Women of the World: Laws and Policies Affecting Their Reproductive Lives, South Asia

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Women oftheWorld: Laws and Policies Affecting Their Reproductive Lives

South Asia

Edited by The Center for Reproductive Rights

WOW South Asia 5/3/04 8:23 AM Page 2

PAGE 2

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


LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES

PAGE 3

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



PAGE 5

IV. Focusing on the Rights of a Special Group:


92

Adolescents

58

Marriage laws

92

A. Reproductive Health

58

Divorce laws

93

B. Marriage

58

Judicial separation

94

Laws governing Muslims

59


95

Laws governing Hindus

59


96

Laws governing Christians

59


97

C. Education

59

Property laws

D. Sexual Offenses Against Minors

60


98


98

2. INDIA

69

Access to credit

99

Education

99


I. Setting the Stage: The Legal and Political

97

100

Framework of India

72

Rape


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


103

B. Marriage

104

Organizations (NGOs)

75


75


104

75


104

76


104

Domestic sources International sources II. Examining Reproductive Health and Rights A. General Health Laws and Policies

76

Objectives

77


77

Financing and costs of health-care services

78


80


80

Patients’ rights

81


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


118

Executive branch

118

Legislative branch

119


119

Executive branch

119

Legislative branch

120


120


121

D. The Role of Civil Society and Non-Governmental

91

Organizations (NGOs)

121

91


121

92

Domestic sources

121


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


124


125


125


126

Patients’ rights

126


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


158

Executive branch

158

Legislative branch

158


158


160

D. The Role of Civil Society and Non-Governmental Organizations (NGOs) E. Sources of Law and Policy

160 160

Domestic sources

160

133


161

134 135


135

Marriage laws

135

Divorce laws

135

Judicial separation

136


136


136


136 136


137


137

Access to credit

138

Education

138


153

133

B. Citizenship

Property laws

4. PAKISTAN

139

Rape

139

Incest

140

Domestic violence

140

Sexual harassment

141


161 161

Objectives

162


162


164


165


165

Patients’ rights

165


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


175


142


142


142

B. Marriage

143

C. Education

144

D. Sexual Offenses against Minors

144

Marriage laws

175

Divorce laws

178

Judicial separation

179


180


180




PAGE 7

181


209

Property laws

181


210


182

Patients’ rights

210


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


186


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


219 219 219 220 220 220 220

187

Marriage laws


187

Divorce laws

222

B. Marriage

187

Judicial separation

223


187


224


187


224


188


225

Laws governing Parsis

188

Property laws

225

C. Education

188


226

D. Sexual Offenses Against Minors

188


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


231

Legislative branch

204


204

Framework of Sri Lanka A. The Structure of National Government Executive branch Legislative branch B. The Structure of Local Governments


205

D. The Role of Civil Society and Non-Governmental Organizations (NGOs)

205


205

Domestic sources

205


206


206 206

Objectives

207


208

Financing and cost of health-care services

209


231


231

B. Marriage

232

Laws governing Kandyan Sinhalese

233


233

Laws governing Tamils

233

C. Education

233

D. Sexual Offenses against Minors

234




PAGE 9

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


PAGE 10

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.



PAGE 11

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


PAGE 12

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



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

PAGE 13

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-

WOMEN OF THE WORLD:

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-



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

WOMEN OF THE WORLD:

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



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

WOMEN OF THE WORLD:

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



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



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.



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



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.



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.


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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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 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


BANGLADESH

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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.


PAGE 32

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


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-

WOMEN OF THE WORLD:

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-


BANGLADESH

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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WOMEN OF THE WORLD:

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,


BANGLADESH

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-


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:


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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2. India Statistics GENERAL

Population ■

Total population: 1,065,500,000.1

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Annual percentage growth of gross domestic product (GDP): 5.9.6

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Percentage of employed women in agricultural labor force: 31.14

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Percentage of women among administrative and managerial workers: Information unavailable.15

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CONTRACEPTION ■


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Prevalence of sterilization among couples: 30.7% (total); 27.3% (female); 3.4% (male).21

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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

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Rate of abortion per 1,000 women aged 15–44: 2.7.29

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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.

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Number of people living with HIV/AIDS: 3,970,000.32

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Estimated number of deaths due to AIDS: Information unavailable.34



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Gross primary school enrollment ratio: 92 (female) and 111 (male).37

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Contraceptive prevalence rates among married female adolescents:4.7% (modern methods);3.3% (traditional methods);8.0% (any method).40

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Percentage of abortions that are obtained by women younger than 20: 6.1.41

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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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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.

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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).


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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

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Prevalence of sterilization among couples: 17.5% (total); 12.1% (female); 5.4%(male).21

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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

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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.

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Number of people living with HIV/AIDS: 58,000.32

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Estimated number of deaths due to AIDS: 2,400.34



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Gross primary school enrollment ratio: 108 (female) and 128 (male).37

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Contraceptive prevalence rates among married female adolescents: 4.4% (modern methods); 2.2% (traditional methods); 6.5% (any method).40

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Percentage of abortions that are obtained by women younger than age 20: 6.7.41

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Number of children under the age of 15 living with HIV/AIDS: 1,500.42

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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


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. 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,NewYork, United States, Sept. 6–8, 2000, U.N. GAOR, 55th Sess., U.N. Doc. A/Res/55/2 (2000). 131. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 26. 132. Nepal Const., arts. 26(1), (7), (9)–(10).


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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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291. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 292. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 21 n.12, 13. 293. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 294. Family Health Division, Department of Health Services, Ministry of Health, National Safe Abortion Policy 2002 (draft), ¶¶ 3.1.3–3.1.4, 3.1.7–3.1.8, 4.1.4, 4.2.1–4.2.3, (2000). 295. Implementation Status of the Outcome Document of Beijing Platform for Action, supra note 8, at 20. 296. Id. 297. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 6. 298. Communication with Melissa Upreti, supra note 282. 299. Id. 300. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 301. Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 57 n.205 (2003) (citing data as of Aug. 31, 2003 from the National Centre for AIDS & STD Control, Ministry of Health). 302. Nepal Demographic and Health Survey 2001, supra note 56, at 195. 303. Id. This is a UNAIDS 2000 estimate. 304. Ministry of Health Annual Report 1998/99, supra note 142, tbl. 4e.2, at 181. 305. Id. tbl. 4e.1, at 181. 306. See Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 58. 307. See Ministry of Health Annual Report 1998/99, supra note 143, at 177. 308. See id. 309. Nepal Demographic and Health Survey 2001, supra note 56, at 195. 310. Id. 311. Ministry of Health Annual Report 1998/99, supra note 142, §§ 1.2, at 178. See Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 57. 312. Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 57. 313. Joint United Nations Program on HIV/AIDS (UNAIDS), National Response Brief: Nepal, http://www.unaids.org/nationalresponse/search.asp (last visited Feb. 19, 2004). See Shadow Report on the Second and Third Periodic Report of Government of Nepal on CEDAW Convention, supra note 172, at 57. 314. See Tenth Plan, supra note 139, ch. 22, § 4.6.1. 315. See CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 152. 316. Ministry of Health Annual Report 1998/99, supra note 142, at 177. 317. Nepal Demographic and Health Survey 2001, supra note 56, at 195. 318. Nepal Population Report 2002, supra note 274, ch. 11. 319. Id. 320. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 321. Id. 322. DHS 2001, tbl. 4.1, at 56. 323. Tenth Plan, supra note 139, ch. 20, § 1. 324. Id. ch. 20, § 20.1. 325. Id. ch. 20, § 4(c). 326. Id. ch. 20, § 4(b). 327. Nepal Population Report 2002, supra note 274, ch. 14, § 14.1–14.2. 328. Communication with Dr. Lakshmi Narayan Thakur, supra note 177. 329. Nepal Const., art. 11. 330. Id. art. 11(3). 331. Id. art. 25(3). 332. Id. art. 26(7). 333. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 136. 334. Id. ¶ 3. 335. Singh Dubar, Ministry of Women and Social Welfare, Government of Nepal, Beijing Plus Five Country Report 34–35 n.40 (1999); Consideration of Reports Submitted by States Parties under Article 18 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Initial report of States parties, Nepal, CEDAW Committee, 21st Sess., annex II, U.N. Doc. CEDAW/C/NPL/1 (1999). 336. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶ 3. 337. Id. ¶. 338. Id. ¶ 4. 339. Beijing Plus Five Country Report, supra note 335, § B, at 9–10. 340. Beijing Declaration and the Platform for Action, Fourth World Conference on Women, Beijing, China, Sept. 4–15, 1995, ch. III, Critical Areas of Concern, U.N. Doc.A/CONF.177/20 (1995); United Nations Development Programme, Beijing +5 Review: Nepal, Policies and Implementation Strategies of Government, available at www.undp.org.np/publications/beijing5/contents.htm (last visited Oct. 17, 2003). 341. CEDAW Committee, Combined 2nd and 3rd reports of States parties, Nepal, supra note 12, ¶¶ 170–171. 342. Id. ch. 24, § 25.1. 343. Id. 344. Id. ch. 24, § 25.2.3.


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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).

WOMEN OF THE WORLD:

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).



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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Population by sex: 72,358,880 (female) and 76,362, 250 (male).2

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Gross national income (GNI) per capita: USD 410.7

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Prevalence of sterilization among couples: 5.0% (total); 5.0% (female);

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