Monday July 04, 2022

The human right to family planning

February 06, 2019

Despite the Supreme Court’s verdict in early January on the need to defuse the ticking population bomb, the prevailing confusion in our official policy on two-child families and birth-spacing continues.

The dilemma relates to whether a married couple should be forced to restrict family size or educated about using modern contraceptives for their wellbeing. The first approach can be referred to as an attempt to control the population while the second one falls under the category of birth-spacing. Indeed, research shows that a married couple cannot be forced to use contraceptives in the national interest. Therefore, the importance of birth-spacing ought to be highlighted.

In the past, our two-child policy in the country backfired as married couples did not use contraceptives. So our strategy should not focus on accelerating population control but on increasing the use of modern contraceptives by removing misconceptions and social stigmas attached to them. The judiciary needs to provide constitutional interpretations and case law on the fundamental rights regarding reproductive health, which are in sync with international conventions, goals, and declarations.

In its judgment announced earlier this year, the Supreme Court cited legal precedents to indicate that the right to life entails the right to basic amenities and living standards. There is also no denying the fact that these considerations are heavily dependent on the country’s economic progress, which is handicapped by a rapidly-growing population. So, if we want basic amenities and an improved standard of living, we should adopt a two-child policy.

However, global trends suggest that a different approach is being adopted towards protecting the rights of every woman and couple to freely determine the number, timing, and spacing of child births. Laws regulating the number or spacing of child births are believed to violate human rights and contradict the government’s national commitments and international obligations.

The Programme of Action of the International Conference on Population and Development (ICPD) held in Cairo in 1994 laid out a plan to advance human wellbeing that places human rights, rather than numerical population targets, at the centre of the global development agenda. It emphasises the value of investing in women and girls, both as an end and as a key to improving the quality of life for everyone. This programme also affirms the importance of sexual and reproductive health, including family planning, as a precondition for women’s empowerment.

The goal of the UN Population Fund (UNFPA)’s current strategic direction is to ensure universal access to sexual and reproductive health, and reproductive rights that focus on women, adolescents, and the youth.

Though it is for legal experts to analyse the judgment, it seems clear that the apex court has kept the decision-making process within the domain of the executive. The dilemma on whether to use a carrot-and-stick approach to reduce family size is also reflected in the court’s judgment.

Soon after the judgment was delivered, the media cited former chief justice Saqib Nisar as saying that “two children per family will help control the population”. Such perceptions are an outcome of traditional family-planning campaigns that have been adopted by the government. But what if both children are either female or male? This puts couples who either want a son or a daughter under pressure to opt for another pregnancy.

But the Supreme Court also recognises the personal choices of a couple. In its verdict, it quoted from the Proclamation of Tehran 1968 wherein family planning was recognised by the international community as both a right and a means of enabling other human rights. The apex court stated that: “parents have a basic human right to determine freely and responsibly the number and the spacing of their children”. This involves “imparting sufficient information and means to the parents to control reproduction as well as providing them with adequate knowledge regarding the advantages and disadvantages of such determination”.

The court’s decision is the outcome of a suo-motu notice followed by a report from a taskforce/committee and symposium attended by representatives from federal and provincial departments for family planning. The recommendatory judgment has a background of family-planning initiatives in Pakistan. It mentions details on how the constitutional right to life has been broadened in light of earlier court decisions, and reviews the approaches adopted in neighbouring countries. The judgment quotes the diverse experiences in this regard in four neighbouring countries: Iran, India, Bangladesh, and China.

In Iran, mandatory pre-marriage counselling, incorporating family planning into the curriculum, the provision of family-planning methods, and the local production of condoms resulted in 74 percent of married women practising family planning. Around 60 percent use modern methods and one-third of modern contraceptive-users have relied on a permanent method.

While quoting different court decisions from India, the court concluded that: “the foregoing extracts clearly reflect the conviction and certitude of the legislature and the judiciary that the national interest of India lay in population control of the severity that disqualifications from elections and posts etc, was deemed to be an appropriate and necessary measure to enforce India’s two-child policy”.

The national family-planning programme in Bangladesh is considered to be “culturally sensitive” because it uses strategies that account for gender inequality. A mixed-contraceptive method was adopted, prioritising oral pills over other methods such as sterilisation or clinical services that were initially met with hesitance, particularly among the rural population. This resulted in the prevalence of contraceptive use that increased dramatically from three percent to 45 percent among married women since 1971. The fertility rate declined from around seven births per woman in the mid-1970s to 3.4 births per woman in 1993.

The judgment also cited China’s ‘carrot and stick’ policy of providing incentives in education and employment to couples who followed the “one-child norm” and taking penal action against those not adhering to the policy.

The court also mentioned that family-planning campaigns in Pakistan involve a two-fold process of raising the demand for contraception use and reducing the unmet need for contraception. The foremost task, the court opines, should be the meeting of demand of contraceptives and making them accessible to people while increasing awareness about the need of contraceptives. Moreover, the best global practices in family planning must be adopted, including modern methods and the contraceptive mix method that has been effective in many countries.

The court has made the recommendations of the taskforce part of the judgment with different timelines. These pertain to establishing national and provincial taskforces, increasing contraceptive prevalence by ensuring universal access to them; ensuring contraceptive security; making family planning part of the curriculum, and gaining the support of religious leaders on the matter.

Some of the major tasks include establishing a five-year fund, with an annual allocation of Rs10 billion at the federal level, that can be used to make pre-marital counselling on family planning mandatory for nikkah registration; introducing legislation against child marriage; incentivising local contraceptive production; and universalising family-planning services.

The judgment coincides with the release of the findings of Pakistan Demographic and Health Survey (PDHS). The finding says: “The use of contraceptive methods has remained stagnant over the past five years…an earlier rise in the use of contraceptive methods was witnessed between 2006-07 and 2012-13, mostly attributed to an increase in the use of traditional methods from four percent to nine percent”.

Contraceptive methods are classified as either modern or traditional. Modern methods include female and male sterilisation, the intrauterine contraceptive device (IUD), implants, injectables, the pill, condoms, and lactational amenorrhea method (LAM).

The challenge is to increase the use of modern methods that are more reliable. It will be quite intriguing to see if the SC’s judgment will result in an increased contraceptive prevalence rate in the next PDHS, which will be conducted in 2024.

The writer is a freelance