TODAY’S TALK ON EDITORIALS CIVILS360
JULY 29, 2017
Not just a question of weeks
- On Friday, the Supreme Court of India declined the abortion request of a 10-year-old rape survivor who was reportedly 32 weeks pregnant. Doctors who examined the adolescent opined that an abortion at this stage posed a risk to her life.
An arbitrary cap
- The Medical Termination of Pregnancy Act stipulates a cap of 20 weeks within which an abortion can be performed.
- While advising an abortion, medical practitioners are expected to evaluate whether continuing with the pregnancy would involve a risk to the life of the mother or cause grave injury to her physical and mental health.
- Alternatively, the decision is based on whether there would be a substantial risk of the child being handicapped by physical or mental abnormalities. N
- otably, the Act also provides that if any of these medical eventualities is likely to arise, then the mother’s actual or foreseeable environment must also be taken into consideration.
- The 20-week cap is somewhat arbitrary and has drawn rightful criticism. Foetal impairments often get detected at the ultrasound done between 18 to 22 weeks, when the foetus is said to have “substantially developed”.
- But in a country where a majority of expectant mothers still seek advice from midwives and Accredited Social Health Activists (ASHA), ultrasounds are only done when something “unusual” is suspected.
- The government, in 2016, launched the Pradhan Mantri Surakshit Matritva Abhiyan under which doctors at private and government facilities are required to provide free antenatal care on the ninth of every month. While ultrasounds are also covered, some ASHAs report that free ultrasounds are often not offered.
- The government, in 2014, introduced the Medical Termination of Pregnancy (Amendment) Bill. A step forward, it proposed increasing the abortion ceiling limit from 20 to 24 weeks. It introduced the concept of “substantial foetal abnormalities” — in which case the time period of pregnancy is irrelevant — and widened the scope of who could carry out the abortions by introducing the term “registered health care provider”, which included recognised practitioners of Ayurveda, Unani and homoeopathy.
Why the bill is pending?
- The Prime Minister’s Office is reported to have returned the proposed amendments and called for stricter implementation of the law.
- It believes that amendments to the Act are likely to give rise to illegal sex selection and abortion rackets.
Downside to legal restrictions
- In contrast, the World Health Organisation notes:” Restricting legal access to abortion does not decrease the need for abortion, but it is likely to increase the number of women seeking illegal and unsafe abortions, leading to increased morbidity and mortality.”
From a women’s rights perspective:
- Should not a pregnant mother have the right to decide whether to go through full-term when there is even the slightest chance of a foetal infirmity and not “substantial foetal abnormalities”? It is fair to state that no woman who voluntarily chose to get pregnant is likely to seek an abortion unless there are compelling circumstances. Should not the wishes and desires of the person who will be the caretaker be considered?
Cinema & censorship
- In a system that sets much store by retaining the power to censor films in the name of certifying them, random attempts by petitioners seeking cuts or even a ban often add to the pre-release anxieties of filmmakers.
- While rejecting the petition filed by a person claiming to be the daughter of the late Sanjay Gandhi to set aside the certificate granted to Indu Sarkar , a film directed by Madhur Bhandarkar, the Supreme Court has rightly banked on a well-established principle that freedom of expression cannot be curtailed without a valid reason.
- It has reiterated that the film is nothing but artistic expression within the parameters of law and that there is no warrant or justification to curtail it.
- Recent experience suggests that the CBFC does not always see itself as a certifying authority, but rather plays the censor quite merrily.
- In the case of Udta Punjab last year, it was seeking to be the guardian of Punjab’s honour against the depiction of the high prevalence of drug addiction in the State.
- The Bombay High Court had to remind the CBFC that certification, and not censorship, is its primary role and that its power to order changes and cuts must be exercised in accordance with constitutional principles.
- More recently, the CBFC sought to play the moral censor with regard to Lipstick Under My Burkha , a film it thought was too “lady-oriented” to be given a certificate, presumably because it depicts their fantasies.
- The Film Certification Appellate Tribunal had to intervene to secure the release of the film, with an ‘A’ certificate.
- These instances demonstrate that challenges to freedom come from both within the systemic framework and outside.
- It is a matter of satisfaction that the courts prefer to protect the right to free expression rather than entertain excuses such as maintenance of law and order and public tranquillity, or someone’s sense of hurt or the fear of someone being portrayed in a bad light.
The state’s domain
- The proposal of the NITI Aayog and the Union Health Ministry to allow private entities to use the premises of the district hospitals to provide treatment for cardiac and pulmonary diseases and cancer.
- A quick scaling-up of care for such non-communicable diseases is possible under the arrangement, because there are 763 functional district hospitals, with just five States led by Uttar Pradesh accounting for over 42% of the facilities. Yet, contracting out services in a virtually unregulated and largely commercial private system is fraught with risks:
- One major concern in such an arrangement is to ensure that the bulk of health spending, whether from government funds, subsidy or private insurance, goes into actual care provision, and that administrative expenditure is capped under the contract.
- Moreover, in consonance with the goal to provide health for all under the National Health Policy, care should be universal, and free at the point of delivery.
- A market-driven approach to providing district hospital beds for only those with the means would defeat the objective.
- Providing 50 or 100 beds in a district hospital may expand access to care, but such arrangements do not offer a cure for the larger problem of the growing non-communicable disease burden.
- Lifestyle choices and social determinants, such as tobacco and alcohol use, and environmental pollution, are often linked to such diseases. Controlling the epidemic, therefore, requires other policy approaches too.
- If the contract is implemented, a provision for audits, penalties and cancellation of contracts is essential. Given the recourse to tax funds for viability gap funding and use of public infrastructure, the operations should be audited by the Comptroller and Auditor General.