Updated: Aug 14
This article has been authored by Tamanna Gupta, a fourth-year student at RGNUL, Punjab.
The denial of bail to the pregnant student activist Safoora Zargar recently has raised questions about the violation of human rights of pregnant women, which becomes all the more imperative during the COVID-19 outbreak. Zargar was arrested due to her alleged involvement in the Anti-Citizenship Amendment Bill protests. She was lodged in Tihar jail, one of the most overcrowded prisons in Asia, without any adequate measures in place for her protection, despite the government advisory stating that pregnant women are at heightened risk for contracting COVID-19.
Even in a general context, pregnant women across India are facing heightened challenges due to the pandemic, facing problems in several domains. COVID-19 has led to the watering down of rights of pregnant women, who continue to face challenges due to the pandemic. This article aims to analyze the possible remedies that can be invoked in order to aid the pregnant women during COVID-19.
Violation of Rights-An Ignominious Reality
Several instances have emerged wherein pregnant women have borne the brunt of the pandemic, in the form of deprivation of their rights in several forms, such as hospitals refusing to admit them, lack of ambulance facilities, and even contracting COVID-19 due to contact with other patients. Several migrant women delivered children on pavements, at railway stations and in buses, and other modes of public transport. Instances were reported where pregnant women passed away due to exhaustion, after being forced to travel long distances on foot, with no other mode of transportation available.
In Punjab, a migrant’s wife was denied admission at a hospital in Adampur, after which she was taken to Jalandhar, where she was further directed to Amritsar Medical College, stating that she suffered from a serious medical condition. The migrant also approached four private hospitals, but was turned away due to their inability to pay the fee. She was brought back to Jalandhar, where she passed away due to complications. Later, she was tested as COVID-19 positive.
In another heartbreaking incident, a migrant’s pregnant wife, who had departed with the crowds en masse, and had walked over 100 kilometers, delivered a girl child en route, and the child passed away. The last rites of the child were performed in Ambala itself.
Recently, a video of a baby tugging his dead mother at Bihar railway station went viral. In the video, the child is seen trying to evoke a response from the woman, who lies dead next to her belongings, at the railway station. The woman had boarded a Shramik Special Train from Ahmedabad. On reaching Bihar, she collapsed, and passed away due to dehydration, and hunger. There were several reports of hospitals housing pregnant women in shared facilities with COVID positive patients, thus increasing the risk of infection. Such instances pose questions on the credibility on the government’s claim that all possible measures are in place to stop the spread of COVID-19.
Rights of a Pregnant Woman during Pandemics
Analysing the Indian Context
Reproductive Rights of a women are recognized by the United Nations International Conference on Population and Development (UNPIN), which came into force in 1994. The Court in Suchitra Srivastava v Chandigarh Administration (2009) held that every woman has the right to decide the fate of their unborn child, which is greater than the right of the State to interfere in the pregnancy. The Court gave the right to a mentally unstable woman to decide the fate of her unborn child over the right of the State.
Under Section 3 of the Medical Termination of Pregnancy Act, 1971, a woman has a right to terminate her pregnancy if it would pose a great threat to the mental or physical health of a woman. The State may place restrictions on the right of a pregnant woman, but the restrictions must be “just, reasonable and fair”.
Even pregnant prisoners are granted several rights under the recently drawn out Prisons (Amendment) Bill 2016, which is yet to be implemented by the parliament. Section 26A(2) of the Prisons (Amendment) Bill 2016 states that a pregnant woman prisoner has the right to parole, starting from a month from the expected date of delivery. Special work and diet allocations have to be made for pregnant prisoners under Section 26A(1).of the Prisons (Amendment) Bill, 2016. Post-Pregnancy rights include medical facilities, maternity leave etc. However, it seems that such rights exist in a vacuum, as serious violation of these rights have been observed during the pandemic induced lockdown.
Analysing the International Context
The World Health Organization (WHO) issued a set of directives to signatory nations, wherein it was stated that all women have the right to a safe & positive childbirth experience, whether or not they are COVID positive. The Directives also state that women have the right to high quality maternity care, before, during and after childbirth, and COVID positive women have the choice to breastfeed their child.
In the United Kingdom (UK), the government has laid down comprehensive rights for pregnant women in several domains to protect them from COVID-19, as they are in the high risk group. Women have the right to ask for alternative workplace arrangements in case of risk, and it is the obligation of the employer to provide them the same. Even pregnant women availing Statutory Sick Pay (SSP) are entitled to full pay, rather than a wage cut. Furlough and Leave benefits for pregnant women are also laid down.
While different countries have taken to laying down the rights of pregnant women in the COVID-19 context, India has no comprehensive policy for the same. There is a pressing need for the governments, both at the national and the state level to formulate detailed guidelines for the welfare of pregnant women.
Possible Remedies for Safeguarding the Rights of the Pregnant Women
Several measures may be taken by the Courts and the Government in order to ensure more lives are not lost, and complications do not take place due to the pandemic. The Apex Court and State High Courts should issue directions to all hospitals, whether public or private, to ensure admission of pregnant women and for their subsequent treatment, if required. The Central and State Government should ensure priority tickets to Pregnant Women on the “Shramik Special” trains, and all other functional modes of transportation.
The Delhi High Court recently came down heavily on state government, because of the failure of the government to clarify whether pregnant women availing pregnancy related services and care have to undergo COVID-19 tests or not. The Court also threatened costs on the government if the government failed to address the issue at the earliest possible instance.
Statutory bodies such as National Commission for Women (NCW), National Human Rights Commission (NHRC) can also be the harbingers of pregnant women’s rights during the troubling times of COVID-19. Both derive their constitutional validity from the acts of the Parliament. While National Commission for Women derives sanction from National Commission for Women Act 1990, National Human Rights Commission is empowered to act for the benefit of human rights by the Protection of Human Rights Act, 1993.
Both organizations should take suo-moto cognizance of such incidents and ensure that further violation of pregnant women’s rights, especially the poor and downtrodden, doesn’t take place due to the pandemic. The district administration should ensure timely availability of important facilities such as ambulances, timely pick-up and discharge facilities. All organizations have to work in tandem in order to ensure such rights are not violated further.
People’s Union for Civil Liberties (PUCL) recently made a clarion call to the concerned authorities to grant bail to political prisoners. In the press statement, PUCL remarked that ensuring conditions conducive to prisoners’ life and health is a duty of the State. PUCL also condemned the abysmal prison conditions in India during COVID-19.
The denial of bail to pregnant student activist Safoora Zargar is a serious violation of human rights, even graver in extent due to the fact that she is a pregnant prisoner. Apart from the denial of bail, pregnant women in India are facing a plethora of problems owing to COVID-19. Renewed calls are being made to the government to formulate a policy, or at least issue guidelines for authorities to follow. In the present case, it is imperative that all authorities must work together to ensure that COVID-19 doesn’t spell doom to the rights of pregnant women.