SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

More documents

Recommendations

Info

detected from the early age of pregnancy, both threatening the life of the mother and/or foetus, suffering from severe genetic diseases and/or congenital defects, or that can not be repaired so as to cause difficulty for the infant to survive out the womb,” or “pregnancy due to rape that may result in psychological trauma for the rape victim.” 653 Even in such cases there are further limitations and abortions may be performed only: 654 “a. before pregnancy attains the age of 6 (six) weeks counting from the first day of the last menstruation, except in the case of medical emergencies; b. by health workers with skill and authority with a certificate stipulated by Minister; c. with the consent from the pregnant mother concerned; d. with the permission from the husband, except rape victim; and e. health service provider satisfying requirements stipulated by Minister.” Abortions can be performed only with counseling before and after the abortion. 655 The law further requires the government to protect and prevent women from having abortions in the limited circumstances allowed by the law where they are not qualified, safe and accountable and “contradictory with religious norms and provisions of laws and legislations.” 656 In Bangladesh while the Penal Code criminalises abortion except where it is performed in good faith to save the life of the woman, the Government in the late 1970s started providing “menstrual regulation” 657 services, reportedly as “an interim method to establish nonpregnancy.” 658 Legally, as the pregnancy is not confirmed, the provision of these services does not violate the prohibition on abortion. 659 653 Article 75, Law concerning Health No. 36/2009 (Indonesia) 654 Article 76, ibid. 655 Article 75, ibid. 656 Article 77, ibid. 657 ““Menstrual regulation” services have been available in the Government’s family planning programme. The Government does not feel that this service conflicts with current abortion laws as it provides menstrual regulation as a family planning method, not as an abortifacient… Menstrual regulation, however, can be performed on an out-patient basis and may be performed by a trained paramedic. In practice, many providers of menstrual regulation have received only informal training. Training in menstrual regulation and services is provided by the Government in seven government medical colleges, two district hospitals and a large family planning clinic.” Bangladesh, ‘Abortion Policies: A Global Review’, United Nations Population Division, Vol I, 2002 available at http://www.un.org/esa/population/publications/abortion/doc/bangladesh1.doc. Although the authors were unable to obtain a verified English translation of the original policy document introducing menstrual regulation services through the government, several government documents refer to the provision of this service. See for example, Committee on the Elimination of Discrimination Against Women, Consideration of Reports submitted by States Parties under Article 18 of the Convention on the Elimination of all forms of Discrimination Against Women, Third and fourth periodic reports of States parties – BANGLADESH, CEDAW/C/BGD/3-4, 1 April 1997 available at http://www.un.org/esa/gopherdata/ga/cedaw/17/country/Bangladesh/C-BGD3-4.EN and Proposed Reforms - Ministry of Health and Family Welfare, Bangladesh 658 “However, abortion during the first trimester is widely practiced under the name of Menstrual Regulation (MR). MR services were initially justified as preventing botched abortions and consequent maternal mortality; it finds its legal basis in an interpretation that it is "an interim method to establish non-pregnancy". This effectively removes it from the Penal Code. MR services have been widely available since the late 1970s as part of the family planning programme and provided at government health facilities free of cost by government functionaries who receive high quality training.” Amin, Sajeda and Hossain, Sara “Women’s reproductive rights and the politics of fundamentalism: A view from Bangladesh,” Women Living Under Muslim Laws (WLUML) Dossier 16, November 1996, available at http://www.womenandislam.net/bd/articles/20060509212125.pdf 659 Ibid. 136
In Thailand too, abortion is illegal and the Penal Code provides punishment for the woman and the person causing the abortion (with different punishments for abortion with and without her consent and where the act results in bodily harm or death.) 660 However, for medical practitioners Section 305 of the Penal Code carves out an exception, “if it is necessary for the sake of the health of such woman,” or if she is pregnant as a result of sexual assault. In 2006, the Medical Council of Thailand empowered under the Medical Profession Act B.E. 2525 prescribed the Medical Council’s Regulation on Criteria for Performing Therapeutic Termination of Pregnancy in accordance with Section 305 of the Criminal Code of Thailand B.E. 2548. 661 Under the regulations the termination of pregnancy under Section 305 would be performed only with the consent of the pregnant woman and only by a medical practitioner. 662 The regulation provides that abortions can be carried out in cases of necessity due to the physical or mental health problem of the pregnant woman. 663 In the case of the latter, the mental health problem has to be certified by at least one medical practitioner other than the one performing the procedure. 664 Mental health problems include severe stress caused by finding out that the foetus has or is at his risk of having a severe disability or genetic disease. 665 Physical and health problems are required to have clear indications and examination and diagnosis must be recorded. 666 For abortions in case of sexual assault, the regulations require evidence or fact leading to a “reasonable belief” that the pregnancy is caused by sexual assault. 667 Terminations of pregnancy in accordance with the regulations are to be performed in specified medical premises and must be reported to the Medical Council of Thailand. 668 The Regulation specifies that therapeutic terminations of pregnancy performed in accordance with the Regulation would satisfy the provisions of Section 305 of the Criminal Code discussed above. 669 The legal framework relating to abortion in India is contained in the Indian Penal Code, 1860 670 read with the Medical Termination of Pregnancy Act, 1971. Under the Penal Code, abortion is criminalized 671 and may be performed only in good faith to save the life of the 660 Sections 301, 302, 303 and 304, Penal Code (Thailand). Under Section 297, abortion is also punishable as a grievous bodily harm. 661 The authors obtained an unofficial translation of these regulations from the “Annual Review of Population Law,” Harvard School of Public Health, available at http://www.hsph.harvard.edu/population/abortion/Thailand.abo.htm 662 No.1, Medical Council’s Regulation on Criteria for Performing Therapeutic Termination of Pregnancy in accordance with Section 305 of the Criminal Code of Thailand B.E. 2548. 663 Nos. 3 and 4, ibid. 664 No. 5, ibid. 665 Ibid. 666 Ibid. 667 No.6, ibid. 668 Nos. 7 and 8, ibid. 669 No. 10, ibid. 670 Sections 312 to 318 of the Indian Penal Code relate to inducing miscarriages, injuring unborn children, exposing infants and concealing of births and make abortion a crime for both the abortionist as well as the mother. While the Indian Penal Code does not define the word ‘miscarriage’ judicial pronouncements have defined it to mean abortion and the expulsion of the embryo or foetus i.e. the immature product of conception. Infanticide and foeticide are therefore also offences under the code. Abortion under the code is permitted only where it is performed in good faith to save the life of the woman. 671 Punishment under the Indian Penal Code for causing a miscarriage differs depending on the situation. Where a person (including the woman herself) voluntarily causes the miscarriage, the punishment is imprisonment for a term extending to three years. If the woman is ‘quick’ with child i.e. the perception of movement of the foetus by the mother, the imprisonment may extend to seven years. Where the miscarriage is caused without the consent of the mother, the imprisonment may extend to ten years. The same punishment is prescribed if a person 137
Page 1 and 2:
THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4:
6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6:
ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8:
in the regional reviews. This is a
Page 9 and 10:
provide for information and distrib
Page 11 and 12:
B. METHODOLOGY In keeping with the
Page 13 and 14:
elevant and key laws and judgments;
Page 15 and 16:
The inability of many sexually stig
Page 17 and 18:
Equality irrespective of a person
Page 19 and 20:
The centrality of women’s rights
Page 21 and 22:
social standing, religious belief,
Page 23 and 24:
according to the physical condition
Page 25 and 26:
Constitutional Court in The Nationa
Page 27 and 28:
protections or statutory law. There
Page 29 and 30:
However it also noted that every Ri
Page 31 and 32:
concerned with declaring that the h
Page 33 and 34:
without guaranteeing the personal p
Page 35 and 36:
to enlarge the meaning and content
Page 37 and 38:
a concept has wider dimensions than
Page 39 and 40:
Such conduct mentioned in clauses (
Page 41 and 42:
embraced the complainant and asked
Page 43 and 44:
does not sever the ties between the
Page 45 and 46:
The potential recognition of same-s
Page 47 and 48:
Similarly, seeking out sex educatio
Page 49 and 50:
condom). Across such laws, the defi
Page 51 and 52:
jurisdictions. Nepal, a country wit
Page 53 and 54:
the conviction of the accused for s
Page 55 and 56:
with an unmarried woman is not puni
Page 57 and 58:
physical characteristics (virginity
Page 59 and 60:
interventions and safeguards such a
Page 61 and 62:
The opinion of the National Commiss
Page 63 and 64:
was married to she would acquire im
Page 65 and 66:
to consider the case of a woman see
Page 67 and 68:
oth parties and deems all marital p
Page 69 and 70:
female who has not attained 12 year
Page 71 and 72:
Article 16 of the Universal Declara
Page 73 and 74:
In Bangladesh, polygamy is allowed
Page 75 and 76:
immovable property. The above propo
Page 77 and 78:
consummation of marriage. The incap
Page 79 and 80:
Violence, especially sexual violenc
Page 81 and 82:
gender norms which many remand home
Page 83 and 84:
female or a female to a male. It in
Page 85 and 86: from other forms of inequality as w
Page 87 and 88: c. Whereas victims of violence in h
Page 89 and 90: courts. 350 According to the Commis
Page 91 and 92: The Act provides for the appointmen
Page 93 and 94: Rani 383 it was held that a shared
Page 95 and 96: The Act specifies imprisonment of 6
Page 97 and 98: property jointly or separately held
Page 99 and 100: upees or the amount of the dowry wh
Page 101 and 102: however, is that, of the 10,000 dea
Page 103 and 104: Addararachchi 439 the court conside
Page 105 and 106: harassment, the Indian Supreme Cour
Page 107 and 108: doer’s sexual desire by using doe
Page 109 and 110: In holding that there was no justif
Page 111 and 112: coerce or induce female inmates to
Page 113 and 114: material or detain any person for t
Page 115 and 116: consensual sexual activity with you
Page 117 and 118: The fined amount is to be given to
Page 119 and 120: the State and its citizens is one o
Page 121 and 122: every person “the right against e
Page 123 and 124: The law also includes the right of
Page 125 and 126: eing committed. 570 While prosecuti
Page 127 and 128: Broader provisions related to child
Page 129 and 130: in order to engage the child in suc
Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
Page 135: Indonesia’s Constitution recognis
Page 139 and 140: With regard to the first question,
Page 141 and 142: Further, any pregnant woman may vol
Page 143 and 144: childbearing age to establish a hea
Page 145 and 146: Government could not be held liable
Page 147 and 148: among those in the reproductive age
Page 149 and 150: Members' right to protect public he
Page 151 and 152: 7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154: education as well as non-discrimina
Page 155 and 156: The exchange of information through
Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161 and 162: Sections 292, 292A, 293 and 294 of
Page 163 and 164: “...any interpretation of 'obscen
Page 165 and 166: “1 (a) Condones or extenuates act
Page 167 and 168: In Thailand, places of entertainmen
Page 169 and 170: 8. SEX WORK This section examines h
Page 171 and 172: The use of raids, and exemptions fr
Page 173 and 174: clients or make an offer for a sex/
Page 175 and 176: and non-rehabilitative juvenile jus
Page 177 and 178: “In view of the aforesaid proposi
Page 179 and 180: person who commits the act are of t
Page 181 and 182: as parent or guardian has given his
Page 183 and 184: with one) on the charge that it was
Page 185 and 186: for sex workers while emphasizing t
Page 187 and 188:
19. Azimuddin v State of Uttar Prad
Page 189 and 190:
1. Acid Control Act, 2002 2. Acid-O
Page 191:
13. Intellectual Property Act, 2003
show all

SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?