04/06/2010
In a historic decision the Delhi High Court ordered compensation for violation of constitutional and reproductive rights of two impoverished women. The judgment will have immense health policy implications in India, where a maternal death occurs every five minutes.
In the case of Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors W.P. 8853/2008 Justice Muralidhar instructed the State of Haryana, to pay compensation of Rs 2.4 lakhs to the family of Shanti Devi who passed away during child birth on 20 January this year. The Court found the Respondents in violation of Shanti Devi's right to life and health, reiterating that her death was preventable.
In the case of Jaitun v Maternity Home, MCD, Jangpura & Ors W.P. No. 10700/2009 High Court directed the Municipal Corporation of Delhi and Government of National Capital Territory of Delhi to pay Rs 50,000 compensation to Fatima for the violation of her fundamental rights by being compelled to give birth to her daughter Alisha under a tree, on account of the denial of basic medical services.
"These petitions are essentially about the protection and enforcement of the basic, fundamental and human right to life under Article 21 of the Constitution. These petitions focus on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother. The other right which calls for immediate protection and enforcement in the context of the poor is the right to food".
The Court underlined that the cases demonstrated a complete failure of the public health system and a failure in implementation of Government Schemes, including the National Maternity Benefit Scheme (NMBS), Integrated Child Development Scheme (ICDS) and Janani Soraksha Yojana (JSY) - a scheme designed to reduce maternal and neo-natal mortality by encouraging institutional delivery for poor pregnant women. The judgment further directed the Respondents to ensure that the payment of Rs 500, eight to twelve weeks prior to delivery to all Below Poverty Line (BPL) pregnant women to ensure their proper nutrition under the NMBS, be ensured as per Supreme Court Order in PUCL v UOI 196/2001, irrespective of age and number of previous births in all states in India.
"Both the cases point to the complete failure of the implementation of the schemes. With the women not receiving attention and care in the critical weeks preceding the expected dates of delivery, they were deprived of accessing minimum health care at either homes or at the public health institutions (.) It points to the failure of the referral system where a poor person who is sent to a private hospital cannot be assured of quality and timely health services."
Drawing on international law Justice Muralidhar underlined that women have the right to control their body and decide when they wish to conceive. The Court also pointed out that women carry the burden of poverty in that they have to prove their BPL status when trying to access health facilities and accordingly ordered that "no pregnant women be denied access to medical treatment regardless of her social economical status".
"There is no assurance of "portability" of the schemes across the states. In the present case, Shanti Devi traveled from Bihar to Haryana and then to Delhi. In Haryana she was clearly unable to access the public health services. At Delhi she had to once again show that she had a BPL card, and on being unable to do so, she was denied access to medical facilities. For the migrant workers this can pose a serious problem. Instructions will have to be issued to ensure that if a person is declared BPL in any state of the country and is availing of the public health services in any part of the country, such person should be assured of continued availability of such access to public health care services wherever such person moves."
"It may be difficult to quantify the actual loss suffered by either family as a result of the failure by the State Government to deliver the benefits under the schemes to each of these women during their pregnancies. What is clear in Shanti Devi's case is that the maternal mortality was clearly avoidable".
"In the case of Fatema soon after the baby was delivered, she required nutrition and supplements which were denied till the Court's intervention. Even the ICDS benefits were given only after the Court's intervention. It is well possible that but for the Court's intervention, the baby and the mother may have been deprived of the benefits which would have caused irreparable injury and possibly loss of life".
"It was not denied by learned counsel appearing for the Government of Haryana, the GNCTD as well as the Central Government that as of now there is no inbuilt component for reparations under the schemes. Given that the budget outlay of the schemes is in several hundreds of crores, it is indeed surprising that there is no inbuilt component for reparations"
The maternal mortality ratio (number of women dying per 100,000 live births) in India is higher than in 120 countries, including neighboring states of Bangladesh, China, Nepal and Sri Lanka. More than 117,000 women and girls die each year in India from largely preventable pregnancy- related causes. This is the highest number of maternal deaths in any country world-wide, which accounts for almost 25% of the global maternal death burden.
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