Act, No. 43, 1950 (Sri Lanka); seeTrade Union Ordinance, No. 14, 1935 (Sri Lanka); see Citizenship Act, No. 18, 1948, amended by Citizen (Amendment) Act, No. 16, 2003 (Sri Lanka). 435. The Official Website of the Government of Sri Lanka, Ministry of Women’s Affairs, http://www.priu.gov.lk/Ministries/Min_Women'sAffairs.html#The%20Vision (last visited Feb. 4, 2004). 436. Women’s Charter, supra note 250, § 17–23. 437. Id. § 19. 438. See Communication with Shyamala Gomez, CRLP—L&P section (draft), supra note 35, at 13. 439. Centre for Women’s Research (CENWOR), Citizenship Act Amended, http://www.cenwor.lk/citizenship.html (last visited Feb. 4, 2004). 440. Id. 441. Centre for Women’s Research (CENWOR), Cabinet Approves Granting of Citizen to Spouses of Sri Lankan Women Who are Foreign Nationals, http://www.cenwor.lk/citizenshipspo.html (last visited Feb. 4, 2004). 442. Marriage Registration Ordinance, No. 19, 1907, § 64 (Sri Lanka). 443. Kandyan Marriage and Divorce Act, No. 44, 1952, § 3(1)(a) (Sri Lanka). See Communication with Shyamala Gomez, University of Colombo, Final draft 2—The Legal Status of Women (Sept. 23, 2003) (on file with Center for Reproductive Rights) [hereinafter Communication with Shyamala Gomez, Final draft 2—The Legal Status of Women]. 444. Marriage Registration Ordinance, No. 19, 1907, § 64 (Sri Lanka). 445. Marriage Registration (Amendment) Act, No. 18, 1995, § 2 (Sri Lanka). 446. Marriage Registration Ordinance, No. 19, 1907, § 22, amended by Marriage Registration (Amendment) Act, No. 12, 1997, § 2 (Sri Lanka). 447. Id. § 22(2). 448. Gunerishami v. Gunatilaka, 1904, 7 NLR 219 (Sri Lanka). In this case for example, the girl’s father refused his consent because, according to the evidence, the man wished to marry his daughter merely to shield his brother who was responsible for seducing the girl. The Supreme Court held that under the circumstances it had no authority to overrule the objections of the father. 449. Marriage Registration Ordinance, No. 19, 1907, § 42 (Sri Lanka). 450. Shirani Ponnambalam, Law and the Marriage Relationship in Sri Lanka 54 (2nd ed. 2000) (citing Selvaratnam v.Anandavelu, 1941, 42 NLR 487 (Sri Lanka)). It has been suggested that in the case of unregistered marriages, the Roman-Dutch common law should apply, which retrospectively validates a marriage once the minor has attained majority or upon the subsequent approval of the parents. 451. In Ratnamma v. Rasiah, the court held that want of consent would not invalidate a Hindu customary marriage after it had been consummated. See Ponnambalam, supra
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note 450, at 54–56 (citing Ratnamma v. Rasiah, 1947, 48 NLR 475 (Sri Lanka)). 452. Marriage Registration Ordinance, No. 19, 1907, § 16 (Sri Lanka). 453. Id. § 17. 454. Penal Code, No. 2, 1883, § 364A, amended by Penal Code (Amendment) Act, No.22, 1995, § 15 (Sri Lanka). 455. Marriage Registration Ordinance, No. 19, 1907, § 18 (Sri Lanka). 456. Id. § 41. 457. Ponnambalam, supra note 450, at 74. See Ratnamma v. Rasiah, 1947, 48 NLR 475 (Sri Lanka); see Sophia Hamine v.Appuhamy, 1922, 23 NLR 353 (Sri Lanka); see Wijegunawardena v. Gracia Catherine, 1984, 2 Sri L.R. 381 (Sri Lanka). 458. Ponnambalam, supra note 450, at 77–78. 459. Kandiah v.Thangamany, 1953, 55 NLR 568 (Sri Lanka). 460. Kandyan Marriage and Divorce Act, No. 44, 1952, § 3(1)(a) (Sri Lanka). 461. Kandyan Marriage and Divorce (Amendment) Act, No. 19, 1995, § 3 (Sri Lanka). 462. Kandyan Marriage and Divorce Act, No. 44, 1952, § 4(2)(a)-(b)(Sri Lanka). 463. Id. § 5(1)–(2). 464. Id. § 6. 465. Id. § 3(1)(b). 466. Communication with Shyamala Gomez, Final draft 2—The Legal Status of Women, supra note 443. 467. L.J.M. Cooray, supra note 121, at 126. 468. Kandyan Marriage and Divorce Act, No. 44, 1952, § 28(1) (Sri Lanka). 469. Id. § 7. 470. Id. 471. Muslim Marriage and Divorce Act, No. 13, 1951, § 98(2) (Sri Lanka). 472. Id. § 23. See Chulani Kodikara, Engaging with Muslim Personal Law in Sri Lanka: the Experience of MWRAF n.viii, in Lines,Aug. 2003, at http://www.linesmagazine.org/Art_Aug03/Chulani.htm (last visited Feb. 23, 2004). 473. Kodikara, supra note 102, at 19. 474. Muheidinbawa v. Seylathumma, 1937, 2 MMDR 53 (Sri Lanka); Kodikara, supra note 102, at 19. 475. Penal Code, No. 2, 1883, § 363(e), amended by Penal Code (Amendment) Act, No. 22, 1995, § 12 (Sri Lanka); Savitri Goonesekere, Muslim Personal Law in Sri Lanka 19 (2000). See Lebbe v. Mohomadu Tambi, 1901, 1 MMDR 13. 476. Muslim Marriage and Divorce Act, No. 13, 1951, § 80 (Sri Lanka); Hurraira Sawall v. Buhary Sawall, 1958, 4 MMDR 174 (Sri Lanka). 477. Muslim Marriage and Divorce Act, No. 13, 1951, §§ 25(1)(a), 47(2) (Sri Lanka). 478. Id. § 25(1)(a)(ii). 479.Abdul Cader v. Razik, 1950, 3 MMDR 115 (Sri Lanka). 480. Muslim Marriage and Divorce Act, No. 13, 1951, § 24(1)–(4) (Sri Lanka). 481. Kodikara, supra note 102, at 24 (citing Abdul Carim Ali v. Ummu Salama, 1944, 3 MMDR 19 (Sri Lanka)); Usoof Lebbe v. Nihar, 1952, 4 MMDR 33 (Sri Lanka). 482.Abeysundere v.Abeysundere, 1998, 1 Sri L.R. 185 (Sri Lanka). 483. Muslim Marriage and Divorce Act, No. 13, 1951, § 16 (Sri Lanka). 484. Id. § 17(2), (5)–(6). 485. Civil Procedure Code, No. 2, 1899, amended by Civil Procedure Law, No. 20, 1977 (Sri Lanka). 486. Marriage Registration Ordinance, No. 19, 1907, § 19(2) (Sri Lanka). 487. See Communication with Shyamala Gomez, University of Colombo, RE: Sri Lanka draft—L&P section (Dec. 14, 2003) (on file with Center for Reproductive Rights). 488. Kodikara, supra note 102, at 81. 489. Jayasinghe v. Jayasinghe, 1954, 55 NLR 410 (Sri Lanka), approved and followed in Dharmasena v. Navaratne, 1967, 72 NLR 419 (Sri Lanka); Ponnambalam, supra note 450, at 322. 490. Ponnambalam, supra note 450, at 312. 491. Silva v. Missinona, 1924, 26 NLR 113 (Sri Lanka). 492. Civil Procedure Code, No. 2, 1899, § 608(2)(a)–(b) (Sri Lanka). 493. See Muthuranee v.Thuraisingham, 1984, 1 Sri L.R. 381 (Sri Lanka); see Tennekoon v. Perera, 1986, 1 Sri L.R. 90; see also Ponnambalam, supra note 450, at 361. 494. Kandyan Marriage and Divorce Act, No. 44, 1952, amended by Kandyan Marriage and Divorce Law, No. 41, 1975, § 32 (Sri Lanka). 495. Kandyan Marriage and Divorce Act, No. 44, 1952, § 33 (Sri Lanka). 496. Muslim Marriage and Divorce Act, No. 13, 1951, § 98(2) (Sri Lanka). 497. Goonesekere, supra note 475, at 75. 498. Id. 499. Id. Ahmed v. Ruwaida Umma, 1949, MMDR 99 (Sri Lanka). 500. Goonesekere, supra note 475, at 76. 501. Kodikara, supra note 102, at 76. 502. See Goonesekere, supra note 475, at 77; see Kodikara, supra note 102, at 77. 503. Muslim Marriage and Divorce Act, No. 13, 1951, § 28(1) (Sri Lanka). 504. Id. 505. Goonesekere, supra note 475, at 87. 506. Id. at 83 n.421.Ansar v. Mirza, 1971, 75 NLR 279 (Sri Lanka); Communication with Shyamala Gomez, Final draft 2—The Legal Status of Women, supra note 443. 507 Ansar v. Mirza, 1971, 75 NLR 279 (Sri Lanka); Rasheeda v. Dheen, 1959, 61 NLR 570 (Sri Lanka). See also Noor Nazime v. Mohamed, 1946, 3 MMDR 59 (Sri Lanka). 508.Ansar v. Mirza, 1971, 75 NLR 279 (Sri Lanka). 509. Kodikara, supra note 102, at 81. 510.The woman is bound to follow Schedule III of the Muslim Marriage and Divorce Act, which provides the procedure for fasah divorce.
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511. Muslim Marriage and Divorce Act, No. 13, 1951, 3rd sched., Rule 11 (Sri Lanka); Kodikara, supra note 102, at 86 (citing Junaideen v. Noor Sabiya,Apl No. 1312, Kandy 604, 1973 (unreported) (Sri Lanka)); Faiz Mohamed v. Elsie Fathooma, 1939, 2 MMDR 98 (Sri Lanka). 512. Goonesekere, supra note 475, at 83. 513. Id. at 81. 514. Kodikara, supra note 102, at 94. 515. Email from Shyamala Gomez, University of Colombo, to Pardiss Kebriaei, Center for Reproductive Rights (Jan. 13, 2004, 14:51:00 EST) (on file with the Center for Reproductive Rights). 516. Civil Procedure Code, No. 2, 1889, amended by Civil Procedure Law, No. 20, 1977 (Sri Lanka). 517. Id. § 608(1). 518. Ponnambalam, supra note 450, at 360 n.307c (citing H.R. Hahlo,The South African Law of Husband and Wife 330 (4th ed. 1975)). 519. Email from Shyamala Gomez to Pardiss Kebriaei, supra note 515. 520. Id. 521. Maintenance Act, No. 37, 1999, § 17 (Sri Lanka). 522. Id. § 2(1). 523. Id. § 2. 524. Id. § 2(1), Proviso. 525. Sharya de Soysa, Marriage Breakdown and the Duty of Support:The Experience of South Africa and Sri Lanka 35 (1984) (unpublished Ph.D. dissertation, University of Colombo, Sri Lanka) (on file with the Center for Reproductive Rights). 526. Ponnambalam, supra note 450, at 195. 527. Maintenance Act, No. 37, 1999, § 2(2)–(4) (Sri Lanka). 528. Civil Procedure Code, No. 2, 1899, § 614, amended by Civil Procedure Law, No. 20, 1977 (Sri Lanka). 529. See Communication with Shyamala Gomez, University of Colombo, CRLP draft–marriage (June 30, 2003) (on file with Center for Reproductive Rights). 530. See id. 531. Civil Procedure Code, No. 2, 1899, amended by Civil Procedure Law, No. 20, 1977 (Sri Lanka). 532. Id. § 615. 533. Communication with Shyamala Gomez, University of Colombo, Maintenance and Support Laws for Kandyans (Feb. 9, 2004) (on file with Center for Reproductive Rights) [hereinafter Communication with Shyamala Gomez, Maintenance and Support Laws for Kandyans]. 534. Kandyan Marriage and Divorce Act, No. 44, 1952, § 33(7)(ii)–(iii) (Sri Lanka). 535. Communication with Shyamala Gomez, Maintenance and Support Laws for Kandyans, supra note 533. 536. Muslim Marriage and Divorce Act, No. 13, 1951, § 48 (Sri Lanka). 537. Id. § 98(2). 538. Goonesekere, supra note 475, at 69 (citing Pearl David, A Text Book of Muslim Personal Law 69 (1987)). 539. Jiffry v. Umma Ayesha, 1958, 4 MMDLR 154, B.Q. (Sri Lanka). 540. Muslim Marriage and Divorce Act, No. 13, 1951, § 47(1)(d) (Sri Lanka). 541. See Adoption of Children Act, No. 1, 1964, § 12, amended by Adoption of Children Act, No. 38, 1979 (Sri Lanka); Judicature Act, No. 2, 1978 (Sri Lanka). 542. See Ivaldy v. Ivaldy, 1956, S.C. 429 (Sri Lanka). 543. See Madulawathie v.Wilpus, 1967, 70 NLR 90 (Sri Lanka). 544. See Rajaluxumi v. Sivananda Iyer, 1972, 76 NLR 572 (Sri Lanka). 545. E.g.,Weragoda v.Weragoda, 1961, 59 CLW 59 (Sri Lanka); Rajaluxumi v. Sivananda Iyer, 1972, 76 NLR 572 (Sri Lanka); Madulawathie v.Wilpus, 1967, 70 NLR 90 (Sri Lanka). 546. See Samarasinghe v. Simon, 1941, 43 NLR 129 (Sri Lanka). 547. See Jeyarajan v. Jeyarajan, 1999, 1 Sri L.R. 113 (Sri Lanka). 548.Adoption of Children Ordinance, No. 24, 1941, § 4(b). See Consideration of Reports Submitted by States Parties under Article 40 of the International Covenant on Civil and Political Rights, Fourth periodic report, Sri Lanka, Human Rights Committee, 66th Sess., ¶ 421, U.N. Doc. CCPR/C/LKA/2002/4 (2002) [hereinafter ICCPR Committee, Fourth periodic report, Sri Lanka]. 549. See id. 550. See id. ¶ 422. 551. See id. 552. Mahamedu Cassim v. Cassie Lebbe, 1927, 1 MMDR 102 (Sri Lanka); In re Nona Sooja, 1930, 1 MMDR 107 (Sri Lanka); Fernando v. Fernando, 1932, 2 MMDR 1 (Sri Lanka). 553. Kodikara, supra note 102, at 108. 554. Hameen v. Maliha Baby, 1967, 70 NLR 405 (Sri Lanka). 555. Faiz Mohamed v. Elsie Fathumma, 1942, 3 MMDR 3 (Sri Lanka). 556. E.g., Mahamedu Cassim v. Cassie Lebbe, 1927, 1 MMDR 102 (Sri Lanka). 557. Kodikara, supra note 102, at 112–113. 558. Mafthooha v.Thassim, 1963, 65 NLR 547 (Sri Lanka); Kodikara, supra note 102, at 111–113. In one case, a court held that a mother’s habit of drinking and receiving men at all hours was “injurious to the child.” Kodikara, supra note 102, at 111 (citing Fernando v. Fernando, 1932, 2 MMDR 1 (Sri Lanka)). 559. Kodikara, supra note 102, at 105. See also Subair v. Isthikar, 1974, 77 NLR 397 (Sri Lanka). 560. Fernando v. Fernando, 1932, 2 MMDR 1 (Sri Lanka).
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561. Subair v. Isthikar, 1974, 77 NLR 397 (Sri Lanka). 562. Legislative Enactments of the Democratic Socialist Republic of Sri Lanka, vol. IV, ch. 68, (1980). 563. Married Women’s Property Ordinance, No. 18, 1923, §§ 5, 7 (Sri Lanka). 564. Id. § 18. 565. Matrimonial Rights and Inheritance Ordinance, No. 15, 1876, pt. III (Sri Lanka). 566. Legislative Enactments of the Democratic Socialist Republic of Sri Lanka, vol. IV, ch. 71, (1980). 567. Communication with Camena Guneratne, Open University of Sri Lanka, Review Section 1 (Dec. 5, 2003) (on file with Center for Reproductive Rights) [hereinafter Communication with Camena Guneratne, Review Section 1]. 568. Kandyan Law Declaration and Amendment Ordinance, No. 39, 1938, § 12 (Sri Lanka); SAVITRI GOONESEKERE, SRI LANKA LAW ON PARENT AND CHILD 456 (1987). 569. Goonesekere, supra note 475, at 59–60. See Email from Shyamala Gomez, University of Colombo, to Lilian Sepúlveda-Oliva (Feb. 6, 2004, 19:46:56 EST) (on file with Center for Reproductive Rights). 570. Legislative Enactments of the Democratic Socialist Republic of Sri Lanka, vol. IV, ch. 72 (1980). 571. Communication with Shyamala Gomez, University of Colombo, CRLP Property Rights Draft (July 24, 2003) (on file with Center for Reproductive Rights) [hereinafter Communication with Shyamala Gomez, CRLP Property Rights Draft]. 572. Id. 573. Id. 574. Id. 575. Legislative Enactments of the Democratic Socialist Republic of Sri Lanka, vol. IV, ch. 70 (1980). 576. Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1, 1911, § 6 (Sri Lanka). 577. Id. 578. Id. § 8. 579. Id. § 19. 580. See Manikkavasagar v. Kandasamy, 1986, 2 Sri L.R. 8 (Sri Lanka). 581. See id. 582. See id. 583. See id. 584. Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1, 1911, § 20, amended by Jaffna Matrimonial Rights and Inheritance Ordinance, No. 58, 1947 (Sri Lanka). 585. Id. § 3. 586. Legislative Enactments of the Democratic Socialist Republic of Sri Lanka, vol. XI, ch. 300 (1980). 587. Land Development Act, No. 19, 1935, § 48A(1) (Sri Lanka). 588. Id. 589. Id. 590. Id. § 72. See Communication with Camena Guneratne, Open University of Sri Lanka, Review Section 1, supra note 567. 591. Communication with Shyamala Gomez, Final draft 2—The Legal Status of Women, supra note 443. 592. Sri Lanka Statistical Data Sheet,Year 2002, supra note 26. 593. See ICCPR Committee, Fourth periodic report, Sri Lanka, supra note 548, ¶ 106. 594. See id. ¶ 108. 595. See id. 596. See id. ¶ 107. 597. See CEDAW Committee, States parties initial reports, Sri Lanka, supra note 85, ¶ 115. 598. Sri Lanka Const., art. 14(1)(g). 599. Id. art. 14 (1)(c)–(d). 600.The Establishments Code, Public Administration (a) Circular No. 22, 1989, amended by Circular No. 13, 1995. 601.The 12-week maternity leave is in line with the Shop and Office Employees (Regulation of Employment and Remuneration) Act, which applies in the private sector. Camena Guneratne, International Labour Standards and the Employment of Women in Sri Lanka, in Eight National Convention on Women’s Studies, March 23–26, 2002, at 19 (Centre for Women’s Research ed., 2002). The entitlement to such leave irrespective of marital status, cause of pregnancy and duration of employment is pursuant to 1997 amendments to government labor regulations in the public sector. 602. Shop and Office Employees (Regulation of Employment and Remuneration) Act, No. 60, 1957, § 18A (Sri Lanka). Maternity leave is in addition to weekends and government holidays. Id. § 18H. 603. Maternity Benefits Ordinance, No. 32, 1939, § 21 (Sri Lanka). The primary difference between the Ordinance and the Shop and Office Employees Act is that the leave permitted in the former is not in addition to weekends and government holidays. Department of Labor, Ministry of Employment and Labor, Government of Sri Lanka, Brief Description of Main Acts and Ordinance, at http://www.labour.gov.lk/documents/e_mainacts.htm (last visited Feb. 6, 2004). 604. Maternity Benefits Ordinance, No. 32, 1939, §§ 12A, 12B (Sri Lanka); Guneratne, supra note 601. 605. Maternity Benefits Ordinance, No. 32, 1939, § 10A (Sri Lanka); Shop and Office Employees (Regulation of Employment and Remuneration) Act, No. 60, 1957, § 18(e) (Sri Lanka). 606. Maternity Benefits Ordinance, No. 32, 1939, § 10 (Sri Lanka); Shop and Office Employees (Regulation of Employment and Remuneration) Act, No. 60, 1957, § 18(f)
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(Sri Lanka). 607. Maternity Benefits Ordinance, No. 32, 1939, § 5 (Sri Lanka). 608. Id. § 5(4). 609. Guneratne, supra note 601. 610. Id. 611. Mines (Prohibition of Female Labour Underground) Ordinance, No. 13, 1937, §§ 2–3 (Sri Lanka). 612. Factories (Amendment) Act, No. 19, 2002, § 2 (Sri Lanka). The amended law allows women to work up to 60 hours of overtime per month and young persons (defined as age 16 or older but under age 18) to work up to 50 hours of overtime per month. The former law provided that women and young persons (those age 16 or older) were only permitted to work up to 100 hours of overtime per year. See Factories Ordinance, No. 45 1942, § 68(1) (Sri Lanka). The Amendment Bill was vehemently opposed by the Free Trade Workers Union, which comprises workers from the different Free Trade Zones in the country, on the basis that it would lead to the exploitation of women workers who would be forced to work overtime to meet deadlines. Some NGOs that initially supported the bill on the basis that it would allow women the right to work overtime if they wished to, instead of limiting their overtime hours to 100 hours per year. 613. Sri Lanka was a party to the Night Work (Women) Convention (Revised), 1948 (No. 89). In 1982, Sri Lanka withdrew or denounced the Convention with the establishment of the EPZs. 614. See Employment of Women,Young Persons and Children, the Factories and the Shop and Office Employees (Regulation of Employment and Remuneration) (Amendment) Act, No. 32, 1984 (Sri Lanka). 615. Women’s Charter, supra note 250, art. 10. 616. Id. art. 11. 617. Id. art. 12(i)–(iii). 618. Id. art. 12(vii). 619. Padmini Abeywardena,Women and Credit In Sri Lanka 8 (1993). 620. Id. 621. Savitri Goonesekere, Laws Regulating the Participation and Status of Women in Economic Production: Critical Areas for Reform, in Women in the Economy,Working Paper No. 12, at 55 (1998). 622. Women’s Charter, supra note 250, §§ 10(i)(d)(ii), 12 (iv). 623. See Central Bank of Sri Lanka Annual Report 2001, supra note 375, at 236; see also Asian Development Bank, Programs Department West, Country Briefing Paper:Women in Sri Lanka 1999. 624. See Central Bank of Sri Lanka Annual Report 2001, supra note 375, at 236. 625. See id. 626. Ministry of Education, Government of Sri Lanka,About us, at www.gov.lk/moe/about/index.htm (last visited Feb. 6, 2004). 627. Swarna Jayaweera, Education, in Post Beijing Reflections:Women in Sri Lanka 1995–2000, at 74 (Centre for Women’s Research ed., 2000). 628. Id. 629. Id. 630. Ministry of Education, Government of Sri Lanka,About us, at www.gov.lk/moe/about/index.htm (last visited Feb. 6, 2004); Jayaweera, supra note 627, at 60. 631. Sri Lanka Const., art. 27(1)(h). 632. Women’s Charter, supra note 250, § 9(i). 633. Id. § 9(iv). 634. National Plan of Action for Women, supra note 242, § 2, Goal 1. 635. See Communication with Camena Guneratne, Open University of Sri Lanka, Review Section 2 (Dec. 5, 2003) (on file with Center for Reproductive Rights). 636. Darini Rajasingham-Senanayake, Ambivalent Empowerment:The Tragedy of Tamil Women In Conflict, in Women,War and Peace in South Asia: Beyond Victims of Agency 115 (Rita Manchando ed., 2001). 637. Radhika Coomaraswamy & Soundarie David, Overview, in Sri Lanka: State of Human Rights 2002, at 14–15 (Law & Society Trust ed., 2002). 638. Id. 639. Penal Code, No. 2, 1883, § 363, Explanation (i), amended by Penal Code (Amendment) Act, No. 22, 1995, § 12 (Sri Lanka). Some women’s groups have argued for a broader definition of rape that would include the insertion of objects into the vagina or anus or other sexual acts. However, the law as it stands distinguishes between rape and “grave sexual abuse,” defining the latter as acts for “sexual gratification” that do not involve vaginal penetration. Id. § 365B. Both rape and grave sexual abuse carry the same punishment, however. Id. § 365B(2)(a)–(b). 640. Id. § 363, Explanation (i), amended by Penal Code (Amendment) Act, No. 29, 1998 (Sri Lanka). 641.This conditional section was brought in as a result of heavy lobbying by members of the Muslim community at the bill stage. They argued that Muslim law does not recognize that a man can rape his wife. 642. See Communication with Shyamala Gomez, University of Colombo, CRLP— Right to Physical Integrity (draft) (Aug. 19, 2003) (on file with Center for Reproductive Rights) [hereinafter Communication with Shyamala Gomez, CRLP—Right to Physical Integrity (draft)]. 643. Id. (citing Justice Shiranee Tilakawardane in Kamal Addararatchi v.The Republic, No. 7710/96, at 11, Decision of the High Court of the Western Province, Dec. 22, 1997). 644. Penal Code, No. 2, 1883, § 363, Explanation (ii), amended by Penal Code (Amend-
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ment) Act, No. 22, 1995 (Sri Lanka). 645. Penal Code, No. 2, 1883, § 364(1) (Sri Lanka). 646. Id. §§ 364(2)–(3), 364A. 647. Penal Code, No. 2, 1883, § 364A(1), amended by Penal Code (Amendment) Act, No. 22, 1995 (Sri Lanka). 648. Id. 649. Penal Code, No. 2, 1883, § 364A(3)(a) (Sri Lanka). 650. Id. § 364A(3)(b). 651. Marriage Registration Ordinance, No. 19, 1907, § 17 (Sri Lanka). 652. Dole v. Romanis Appu, 1939, 40 NLR 449 (Sri Lanka). 653. Id.. 654. Id.. 655. Perera v. Siriwardene, 1946, 48 NLR 84 (Sri Lanka). 656. Penal Code, No. 2, 1883, §§ 294, 297, 300, 305, 308A, 312–313, 330–331, 340, 342, 345, 363–365B, 483–484 (Sri Lanka). 657. Rajepakse, supra note 221; Email from Shyamala Gomez, University of Colombo, to Pardiss Kebriaei, Center for Reproductive Rights (Jan. 13, 2004, 08:32:00 EST) (on file with the Center for Reproductive Rights). 658. Mario Gomez, Domestic Violence and the Sexual History of Rape Victims, 11 L. & Soc’y Tr. Rev 2 (2001). See A Framework for Model Legislation on Domestic Violence, Report of the Special Rapporteur on violence against women, its causes and consequences, Commission on Human Rights, 52nd Sess., U.N. Doc. E/CN.4/1996/53/Add.2, Feb. 2, 1996. 659. Communication with Shyamala Gomez, CRLP—Right to Physical Integrity (draft), supra note 642. 660. Id. 661. Id. 662. Id. 663. Penal Code, No. 2, 1883, § 345, amended by Penal Code (Amendment) Act, No. 22, 1995 (Sri Lanka). The 1995 amendment repealed the earlier offense of “outraging the modesty” of a woman. 664. Prohibition of Ragging and other Form of Violence in Educational Institutions Act, No. 20, 1998, § 2(2) (Sri Lanka). 665. Id. 666. Id. § 17. 667. Section 31B(1)(a) of the 1950 Industrial Disputes Act provides that a person dismissed from employment may seek redress from a labor tribunal. A labor tribunal may order compensation or reinstatement. The act only applies to certain categories of employment, mainly in the private sector. The act does not apply to the public sector. Industrial Disputes Act, No. 43, 1950, § 31B(1)(a) (Sri Lanka). 668.Associated Battery Manufacturers (Ceylon) Ltd. v. United Engineering Workers’ Union, 1975, 77 NLR 541 (Sri Lanka). 669. Penal Code, No. 2, 1883, § 360A, amended by Penal Code (Amendment) Act, No. 22, 1995 (Sri Lanka). 670. Id. 671. Id. 672. Email from Shyamala Gomez, University of Colombo, to Lilian Sepúlveda-Oliva, Center for Reproductive Rights (Jan. 29, 2004, 8:16:00 EST) (on file with Center for Reproductive Rights). 673. Women’s Charter, supra note 250, § 14(iii). 674. Bureau of Democracy, Human Rights and Labor, Department of State, Government of the United States, Country Reports on Human Rights Practices 2001 § 6(f) (2002), http://www.state.gov/g/drl/rls/hrrpt/2001/sa/8241pf.htm (last visited Feb. 6, 2004). 675. Penal Code, No. 2, 1883, § 360C, amended by Penal Code (Amendment) Act, No. 22, 1995 (Sri Lanka). 676. SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002), supra note 136. 677. Circumcision, MWRAF Newsl. (Muslim Women’s Research and Action Forum, Colombo, Sri Lanka), Dec. 2, 1998, at 5. 678. Id. 679. W. Indralal de Silva & Aparnaa Somanathan, et. al., Health Policy Programme, Institute of Policy Studies of Sri Lanka,Adolescent and Youth Reproductive Health in Sri Lanka: Status, Issues, Policies, and Programs 7 (2003). 680. Id. at 11–12. 681. Id. at 11. 682. Id. 683. Id. 684. Id. 685. Id. 686. Id. 687. Id. at 11, n.23. 688. Id. at 12. 689. Id. 690. Sri Lanka Const., art. 27(13). 691. de Silva & Somanathan, et. al., supra note 679. 692. Population and Reproductive Health Policy Action Plan 2000–2010, supra note 239, Goal 4. 693. Id. 694. Population and Reproductive Health Policy, supra note 234, Goal 4.
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695. Population and Reproductive Health Policy Action Plan 2000–2010, supra note 239, Goal 4. 696. Id. 697. Asia and Pacific Regional Bureau for Education, UNESCO Bangkok, Sri Lanka: Program Responses to ARSH Problems, at www.unescobkk.org/ips/arhweb/demographics/srilanka1.cfm (last visited Feb. 6, 2004). 698. Id. 699. Id. 700. Six Year Development Programme, supra note 241, Long Term Objectives 4. 701. Id. Long Term Objectives 2. 702. National Health Policy, supra note 137. 703. National Plan of Action for Women, supra note 242, § 3, Issue 2. 704. Sri Lanka: Country Population Assessment Report, supra note 145, at 53. 705.W. Indralal De Silva, Ireland of Asia:Trends in Marriage Timing in Sri Lanka, 12 Asia-Pac. Pop. J. (1997). 706. Sri Lanka Demographic and Health Survey 2000, supra note 251, at 120. 707. Id. 708. Marriage Registration (Amendment) Act, No. 18, 1995, § 2 (Sri Lanka); Kandyan Marriage and Divorce (Amendment) Act, No. 19, 1995, §§ 4, 66 (Sri Lanka). 709. Marriage Registration Ordinance, No. 19, 1907, § 22(1) (Sri Lanka). 710. Id. § 22(2). 711. Gunerishami v. Gunatilaka, 1904, 7 NLR 219 (Sri Lanka). In this case, the girl’s father refused his consent because, according to the evidence, the expectant groom wished to marry his daughter merely to shield his brother, who had seduced the girl. The Supreme Court held that under the circumstances it had no authority to overrule the father’s objections. 712. Marriage Registration (Amendment) Act, No. 18, 1995, § 15; Kandyan Marriage and Divorce (Amendment) Act, No. 19, 1995, §§ 4, 66. 713. Muslim Marriage and Divorce Act, No. 13, 1951, § 23 (Sri Lanka). 714. Kodikara, supra note 102. 715. Muheidinbawa v. Seylathumma, 1937, 2 MMDR 53 (Sri Lanka); Kodikara, supra note 102. 716. Jayaweera, supra note 627, at 63. 717. Id. at 64. 718. Id. at 63–64. 719. Id. at 64. 720. Id. at 63. 721. Id. at 68. 722. Id. 723. Id. at 86. 724. Id. at 68. 725. Support to Advocacy for Reproductive Health and Gender, supra note 196, at 3; Sri Lanka: Country Population Assessment Report, supra note 145, at 54. 726. Sri Lanka: Country Population Assessment Report, supra note 145, at 54. 727. Id. at 41. 728. J. Fernando, supra note 322, at 50, tbl. 7. 729. Sri Lanka: Country Population Assessment Report, supra note 145, at 54. 730. Id. 731. See Communication with Shyamala Gomez, University of Colombo, CRLP—Sex Education and Adolescents (draft) (July 18, 2003) (on file with Center for Reproductive Rights). 732. Sri Lanka: Country Population Assessment Report, supra note 145, at 54. 733. Id. 734. Projects & Programmes, Daily News, FPASL Golden Jubilee Supplement (The Family Planning Association of Sri Lanka, Colombo, Sri Lanka), July 18, 2003, at 2. 735. Id. 736. UNFPA Sri Lanka, RAS/98/P17,The EC/UNFPA Reproductive Health Initiative in Asia: Reproductive Health Information, Counselling and Services for Adolescents and Youth, http://www.itmin.net/unfpa_srilanka/projects2.html#proj8 (last visited Feb. 8, 2004). 737. Damitha Hemachandra, Many Children Still Abused and Neglected in Sri Lanka, Daily Mirror, Oct. 8, 2003, at http://www.dailymirror.lk/2003/10/08/feat/1.html (last visited Feb. 6, 2004). 738. Faraza Farook, Sex Crimes Top Child Abuse Case, Sun.Times, July 27, 2003. 739. Hemachandra, supra note 737. 740. Penal Code (Amendment) Act, No. 22, 1995 (Sri Lanka). 741. Id. §§ 286A, 360A–C, 308A, 364A. These provisions include a mandatory minimum punishment for the first offense. 742. Penal Code (Amendment) Act, No. 29, 1998 (Sri Lanka). 743. Id. §§ 288, 288A–B.“Restricted article” is defined according to the Poisons, Opium and Dangerous Drugs Ordinance No. 17 of 1929. These provisions were further strengthened with the Criminal Procedure (Amendment) Act No. 28 of 1998, which empowers a magistrate to arrest a suspected child abuser without a warrant and to keep him in custody for up to 72 hours. 744. Penal Code, No. 2, 1883, § 363(e) (Sri Lanka).The information on statutory rape has been extracted substantially from Shyamala Gomez & Mario Gomez, Gender Violence in Sri Lanka: From Rights and Shame to Remedies and Change (1st ed. 1999). 745. Penal Code, No. 2, 1883, § 363(e), amended by Penal Code (Amendment) Act, No. 22, 1995, § 12 (Sri Lanka).
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746. Lebbe v. Mohomadu Tambi, 1901, 1 MMDR 13 (Sri Lanka); Goonesekere, supra note 475. 747. Code of Criminal Procedure (Amendment) Act, No. 28, 1998, § 2 (Sri Lanka). 748. Id. § 43A, 451A. 749. Id. § 453A. 750. Evidence (Special Provisions) Act, No. 32, 1999 (Sri Lanka). 751. Id. § 2. 752. Id. § 4. 753. Ministry of Reconstruction, Rehabilitation and Social Welfare & Department of Probation and Child Care Services, Children’s Charter, arts. 20, at 32–37. 754. Communication with Shyamala Gomez, University of Colombo, CRLP—Sexual Offenses against Minors (draft).
