INDIA: Groundbreaking court cases on maternal mortality
In a historic decision the Delhi High Court ordered compensation for violation
of constitutional and reproductive rights of two impoverished women. The
judgment will have immense health policy implications in India, where a maternal
death occurs every five minutes.
In the case of Laxmi Mandal vs Deen
Dayal Hari Nager Hospital & Ors W.P. 8853/2008 Justice Muralidhar instructed
the State of Haryana, to pay compensation of Rs 2.4 lakhs to the family of
Shanti Devi who passed away during childbirth on 20 January this year. The
Court found the Respondents in violation of Shanti Devi's right to life and
health, reiterating that her death was preventable.
In the case of
Jaitun v Maternity Home, MCD, Jangpura & Ors W.P. No. 10700/2009 High Court
directed the Municipal Corporation of Delhi and Government of National Capital
Territory of Delhi to pay Rs 50,000 compensation to Fatima for the violation of
her fundamental rights by being compelled to give birth to her daughter Alisha
under a tree, on account of the denial of basic medical services.
"These petitions are essentially about the protection and enforcement of
the basic, fundamental and human right to life under Article 21 of the
Constitution. These petitions focus on two inalienable survival rights that form
part of the right to life: the right to health (which would include the right
to access and receive a minimum standard of treatment and care in public health
facilities) and in particular the reproductive rights of the mother. The other
right which calls for immediate protection and enforcement in the context of
the poor is the right to food".
The Court underlined that the cases
demonstrated a complete failure of the public health system and a failure in
implementation of Government Schemes, including the National Maternity Benefit
Scheme (NMBS), Integrated Child Development Scheme (ICDS) and Janani Soraksha
Yojana (JSY) - a scheme designed to reduce maternal and neo-natal mortality by
encouraging institutional delivery for poor pregnant women. The judgment further
directed the Respondents to ensure that the payment of Rs 500, eight to twelve
weeks prior to delivery to all Below Poverty Line (BPL) pregnant women to ensure
their proper nutrition under the NMBS, be ensured as per Supreme Court Order
in PUCL v UOI 196/2001, irrespective of age and number of previous births in all
states in India.
"Both the cases point to the complete failure of the
implementation of the schemes. With the women not receiving attention and care
in the critical weeks preceding the expected dates of delivery, they were
deprived of accessing minimum health care at either homes or at the public
health institutions (.) It points to the failure of the referral system where a
poor person who is sent to a private hospital cannot be assured of quality and
timely health services."
Drawing on international law Justice Muralidhar
underlined that women have the right to control their body and decide when they
wish to conceive. The Court also pointed out that women carry the burden of
poverty in that they have to prove their BPL status when trying to access health
facilities and accordingly ordered that "no pregnant women be denied access to
medical treatment regardless of her social economical status".
"There is
no assurance of "portability" of the schemes across the states. In the present
case, Shanti Devi traveled from Bihar to Haryana and then to Delhi. In Haryana
she was clearly unable to access the public health services. At Delhi she had to
once again show that she had a BPL card, and on being unable to do so, she was
denied access to medical facilities. For the migrant workers this can pose a
serious problem. Instructions will have to be issued to ensure that if a person
is declared BPL in any state of the country and is availing of the public health
services in any part of the country, such person should be assured of continued
availability of such access to public health care services wherever such person
moves."
"It may be difficult to quantify the actual loss suffered by
either family as a result of the failure by the State Government to deliver the
benefits under the schemes to each of these women during their pregnancies. What
is clear in Shanti Devi's case is that the maternal
mortality was clearly
avoidable".
"In the case of Fatema soon after the baby was delivered,
she required nutrition and supplements which were denied till the Court's
intervention.
Even the ICDS benefits were given only after the Court's
intervention. It is well possible that but for the Court's intervention, the
baby and the mother may have been deprived of the benefits which would have
caused irreparable injury and possibly loss of life".
"It was not denied
by learned counsel appearing for the Government of Haryana, the GNCTD as well as
the Central Government that as of now there is no inbuilt component for
reparations under the schemes. Given that the budget outlay of the schemes is in
several hundreds of crores, it is indeed surprising that there is no inbuilt
component for reparations"
The maternal mortality ratio (number of women
dying per 100,000 live births) in India is higher than in 120 countries,
including neighboring states of Bangladesh, China, Nepal and Sri Lanka. More
than 117,000 women and girls die each year in India from largely preventable
pregnancy- related causes.
This is the highest number of maternal deaths
in any country world-wide, which accounts for almost 25% of the global maternal
death burden.
For full text of high court judgment, please click
here.
For further details, contact:
Marta Kasztelan
Human
Rights Law Network
Reproductive Rights Unit
Mob: 09717701604
kasztelan.marta@gmail.com
